It must be noted that the Allahabad High Court in a most remarkable, robust, rational and recent judgment titled Diwakar Singh vs State of UP in matters under Article 227 Writ No. 5914 of 2023 and cited in Neutral Citation No.: 2024:AHC:4001 that was reserved on 7.12.2023 and then finally pronounced on 09.01.2024 has dismissed a petition challenging the order of a Judicial Magistrate who had declined an accused's request for permission under Section 243 CrPC to summon defence witnesses. It was made clear by the Court that a Magistrate cannot compel the attendance of witness who has already been cross examined unless satisfied that it is necessary for the ends of justice.

It must be mentioned here that a Single Judge Bench comprising of Hon'ble Ms Justice Jyotsna Sharma observed that, "It can fairly be inferred that the defence has not been able to demonstrate that how and why examination of these witnesses is important for his defence and that why and how their evidence may prove helpful to disprove the prosecution case or to prove his innocence or even to create cracks or doubts in the prosecution story."

At the very outset, this learned, laudable, landmark and latest judgment authored by the Single Judge Bench comprising of Hon'ble Ms Justice Jyotsna Sharma of Allahabad High Court sets the ball in motion by first and foremost putting forth in para 1 that, "Heard Sri Utkarsh Birla, learned counsel for the petitioner and Sri Ram Kumar Verma, learned AGA for the State."

As we see, the Bench then observes in para 2 that:
"This petition under Article 227 of the Constitution has been filed by the petitioner-Diwakar Singh with a prayer to set aside the order dated 18.01.2023 passed by the Judicial Magistrate, Court no. 5, Varanasi in criminal case no. 3272 of 2019, by which the applications dated 19.07.2021 and 02.08.2021 were rejected, with a further prayer to issue an appropriate direction to the Judicial Magistrate/ the court concerned to comply with the interim order passed by this court in criminal misc. petition no. 2160 of 2023 dated 27.04.2023."

To put things in perspective, the Bench then envisages in para 3 that, "Relevant facts are as below:-

1. The petitioner Diwakar Singh was posted as Sub-Inspector of police and he lodged an FIR, case crime no. 444 of 2000 under sections 307 and 392 IPC and section 3 of FEMA Act against Durga Prasad Agarwal and few others;
2. The police investigated the matter and filed a chargesheet, not against the persons named therein but against the petitioner the first informant Diwakar Singh himself, under sections 392, 218, 467, 468, 120-B IPC on 25.07.2003, stating therein that Sub-Inspector Diwakar Singh, with his unknown associates hatched a conspiracy showing a fake incident of loot and he also prepared false papers to show a false incident as genuine one. Durga Prasad Agarwal and number of others were made witness against Sub-Inspector Diwakar Singh;
3. During the course of proceedings of the trial, the accused Diwakar Singh moved an application on 13.10.2020, requesting the trial court concerned to summon the files of departmental proceedings and to summon/direct the police officers to remain present on the dates of hearing;
4. The trial court wrote a letter dated 20.10.2020 to Additional Director General of Police, Anti-Corruption for production of original record. The department concerned sent the original record by a covering letter dated 29.10.2020;
5. The prosecution examined its witnesses and the prosecution evidence stood closed on 04.05.2021. Thereafter the statement the accused were recorded under section 313 Cr.P.C.;
6. At the stage of defence evidence, the accused moved an application dated 19.07.2021 with following prayers:-
   • …….to pass order directing the prosecution to provide copy of DFR dated 05.06.2022, Interrogation Report dated 15.09.2000 and Statements of PW-5 Shri Shashank Agrawal and PW-6 Shri Durga Prasad Agrawal which were recorded by the SIT, summon the case property Rs. 2,47,500/- and re-call PW-1 Shri Babu Chand and PW-6 Shri Durga Prasad Agrawal and summon Shri Bua Singh (Retd. DGP) and Shri Atul (Retd. DGP) as defense witnesses to meet the ends of justice.
7. He moved another application dated 02.08.2021 with following prayer:
   "………. to pass order directing to the prosecution to re-call the PW-1 Shri Babu Chand and PW-6 Shri Durga Prasad Agrawal. It is further prayed that Shri Bua Singh (Retd. DGP), Shri Atul (Retd. DGP) and Shri Vijay Kumar Agrawal (Retd. IGP) may also be summoned as defense witnesses for verifying letters, approval orders and DFRs and exhibiting them as Exhibit-Kha to meet the ends of justice."
8. The learned Magistrate dismissed his both the applications (dated 19.07.2021 and 02.08.2021) by a detailed order passed on 16.09.2021;
9. The accused preferred a criminal revision no. 242 of 2021. The revisional court partly allowed the revision and passed an order on 26.04.2022
10. The order dated 26.04.2022 of revisional court was challenged in misc. petition no. 3972 of 2022 before the High Court, which is still pending;
11. During the pendency of aforesaid misc. petition, the trial court proceeded and passed a fresh order dated 20.09.2022 allowing the applications of the accused dated 19.07.2021 and 02.08.2021 to the extent that Bua Singh (Retd. DGP), Atul (Retd. DGP) and Vijay Kumar Agrawal (Retd. IGP) may be produced as defence witnesses. This order dated 20.09.2022 was passed in the light of the order of the revisional court dated 26.04.2022 and the case was posted for defence evidence;
12. This order passed by the trial court for summoning the defence witness, was challenged in criminal revision no. 393 of 2022 by the State, which was decided by order dated 22.12.2022 by the District Judge, Varanasi. By this order, the revision was allowed and the order of summoning the police officers, as defence witnesses was set-aside and the trial court was directed to pass a fresh order, mentioning therein the reasons and the grounds for summoning those persons as defence witnesses;
13. In the light of the aforesaid order of the revisional court, the Judicial Magistrate, Court no. 5, Varanasi passed a fresh order dated 18.01.2023 and the applications dated 19.07.2021 and 02.08.2021 were rejected by the court concerned, on the basis of discussions and reasons disclosed in the order;
14. The aforesaid order dated 18.01.2023 is now under challenge in this petition.

Do note, the Bench notes in para 6 that, "The matter has gone into several rounds of litigation. In the first round, the trial court heard the matter of summoning/recall/reexamination of the witness/papers/case property and dismissed the same by an order dated 16.09.2021.

The court of revision partly allowed the same and directed the trial court to re-hear only the matter of summoning three persons as defence witnesses namely, Bua Singh, Atul and Vijay Kumar Agrawal, all retired police officers. The revisional court at the same time affirmed the rest of the order passed by the trial court. The learned trial court, therefore, passed a fresh order on 20.09.2022 and summoned the aforesaid persons, as defence witnesses.

The State started a second round of litigation by filing a criminal revision no. 393 of 2022, which was allowed by order dated 22.12.2022. The trial court was directed to hear the matter again and pass a speaking order, mentioning therein the reasons, in case the trial court found the witnesses fit to be summoned, as defence witnesses, therefore, the trial court passed an order for the third time on 18.01.2023 and this time rejected the prayer for summoning the aforesaid persons, as defence witnesses."

Do also note, the Bench notes in para 9 that, "Now the question which arises is whether the trial court was correct in rejecting the prayer on the grounds that it was made for the purpose of vexation or delay or for defeating the ends of justice. For this purpose, it will be appropriate to reproduce the provisions of section 243 Cr.P.C. as below:

243. Evidence for defence.

1. The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.
    
2. If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such. process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing: Provided that, when the accused has cross-examined or had the opportunity of cross- examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.
    
3. The Magistrate may, before summoning any witness on an application under sub- section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court. B.- Cases instituted otherwise than on police report.

Most significantly, the Bench propounds in para 10 that, "From bare perusal of section 243 Cr.P.C., it occurs that a clear distinction has been maintained between the persons who are sought to be produced by the defence before the court for the first time with the persons who have been already produced as witnesses.

The law provides two kinds of parameters, first one which shall apply to the witnesses for the purpose of fresh examination and the second when some witness who has already been examined and cross-examined or the accused had an opportunity to cross-examine them before he entered on his defence.

The law provides that in the first case ordinarily the Magistrate may issue process unless he considered that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. In the second case (i.e., when a person who has already been cross-examined by the defence or the defence had an opportunity of cross-examining him), the attendance of such witness shall not be compelled unless the Magistrate is satisfied that it is necessary for the ends of justice.

The first part of section 243(2) Cr.P.C. has been worded in a positive manner while the proviso to section 243(2) Cr.P.C which applies in a latter case, has been worded giving only a little scope to the defence. The law imposes obligation on the Magistrate not to compel the attendance of any such witnesses unless it is satisfied that it is necessary for the ends of justice. The aforesaid distinction should be kept in mind while dealing the matter under section 243 Cr.P.C."

On a cautionary note, the Bench notes in para 13 that, "As a matter of caution, I went through all the averments made in the applications as well as in the petition and all the material on record, to find out some good ground the accused may have taken. There are long winding statements and descriptions all weaved together to give a false impression of having a good case, but a discerning judicial eye can see through the web created by a legal mind. Outwardly the contentions are appealing but they do not have any substance. The case laws cannot help when there is no substance in the submissions."

Most forthrightly, the Bench also then clearly directs in para 14 that, "The power under Article 227 of the Constitution of India is definitely supervisory in nature, but it should be exercised sparingly and in appropriate cases, only to prevent miscarriage of justice or flagrant violation of law. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected."

Finally, the Bench concludes by holding in para 15 that, "I do not find any good reason to interfere in the order impugned in exercise of powers under Article 227 of the Constitution of India, hence the petition is dismissed."

All told, we thus see that the Allahabad High Court has made it indubitably clear that the Magistrate cannot compel the attendance of witness who has already been cross-examined unless satisfied that it is necessary for the ends of justice. It is the bounden duty of all the Magistrates to comply with in such cases as directed accordingly. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh