Denial Of Accused's Witness Summoning Application Not Interlocutory: Revision Aaplication Allowed

CAUSE TITLE:

Sri Arjun Debbarma v The State of Tripura

DATE OF ORDER:

28 May 2024

JUDGE(S):

Hon’ble MR. Justice Biswajit Palit

PARTIES:

Petitioner: Sri Arjun Debbarma

Respondent: The State of Tripura

SUBJECT: 

The High Court of Tripura addresses a revision petition filed by the accused, seeking the issuance if summons upon two defense witnesses whose name were not mentioned in the list earlier. Additionally, the affidavit of one witness was deemed irrelevant. The petitioner argues stating that under sections 243 and 233 of CrPC, the accused person has right to produce every evidence and has right to request for issuing summons upon witnesses for a fair defense. After considering relevant legal precedents, the court grants revision petition and emphasizes upon accused person’s right to fair trial.

IMPORTANT PROVISIONS: 

Article 21- It states that no person shall be deprived of his life or personal liberty except according to procedure established by law

Section 397 of CrPC- This section delves into the powers of revision of a High Court or a Session Court.

Section 233 of CrPC- This section deals with the entering upon defense. It states that an accused person, if not acquitted, shall have the right to adduce evidence in support of his defense. 

Section 243 of CrPC- This section deals with the evidence for defense. It states that the accused shall be called upon his defense and produce evidence and if he puts any written statement, it shall be filed by the magistrate with the record.

BRIEF FACTS:

1. With reference to the case no. S.T. No.26 of 2021, the learned counsels of accused persons; Arjun Debbarma, Chandulal Debbarma and Kanan Debbarma has filed a petition with a request for issuing summons upon two defense witnesses; Sri Swapan Majumder and Sri Rajib Ghosh. 
2. Ld. Special PP raises objection stating that the affidavit of Birmanik Murashing, notarised before the NOTARY Swapan Majumder is not relevant to the case.
3. The list of DWs which was provided by the defense side has nowhere mentioned the names of Swapan Majumder and Rajib Ghosh. Thus, the court has rejected the prayer for issuing summons upon Sri Swapan Majumder and Sri Rajib Ghosh and closed the DWs.
4. A revision petition is filed before the Hon'ble High Court of Tripura (hereinafter referred to as the ‘High Court’ or ‘the Court’.

QUESTIONS RAISED:

Whether the revision petition is maintainable, and the Court should issue summons upon Sri Swapan Majumder and Sri Rajib Ghosh?

ARGUMENTS ADVANCED BY THE APPELLANT:

1. The Learned Counsel Mr. Banerjee submits before the court that a petition was submitted on 07.03.2024 putting forth a prayer for issuing summons upon two witnesses namely Swapan Majumder and Rajib Ghosh. He states that their examination is crucial for supporting the accused defense and for the just adjudication of the case, but the Learned court by order dated 07.03.2024 has dismissed the said petition.
2. The petitioner submits that under Section 243 of CrPC, the accused can request the court to issues summon upon a witness to attend examination and cross-examination and the summon must be issued by the court unless it is believed that the request aims at delaying and obstructing the justice. Additionally, the reason for rejecting such a request must be clarified in writing.
3. The petitioner further submits that section 233 of CrPC states that if the accused is not acquitted, he has the right to adduce any evidence in his support thereof. Any written statement made by the accused shall be filed by the judge with the record. Application by the accused regarding the issue of any process to compel attendance of a witness and produce any document shall be entertained by the judge unless it is believed that the aim of the application is to drag the judicial process.
4. The Learned Counsel cites the case of Kalyani Baskar v. M.S. Sampoornam [Kalyani Baskar v. M.S. Sampoornam 2007 2 SCC 258] where the Hon’ble Supreme Court states that denying the accused to present his evidence will deprive him of justice.
5. The Learned Counsel also referred to the case of T. Nagappa v. Y.R. Muralidhar [T. Nagappa v. Y.R. Muralidhar 2008 5SCC 633] where the Hon’ble Supreme Court had emphasized upon the right to defense which is enshrined in Article 21 of the Constitution of India.
6. Further, arguing about the interlocutory application, the Learned Counsel referred to the case of Amar Nath v. State of Haryana [Amar Nath v. State of Haryana AIR 1977 SC 2185] wherein Hon’ble Supreme Court elucidated the term “interlocutory order” Mentioned in section 397(2) of CrPC and stated that it refers to the orders which are of temporary nature and do not affect the rights and liabilities of the parties whereas the orders which affect the rights and liabilities affecting the trial are not interlocutory orders and can be revised by the High Court. Orders such as summoning a witness, granting bail and adjourning cases substantially affecting the accused person’s rights can be revised by the High Court.
7. Referring to the aforementioned citations, the petitioner submits that by the order dated 07.03.2024, the lower court denied the accused to adduce further evidence which had substantially affected his right to defend himself. Therefore, the order is not an interlocutory order and is subject to revision by the High Court.

ARGUMENTS ADVANCED BY THE RESPONDENT:

1. The Learned Counsel Mr. Datta, appearing on the behalf of the state-respondent urges for the dismissal of the present petition stating that it is not maintainable as it has challenged the interlocutory order which is not subject to revision in accordance with Section 397 of Cr.P.C. He further submits that the names of these witnesses were not mentioned in the list filed dated 24.01.2024 and states that the petitioner is trying to drag the proceeding by filing this revision petition. He urged for the dismissal of the petition along with huge costs.
2. He further contends that the order which is challenged by the petitioner is an interlocutory order under section 397(2) of CrPC which is restrained from being revised. He referred to the case of Sethuraman v. Rajamanickam [Sethuraman v. Rajamanickam 2009 5 SCC 153] wherein an application was filed to produce documents and recall a witness, but the Hon’ble Supreme Court considered it an interlocutory order which could not be revised.
3. He further, referring to the case of Girish Kumar Suneja v. Central Bureau of Investigation [Girish Kumar Suneja v. Central Bureau of Investigation 2017 14 SCC 809], contends that revision jurisdiction is only a discretionary power of the court. It is not a right of the litigant.
4. The respondent submits that in the light of the abovementioned citations, the order dated 07.03.2024 is an interlocutory order and there is no scope for revision and prays for the dismissal of the petition with costs.

ANALYSIS BY THE COURT: 

1. The judge meticulously notes the argument of both the sides, goes through the relevant provision of Section 397 of CrPC, considers the precedents of the Hon’ble Supreme Court and peruses the order dated 07.03.2024.
2. He states that the order dated 07.03.2024 is not an interlocutory order but it is a final order which had affected the right of the accused to present further evidence in his defense.
3. Despite the accused failure to provide names of Sri Swapan Majumder and Sri Rajib Ghosh in the list of witnesses, their examination and cross examination is deemed necessary for proper adjudication.
4. The court grants a revision petition with the condition that an amount of Rs 10,000 be paid to the trial court by the accused petitioner and then the amount shall be deposited in the treasury by the court.
5. The court directs the Trial Court to summon Sri Swapan Majumder and Sri Rajib Ghosh after the payment.
6. The court states that only one chance will be given to summon the witnesses and the entire cost will be borne by the accused petitioner. 
7. Additionally, the Trial Court is directed to dispose of the case within a period of two months.

CONCLUSION:

The High Court of Tripura has affirmed the accused person’s right to defend himself by passing a significant judgement regarding revision petition. It has concluded that any order regarding summoning of witnesses which affects the accused person’s right is not an interlocutory order, thus subject to revision to ensure just and fair adjudication.