Vs. State  INSC 117 (8 March 2000)
Thomas & M.B. Shah Thomas J.
the accused a right to examine a myriad of witnesses and has the court any
power to prune down the list of such witnesses? Such a question arose when the
appellant submitted a list of 267 witnesses for the defence when the trial
reached that stage. The trial Court was not disposed to allow him to examine
all the persons mentioned in the list and directed him to limit the number to
the minimum necessary. As the appellant was not willing to reduce the number of
witnesses he approached the High court to help him. But the advantage he got
from the High court was only marginal and it did not satisfy him. Hence, he
filed the Special Leave Petition. After hearing Shri Sushil Kumar, learned
senior counsel for the appellant we felt that the appeal can be disposed of
without the aid of arguments of the respondents and so we did not issue notice
factual background in which the situation reached the above stage is the
following: Appellant and three persons are now being arraigned before the
Special Court at Chennai for facing a charge for the offence under Section
13(1)© of the Prevention of Corruption Act 1988 (for short the PC Act) read
with Section 109 of the Indian Penal Code. Prosecution examined a number of
witnesses by summoning 41 persons. When the case reached the stage envisaged in
Section 243(1) of the Code of Criminal Procedure (for short the Code) he
submitted a list of defence witnesses. As we mentioned earlier the number of
witnesses shown in the list was so much that even a marathon legal proceeding
would not be sufficient to exhaust the entire list.
Special Judge made a scrutiny of the list and dissected the names into four
divisions. The first division consisted of names shown as No. 1 to 8. The
second division consisted of names shown as No. 9 to 117 in the list. The third
division consisted of name figuring in the list as No. 118 to 177. The fourth
division consisted of names of 178 to 267 witnesses.
Special Judge permitted persons shown as Nos. 4 and 8 in the first division to
be examined as he found them alone in the said division as necessary witnesses
and the others were found unnecessary for the purpose of defence plea.
Regarding the second division the Special Judge stated thus:
Nos.9 to 117 have been cited as witnesses to speak about the masonry works,
wood works, painting works etc. Instead of examining the huge number of
witnesses, examination of one or two engineers will be sufficient and it would
save the time also.
the third division learned Special Judge observed that since all of them were
cited only to speak about the agriculture and business income of the accused
the appellant can advisedly confine to ten witnesses in that division.
Regarding the last division in the list learned special judge observed thus:
of witness Nos.178 to 267 have been cited as witnesses to speak about the
loans, gifts, etc. Such a huge list may not be necessary in view of Section 134
of the Indian Evidence Act. However, the accused could examine any 10 witnesses
single judge of the High Court felt that from the first division mentioned
above the appellant can examine witnesses shown as Nos. 6 and 7 also and from
the remaining divisions the appellant can choose ten more persons. The petition
filed in the High Court was disposed of in the following terms:
Special court is directed to permit the petitioner to examine witnesses 1,4 to 7 and also 10 more witnesses in the list of witnesses 118 to
267, in addition to the witnesses already permitted to be examined. The order
of the Special Court is modified as stated above. The
criminal revision case is disposed of accordingly.
Kumar, learned senior counsel contended that once the trial court has proceeded
from the stage envisaged in sub-section (1) of Section 243 and passed over to
the next stage contemplated in sub-section (2) he has no power to sift and
select witnesses from the list submitted by accused. We may record, in fairness
to learned senior counsel, that he candidly conceded that no accused can claim
a right to examine any number of witnesses on the defence side. This was stated
by the learned counsel when we asked him hypothetically- whether the accused
can file a list of ten thousand names as witnesses and ask the court to permit
him to examine all of them.
5(1) of the P.C. Act requires the Special Judge to follow the procedure
prescribed by the court for trial of warrant cases by magistrates. Chapter XIX
of the Code contains the provisions for such trial and Section 243 falls within
the said chapter. (The corresponding provisions in the old Criminal Procedure
Code were sub-sections (8)
to (10) of Section
251-A.) It is not disputed before us that a court has the power to refuse to
summon any person as a witness on any of the three different grounds: (1) If
any witness is cited for the purpose of vexation; (2) If any witness is cited
for causing delay; (3) If any witness is cited for defeating the ends of
justice. In fact Section 243(2) of the Code incorporates such powers of the
present case it was the ground of delay which the Special Judge countenanced as
the ground for pruning down the massive list of witnesses presented by the
doubt the time which would consume for completely examining all the 267
witnesses on the defence side would be unimaginably long if a court is
compelled by law to exhaust such a whopping list in its full swing. The
criminal trial would only limp badly and procrastination would be the
inevitable consequence. Normally no court would mind if the list contains only
a handful of names because the court would not then bother much about the delay
factor. But when the list contains such a crowd of names of witnesses the court
will certainly make a serious exercise to ascertain whether examination of all
those witnesses is necessary in the interest of justice even at the risk of such
Kumar, learned senior counsel first contended that the position envisaged in
Section 243(1) of the Code without the interjection of Section 22 of the P.C
Act has a different perception, and therefore, once the court decided to call
upon the accused to enter on his defence there is no discretion vested with the
trial judge to vivisect the list for the purpose of eliminating certain names therefrom.
In order to understand the said contention we would extract Section 243 in its
virgin form as it is incorporated in the Code.
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.
the accused, after he had 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.
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.
22 of the P.C. Act has amended sub-section (1) of Section 243 of the Code in
its application to the trial of offences under the P.C. Act. When Section
243(1) of the Code is re-read with the aforesaid changes it would run as
accused shall then be required to give in writing at once or within such time
as the court may allow, a list of persons (if any) whom he proposes to examine
as his witnesses and of the documents (if any) on which he proposes to rely,
and he 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.
position of an accused who is involved in a under the P.C. Act is trial more
cumbered than an accused in other cases due to legislative curbs. One of them
is envisaged in Section 22 of the P.C. Act. The court is not obliged to direct
an accused involved under the P.C. Act to enter upon his defence until the Special Court has the occasion to see the list of
his witnesses and also the list of his documents to be adduced in evidence on
the defence side. An accused in other cases has to be called upon to enter on
his defence irrespective of whether he would propose to adduce defence evidence
because it is a choice to be exercised by him only after he is called upon to
enter on his defence. But the accused under P.C. Act need be called upon to
enter on his defence only after the trial judge has occasion to peruse the
names of the witnesses as well as the purpose of examination of each one of
them, and also the nature of the documents which he proposed to adduce as his
this context it would be pertinent to examine the purpose behind it for the
Parliament to make the aforesaid change as for the accused who gets involved in
offences under the P.C. Act. A glance at the short legislative history on this
aspect would reveal the purpose when Section 7-A was introduced in the
erstwhile P.C. Act by Act 40 of 1964. That section is pari materia with Section
22 of P.C.
1988. Section 7-A was intended to be absorbed in the corresponding provision
(Section 251-A) of the old Code whenever the trial was for offences under P.C.
Act of 1947.
must be remembered that Parliament enacted the present Code in the year 1973
and even then the legislature did not incorporate the wording in Section 7-A of
the old P.C. Act of 1947 in Section 243(1) of the Code but allowed that
provision to be read in consonance with the different procedure prescribed for
offences under the erstwhile P.C.
Now in the P.C. Act of 1988 also the legislature retained those alterations as
indicated in Section 22 thereof.
of 1964, through which Section 7A was introduced in the erstwhile P.C. Act, was
passed by the Parliament on the basis of Bill No.67/64. It was mentioned in the
Statement of Objects and Reasons of the said Bill, inter alia, thus:
Committee on Prevention of Corruption was appointed in 1962 to review the
problem of corruption and to suggest measures to combat it. The Committee has
made various suggestions for dealing with the problem and has, inter alia,
recommended certain changes in the law to ensure speedy trial of cases of
bribery, corruption and criminal misconduct, and to make the law otherwise more
Bill is intended to give effect to such of these recommendations that have been
thus noticeable that one of the main objects sought to be achieved through
insertion of Section 7A was speedy trial for cases relating to the problem of
corruption. When we read Section 22 of the PC Act which requires a particular
procedure to be followed relating to the filing of list of witnesses and
documents for the defence, it must be borne in mind that the legislative intent
for the aforesaid change in the procedure is mainly for achieving
expeditiousness of the trial. It is true that the concept of speedy trial must
apply to all trials, but in the trials for offences relating to corruption the
pace must be accelerated with greater momentum due to a variety of reasons.
Parliament expressed grave concern over the rampant ever-growing corruption
among public servants which has been a major cause for the demoralisation of
the society. When corrupt public servants are booked they try to take advantage
of the delay proned procedural trammels of our legal system by keeping the
penal consequences at bay for a considerable time. It was this reality which
impelled the Parliament to chalk out measures to curb procrastinating procedural
clues. Section 22 of the P.C. Act is one of the measures evolved to curtail the
delay in corruption cases.
construction of Section 243(1) of the Code as telescoped by Section 22 of the
PC Act must be consistent with the aforesaid legislative intent.
purpose of furnishing a list of witnesses and documents to the Court before the
accused is called upon to enter on his defence is to afford an occasion to the
court to peruse the list. On such perusal, if the court feels that examination
of at least some of the persons mentioned in the list is quite unnecessary to
prove the defence plea and the time which would be needed for completing the
examination of such witnesses would only result in procrastination, it is the
duty of the court to short list such witnesses. We may also add that if the
court feels that the list is intended only to delay the proceedings, the court
is well within its powers to disallow even the whole of it.
senior counsel made an endeavour to find support to his contention from the
decision of a Constitution Bench of this Court in Ronald Wood Mathams vs. State
of West Bengal [1955 SCR 216]. In that case an accused filed a list of 15
witnesses to be examined for the defence. Though the trial court issued summons
to those witnesses whose summons did not return served, and the court passed an
order that no further process need be issued to those witnesses. The case ended
in conviction of the accused and hence it was contended before the Supreme
Court that the trial of the appellants had been vitiated by reason of the fact
that they had no reasonable opportunity to examine their witnesses and that
their convictions were accordingly bad. The finding of the Supreme Court in
this regard was that it is essential that rules of procedure designed to ensure
justice should be scrupulously followed and courts should be jealous in saying
that there is no breach of them. There is nothing in the decision to help the
appellant to have an interpretation in consonance with his contention.
this case, the High Court as per the impugned order has further enlarged the
number of witnesses to be examined on the defence side. As it is, the appellant
cannot complain now that he did not get the opportunity to adduce his evidence.
At any rate, we do not think it necessary to interfere with the impugned orders
as the pruning exercise undertaken by the trial court and the High Court was
within the limits permitted by law.
we would add after the appellant completes his evidence in accordance with the
permission now granted as per the impugned orders, it is open to the appellant
to convince the trial court that some more persons need be examined in the
interest of justice, if the appellant then thinks that such a course is
necessary. The trial court will then decide whether it is essential for a just
decision of the case to examine more witnesses on the defence side. If the
Court is so satisfied, the Special Judge can permit the appellant to examine
such additional witnesses the examination of whom he considers essential for a
just decision of the case or he can exercise the powers envisaged in Section
311 of the Code in respect of such witnesses. We cannot, at present, oversee
the situation as to how the trial court could then reach such a satisfaction.
we leave it to the trial court to do the needful at the appropriate stage.
the above observations we dispose of the appeal.