Court Can Refuse To Summon Defence Witness U/s. 233 CrPC Only If Sought For Vexation Or Delay: Allahabad High Court

The High Court was considering an application filed for setting aside the order passed in a case registered under Sections 302, 342, 506, 34 of the IPC and Sections 25, 27 of the Arms Act.

The Single Bench of Justice Vivek Kumar Singh held, “In my opinion, here the right belongs to the accused and not to the court concerned, in the sense that the court concerned shall ordinarily issue process and can decline to summon the witness only for the reason that the request is made for the purpose of vexation or delay or for defeating the ends of justice. The difference between the powers of the court and the right of the accused is too obvious. Under section 311 Cr.P.C., the power lies in the courts only and under section 233 Cr.P.C., the right lies with the accused and the court's interference is limited. The court can only refuse to issue summons on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice only.”

Advocate Abhinav Gaur represented the Applicant while Government Advocate represented the Opposite Party.

Factual Background

The applicant was not acquitted under Section 232 Cr.P.C. and he moved an application under Section 233 Cr.P.C. (Section 256 of B.N.S.S.) to adduce defence evidence but the same was rejected by the Trial Court. Aggrieved thereby, the applicant approached the High Court.

Arguments

It was the applicant’s case that if the summons are not issued to call the defence witnesses, the applicant-accused would be highly prejudiced in his defence and his valuable right as regard fair trial would stand defeated.

Reasoning

Considering that the application was moved under Section 233 of the Cr.P.C, the Bench explained that as per the provisions of Section 233, if the accused applies for the issue of process for compelling the attendance of witness, the court should issue such process unless it considers, for reasons to be recorded, that such application should be refused on the ground that it was moved for the purpose of vexation or delay or for defeating the ends of justice.

Discussing Section 233 in detail, the Bench opined that this right has been given to the defence to produce its witnesses as part of a fair trial and as part of the legal principle of hearing both sides. The Bench stated, “In my considered opinion, the refusal to examine defence witness can only be made when the accused applies for the issue of process for compelling the attendance of witness for the purpose of vexation or delay or for defeating the ends of justice. However, on none of the aforesaid grounds the application dated 21.4.2025 for examining the defence witness was rejected by the learned trial court vide order dated 2.6.2025.”

The Bench thus termed the order of the Trial Court rejecting the application for examining the defence witness on none of the grounds of vexation, delay or defeating the ends of justice as unsustainable in the eyes of the law.

Allowing the application, the Bench ordered, “In view of the above, the applicant shall move a fresh application before the learned trial court within a period of 15 days from today for issuance of process for compelling attendance of defence witness (mentioned in earlier application dated 21.4.2025) for recording their evidence, which shall be considered/decided by the learned trial court in accordance with law without granting any undue adjournment in the trial to either of the parties.”

Cause Title: Inderpal Singh v. State of U.P. and Another (Neutral Citation: 2026:AHC:99318)

Appearance

Applicant: Advocates Abhinav Gaur, Ankit Shukla, Mohd. Rashid Siddiqui

Opposite Party: Government Advocate

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