Srinagar: The High Court of Jammu and Kashmir and Ladakh on Friday held that under Section 257 of Criminal Procedure Code, a duty is cast upon a judge/magistrate to issue orders summoning witnesses and evidence if an accused in his/her defence seeks examination of any witness or any document.
The court passed the ruling after hearing a plea of one Ghulam Mohammad Bhat who had been charged under the Prevention of Corruption Act.
The petitioner had challenged the order dated 29 January 2018 passed by the Anti Corruption Court whereby the Special Judge dismissed the application of the accused for obtaining records and evidence for defence.
Justice Sanjay Dhar recorded that since there was an application filed by the petitioner/accused before the trial court praying for summoning of record and the witnesses, it was incumbent upon the trial court to issue the summons and, at best, ask the petitioner to get the summons served upon the witnesses so that their statements could be recorded on the next date.
The court said, “Section 257 of Jammu and Kashmir CrPC is very clear about it while ruling out that 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.”
The court added, “Unless he (magistrate) considers that such application should be refused on the grounds that it is made for the purpose of vexation or delay or for defeating the ends of justice.”
Justice Dhar noted that in the instant case, the trial court instead of following the mandate under 257 CrPC had vide its order dated 19 March 2018 simply directed the petitioner/accused to produce evidence whatever he wishes in defence.
“Obviously, petitioner/accused could not have produced the document in question without the assistance of the Court. Thus, grave prejudice has been caused to the petitioner by the manner in which the trial judge has approached the case,” Justice Dhar recorded.
“Therefore, in order to secure the ends of justice, it is necessary that the petitioner/accused is given an opportunity to produce his evidence in defence,” Justice Dhar ordered.
The court disposed of the instant petition with a direction to the trial court to give opportunity to the petitioner to produce evidence in defence.
“And while doing so, the court shall issue summon for production of the document in question and the witnesses at the expenses of the petitioner/accused who shall take the summons and get the same served upon the relevant witnesses,” the court directed.

NUSRAT SIDIQ