The relevant provision for defence witnesses in a trial of warrant cases by Magistrate is contained in Section 243 of the Criminal Procedure Code:
“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.”
As laid down in the above legal provision, the Magistrate has the power to issue any process (such as summons or may even be warrant) for compelling the presence of any witness called by defence, and for this purpose reasonable expenses may be required to be paid by the accused.
Please note that in actual practice, it is generally advisable for the accused to arrange for the presence of his defence witnesses by talking to them, though formal summons may be issued for their presence. If you compel the presence of a defence witness, who is unwilling to attend, by summons or by warrant, such unwilling witness may even spoil the case of defence. Note that defence witness is supposed to help the accused by giving evidence in his support. If you force him to attend against his wishes, instead of supporting the defence, he may rather spoil the case of the accused, either directly or indirectly. It is well known that prosecution witnesses would speak against the accused, but if the defence witnesses also speak against the accused then the case may become difficult to handle. Therefore, you have to be cautious in calling the defence witnesses. Talk to them, request them, and persuade them to give evidence in your support. Whether you should force the defence witnesses? Well, it depends on the nature of evidence sought to be adduced, but generally it is avoidable.
If dasti summons are issued, then you’ll have to get them served on the witnesses being called by you through these summons. Someone may have to personally go and serve the summons. It is not a question of being easy or difficult. If you have no other option then you have to do it.
If court issues process in the form of summons, then the witness concerned may have to attend the court. If needed, the court can also issue warrant to ensure his presence.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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