Legal Provisions of Section 233 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Entering upon defence:
The salutary provision contained in this section casts a duty on the trial Court to call upon the accused person to enter on his defence and adduce evidence which he may have in support of it. Any denial of this right of the accused to lead evidence in support of his defence would vitiate the whole trial.
ADVERTISEMENTS:
This provision of sub-section (1) being mandatory the Kerala High Court set aside the conviction of the accused and remanded a murder case back as the accused was not afforded an opportunity to adduce his defence as required by this section.
In Majid Khan v. State of Karnataka. The Sessions Judge did not actually call upon the accused to enter on his defence as required by sub-section (1) of Section 233, but questioned him whether he had any evidence to lead and the accused replied in the negative, the High Court held that no prejudice could be said to have been caused to the accused and therefore there was no reason to set aside his conviction on the ground of non-compliance of the provisions contained in Section 233 of the Code.
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Sub-section (3) provides that where the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the trial Judge shall issue such process unless he considers, for reasons to be recorded in writing, that any such application deserves to be rejected on the ground that it is made with the ulterior purpose of vexation or delaying the trial. But the Judge, after passing order for recalling of witnesses at the instance of the accused, cannot disallow confrontation of such witnesses by the accused.
ADVERTISEMENTS:
The Supreme Court in State of Madhya Pradesh v. Badri Yadav and another held that where witnesses who have already been examined as prosecution witness after a long span of time when they deposed, filed false affidavit stating that they were coerced and tutored by Police, they cannot be juxtaposed as defence witnesses and be examined as defence witnesses on behalf of the accused. Therefore, he cannot demand compelling the attendance of such witnesses for deposition as defence witnesses invoking provisions of Section 233 (3) of the Code.
In the present case, the witnesses were examined by the prosecution as eye-witnesses on 18 December, 1990, cross-examined and discharged. Thereafter, they were recalled under Section 233 (3) and examined as D.W. 1 and D.W. 2 on behalf of the accused on 17th July, 1995. Held, this was not permissible.
Further it was evidently clear that subsequent statements as defence witnesses were concocted and afterthought. They were either won over or acted under the threat or intimidation from the accused. They were therefore, held liable for perjury and for giving false evidence punishable under Section 193, I.P.C.
As provided in Section 315 (infra) the accused himself is a competent witness and can give evidence on oath in disproof of the charges made against him.