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Supreme Court Of India

(From : 2000 Cri LR (SC and MP) 294)

Hon'ble Judge(s): H. K. Sema, Ar. Lakshmanan , JJ

(A) Criminal P.C. (2 of 1974) , S.233(3), S.311— Penal Code (45 of 1860) , S.193— Compelling attendance of witness by accused - Witness examined as prosecution witness - Cannot be juxtaposed as defence witness and be examined as defence witness on behalf of accused - After long span of time prosecution witnesses filed false affidavit stating that they were coerced and tutored by police - Witnesses liable for perjury. There is no provision in the Code of Criminal Procedure that by filing affidavit the witnesses examined as prosecution witnesses (PWs) could be juxtaposed as defence witnesses (DWs) and be examined as defence witnesses on behalf the accused. Section 233 itself deals with entering upon defence by the accused. The application for recalling and re-examining persons already examined, as provided under Section 311, Cr.P.C., was already rejected. The power to summon any person as a witness or recall and re-examine any person already examined is the discretionary power of the Court in case such evidence appears to it to be essential for a just decision of the case. Under Section 233, Cr.P.C. the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence. The provisions of sub-section (3) of Section 233 cannot be understood as compelling the attendance of any prosecution witne....