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  • The Kerala High Court on 25.11.2022 held that a prosecution witness who were chief-examined, cross-examined, and re-examined cannot be compelled to appear before the court as a defense witness under Section 233 (3) CrPC.
  • Section 233(3) of CrPC deals with when the accused applies for the issue of any process compelling the attendance of any witness or production of any document, the Judge shall issue such process unless he contemplates for reasons recorded, that such application shall be rejected on groundsif it purports to delay or defeat justice.
  • Justice A Badharudeen referred to the Supreme Court ruling in State of Madhya Pradesh Vs Badri Yadav where the court observed that the law is clear and unambiguous as to the provisions of Section 233 (3) of CrPC, where it does not imply that one compelling the attendance of prosecution witness who was already examined in chief, cross-examined and re-examined to be examined as a defence witness.
  • The petition was filed by the accused under Section 138 of Negotiable Instruments Act, 1881 which sought to summon and examine the Secretary of Kottur Service Co-operative Bank, who priorly appeared as a prosecution witness to appear as a defense witness before the Special Magistrate Court.
  • The Magistrate and the Sessions Court had dismissed the petition.
  • The petitioner’s counsel during the chief examination submitted the requisite details of only one cheque that was requested from the Secretary.
  • During cross-examination, it was stated that the true nature of the transaction can be explained by producing other cheques too.
  • Subsequently, a recall petition was moved but was dismissed following which the petitioner was seeking to examine the Secretary as a defence witness.
  • The High Court of Kerala observed under Section 233 CrPC that the accused may apply for the issue of any process for compelling attendance of any witness in his defence.
  • It is the discretionary power of the court to summon any person as a witness or recall or reexamine, anyone who has already been examined when such evidence is indispensable to decide the case.
  • The provisions however do not provide for compelling attendance of a prosecution witness who has been examined, cross-examined, and discharged to be brought in as a defence witness.
  • The court thereby rejected the petition.
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