Case Background
The case arises from a violent land dispute in village Koreya, Police Station Vijaipur, District Gopalganj.
According to the record, opposite party no. 2 gave a written complaint to the police on 03.12.2021. He alleged that on 02.12.2021 at about 4:30 p.m., he received information that the present petitioner, along with his men, was forcibly ploughing his parental land.
The informant, along with his men who were with him at that time, went to the spot. He found the petitioner and 18 other co-accused persons forming an unlawful assembly, variously armed, and ploughing the disputed land.
When the informant questioned the petitioner about this, it is alleged that, at the instigation of the petitioner, the co-accused persons assaulted the companions of the informant. Several persons were stabbed. The informant’s nephew died on the spot, and a number of other persons received serious injuries.
On this written report, Vijaipur P.S. Case No. 265 of 2021 was registered on 03.12.2021 for offences under Sections 147, 148, 149, 341, 323, 324, 326, 307 and 302 of the Indian Penal Code.
From this police case, five Sessions Trials were initiated. Sessions Trial No. 307 of 2022 and Sessions Trial No. 415 of 2022 were concluded, resulting in conviction of some accused persons. Three Sessions Trials remained pending: Sessions Trial No. 293 of 2023, Sessions Trial No. 585 of 2023 and Sessions Trial No. 116 of 2024.
The present petitioner is an accused in Sessions Trial No. 116 of 2024. That trial reached the stage of defence evidence. At that stage, on 04.08.2025, the petitioner filed an application under Section 233 of the Code of Criminal Procedure, seeking to call two convicts from Sessions Trial No. 307 of 2022 as defence witnesses.
The two convicts named in the application were Prem Kharwar and Rajkumar Kharwar, lodged in Motihari and Gopalganj jails respectively, serving life sentence in connection with Sessions Trial No. 307 of 2022. After hearing both sides, the Additional Sessions Judge-XII, Gopalganj rejected this application by order dated 07.08.2025.
Aggrieved by this order, the petitioner filed Criminal Revision No. 946 of 2025 before the Patna High Court.
What the Court Examined and Decided
The criminal revision was heard by Hon’ble Mr. Justice Arun Kumar Jha. The core question was whether the trial court was wrong in refusing to summon the two convicts as defence witnesses under Section 233 CrPC.
The petitioner’s senior counsel argued that the order of the trial court was both legally unsustainable and factually incorrect. He submitted that the order was mechanical and cryptic.
According to him, the trial court rejected the application only on the ground that it did not disclose how the convicts were acquainted with the facts of the case. He termed this reasoning erroneous because, as per the defence, these convicts had been present during the occurrence itself and had been convicted in a separate Sessions Trial arising from the same police case. Therefore, they were eye-witnesses and competent to be examined on behalf of the defence.
Counsel relied on Section 233(3) CrPC. He pointed out that once an accused applies for issuance of process to compel attendance of a witness or production of any document or thing, the Judge “shall” issue such process unless there are recorded reasons that the application is made for vexation, delay, or defeating the ends of justice.
He argued that in the present case the trial court had not recorded any such finding of vexation, delay, or abuse. Hence, refusal to issue process was contrary to Section 233(3). In his submission, denying the accused the chance to present his defence evidence would violate his right to a fair trial.
Counsel further submitted that fair trial and access to justice are part of the fundamental right under Article 21 of the Constitution of India. Refusal to permit examination of defence witnesses would amount to violation of this right.
To support this, he referred to the Supreme Court judgment in Maneka Gandhi vs. Union of India, AIR 1978 SC 597, which emphasises that the procedure established by law must be fair, just and reasonable, flowing from Article 21.
He also contended that the trial court failed to consider the power under Section 311 CrPC, which enables a court to summon any person as a witness or recall and re-examine any person if the court considers such evidence essential to a just decision of the case.
Finally, he pointed out that the two convicts themselves had filed an application on 18.09.2025 under Section 315 read with Section 311 CrPC in Sessions Trial No. 116 of 2024, expressing willingness to be examined as witnesses. This application was still pending. On all these grounds, he sought setting aside of the trial court’s order.
On the other side, counsel for opposite party no. 2 supported the trial court’s order. He submitted that the application dated 04.08.2025 was filed only to delay the Sessions Trial.
He argued that Section 233 CrPC does not contemplate calling a person who was earlier a co-accused and later a convict in a separate trial as a defence witness. He alleged that the accused persons of Vijaipur P.S. Case No. 265 of 2021 adopted a tactic of allowing different Sessions Trials to proceed separately. Once some co-accused were convicted, the petitioner was trying to use them as defence witnesses to get a favourable verdict.
According to him, these convicts were highly interested witnesses. Despite separation of trials, they ought to be treated as accused of the same case and should not be allowed to appear as defence witnesses under Section 233(3). He argued that the separate application filed by the convicts under Sections 315 and 311 CrPC had no bearing on the present revision. He alleged that the petitioner was filing repeated applications only to delay his inevitable conviction.
He maintained that there was no illegality or infirmity in the impugned order and that the petitioner had not shown any material to interfere with it.
The High Court first reproduced the exact defence petition filed under Section 233 CrPC. The application only stated that the two convicts were lodged in jail in connection with Sessions Trial No. 307 of 2022, that they had been convicted and sentenced to life imprisonment, and that their evidence was “essential for just decision of the case”. No specific reason or ground was mentioned as to how they were acquainted with the facts, what they would depose, or why their evidence was necessary.
On this basis, the Court observed that the trial court had rejected the application because it did not disclose how the convicts were acquainted with the facts of the case. On this limited point, the High Court held that the trial court’s order did not suffer from any infirmity.
The High Court then turned to the legal position under Section 233 CrPC. It quoted the full text of Section 233, which deals with an accused entering upon his defence in a Sessions trial.
The Court noted that when an accused is called on to enter his defence and applies for issuance of process to compel attendance of a witness, the Court must issue such process unless, for recorded reasons, it finds that the application is meant for vexation, delay, or defeating the ends of justice.
The Court acknowledged that this provision exists so that an accused can properly put up his defence. However, it stressed that the facts of this case were “peculiar”. There were 19 accused persons in Vijaipur P.S. Case No. 265 of 2021. From this, five Sessions Trials arose. In two of those trials, some co-accused had already been convicted.
Now, the petitioner wanted those very convicts to depose as defence witnesses in his pending trial. The Court pointed out that, in their own trial, these convicts had not chosen to step into the witness box. If they were now allowed to be examined as defence witnesses in the petitioner’s case, their position would be no different from that of someone who is facing trial together with the petitioner.
The Court clearly held that Section 233 CrPC has not been enacted to allow examination of such persons in defence. If convicts in separate trials arising from the same case are permitted to appear as defence witnesses under Section 233 or its equivalent provision Section 256 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) after their conviction, it would “defeat the ends of justice”.
At the same time, the Court clarified an important point. It stated that a convict in a case arising out of the same police station case number may offer himself as a witness in the separate trial of a co-accused under Section 315 CrPC or Section 353 of BNSS. It noted that, in fact, the convicts had already filed such an application under Section 315 read with Section 311 CrPC before the trial court and that this application was pending consideration.
On an overall assessment, the High Court concluded that the application dated 04.08.2025 filed by the petitioner under Section 233 CrPC was completely devoid of merit. It agreed that, even though the reasoning given by the trial court might not appear very attractive at first sight, the ultimate result, in light of the correct legal position, would remain the same.
Therefore, the High Court held that there was no illegality, infirmity or irregularity in the impugned order. The revision petition was dismissed. However, the Court also directed the trial court to take up the convicts’ application under Section 315 read with Section 311 CrPC and dispose of it at the earliest, strictly in accordance with law.
Why This Judgment Matters
This judgment is important for accused persons facing serious criminal cases, especially in situations where several co-accused are tried separately from the same police case.
The Patna High Court has drawn a clear line: an accused cannot, as a matter of right, call convicted co-accused as defence witnesses under Section 233 CrPC after their own separate conviction in related trials. Allowing this could be used as a strategy to manipulate the trial, delay proceedings, or try to undo the effect of earlier convictions.
At the same time, the Court has not closed the door entirely. It has explained that if a convict genuinely wishes to testify in a co-accused’s trial, the correct route is Section 315 CrPC, read with Section 311 CrPC. Through that route, the trial court can examine whether such testimony is truly necessary for a just decision.
For ordinary readers, the message is that the right to fair trial and to produce defence evidence is strong, but it is not unlimited. Courts will not permit tactics that appear designed mainly to delay proceedings or defeat justice, especially in grave cases like murder arising from group assaults.
Legal Issues and Answers
- Issue: Can an accused, under Section 233 CrPC, compel the court to summon as defence witnesses those co-accused who have already been convicted in separate Sessions Trials from the same police case?
Answer: No. The Patna High Court held that Section 233 CrPC is not meant for examining such convicts as defence witnesses after their separate conviction, as this would defeat the ends of justice. Such convicts may instead seek to appear as witnesses under Section 315 CrPC, to be considered by the trial court on merits. - Issue: Was the trial court’s refusal to summon the two convicts as defence witnesses illegal for not recording that the application was for vexation, delay, or defeating justice?
Answer: No. The High Court found that the defence application was bare and did not disclose how the convicts were acquainted with the facts. In light of the legal position on Section 233 CrPC and the peculiar facts, rejection of the application suffered from no illegality, infirmity, or irregularity.
Cases Cited by the Court
- Maneka Gandhi vs. Union of India, AIR 1978 SC 597 (referred to by the petitioner’s counsel, for the principle that procedure must be fair, just and reasonable under Article 21).
Case Details
Case Number: Criminal Revision No. 946 of 2025, arising out of Vijaipur P.S. Case No. 265 of 2021
Case Title: Jitendra Paswan vs. The State of Bihar & Anr.
Citation: 2026 (1) PLJR 72
Court: High Court of Judicature at Patna
Coram: Hon’ble Mr. Justice Arun Kumar Jha
Date of Judgment: 21.11.2025
Advocates:
- For the petitioner (revisionist/accused): Mr. Ramakant Sharma, Senior Advocate; Mr. Amarjeet Kumar Singh, Advocate
- For the State (respondent no. 1): Md. Shakir Ahmad, A.P.P.
- For opposite party no. 2 (informant): Mr. Satyendra Rai, Advocate
Nature of the Case: Criminal revision challenging an order of the Additional Sessions Judge-XII, Gopalganj in Sessions Trial No. 116 of 2024 rejecting an application under Section 233 CrPC for summoning defence witnesses.
Impugned Order: Order dated 07.08.2025 passed by the Additional Sessions Judge-XII, Gopalganj in Sessions Trial No. 116 of 2024.
Result: Revision dismissed; impugned order affirmed. Trial court directed to decide pending application under Section 315 read with Section 311 CrPC expeditiously in accordance with law.
Link to Judgment: https://patnahighcourt.gov.in/viewjudgment/NyM5NDYjMjAyNSMxI04=—ak1–OenPfTO860=
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