Isabella Mariam

The High Court of Himachal Pradesh, Single Bench of Justice Virender Singh set aside the trial court’s order that had dismissed the accused’s plea to produce defence evidence under Section 311 of the Code of Criminal Procedure. The Court held that an accused cannot be denied the opportunity to lead defence evidence merely because he had earlier declined to do so during his examination under Section 313 CrPC. It further observed that a trial court should not assess or discuss the merits of a probable defence while considering such an application and directed that the accused be allowed to summon and examine his defence witness upon payment of costs.

The case arose from criminal proceedings initiated by the State of Himachal Pradesh against an accused charged under Sections 435 and 506 of the Indian Penal Code. The police filed a charge sheet under Section 173(2) of the Code of Criminal Procedure, after which the trial court took cognizance and framed charges against the accused. The accused pleaded not guilty, and the prosecution examined thirteen witnesses in support of its case. After closure of the prosecution evidence, the accused’s statement was recorded under Section 313 CrPC, wherein he denied the allegations and declined to lead any defence evidence. The matter was thereafter adjourned for final arguments on multiple occasions.

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Subsequently, the accused moved an application under Section 311 CrPC seeking permission to produce an attendance certificate and to examine the principal of the school where he was employed. The application stated that these materials would establish that he was performing his duties at a different location on the date of the alleged incident. The defence also enclosed information obtained under the Right to Information Act to support this claim.

The prosecution opposed the application, contending that the accused had already been granted sufficient opportunities to adduce defence evidence and had explicitly declined to do so when questioned under Section 313 CrPC. It was further submitted that the application was filed belatedly, long after the stage for leading defence evidence had passed.

The trial court dismissed the application, observing that the document now sought to be produced had not been introduced at the appropriate stage and that witnesses had not been confronted regarding it during trial. It also noted that the complainant’s testimony indicated that the accused could have reached the place of occurrence without difficulty. The accused then filed the present petition challenging this order under Section 528 of the Bharatiya Nagarik Suraksha Sanhita.

Justice Virender Singh examined the record and observed that the accused had obtained information under the Right to Information Act on July 25, 2024, and had moved the application shortly thereafter on September 4, 2024. The Court noted that although the accused had earlier stated that he did not wish to lead defence evidence, the subsequent application could not be dismissed solely on that ground.

The Court recorded: “The prosecution has to stand upon its legs and no benefit can be derived from the weakness of the defence of the accused.” It further stated: “The accused has golden right to remain silent, as well as, to prove/probabilize his defence by leading defence evidence, or from the evidence led by the prosecution.” Justice Singh noted that while the accused had acted negligently by not producing defence evidence earlier, such negligence alone could not deprive him of his right to establish his defence.

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The Court observed: “Whether on the said ground of negligence, the right of the accused to prove/probabilize his defence can be snatched away? The answer is in negative.” The Judge added that since the case had not been decided yet, there was no legal impediment in allowing the accused to produce evidence in his defence. He also stated that the trial court had erred in evaluating the evidentiary value of the proposed defence while deciding the application under Section 311 Cr.P.C. “The learned trial Court, while deciding the application, has discussed the evidentiary value of the probable defence of the accused, which is not permissible under the law, as merits of the case, at this stage, cannot be discussed.”

The judgment stated: “Considering all these facts, the present petition is allowed and the order dated 26.4.2025 passed by the learned trial Court, is ordered to be set aside, subject to costs of Rs. 20,000/-, to be deposited with the Member Secretary, District Legal Services Authority, Mandi, H.P.”

The Court further directed the accused to appear before the trial court on November 3, 2025. It also ordered the accused to submit an application for summoning defence witnesses within seven days. Justice Singh clarified that, “In the eventuality of steps being taken within the prescribed period, the learned trial Court would be at liberty to take even coercive steps to ensure the presence of defence witnesses so summoned.”

Advocates Representing the Parties:

For the Petitioner: Mr. G.R. Palsra, Advocate.
For the Respondent: Mr. Varun Chandel, Additional Advocate General.

Case Title: Kapil Dev v. State of Himachal Pradesh
Case Number: Cr. MMO No. 447 of 2025
Bench: Justice Virender Singh