Summoning of defence witnesses under Section 256 BNSS can only be refused by recording findings of vexation or delay.

In brief

The question

1. Whether the Trial Court can selectively restrict the number of defence witnesses under Section 256 of the BNSS without recording a finding of vexation or delay.

The court held

The High Court held that the partial rejection of the application was not in accordance with the law because the mandatory statutory conditions for refusal were not met

It also directed

The court allowed the criminal revision and set aside the impugned order dated 13.01.2026 regarding the rejection of the witness application. The application under Section 256 of the BNSS was allowed in full, and the Trial Court was directed to proceed with summoning the listed witnesses

01Facts

The petitioners are facing trial for murder under Section 302 of the IPC in S.T.No.61/2021

¶ 2

Following the conclusion of prosecution evidence and the recording of accused statements under Section 351 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the petitioners moved an application under Section 256 of the BNSS seeking to summon 24 defence witnesses

¶ 2

On 13.01.2026, the Second Additional Sessions Judge, Ganj Basoda, partly rejected the application, limiting the number of witnesses to one per fact to be established

¶ 2, 11

The petitioners challenged this order via a criminal revision

¶ 1

02Issues

i.1. Whether the Trial Court can selectively restrict the number of defence witnesses under Section 256 of the BNSS without recording a finding of vexation or delay.

¶ 7, 11

ii.2. Whether the partial rejection of the application for summoning witnesses violates the accused’s right to a fair trial under Article 21 of the Constitution.

¶ 9, 10

03Law Applied

The court applied Section 256 of the BNSS (corresponding to Section 243(2) of the Cr.P.C.), which mandates that a Judge shall issue process for summoning witnesses unless the application is refused for reasons to be recorded on grounds of vexation, delay, or defeating the ends of justice

¶ 6, 7

The court relied on the precedent of T. Nagappa v. Y.R. Muralidhar (2008) 5 SCC 633, which establishes that the right to adduce evidence is part of the fundamental right to a fair trial under Article 21 of the Constitution and that the court should not ordinarily interfere with the accused's discretion in proving their defence unless the prayer is bona fide

¶ 8, 9, 10

Provisions in the judgment · 8 · Linked ones open on LawLens

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 255 Section 256 Section 351 Section 438 Section 442

Indian Penal Code, 1860 Section 302

Code of Criminal Procedure, 1973 Section 243 Section 313

04Reasoning

The High Court examined the Trial Court’s reasoning and found that the lower court had exceeded its jurisdiction by exercising discretion to "select" witnesses based on perceived sufficiency (limiting evidence to one witness per fact)

¶ 11

Under Section 256 of the BNSS, the Trial Court’s power to refuse a process is strictly contingent upon a written finding that the application is intended for "vexation or delay" or to "defeat the ends of justice"

¶ 7, 10

The High Court noted that the Trial Court failed to record any such finding

¶ 11

By restricting the defence evidence, the Trial Court effectively denied the accused a fair opportunity to rebut the prosecution’s case and prove their innocence

¶ 10, 11

05Holding

The High Court held that the partial rejection of the application was not in accordance with the law because the mandatory statutory conditions for refusal were not met

¶ 11

¶ 12

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