How can I get the court to summon documents or witnesses that support my defence?

Question

There are documents and one witness in someone else's control that would help my defence, but they will not hand them over voluntarily. Can the court compel this? I would like to understand which provision governs this, what it entitles me to, and how long I have before the remedy lapses. I also want to know whether I need a lawyer for this or can do it myself.

MyVakeel Legal Desk · Accepted Answer

In India, the answer to "How can I get the court to summon documents or witnesses that support my defence?" turns on BNSS 2023 s.94, BNSS 2023 s.254 and BNSS 2023 s.180. The points below set out the position and then what to do about it, in the order it should be done.

BNSS s.94 empowers a court or police officer to issue a written order requiring any person to produce a document or thing considered necessary for an investigation, inquiry or trial, and non-compliance can be treated as an offence.

During trial, the accused can apply under s.254 for the court to issue summons to compel the attendance of any witness or the production of any document, and the court must generally grant this unless it finds the request vexatious or intended to delay proceedings.

A summons for production of documents held by a bank, government office or third party is issued in the same manner as a witness summons and directs the custodian to bring the specified record on the given date.

Refusal to comply with a summons issued under s.94 or s.254 without lawful excuse can attract proceedings for non-compliance and, in appropriate cases, issuance of a warrant.

The application to summon a witness or document should identify exactly what fact it is expected to prove, since courts have discretion to refuse requests that are speculative or a fishing expedition.

What to do next: 1) List the specific documents or witnesses needed and what fact each will establish; 2) File a written application before the trial court under s.254 seeking their summons; 3) Follow up with the court to ensure the summons under s.94 is duly served on the custodian; 4) Be ready to explain relevance if the prosecution objects to the request as unnecessary.

If you are unsure whether your facts fall inside BNSS 2023 s.94, that is worth checking with an advocate before you commit to a route, because switching later costs time. You can post the details on the MyVakeel forum for a practising advocate to review, or book a paid consultation with a Bar Council verified lawyer in criminal law.