Whether it is necessary for court to see pleadings of both suits to ascertain whether deposition recorded in previous suit is admissible in subsequent suit?

 Just like in a case of the res judicata etc., where the pleadings in the earlier and later to be filed to enable the Court to come to a conclusion that the issue in both the matters are the same, in a case of this nature also that if the Court has to come to a conclusion that the issues involved in both the suits are same/substantially the same and that the parties are same etc. Hence, there is a necessity for the Court to consider the pleadings or other material etc., in both the suits to come to this conclusion. The Court should also be convinced that the party, against whom the deposition is tendered, has had a full opportunity of cross-examining the defendants. For this the entire deposition of the witness must be filed and considered. Lastly, the Court should be convinced that the witness was "incapable" of giving evidence in the subsequent proceedings. The incapacity should not be temporary or momentary as it is when caused by the temporary weakness, illness etc. The Court should be clearly convinced on all these grounds and the party who wishes to file the deposition in the earlier suit should plead and prove these essential elements.

CONCLUSION:

10. In the case on hand the Trial Court did not have any material whatsoever to conclude (a) that the issues involved in both the proceedings are same or substantially the same; (b) that all the parties in the earlier suit had an opportunity of full and complete cross-examination of the witness whose deposition is sought to be marked; (c) that the witness was incapable of giving evidence because of his sickness or for some other similar reasons. As mentioned by this Court earlier, these are all the matters which have to be carefully assessed by the Court and proved by the petitioners. In fact, the affidavit filed in this case in support of the application to receive the deposition states that the witness in intentionally avoiding to give evidence (emphasis supplied), which clearly suggests that witness is conscious of what he is doing and is deliberately avoiding to give replies. In addition to this the counter filed also asserts that due to old age weakness and paralysis the witness was not giving evidence and the counter reiterates that he is not disabled.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

C.R.P. No. 7339 of 2018

Decided On: 23.04.2019

Jakka Srinivasa Rao  Vs. Javvaji Venkata Chalapathi Rao and Ors.

Hon'ble Judges/Coram:

D.V.S.S. Somayajulu, J.

Citation: AIR 2019 AP 18

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Guidelines of Supreme court for recording of evidence by trial court

1. The pernicious practice of the Trial Judge leaving the recording of deposition to the clerk concerned and recording of evidence going on in more than one case in the same Court room, at the same time, under the presence and general supervision of the presiding officer has to be disapproved strongly and discontinued forthwith. A visit to Delhi Trial Courts any day will reveal this sad state of affairs, I am given to understand.

2. The depositions of witnesses must be recorded, in typed format, using computers, in Court, to the dictation of the presiding officers (in English wherever possible) so that readable true copies will be available straightaway and can be issued to both sides on the date of examination itself.

3. The deposition of each witness must be recorded dividing it into separate paragraphs assigning para numbers to facilitate easy reference to specific portions later in the course of arguments and in Judgments.

4. Witnesses/documents/material objects be assigned specific nomenclature and numbers like PWs/DWs/CWs (1 onwards); Ext. P/Ext. D/Ext. C (1 onwards); MOs (1 onwards) etc., so that reference later becomes easy and less time-consuming. Kindly see the Relevant Rules

Kerala Criminal Rules of Practice 1982

"Rule 62-Marking of exhibits.-

(1) Exhibits admitted in evidence shall be marked as follows:

(i) If filed by the prosecution, with capital letter P followed by a numeral P1, P2, P3 etc.

(ii) If filed by defence, with capital letter D followed by a numeral D1, D2, D3 etc.

(iii) If Court exhibits, with capital letter C followed by a numeral C1, C2, C3 etc.

(2) All exhibits marked by several Accused shall be marked consecutively.

(3) All material objects shall be marked in Arabic numbers in continuous series, whether exhibited for the prosecution or the defence or the Court as M.O. 1, M.O. 2, M.O. 3, etc"

Andhra Pradesh Criminal Rules of Practice and Circular Orders, 1990

"Rule 66-How witness shall be referred to Witnesses shall be referred by their names or ranks as P.W.s., or D.W.s., and if the witnesses are not examined, but cited in the chargesheet, they should be referred by their names and not by numbers allotted to them in the charge-sheet."

IN THE SUPREME COURT OF INDIA

Suo Motu Writ (Crl.) No. 1 of 2017

Decided On: 30.03.2017

 In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials

Hon'ble Judges/Coram:

S.A. Bobde and L. Nageswara Rao, JJ.

Citation: 2017 ALLMR(CRI)1747 SC

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Whether non supply of copies of deposition amounts to violation of principles of natural justice in departmental enquiry?

 In the decision of the Apex Court in the case of Saroj Kumar Sinha, cited supra, the question of non-supply of the copies of documents, more particularly the statements of witnesses, was considered. Following the decision of the Apex Court in the cases of Bhagat Ram and Kashinath Dikshita, cited supra, the Court has held as under :

"34. This Court in Kashinath Dikshita v. Union of India, has clearly stated the rationale for the rule requiring supply of copies of the documents, sought to be relied upon by the authorities to prove the charges levelled against a government servant. In that case the enquiry proceedings had been challenged on the ground that non-supply of the statements of the witnesses and copies of the documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as the statements of the witnesses at the preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority."

"35. In considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner this Court observed as follows: (Kashinath Dikshita case, SCC pp. 234-35, para 10) "10. ... When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a  reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the employee concerned prepare his defence, a cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: 'What is the harm in making available the material?' and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself.

On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it." (Emphasis supplied) "36. On an examination of the facts in that case, the submission on behalf of the authority that no prejudice had been caused to the appellant, was rejected, with the following observations: (Kashinath Dikshita case, SCC p.236, para 12) "12. Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he  would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself."

(Emphasis supplied) "37. We are of the considered opinion that the aforesaid observations are fully applicable in the facts and circumstances of the case. Non-disclosure of documents having a potential to cause prejudice to a government servant in the enquiry proceedings would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into against the government servant."

Bombay High Court

Vijaysingh S/O Bhaidas Patil vs Shri Dhanorkar Adhunik Gram ... on 1 October, 2015

Bench: Ravi K. Deshpande

Citation: 2016(3) MHLJ 813

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