Whether it is mandatory for Magistrate to examine witnesses before issue process in cheque dishonour case?

 Section 145 of the NI Act provides that evidence of the complainant may be given by him on affidavit, which shall be read in evidence in an inquiry, trial or other proceeding notwithstanding anything contained in the CrPC. The Constitution Bench held that Section 145 has been inserted in the Act, with effect from 2003 with the laudable object of speeding up trials in complaints filed under Section 138. Hence, the Court noted that if the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. Consequently, it was held that Section 202(2) CrPC is inapplicable to complaints under Section 138 in respect of the examination of witnesses on oath. The Court held that the evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses and in suitable cases the Magistrate can examine documents to be satisfied that there are sufficient grounds for proceeding under Section 202.{Para 38}

39. In the present case, the Magistrate has adverted to:
(i) The complaint;
(ii) The affidavit filed by the complainant;
(iii) The evidence as per evidence list and; and
(iv) The submissions of the complainant.

40. The order passed by the Magistrate cannot be held to be invalid as betraying a non-application of mind. 

Supreme Court

JUSTICE Dr. DHANANJAYA Y. CHANDRACHUD JUSTICE A. S. BOPANNA

Sunil Todi & Ors. Vs. State of Gujarat & Anr.

Criminal Appeal No. 1446 of 2021

3rd December 2021

Author: Dr. Dhananjaya Y. Chandrachud, J.

Citation: 2021 ALL SCR (ONLINE) 722

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Whether the court should release the accused on bail on the ground of a change of circumstances on mere examination of aggrieved after the rejection of earlier bail application?

 The documents already taken note by this Court

indicates that there is prima facie material against the

respondent No. 2. Though the appellant herein, i.e., the

wife of the deceased has been examined and a contention

has been put forth with regard to her statement, it is not

the evidence in its entirety and it is premature to

conclude on the basis of a stray sentence. Further,

merely classifying the appellant as the principal star

witness and referring to her statement is of no

consequence since the entire evidence will have to be

assessed by the Sessions Court before arriving at a

conclusion. If that be the position when this Court at an

earlier instance had taken note of all aspects and had

arrived at the conclusion that there is prima facie

material against the respondent No. 2, the mere

examination of the appellant herein cannot be considered

as a change in circumstance for the High Court to

consider the fourth bail application of the respondent No.

2 and enlarge him on bail. {Para 7}

NONREPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 586 OF 2021

Mamta Nair Vs  State of Rajasthan 

Dated: July 12, 2021

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Whether the public prosecutor can refrain from examining any witness if the witness refuses to give testimony for fear of his life?

We find force in the contention of Shri Uniyal that these witnesses were "won over" by the accused, in the sense that they were not prepared to give evidence in the case for fear of their lives, or otherwise. Keshri and Shanker were not concerned in or prosecuted for the murders of Pitam and Megha. They became victims of the wrath of Shanker appellant simply because they were on friendly terms with Basanta and were looking after the latter's defence when he was being tried for the murder of Megha. Naturally, therefore, Hulasi, Bansi etc. would be mortally afraid of giving evidence in court, and of being caught in this vicious chain of murders. We therefore repel the argument that Hulasi etc. were withheld with an oblique motive.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 99 of 1974

Decided On: 29.01.1975

Shanker  Vs.  State of U.P.

Hon'ble Judges/Coram:

R.S. Sarkaria and V.R. Krishna Iyer, JJ.

Citation: (1975) 3 SCC 851, AIR 1975 SC 757, MANU/SC/0207/1975

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Leading Supreme Court judgment on examination of witnesses by public prosecutor in session trial

Next plea is regarding non-examination of certain persons who were stated to be present.

12. In trials before a Court of Session the prosecution "shall be conducted by a Public Prosecutor". Section 226 of the Code of Criminal Procedure, 1973 (for short 'the Code') enjoins on him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for proving the guilt of the accused.

If he knew at that stage itself that certain persons cited by the investigating agency as witnesses might not support the prosecution case he is at liberty to state before the Court that fact. Alternatively, he can wait further and obtain direct information about the version which any particular witness might speak in court.

If that version is not in support of the prosecution case it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for prosecution.

13. When, the case reaches the stage envisaged in Section 231 of the Code the Sessions Judge is obliged "to take all such evidence as may be produced in support of the prosecution". It is clear form the said section that the Public Prosecutor is expected to produce evidence "in support of the prosecution'' and not in derogation of the prosecution case. At the said stage the Public prosecutor would be in a position to take a decision as to which among the persons cited are to be examined. If there are too many witnesses on the same point the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects.

That principle applies when there are too many witnesses cited, if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open to him to inform the Court that he does not propose to examine the remaining persons in that category.

This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but also help the Court considerably in lessening the workload. Time has come to make every effort possible to lessen the workload, particularly these courts crammed with cases, but without impairing the cause of justice.

14. The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutor's duty to the Court may require him to produce, witnesses from the latter category, also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in court about that fact and skip the witness from being examined as a prosecution witness.

It is open to the defence to cite him and examine him as a defence witness.

The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness beforehand to enable him to know well in advance the stand which that particular person would be adopting w hen examined as a witness in court.

15. A four-Judge Bench of this Court had stated the above legal position thirty five years ago in Masalti v. State of U.P. MANU/SC/0074/1964 : [1964]8SCR133 . It is contextually apposite to extract the following observation of the Bench:

"It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses, and if the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the Court".

16. The said decision was followed in Bava Hajee Hamsa v. State of Kerala MANU/SC/0105/1974 : 1974CriLJ755 . In Shivaji Sahabrao Babade v. State of Maharashtra MANU/SC/0167/1973 : 1973CriLJ1783 Krishna Iyer J., speaking for a three-Judge Bench had struck a note of caution that while a Public Prosecutor has the freedom "to pick and choose' witnesses he should be fair to the Court and to the truth. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 713 and 714 of 2003

Decided On: 04.11.2003

 Banti  Vs.  State of Madhya Pradesh

Hon'ble Judges/Coram:

Doraiswamy Raju and Dr. Arijit Pasayat, JJ.

Citation: 2004 (1) SCC 414 , AIR 2004 SC 261,MANU/SC/0864/2003

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Whether the court can examine witnesses again in de novo trial?

But so far as the other option is concerned, while earlier he could resummon the witnesses and recommence the inquiry or trial - which necessarily meant a de novo trial - he can now only resummon a witness who has already been examined for further examination and discharge him after such further examination, cross-examination and re-examination, if any. It is evident therefore that now the Magistrate or Judge can exercise his judicial discretion only for further examination of a witness already examined and not for fresh examination of witnesses for a fresh trial. Obviously, keeping in view the inevitable frequent changes in the office of the Magistrate and Judge and in order to provide a speedy trial the legislature has taken away the well established right of the accused to claim a de novo trial and that of the Court to so direct by express words of the amending statute of 1955. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 34 of 1992

Decided On: 21.03.1995

Ranbir Yadav  Vs.   State of Bihar

Hon'ble Judges/Coram:

Dr. A.S. Anand and M.K. Mukherjee, JJ.

Equivalent citations: 1995 AIR 1219, 1995 SCC (4) 392,JT 1995 (3) 228 1995 SCALE (2)331,MANU/SC/0245/1995

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Whether court can refuse permission to examine witness if witness list is not filed?

Considering the procedure laid down in Order XVI, Rule 1(1)(2) and (3) of Code of Civil Procedure, it is clear that the party desirous of examining any witness has to obtain summons for his attendance in the Court and this exercise has to be done in respect of the witnesses whose names are included in the list submitted by the party. As per Order XVI, Rule 1(3) of the Code of Civil Procedure, the Court may permit the party to call any other witness, provided the party who desires to examine any such witness whose name is not included in the list of witnesses, show sufficient cause for the omission to mention the name of such witness in the said list and the Court has to record reasons for permitting the party to examine the witness whose name is not included in the list submitted as per sub-rule (1) of Rule 1.

5. It is undisputed that in the present case, the petitioner/original plaintiff has no supplied the list of the witnesses. The applications (Exhibits 228 and 229) filed by the petitioner praying for permission to examine the witnesses and for issuance of witness summons do not show any reason to enable the Court to record its reasons for permitting the original plaintiff/petitioner to examine the witnesses or to issue the witness summons. The trial Court has properly considered the matter. Apart from this, the civil suit is of year 1994 and the trial Court has observed that the petitioner/plaintiff is unnecessarily protracting the matter. Be that as it may, the plaintiff has not been able to point out any irregularity in the impugned orders. The only submission made on behalf of the petitioner is that if the petitioner/original plaintiff is not permitted to examine the witnesses named by him in the applications, Exhibits 228 and 229, then it will cause prejudice to him. This submission cannot be accepted in view of the provisions of sub-rules (1), (2) and (3) of Rule 1 of Order XVI of Code of Civil Procedure. Sub-rule (4) of Rule 1 of Order XVI lays down that the summons referred to in this rule may be obtained by the parties on an application to the Court within five days of presenting the list of witnesses under sub-rule (1) as mentioned above.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 4928 of 2013

Decided On: 16.06.2014

Anil Ramesh Bhusari  Vs.  Bhaskar Ramesh Bhusari

Hon'ble Judges/Coram:

Z.A. Haq, J.

Citation: 2015(1) ALLMR 724

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Whether it is mandatory for party to give reasons for examination of particular witness?

The moot question for consideration is that whether the petitioner was under obligation to disclose the importance and relevance of Murarilal Verma as a witness in the application or not.

The question involved in the present petition is no more res integra.

The Supreme Court in the case of Kokkanda B. Poondacha and others vs. K.D. Ganapathi & another reported in (2011) 12 SCC 600 has held as under:-

"18. We may add that if the parties to the litigation are allowed to file the list of witnesses without indicating the purpose for summoning the particular person(s) as witness(es), the unscrupulous litigants may create a situation where the cases may be prolonged for years together. Such litigants may include the name of the advocate representing the other side as a witness and if the court casually accepts the list of witnesses, the other side will be deprived of the services of the advocate. Therefore, it would be a prudent exercise of discretion by the court to insist that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness."

Thus, it is clear that the litigants must indicate briefly the purpose of summoning the particular person as a witness in the application itself. Furthermore, merely because Murarilal Verma had appeared as a witness in a proceeding which is under challenge in the civil suit by itself would not be sufficient to hold that Murarilal Verma is relevant and important witness.

Considering the submissions made by the counsel for the petitioner this Court is of the view that the Trial Court did not commit any jurisdictional error by rejecting the application filed under Order 16 Rule 1 of CPC.

Madhya Pradesh High Court

Anek Singh Tomar vs Dhaniram S/O Shri Bhagchand ... on 15 November, 2018

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Whether court should reject prayer for calling of material witness considering age of case?

Though it is expected that the trial of a sessions case should proceed with reasonable expedition and pendency of such a matter for about 8-9 years is not desirable but then, the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 688 of 2019 

Decided On: 16.04.2019

 Manju Devi Vs. State of Rajasthan and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Dinesh Maheshwari, JJ.

Citation: AIR 2019 SC 1976.

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What are guiding principles for deferral of cross examination of prosecution witnesses?

Section 231(2) of the Code of Criminal Procedure, however, confers a discretion on the Judge to defer the cross-examination of any witness until any other witness or witnesses have been examined, or recall any witness for further cross-examination, in appropriate cases. Judicial discretion has to be exercised in consonance with the statutory framework and context while being aware of reasonably foreseeable consequences.4 The party seeking deferral Under Section 231(2) of the Code of Criminal Procedure must give sufficient reasons to invoke the exercise of discretion by the Judge, and deferral cannot be asserted as a matter of right.

Several High Courts have held that the discretion Under Section 231(2) of the Code of Criminal Procedure should be exercised only in "exceptional circumstances"5, or when "a very strong case"6 has been made out. However, while it is for the parties to decide the order of production and examination of witnesses in accordance with the statutory scheme, a Judge has the latitude to exercise discretion Under Section 231(2) of the Code of Criminal Procedure if sufficient reasons are made out for deviating from the norm.

8. The circumstances in which the High Courts have approved the exercise of discretion to defer cross-examination, so as to avoid prejudice due to disclosure of strategy are:

• Where witnesses were related to each other, and were supposed to depose on the same subject-matter and facts7;

• Where witnesses were supposed to depose about the same set of facts8.

However, the circumstances in which deferral has been refused are:

• where the ground for deferral was the mere existence of a relationship between the witnesses9;

• where specific reasons were not given in support of the claim that prejudice would be caused since the defence strategy would be disclosed10;

• where no prejudice would have been caused11.

9. The Delhi High Court, in Vijay Kumar v. State (Govt. of NCT of Delhi)12, laid down useful directions for the conduct of criminal trials. The directions are commendable, and relevant excerpts are reproduced hereinbelow:

42. ...(vi). Since the expectation of law is that the trial, once it commences, would continue from day-to-day till it is concluded, it is desirable that, keeping in mind the possible time required for recording of evidence (particularly of the prosecution), a detailed Schedule of the dates of hearing on which evidence would be recorded is drawn up immediately after charge is framed - this, taking into account not only the calendar of the court but also the time required by the prosecution to muster and secure the presence of its witnesses as well as the convenience of the defence counsel. Once such a Schedule has been drawn up, all sides would be duty bound to adhere to it scrupulously.

(vii). While drawing up the Schedule of dates for recording of the evidence for the prosecution, as indicated above, the presiding judge would take advice from the prosecution as to the order in which it would like to examine its witnesses, clubbing witnesses pertaining to the same facts or events together, for the same set of dates.

(viii). If the defence intends to invoke the jurisdiction of the criminal court to exercise the discretion for deferment of cross-examination of particular witness(es) in terms of Section 231(2), or Section 242(3) Code of Criminal Procedure, it must inform the presiding judge at the stage of setting the Schedule so that the order in which the witnesses are to be called can be appropriately determined, facilitating short deferment for cross-examination (when necessary) so that the recording of evidence continues, from day-to-day, unhindered avoiding prolonged adjournments as are often seen to be misused to unduly influence or intimidate the witnesses.

(ix). It is the bounden duty of the presiding judge of the criminal court to take appropriate measures, if the situation so demands, to insulate the witnesses from undue influence or intimidatory tactics or harassment. If the court has permitted deferment in terms of Section 231(2), or 242(3) Code of Criminal Procedure, for cross-examination of a particular witness, it would not mean that such cross examination is to be indefinitely postponed or scheduled for too distant a date. The court shall ensure that the deferred cross-examination is carried out in the then on-going Schedule immediately after the witness whose examination ahead of such exercise has been prayed for.

10. There cannot be a straitjacket formula providing for the grounds on which judicial discretion Under Section 231(2) of the Code of Criminal Procedure can be exercised. The exercise of discretion has to take place on a case-to-case basis. The guiding principle for a Judge Under Section 231(2) of the Code of Criminal Procedure is to ascertain whether prejudice would be caused to the party seeking deferral, if the application is dismissed.

11. While deciding an Application Under Section 231(2) of the Code of Criminal Procedure, a balance must be struck between the rights of the Accused, and the prerogative of the prosecution to lead evidence.

The following factors must be kept in consideration:

• possibility of undue influence on witness(es);

• possibility of threats to witness(es);

• possibility that non-deferral would enable subsequent witnesses giving evidence on similar facts to tailor their testimony to circumvent the defence strategy;

• possibility of loss of memory of the witness(es) whose examination-in-chief has been completed;

• occurrence of delay in the trial, and the non-availability of witnesses, if deferral is allowed, in view of Section 309(1) of the Code of Criminal Procedure13.

These factors are illustrative for guiding the exercise of discretion by a Judge Under Section 231(2) of the Code of Criminal Procedure.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1321 of 2018 (Arising out of Special Leave Petition (Crl.) No. 4652 of 2018)

Decided On: 30.10.2018

State of Kerala  Vs.  Rasheed

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Indu Malhotra, JJ.

Citation:AIR 2019 SC 721

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Whether court can rely on commissioner report even if court commissioner is not examined?

 The trial Court in the present case has proceeded to decree the suit essentially relying on the Commissioner's report and on the assumption that the said report has been proved. For assuming that the said report has been proved, the trial Court perhaps took note of the fact that defendant did not raise any objection with reference to the Commissioner's report. Merely because no objection was raised by the defendant to the Commissioner's report that does not mean that the report stands proved on record. There is established procedure known to law by which the Commissioner's report can be proved on evidence. That has not been done in the present case. In such a situation, the trial Court could not have decided the suit on merits. For, in absence of any oral evidence or for that matter evidence by way of affidavit of any party, the issues as framed cannot be decided as having been established one way or the other. In the circumstances, there is palpable and manifest material irregularity committed by the trial Court in the conduct of the trial in the present case. 

IN THE HIGH COURT OF BOMBAY

First Appeal No. 474 of 1988

Decided On: 09.08.2002

Khurshed Banoo Vs. Vasant Mallikarjun Manthalkar

Hon'ble Judges: 

A.M. Khanwilkar, J.

Citation: AIR 2003 Bom 52

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Whether a party can examine himself after examination of his power of attorney?

8. The legislative mandate is that ordinarily where a litigant himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined.

9. The provision confers a discretion to the Court to permit, for reasons to be recorded, the plaintiff to appear as his own witness at a later stage. Implicit in the statutory scheme is the rider that the normal rule may be deviated from only in exceptional circumstances and for reasons recorded which must sustain judicial review.

10. Rule 3-A has been inserted by the Code of Civil Procedure (Amendment) Act, 1976. The Law Commission noted with concern the unhealthy practice which has developed which enabled the party to step into the witness box last to fill in the lacuna, or loopholes which remained in the deposition. Addressing the said issue, the Law Commission in 14thReport observed thus:

In dealing with the question of oral evidence we wish to refer to an undesirable practice which seems to prevail in certain courts. The plaintiff or the defendant upon whom lies the burden of proving certain issues and who has to give evidence in support of his case is not called as witness before the evidence of the other witnesses is recorded. He is called after all his witnesses have been examined. The underlying purpose of this practice appears to be that the plaintiff or the defendant giving evidence at the end may be able to fill in gaps in the evidence given by his witnesses. We strongly deprecate this practice and recommend that it should be stopped.

The parties to a proceeding should be in a position at the commencement of the proceedings to make up their minds whether they wish to give evidence. If they do wish they should be required to enter the witness box before any of their witnesses are examined. We recommend that Rule 2 or Rule 3 of Order XVIII of the Code of Civil Procedure be suitably amended so as to embody such a provision.

13. The legislative object of bringing on statute Rule 3-A is to ensure that a litigant should not be permitted to bide his time and to fill in the lacuna or cover the loopholes after the other witnesses are examined.

14. The order impugned is unsustainable in law for reasons more than one.

15. Firstly, it is difficult to believe that the plaintiff is suffering from various ailments to such an extent that he is not in a position to step into the witness box as the first witness. The material on record, particularly the material placed on record by the defendants, would suggest to the contrary. Moreover, if the plaintiff is not in a position to attend the Court, the appropriate course would have been to move an application seeking examination on commission. It is difficult to appreciate as to how, if the plaintiff is suffering from ailments and is therefore, not in a position to depose as the first witness, would the plaintiff be in a position to do so after his son is examined as the first witness. Be it noted, that the suit is expedited by the Hon'ble Apex Court and the direction is to decide the suit within a year. It would follow, that the plaintiff would have to step into witness box in close proximity of time after his son is examined as the first witness, assuming that the order impugned is upheld. It is not conceivable that the plaintiff, who contends that he is not in a position to attend the Court, would be hale and hearty and in a position to attend the Court within a few days after the examination of his son as the first witness.

16. Secondly, the discretion under Order XVII, Rule 3-A of the Code ought not to be exercised in favour of a litigant who opts to mark time to assess how the power of attorney - son fares in the evidence and then depending on the evidence of the power of attorney - son takes a call on stepping into the witness box, which clearly appears to be the case here.

In the High Court of Bombay(Nagpur Bench)

(Before Rohit B. Deo, J.)

 Sanj Dainik Lokopchar v. Gokulchand Govindlal Sananda,

Writ Petition No. 5124 of 2017

Decided on October 11, 2018

Citation: 2018 SCC OnLine Bom 3336

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Guidelines of supreme court on examination of eye witnesses

 We are also of the view that it is necessary in the interest of justice that the eye-witnesses are examined by the prosecution at the earliest.

12. It is also necessary that the statements of eye-witnesses are got recorded during investigation itself Under Section 164 of the Code of Criminal Procedure In view of amendment to Section 164 Code of Criminal Procedure by the Act No. 5 of 2009, such statement of witnesses should be got recorded by audio-video electronic means.

13. To conclude:

(i) The trial courts must carry out the mandate of Section 309 of the Code of Criminal Procedure as reiterated in judgments of this Court, inter alia, in State of U.P. v. Shambhu Nath Singh and Ors. MANU/SC/0221/2001 : (2001) 4 SCC 667, Mohd. Khalid v. State of W.B. MANU/SC/0722/2002 : (2002)7 SCC 334 and Vinod Kumar v. State of Punjab MANU/SC/0068/2015 : (2015)3 SCC 220.

(ii) The eye-witnesses must be examined by the prosecution as soon as possible.

(iii) Statements of eye-witnesses should invariably be recorded Under Section 164 of the Code of Criminal Procedure as per procedure prescribed thereunder.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2045-2046 of 2017 (Arising out of Special Leave Petition (Crl.) Nos. 8994-8995 of 2015) 

Decided On: 28.11.2017

Doongar Singh and Ors. Vs. The State of Rajasthan

Hon'ble Judges/Coram:

A.K. Goel and U.U. Lalit, JJ.

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Supreme court Guidelines for trial court if the accused is not co-operating in the examination of witnesses

If any court finds that the day-to-day examination of witnesses mandated by the legislature cannot be complied with due to the non-cooperation of the Accused or his counsel the court can adopt any of the measures indicated in the Sub-section i.e. remanding the Accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses, including the expenses to attend the court). Another option is, when the Accused is absent and the witness is present to be examined, the court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the Accused gives an undertaking in writing that he would not dispute his identity as the particular Accused in the case).

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2045-2046 of 2017 (Arising out of Special Leave Petition (Crl.) Nos. 8994-8995 of 2015) 

Decided On: 28.11.2017

Doongar Singh and Ors. Vs. The State of Rajasthan

Hon'ble Judges/Coram:

A.K. Goel and U.U. Lalit, JJ.

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Whether landlord can be non-suited if he fails to examine his son for whose need tenanted premises is required?

In C. Karunkaran (dead) by L.Rs. v. T. Meenakshi1, one issue which arose for consideration was whether non-examination of the person for whose need the building was required was fatal. It was held that "mere non-examination of the person for whose need the building was required by itself was no ground to non-suit the landlady". To quote:

...Mere non-examination of the person for whose need the building was required by itself was no ground to non-suit the landlady. In a number of decisions, [this fact is acknowledged by the first appellate court also], it has been held that it is not necessary to examine the person for whose need the premises are required. It depends on the facts and circumstances of each case....

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1398-1399 of 2011

Decided On: 17.02.2017

Mehmooda Gulshan Vs.Javaid Hussain Mungloo

Hon'ble Judges/Coram:

Kurian Joseph and A.M. Khanwilkar, JJ.

Citation:(2017) 5 SCC 683.

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Whether court can refuse permission to examine witness to prove disputed fact?

The Rent Control Court said that it was not

 satisfied of the competence of the proposed

 witness to prove the disputed fact. That was

 one       reason  why   the   Rent  Control   Court

 dismissed the applications. The sub-tenants

 wanted to examine the witness to prove that

 the      signatures   in  the   disputed   receipts

 belonged to PW1. The sub-tenants chose a

 tenant of the same building to prove the

 disputed signatures. He was chosen perhaps

 he might have received rent receipts signed

 by PW1. The competence of a witness to prove

 a fact is normally a matter to be decided

 after reading his evidence and not before

 his       examination unless his incompetence is

 so patent.



10.Section 67 of the Indian Evidence Act reads

 thus:-



          "If a document is alleged to be signed
          or to have been written wholly or in
          part by a person, the signature or the
          handwriting of so much of the document


          as is alleged to be in that person's
          handwriting must be proved to be in his
          handwriting".




 In view of Section 67 it is obligatory for

 the       sub-tenants    to   prove   the   disputed

 signatures to be the signatures of PW1. They

 only sought an opportunity to prove the

 disputed signatures. Section 67 which deals

 with proof of signature and handwriting does

 not state the manner in which it should be

 proved. It may be proved by any kind of

 evidence. The signature of a person may be

 proved by another person who is acquainted

 with       the  signature   of   the  former.   That

 precisely was what the sub-tenants wanted to

 attempt.       They    should    be   afforded   the

 opportunity. The competence of the witness

 to prove the disputed signatures may be

 assessed after his evidence is recorded. Let

 not it be decided before he goes to the

 witness box.        The evidence need not be shut

 out. We are unable to accept the first


 reason given by the Rent Control Court to

 dismiss Exts P3 to P5 applications.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                 PRESENT:

                              MR.JUSTICE K.T.SANKARAN
                                                      &
                                MR. JUSTICE A.M.BABU

            14TH DAY OF DECEMBER 2016

                                     OP (RC).No. 133 of 2016 (O)
                                      

      PUSHPA JAYAN
              Vs

                    NADEERA AHAMMED
                  

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Basic principles to be followed by court while allowing application for recall of witnesses

The respondent filed the application under Rule 17 read with

Section 151 of the CPC invoking the inherent powers of the court to

make orders for the ends of justice or to prevent abuse of the

process of the court. The basic purpose of Rule 17 is to enable the

court to clarify any position or doubt, and the court may, either suo

motu or on the request of any party, recall any witness at any stage

in that regard. This power can be exercised at any stage of the suit.

No doubt, once the court recalls the witness for the purpose of any

such clarification, the court may permit the parties to assist the

court by examining the witness for the purpose of clarification

required or permitted by the court. The power under Rule 17 cannot

be stretched any further. The said power cannot be invoked to fill up

omission in the evidence already led by a witness. It cannot also be

used for the purpose of filling up a lacuna in the evidence. ‘No

prejudice is caused to either party’ is also not a permissible ground

to invoke Rule 17. No doubt, it is a discretionary power of the court

but to be used only sparingly, and in case, the court decides to

invoke the provision, it should also see that the trial is not

unnecessarily protracted on that ground.

The settled legal position under Order 18 Rule 17 read with

Section 151 of the CPC, being thus very clear, the impugned orders

passed by the trial court as affirmed by the High Court to recall a

witness at the instance of the respondent “for further elaboration on

the left out points”, is wholly impermissible in law.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1684 OF 2016

(Arising from S.L.P. (C) No. 22141 of 2013)

RAM RATI 

V

MANGE RAM 

Dated:February 23, 2016.

Citation:(2016) 11 SCC 296

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When court should permit prosecution to examine witnesses as per S 311 of CRPC?

The very usage of the words such as 'any court', 'at any
stage', or 'of any enquiry, trial or other proceedings', 'any
person' and 'any such person' clearly spells out that this
section is expressed in the widest possible terms and do 
not limit the discretion of the Court in any way. However,
the very width requires a corresponding caution that the
discretionary power should be invoked as the exigencies
of justice require and exercised judicially with
circumspection and consistently with the provisions of the
Code. The second part of the Section does not allow for
any discretion but it binds and compels the Court to take
any of the aforementioned two steps if the fresh evidence
to be obtained is essential to the just decision of the
case."
Identical question was raised in the case of Rajendra
Prasad Vs. Narcotic Cell reported in (1999) 6 SCC 110. There the Court has
said that Section 311 of the Cr.P.C. will not be allowed to be used for
filling up the lacuna left by the prosecution. The Court has held that
lacuna in prosecution must be understood as inherent weakness or a
latent wedge in the matrix of prosecution case. The advantage of it
should normally go to the accused in the trial of the case but an
oversight in the management of the prosecution cannot be treated as
irreparable lacuna an no party in the trial can be foreclosed from
correcting errors. When the proper evidences are not brought on
record due to inadvertence, the court should be magnanimous in
permitting such mistakes to be rectified. It will be relevant to quote
paragraph nos. 7 & 8 of the judgment which reads as follows:-
"7. It is a common experience in criminal courts that
defence counsel would raise objections whenever courts
exercise powers under Section 311 of the Code or under 
Section 165 of the Evidence Act by saying that the Court
could not 'fill the lacuna in the prosecution case'. A
lacuna in prosecution is not to be equated with the fallout
of an oversight committed by a public prosecutor during
trial, either in producing relevant materials or in eliciting
relevant answers from witnesses. The adage 'to err is
human' is the recognition of the possibility of making
mistakes to which humans are proved. A corollary of any
such latches or mistakes during the conducting of a case
cannot be understood as the lacuna which a court cannot
fill up.
8. Lacuna in the prosecution must be understood as the
inherent weakness or a latent wedge in the matrix of the
prosecution case. The advantage of it should normally go
to the accused in the trial of the case, but an over sight in
the management of the prosecution cannot be treated as
irreparable lacuna. No party in a trial can before-closed
from correcting errors. If proper evidence was not
adduced or a relevant material was not brought on record
due to any inadvertence, the court should be
magnanimous in permitting such mistakes to be rectified.
After all, function of the criminal Court is administration
of criminal justice and not to count errors committed by
the parties or to find out and declare who among the
parties performed better.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.3048 of 2016

 Dina Nath Chamar 
V
The State of Bihar.

CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY

Date: 07-03-2017

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When application of plaintiff for summoning of witness should not be allowed?

In   the   instant   case,   as   indicated   above,   the   application   dated
17/08/2004 is bereft of any reason as to why the names of the said two
witnesses whom the Plaintiff wanted to examine were not made part of the list
of witnesses and filed in the Court.  The said application is also bereft of any
reasons as to why the Plaintiff wanted to examine them after his examination
was over.  Since the pre­requisite for permitting examination of the witnesses is
on the basis of the Plaintiff showing sufficient cause. In the absence of Plaintiff
showing sufficient cause in the instant case, as the application is bereft of any
reason, the Plaintiff could not be allowed to examine the witnesses even under
Rule 1­A of Order XVI of the CPC. The Trial Court as can be seen has totally

glossed over the fact that Rule 1­A of Order XVI is controlled by sub­rule 3.  It
is only if  the  Plaintiff  satisfies the court by showing sufficient cause  then
powers can be exercised under Rule 1­A. In the instant case, as indicated
above, the application in question is bereft of any reason and therefore the
Plaintiff cannot be said to have shown sufficient cause and therefore the Trial
Court had erred in allowing the Plaintiff to examine the witnesses by having
recourse to Rule 1­A of Order XVI of the CPC. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3282 OF 2005
 Shri Sanjay Sham Bagade 
v
 Shri Ramesh Hari Madan 
CORAM : R. M. SAVANT, J.
DATE   : 11th November 2013
Citation: 2014 (4) ALLMR 19

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Whether court has no power to decline permission to examine witness?

 However, there is no power vesting with the Court even under the Code of Civil Procedure, 1908 or under the Indian Evidence Act, 1872 to decline permission to examine a witness on the ground that he was present in the Court while recording the evidence of the other witnesses was in progress. The Court is powerless to pass such an 4 EP.1.09 order even in a case where a witness continues to remain in the Court hall notwithstanding the direction of the Court to go out of the Court. In the present case, there was no such direction issued by this Court to the said two witnesses. Therefore, in any case, such a direction as prayed by the learned counsel for the Respondent cannot be issued by this Court. Whether the evidentiary value of the evidence such witnesses is affected by the reason of the witnesses remaining present in the Court during the recording evidence of other witnesses, is a matter which will depend on the facts of the case. The Court can always examine this aspect while appreciating the evidence of such witnesses. 

Bombay High Court

Indur Kartar Chhugani vs Ms. Priya Sunil Dutt on 14 January, 2011

Bench: A.S. Oka

Citation: 2011(4) AIR BOM R 272 

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Whether it is necessary to examine witness to prove certified copy of school records?

 The impugned order shows the Labour Officer of the Corporation having relied upon and produced various documents from the school records of the Petitioner as well as of her siblings in Primary Kanya Shala No. 3 of Panvel Nagar Parishad. These documents include the applications made at the time of the admission to the school for Petitioner and her sisters, the School Leaving Certificates of the Petitioner and her sisters, the admission register given by the Head Mistress of the School, a general register of the pupils of the school from old register indicating the date of birth record of the Petitioner etc. These documents are private documents. They carry no presumption in law. Certified copies of these documents are not admissible in evidence. These documents have to be proved by direct evidence as all private documents are required to be proved. It may be mentioned that the date of birth shown in the application for admission to the school are what the parents of the students state. They are not accompanied by documentary evidence to substantiate such dates of birth as correct. The school record would continue to show, until contrary is shown or proved, the date stated by the parents. The record of the school do not show that these dates have been verified from authenticated public documents such as the birth certificate or the record of birth maintained by the Municipal Authorities. Therefore the copies of the documents of the school cannot be taken as authentic.

13. It is common knowledge that to secure admission in the school earlier than at the age which the law permits, an incorrect date of birth may be shown. Unless verified from public records such date may remain in the record of the school. This cannot be verified except by production of public records. They, therefore, cannot be authentic dates as would make those documents admissible as evidence with probative value in law.

Equivalent Citation : 2008 (5)MhLj 147

IN THE HIGH COURT OF BOMBAY

Civil Writ Petition No. 6962 of 2006

Decided On: 17.04.2008

 Smt. Vasudha Gorakhnath Mandvilkar Vs. The City and Industrial Development Corporation of Maharashtra Ltd.

Hon'ble Judges/Coram:
Ranjana Prakash Desai and R.S. Dalvi, JJ.

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