Precaution to be taken by court if it permits examination of party after examination of his witness

Under Rule 3A of Order XVIII, it is ordinarily necessary for a party to examine himself first before he examines any other witness on his behalf. A discretion has been conferred on the Court to permit such party to appear as his own witness at a later stage. The words 'at a later stage' would have to be given the ordinary meaning to mean that there is no prohibition for a party to seek such permission even after other witnesses have examined on his behalf. Restricting the application of Rule 3A to situations only where prior permission of the Court is taken by a party for examining himself before other witnesses on his behalf have been examined would amount to reading such restriction in Rule 3A of the Code which has not been provided. It is ultimately for the Court to grant such permission in the facts of the case. There could be a situation as the present case where the plaintiff was unavailable when he was required to lead evidence and after his Power of Attorney holder was examined as his witness, the plaintiff was available for leading his evidence. The Court if it finds it necessary to permit such party to be examined after his other witnesses have been examined can always permit such examination subject to the rider that such examination would not be for the purposes of filling in any lacuna that is sought to be filled in by such subsequent examination. It does not appear from a plain reading of Rule 3A of Order XVIII that only if a party seeks prior permission before any other witness on his behalf has been examined that the Court can consider such request and that the hands of the Court would be tied if such request is made later on. The fact that the power to grant such permission at a later stage by exercising discretion and permitting a party to examine himself as a witness at a later stage is conferred on the Court would imply that such permission could be sought in a given case after other witnesses on his behalf have been examined. The discretion having been conferred on the Court, it goes without saying that such discretion would have to be exercised in a judicious manner in the light of the facts of the case and obviously to prevent any mischief or filling up of any lacuna on the part of such party by examining himself at a later stage. The Court is also empowered to restrict such evidence in a given case as the facts demand. It is therefore not possible to agree with the position that if no application is made under provisions of Order XVIII Rule 3A of the Code seeking permission by the party prior to other witnesses being examined by such party, the opportunity is lost forever. On the other hand, the trial Court in exercise of its discretion can regulate the manner in which as well as the extent to which such party can be permitted to appear as his own witness at a later stage.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 447/2019

Decided On: 08.04.2019

Care Hospitals, Ganga Care Hospitals Limited  Vs. Nilesh

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2019(3) MHLJ 955

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When husband is not entitled to produce Audio CD as additional Evidence in Divorce proceeding?

Careful perusal of the application having been filed by the husband, seeking therein permission to lead additional evidence, clearly suggests that by way of additional evidence husband intended to prove factum with regard to threats extended to him and his family members by the father of the wife, which fact was very much in his knowledge at the time of filing replication. Careful perusal of cross-examination conducted upon the wife witnesses, nowhere reveals that suggestion, if any, was ever put to the wife with regard to existence of audio CD or recording of the conversation qua the meeting held at Shimla. No doubt, wife in his examination-in-chief or cross-examination has admitted the factum with regard to meeting held at Shimla, but there appears to be no attempt on the part of the husband to put a suggestion to wife that during meeting at Shimla he and his family members were threatened and he was in possession of the CD, which omission on the part of the husband certainly compels this Court to agree with Mr. Anuj Nag, learned counsel representing the petitioner-wife that application having been filed by the husband at the time of arguments is an afterthought merely to fill up the lacuna. Husband by way of placing audio CD on record wants to prove misbehave of father of wife and statement given by wife at one point of time, but interestingly, no such suggestion came to be put to her in her cross-examination, rather such suggestion came to be put to RW-2 in her cross-examination i.e. mother of the wife, which in my mind could not be of any help.

8. Leaving everything aside, once pleadings adduced on record by the husband itself suggest that audio CD sought to be produced on record by way of additional evidence was very much in existence before commencement of trial or cross-examination of wife or her family member, learned Court below ought not to have allowed the application having been filed by the husband, seeking therein permission to lead additional evidence that too at the stage of arguments because it would amount to filling up of lacuna.

9. Basic purpose of Rule 17 is to enable the Court to clarify any position or doubt. While exercising power Under Order 18 Rule 17-A CPC, Court may, either suo motu or on the request of any party, recall any witness at any stage in this regard. No doubt, power can be exercised at any stage, 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, however said power cannot be invoked to fill up omission in the evidence already led by a witness.

10. In this regard, reliance is placed upon the judgment rendered by Hon'ble Apex Court in Ram Rati versus Mange Ram(Dead) through legal representatives and others, MANU/SC/0260/2016 : 2016(11) Supreme Court Cases 296, wherein it has been held as under:-

"11. The respondent filed the application under Rule 17 read with Section 151 CPC invoking the inherent powers to 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 such 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."

11. It is quite apparent from the aforesaid exposition of law that though it is discretionary power of Court to allow parties to adduce on record additional evidence at any stage of the trial, but such power is required to be used sparingly so that it is not abused. The Hon'ble Apex Court has specifically held that in case Court decides to invoke this provision, it should see that the trial is not unnecessarily protracted on that ground. In the judgment (supra) Hon'ble Apex Court has held that "no prejudice is caused to either party is also not a permissible ground to invoke Rule 17 and as such, there is no force in the arguments of learned counsel representing the husband that no prejudice would be caused in case order passed by the District Judge is allowed to sustain, rather it would help to ascertain the truth. This Court finds from the record that matter is repeatedly being adjourned on one pretext or the other on the request of learned counsel representing the parties. Hence, this Court having taken note of the fact that since factum with regard to existence of audio CD sought to be adduced on record as additional evidence was very much in the knowledge of the husband before commencement of trial and at the time of leading evidence, has no hesitation to conclude that application filed under Order 18 Rule 17-A CPC is nothing, but an attempt to protract the trial and as such, same deserves to be dismissed.

12. Consequently, in view of the discussion made hereinabove, the present petition is allowed and impugned order dated 17.07.2017, passed by the learned Court below is quashed and set-aside.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMPMO No. 330 of 2017

Decided On: 21.12.2018

 Honey Johar Vs. Ramnik Singh Johar

Hon'ble Judges/Coram:

Sandeep Sharma, J.

Citation: AIR 2019 HP 39

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Principles to be followed by court while deciding application for recalling of witnesses

In Mohanlal Shamji Soni (supra), Supreme
Court has reiterated the same principle after
analyzing Section 540 of the Code of Criminal
Procedure, 1898 as well as Section 311 Cr.P.C.
The Court held:
“The next important question is
whether Section 540 gives the court
carte-blanche drawing no underlying
principle in the exercise of the
extraordinary power and whether the
said Section is unguided, uncontrolled
and uncanalised. Though
Section 540 (Section 311 of the new
Code) is, in the widest possible terms
and calls for no limitation, either with
regard to the stage at which the powers
of the court should be exercised, or
with regard to the manner in which they
should be exercised, that power is
circumscribed by the principle that[30]
underlines Section 540, namely,
evidence to be obtained should appear
to the court essential to a just decision
of the case by getting at the truth by all
lawful means. Therefore, it should be
borne in mind that the aid of the
section should be invoked only with the
object of discovering relevant facts or
obtaining proper proof of such facts for
a just decision of the case and it must
be used judicially and not capriciously
or arbitrarily because any improper or
capricious exercise of the power may
lead to undesirable results. Further it is
incumbent that due care should be
taken by the court while exercising the
power under this section and it should
not be used for filling up the lacuna left
by the prosecution or by the defence or
to the disadvantage of the accused or
to cause serious prejudice to the
defence of the accused or to give an
unfair advantage to the rival side and
further the additional evidence should
not be received as a disguise for a
retrial or to change the nature of the
case against either of the parties.”
“The principle of law that emerges
from the views expressed by this Court
in the above decisions is that the
Criminal Court has ample power to
summon any person as a witness or
recall and re-examine any such person
even if the evidence on both sides is
closed and the jurisdiction of the court
must obviously be dictated by exigency
of the situation, and fair-play and good
sense appear to be the only safe guides
and that only the requirements of
justice command the examination of
any person which would depend on the
facts and circumstances of each case.”[31]
30. In Rajendra Prasad (supra), Supreme Court,
while examining power under Section 311
Cr.P.C. to recall or re-summon a witness,
reiterated the principle that power cannot be
exercised to fill up lacuna in prosecution case.
However, while construing the meaning of the
term “lacuna in prosecution case”, the Court
observed that oversight or mistakes during
conducting of a case cannot be understood as
lacuna and so can be corrected. The Court held:
“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, 1872 by saying that the
Court could not “fill the lacuna in the
prosecution case”. A lacuna in the
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
prone. A corollary of any such latches
or mistakes during the conducting of a
case cannot be understood as a lacuna
which a court cannot fill up.
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 be foreclosed
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.”
Taking into account the fact situation in the
instant case, while accepting the legal
proposition adumbrated in the verdict, in the
considered opinion of this Court, in the backdrop
of facts and circumstances of the instant case,
the judgment cannot render any assistance to
the petitioner.
Reportable
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR


CRL. MISC. (PET.) (CRLMP) NO. 3661 of 2015

Sant Shri Asharamji Bapu V/s. State of Rajasthan

DATED : November 3, 2016
MR. JUSTICE P.K. LOHRA

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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 recall of witness is not permissible to fill up the lacunae in civil litigation?

 In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after cross- examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.

17. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for re-examination-in- chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the Court's discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out.

Supreme Court of India

Vadiraj Naggappa Vernekar (D) Th. ... vs Sharad Chand Prabhakar Gogate on 24 February, 2009

Bench: Altamas Kabir, Cyriac Joseph

Citation:AIR 2009 SC 1604,2009 SAR(CIVIL)403,

2009(5) MHLJ 142

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What constitute lacuna in prosecution case?

In Rajendra Prasad v. Narcotic Cell through its Officer-in-
Charge, Delhi, AIR 1999 SC 2292, this Court considered a similar
issue and held as under:-
“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 be foreclosed
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.” (Emphasis added)

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.709 of 2013
(Arising out of SLP (Crl.) No.3271 of 2013)

Natasha Singh Vs   CBI (State)

Dated;May 8, 2013

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