Whether trial Judges have absolute discretion to prune or reject the list of witnesses submitted by the accused?

The above being the position, the decisions in Arivazhagan

or Santhosh Kumar cannot be understood to have held that the trial Judges have absolute discretion to prune or reject the list of witnesses submitted by the accused.

14. Going by the plain meaning of the words in Section 233(3)

and the settled legal position, the trial court is empowered to interfere with only when the court is convinced that the application seeking issuance of summons is submitted for the purpose of vexation or delay or for defeating the ends of justice. In my considered opinion, the petitioner cannot be attributed with any such intention in having filed Annexures A2 and A3 and hence the interference with the list as per

Annexure A5 order cannot be sustained.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

 ANTONY ROSARIO FERNANDO Vs STATE OF KERALA

Coram: V.G.ARUN, J.

CRL.M.C.No. 19 of 2021

Dated this the 18th day of January, 2021

Print Page

Whether evidence of witness can be rejected if he was not summoned through process of court?

In order to prove his case, the plaintiff had examined defendant No. 2 as a witness who admitted to have executed the sale deed in favour of the plaintiff and further admitted to have received the entire amount of sale consideration. The High Court has adversely commented upon the production of defendant No. 2 as a witness by saying as under:

Next witness examined by the plaintiff was defendant No. 2. The plaintiff, while examining this witness, has not incorporated the name of this witness in the list of witness nor any application was made for the examination of defendant No. 2. The willingness of the defendant No. 2 was also not placed on record, to appear as a witness for the plaintiff.

28. This is wholly an erroneous view.

29. Summoning and attendance of witnesses has been provided for in Order 16 of the CPC. Order 16 Rule 1 which speaks of list of witnesses and summons to witnesses provides as under:

Rule 1. List of witnesses and summons to witnesses.

(1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summons to such persons for their attendance in Court.

(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned.

(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in Sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.

(4) Subject to the provisions of Sub-rule (2), summons referred to in this rule may be obtained by parties on an application to the Court or to such officer as may be appointed by the Court in this behalf.

30. Rule 1A which allows production of witnesses without summons provides as under:

Rule 1A. Production of witnesses without summons.

Subject to the provisions of Sub-rule (3) of Rule 1, any party to the suit may, without applying for summons under Rule (1), bring any witness to give evidence or to produce documents.

31. These two Rules read together clearly indicate that it is open to a party to summon the witnesses to the Court or may, without applying for summons, bring the witnesses to give evidence or to produce documents. Sub-rule (3) of Rule 1 provides that although the name of a witness may not find place in the list of witnesses filed by a party in the Court, it may allow the party to produce a witness though he may not have been summoned through the Court. Rule 1A which was introduced by the CPC (Amendment) Act, 1976 with effect from 1.2.1977 has placed the matter beyond doubt by providing in clear and specific terms that any party to the suit may bring any witness to give evidence or to produce documents. Since this Rule is subject to the provisions of Sub-rule (3) of Rule 1, all that can be contended is that before proceeding to examine any witness who might have been brought by a party for that purpose, the leave of the Court may be necessary but this by itself will not mean that Rule 1A was in derogation of Sub-rule (3) of Rule 1. The whole position was explained by this Court in Mange Ram v. Brij Mohan and Ors. , in which it was held that Sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations. It was held:

There is no inner contradiction between Sub-rule (1) of Rule 1 and Rule 1A of Order XVI. Sub-rule (3) of Rule 1 of Order XVI confers a wider jurisdiction on the Court to cater to a situation where the party has failed to name the witness in the list and yet the party is unable to produce him or her on his own under Rule 1A and in such a situation the party of necessity has to seek the assistance of the Court under Sub-rule (3) to procure the presence of the witness and the Court may if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under Sub-rule (1) of Rule 1, the Court may still extend its assistance for procuring the presence of such a witness by issuing a summons through the Court or otherwise which ordinarily the Court would not extend for procuring the attendance of a witness whose name is not shown in the list. Therefore, Sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations.

32. In view of the above, even though the name of defendant No. 2 was not mentioned in the list of witnesses furnished by the plaintiff, he was properly examined as a witness and his testimony was not open to any criticism on the ground that he was produced as a witness without being summoned through the Court and without his name being mentioned in the list of witnesses.

Supreme Court of India

Vidhyadhar vs Manikrao & Anr. on 17 March, 1999

Equivalent citations: AIR 1999 SC 1441, 1999 (3) ALT 1 SC, JT 1999 (2) SC 183

Print Page

How to use statement U/S 164 of CRPC and S 27 of Evidence Act?

The practice of omnibus marking of Section 164 statement of witness deserves to be deprecated. The relevant portion of such prior statements of living persons used for contradiction or corroboration Under Section 145/157 of the Evidence Act deserves to be marked separately and specifically.

 The practice of whole sale marking of confession statement of Accused persons for introduction of the relevant statement admissible Under Section 27 of Evidence Act deserves to be deprecated. Ideally the admissible portion and that portion alone, must be extracted in the recovery memos (Mahazar or Panch-different nomenclature used in different parts of the land) within inverted commas. Otherwise the relevant portion alone written separately must be proved by the Investigating Officer. Back door access to inadmissible evidence by marking the entire confession statement in the attempt to prove the admissible portion Under Section 27 of Evidence Act should be strictly avoided.

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

Print Page

Whether Magistrate can issue process against accused even though no list of witnesses is filed?

The provisions of Sub-section (2) of Section 204 of the Code are mandatory in the sense, a process issued before filing the list of witnesses would be invalid. This sub-section is coached in a negative language and it goes to the power of the Magistrate to issue summons or warrants, as the case may be. Having regard to the wordings of Sub-section (2) of Section 204 of the Code, it is clear that the filing of the list of prosecution witnesses is essential unless the complainant is the only witness in the case and that alongwith summons or warrant issued under Sub-section (1) ofSection 200 of the Code, a copy of the complaint ought to be sent to the accused. It is, therefore, not competent for a Magistrate to issue process without complying with these mandatory provisions (See Chaturbhuj v. Nahar Khan AIR 1958 MP 28 : (1958 Cri LJ 50) : However, if the requirements of the offence alleged Under Section 406, I.P.C. satisfied (Sic) the Court by the statement of the complainant itself, being the only witness, the trial Court may, in the circumstances of the case, issue process against the accused persons even without furnishing any list of witnesses.

Madhya Pradesh High Court

Bairo Prasad And Anr. vs Smt. Laxmibai Pateria on 27 February, 1991

Equivalent citations: 1991 CriLJ 2535

Bench: B Lal

Print Page