What is the duty of revisional court while scrutinizing the trial court's order refusing to summon defence witnesses?

 We may, however, observe that when the trial Judge assigned reasons in support of his judgment, we are of the opinion that the High Court while exercising its revisional jurisdiction was required to assign reasons as to how and to what extent, if any, it intended to differ with the order of the learned trial Judge. Sub-section (2) of Section 243 confers discretionary jurisdiction upon the learned trial Judge to refuse to summon witnesses at the instance of the defence, inter alia, on the ground that it was made for the purpose of vexation or delay or for defeating the ends of justice. Such an order under Sub-section (2) of Section 243 Code of Criminal Procedure is required to be recorded by the learned Judge in writing. It was so done. Learned Special Judge, as noticed, hereinbefore, considered the matter at some depth. The High Court, therefore, while exercising its revisional jurisdiction Under Section 397 read with 401 of Code of Criminal Procedure was required to assign reasons in support of its conclusions as to how the reasons assigned by the learned trial judge were untenable and/or were otherwise insufficient. {Para 9}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 925 and 926 of 2006

Decided On: 14.12.2006

Central Bureau of Investigation Vs. Tuncay Alankus

Hon'ble Judges/Coram:

S.B. Sinha and Markandey Katju, JJ.

Citation: (2013) 9 SCC 611,MANU/SC/8908/2006.

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

Whether civil court has power to summon witnesses as per S 311 of CRPC While conducting enquiry U/S 340 of CRPC?

Thus in so far as section 340 of Code of Criminal Procedure is concerned, it is not necessary for the Judge to hear other side, but he may hear the applicant. It is not a requirement to hear the person against whom the proceedings are going to be initiated. It is entirely upto the Court to decide whether to initiate the proceedings under section 340 of Code of Criminal Procedure. Thus the proceedings of the application under section 340 of Code of Criminal Procedure are Kangaroo Baby proceedings within the civil trial and still it is of an independent character and therefore, for the purpose of the said inquiry the powers under Code of Criminal Procedure can be enjoyed the Civil Court.

19. Thus, I answer the issue No. 1 in negative. It is not necessary for the Court to give notice to the said person or even to hear that person on this point.

Issue No. 2 is held in affirmative that the Civil Court conducting the inquiry under section 340 of Code of Criminal Procedure has power to call witness and can exercise the power under section 311 of Code of Criminal Procedure.

IN THE HIGH COURT OF BOMBAY

Writ Petition (S.T.) No. 4899 of 2017

Decided On: 17.04.2017

 Union of India and Ors. Vs. Haresh Virumal Milani

Hon'ble Judges/Coram:

Mridula Bhatkar, J.
Citation: 2017(4) MHLJ 441

Print Page

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

Print Page