Summoning of witnesses

Application filed by respondent/complainant for summoning of Investigating Officer as witness was allowed by the Trial Court

Validity

Purpose of S.540, Cr.P.C., empowered the Court to summon, examine, recall and re-examine any person, if his evidence appeared to the Court essential for the just decision of the case

Court could summon any witness at any stage subject to its satisfaction that the evidence would be stepping stone for just decision

First part of the said Section conferred discretion, the second made obligatory recalling of witness if it was essential for the just decision of the case

However, there were some factors which restrained the Court from summoning, recalling or re-examining the witnesses as it should not be meant to fill any lacuna left by any party

In the present case,Investigating Officer was examined as prosecution witness on 28.01.2023 who deposed regarding chalking of FIR but he failed to mention the proceedings and outcome of the two days of investigation in his examination in chief

Said witness remained Investigating Officer during the initial two days of investigation

Admittedly,said witness was initial Investigating Officer of the case, who registered the FIR and also conducted initial investigation including spot inspection; got examined the victim through Medico Legal Officer, arrested one accused and conducted his medical etc.

Documents prepared by said witness during investigation were part of investigation and were already annexed with the report filed under S.173, Cr.P.C. therefore, re-summoning of said witness would bring nothing new on record on the part of the prosecution and documents prepared by him were not newly introduced documents and it did not amount to fulfilling any lacuna on behalf of the prosecution to summon said witness for exhibiting the documents prepared by him

Re-summoning of said witness would also not cause any prejudice to the accused, rather it would be essential to meet the ends of justice

In the instant case the documents prepared by Investigating Officer, during the investigation, were part of the investigation and already annexed with the report under S.173, Cr.P.C., hence it was held that re-examination of Investigating Officer would not amount to fill up the lacunas of the prosecution case and re-summoning of said witness was essential for meeting the ends of justice and just decision of case, as duty of the Court was to do complete justice

Criminal revision petition was dismissed, in circumstances.

After completing the evidence of prosecution and statement of accused recorded under S.342, Cr.P.C, the prosecution filed an application for verification of the appointment orders of the applicant as teacher from Education Department

Such application was allowed being not opposed by applicant

Pursuant to it, a report was submitted by the Directorate of Schools Education (Primary)

According to that report, the appointment order of applicant was alleged to be fabricated

Applicant filed a similar application for production and verification of his appointment orders from the appointing authority, which was allowed

Pursuant to that order, a report was submitted on behalf of Secretary to Government, which report alleged that the appointment of the applicant for the post of Primary School Teacher was genuine whereas his appointment as High School Teacher was fake

In that backdrop, the applicant moved present application for summoning certain witnesses through Court, which was dismissed by the trial Court

Validity

Need to summon and examine new witnesses arose for the applicant when the trial Court initially granted the prosecution's application and subsequently approved the applicant's request for verification of the applicant's appointment order

Such process resulted in the submission of two separate, yet contradictory, verification reports

In the wake of that development, the applicant moved the Application under S.540, Cr.P.C, for summoning witnesses

Salutary principle of criminal judicial proceedings is to uncover the truth and to reach a just conclusion, ensuring that an innocent individual is not punished due to technicalities, whether on his part or on the part of the court

Further, the criminal justice system is inquisitorial rather than adversarial

Thus, it falls upon the Court to arrive at a just decision in the case

Any evidence deemed essential for that purpose must be presented, though it remains open to challenge regarding its truthfulness through cross-examination

Perusal of the impugned order showed that it entirely focused on and evaluated the applicant's request to summon and re-examine the fifth witness but remained completely silent as regards the summoning of the other four witnesses

In the absence of assigning any reason, the impugned order appeared arbitrary and unjust

Criminal Revision Application was allowed, in circumstances.

During the pendency of the trial, an application under S. 540, Cr.P.C. was filed to summon witness 'R' (father of the deceased), and witness 'S' (one of the eye-witnesses of the occurrence) and re-examination of witnesses 'Z' and 'U' as they turned hostile during trial

Trial Court allowed the application to the extent of summoning of 'R' and S', whereas the application to the extent of re-summoning and re-examining of 'Z' and 'U' was dismissed as their examination-in-chief and cross-examination had already been completed, thus, there was no occasion for re-calling them for re- examination

High Court allowed the revision petition against the order of the Trial Court

Held, that crime report was registered at the instance of 'Z', and 'S' was one of the eye-witnesses, whereas 'R', stood nowhere in the crime report as a witness

Filing of the application under S. 540, Cr.P.C. after the lapse of about 14 months wherein a new witness had been introduced to substantiate the accusations levelled in the crime report did not make sense as considerable time has already elapsed and it would certainly imprint that the said application had been filed after due deliberation and consultation

No doubt the introduction of new witness could not be denied stricto sensu but certainly the scheme of law would be bypassed if at present stage the statement of 'R' was permitted to be recorded during the proceedings before the Trial Court although it was well within the knowledge of the 'R' about the murder of his son and he never opted to appear as a witness and in such regard his statement under S. 161, Cr.P.C. was not recorded by the Investigating Officer

Nowhere was it mentioned that 'R' ever appeared before the Investigation Officer to substantiate the accusation leveled against the accused persons

As far as the case of 'S' was concerned, he was one of the eye-witnesses of the crime report and as such his statement, if it had not been given up earlier by the prosecution and the prosecution's case was still not closed, the same could be re-agitated and adduced to strengthen the prosecution version on the basis of contents of the crime report, therefore, he could be produced and recorded by the Trial Court as per dictates of law

Petition for leave to appeal was disposed of with the consequence that order of the Trial Court to the extent of declining re-summoning and re-examination of 'Z' and 'U' was upheld; the finding of Trial Court to summon 'R', the father of deceased, was also set aside, however, it was directed that 'S' could be summoned to substantiate the prosecution version, if so desired.

Wife and minor (respondents) filed suit for recovery of maintenance allowance, dowry articles, car and gold ornaments against husband/father/petitioner before Family Court

Petitioner appeared and contested the suit by filing written statement

Family Court decreed the suit

Both parties preferred appeals before Appellate Court which was dismissed

Held, that to the extent of maintenance allowance of the minor, petitioner/father was religiously, legally and morally bound to maintain his child, so far as, quantum of maintenance allowance for minor was concerned, wife (respondent) had claimed that petitioner was serving as Major in the Army and received Rs,150,000/- salary ,therefore could easily pay Rs. 35,000/- per month maintenance to the minor where as petitioner took the stance that he had to pay mess bill and other expenses worth Rs.50,000/- and also had other dependents

Minor was school going girl and her expenses would definitely increase in future

Keeping in views the facts and circumstances of the case, status of the parties and evidence produced during the trial, Family Court rightly fixed the quantum of maintenance allowance with 10% annual increase

Wife/respondent had claimed her pervious maintenance allowance since October 2016 but was unable to establish the fact when, where, in whose presence and for what reason, she was forcibly expelled by petitioner from his house

Wife had also not specifically alleged that she had been tortured by the petitioner

When the lady was not residing with the petitioner and not performing her matrimonial obligations, petitioner was not under obligation to maintain respondent (wife) for the said period

Wife had claimed that the car and 12 tolas gold ornaments given as dowry articles were not returned by the petitioner and were still in petitioner's possession where as petitioner had denied said fact

During pendency of suit, wife (respondent) filed an application for recording evidence of real mother of the petitioner which was allowed and mother of petitioner was summoned

Petitioner's mother deposed against the petitioner and there was no reason to disbelieve the real mother who had deposed against her own son/petitioner

Special power of attorney of petitioner did not opt to cross-examine the petitioner's mother meaning thereby her statement was admitted by the special attorney

Neither any independent evidence was brought on record to prove that petitioner's mother had deposed against petitioner due to some enmity nor any evidence was produced that her statement was not the correct picture

Even petitioner himself had not appeared in the witness box whereas petitioner's special attorney appeared who was neither having full information about the event of marriage and nor about proceedings of the Court

Petitioner's mother was put questions by the Court, she replied to them, which showed that she was making independent statement and her statement could not be said to be under the influence of any body or within the meaning of tutored statement

Even otherwise, the response/behaviour of petitioner to the application for summoning the petitioner's mother revealed that statement of the petitioner's mother was a correct picture

Petition was dismissed, in circumstances.

Provision of S.540, Cr.P.C. is an exception to adversarial system and attempt to make inroads through inquisitorial system amid such system

Object and purpose of S.540, Cr.P.C. is to get a status of overarching component of criminal justice system which is a brain child of inherent right of fair trial and due process and is now part of Constitutional regime for fundamental rights.

Application of respondent/plaintiff for summoning of two witnesses against issuance of cheque was allowed by Trial Court

Petitioner's contention that respondent failed to show good cause for not mentioning the names of those witnesses in list of witnesses so the Court was not justified to allow them to appear as witnesses

Validity

Names of the same witnesses found mentioned in the plaint, therefore, it could not be said that petitioner/defendant would be taken by surprise or there was chance of fabrication of new evidence by belated inclusion of names of such witnesses and permitting the respondent to produce them in evidence

Mentioning names of witnesses in plaint with their role at very inception of matter before Court, which was even prior in time to framing of issues and time of seven days provided under O.XVI, R.1 of Civil Procedure Code, 1908 for filing list of witnesses in Court, would be 'good cause' and 'sufficient reason' to allow the respondent to produce them in evidence even if their names were not earlier included in list of witnesses

No prejudice would be caused to petitioner if the said witnesses were produced in evidence and petitioner would have a right to cross-examine said witnesses in order to dig out the truth

Purpose of procedure was to advance the cause of justice and not to hamper it and the production of said witnesses may facilitate the Court to reach just decision in the matter

No illegality / jurisdictional defect found in impugned order

Revision petition was dismissed accordingly.

Not an absolute rule of law that once a party omitted to file list of witnesses or to mention the name of witness in such list, it would thereafter be precluded from seeking permission of Court to produce that witness in the case

Court had to allow/refuse permission to produce such witness in evidence on case to case basis by keeping in view the facts of the case and circumstances in which list of witnesses was not filed, which inter alia were relevant factors for determining whether party had made out a good cause for allowing/refusing grant of permission to produce such witnesses.

Complainant intended to re-examine/cross-examine some of the important prosecution witnesses i.e. Investigating Officer, ASI and Inspector

Admittedly, said witnesses had been examined and cross-examined

Application for recalling said witnesses was moved after considerable delay

Complainant had shown his anxiety regarding some portion of the deposition of the said witnesses as such he intended to cross-examine them on that particular portion of their evidence

Under the provision of Art.150 of the Qanun-e-Shahadat, 1984, the Trial Court might permit a party to cross-examine his own witness but for invoking the said provision, such permission must be sought at the very time when the witness was still under oath and had deposed something contrary to the interest of the party who had produced him

If the court considered that the witnesses was speaking the truth and he was not deposing in a twisted manner and contrary to his previous statement proposefully, then the court might refuse to allow such a request

In the present case, the application was moved after weeks even months of the examination of the witnesses, as such, it was not considerable

Case of the complainant was that some important prosecution witnesses during recording of their evidence had given testimony, which was inconsistent with the interest of the complainant

In such a situation, a prosecution witness could not be impeached by declaring him hostile and permitting the counsel for the complainant or even the public prosecutor to cross-examine the said witness

Prosecution and complainant could only be justified in seeking the impeachment of a prosecution witness when during his examination-in-chief or cross-examination, he had given testimony, which was inconsistent with some previous statement by him

In the present case, the investigator and the other official witnesses had not deposed anything, which was inconsistent with any of their previous statement, as such it would not be justified to subject them to cross-examine by the complainant or public prosecutor

Revision application was dismissed.

Provision of S.265-F, Cr.P.C. does not provide specifically that only those witnesses can be examined whose statements have been recorded under S.161, Cr.P.C. or their names have been mentioned in challan in column of witnesses.

Trial Court allowed complainant to produce those persons as prosecution witnesses who were not included in calendar of witnesses

Validity

Mandatory under S.265-F(1), Cr.P.C. upon Court to take all such evidence as was produced in support of prosecution

No restriction was imposed on prosecution to produce evidence of its choice

Court could refuse under S.265-F(2), Cr.P.C. to summon any such witness who was to be called for purpose of vexation of delay or defeating ends of justice

Court had no choice to refuse to examine any witness produced by prosecution in view of S.265-F(1), C.P.C.

All proposed witnesses were figured as eye witnesses in FIR but they were neither cited as witnesses in calendar of witnesses nor their statements were recorded under S.161, Cr.P.C.

Non-availability of statement of a witness who had not recorded its statement could not be considered to be a violation of provision of S.265-C, Cr.P.C.

Law did not place any embargo on examination of a person during course of trial, either in favour of prosecution or accused, who had not recorded his statement under S.161, Cr.P.C.

High Court declined to interfere in the orders passed by Trial Court as well as Lower Appellate Court in exercise of revisional jurisdiction

Constitutional petition was dismissed in circumstances.

Not necessary to hold a separate inquiry so as to reach a conclusion whether an item of evidence is essential for the just decision the case

Such is enough if it appears so to the Court from any material and infers from the material including that which is already available to the Court in any, admitted evidence or material otherwise lying on the judicial and other files before it.

Qatl-i-amd, abetment, causing disappearance of evidence, intentional omission to give information of an offence, common intention

Summoning of witnesses

Scope

Complainant filed application under S. 540, Cr.P.C., for calling the witnesses of Joint Investigation Team (JIT) as those witnesses were material witnesses who were needed to be examined in order to prove the case and to exhibit JIT report, which application was dismissed by the Trial Court

Validity

In the present case, the ends of justice would not be served by allowing the trial to be further delayed for a substantial period of time, whilst 6 to 7 witnesses were examined and potentially cross-examined by a number of the accused to the detriment of the accused, who had been languishing in jail for 8 years on account of the failure of the prosecution to properly present and prosecute its case

Complainant tried to fill in lacunas at the very end of the trial to the prejudice of the accused

Scales of justice could not be tilted too far in favour of the prosecution to the prejudice of the accused

Assessment made by the Trial Court through the impugned order at that belated stage was found to be well reasoned and without any legal infirmity

No member of the Joint Investigating Team, who was now sought to be added as a witness (whose name was known at the time when the calendar of witnesses was submitted and could have been dropped later if deemed necessary by the prosecution), was included in the calendar of the prosecution witnesses

No member of the Joint Investigation Team had recorded statement under S. 161, Cr.P.C. and as such the accused would be prejudiced during cross-examination

No illegality or infirmity in the impugned order was found

Revision petition was dismissed accordingly.

Petitioner filed application under S. 540, Cr.P.C., for calling the concerned SHO to tender the proposed document as a witness, which application was dismissed by the Trial Court

Validity

If it appeared to the court that a person's evidence was essential to the just decision of the case then there was no discretion to prevent such a person from being examined

Power under S. 540, Cr.P.C., to summon a witness might be exercised either by suo motu or on an application

Person who might not have been examined at the time of investigation or whose name was not included in the calendar of witnesses or in the challan could be summoned under S. 540, Cr.P.C.

In the present case the parties were in dispute over the property, which they claimed to be the owners of on account of petitioners alleged dispossession from the same

Petitioner filed a complaint under Ss. 3, 4 and 5 of the Illegal Dispossession Act, 2005 against the respondents for his alleged dispossession

No doubt, the document which the petitioner wanted to place on record i.e. report of SHO dated 16.12.2019 was not filed at the time of filing the complaint

Perusal of the same prima-facie revealed that allegedly the accused/respondents tried to encroach the unsettled property and the petitioner intended to establish the conduct of the respondents as land grabbers through the said document

Trial Court did not make an effort to satisfy itself or to consider the two essential ingredients; firstly, whether the proposed person was a material witness and, secondly, whether he was essential for a just decision of the case

Trial Court was required to take the entire material and the circumstances of the case into consideration, so as to form an opinion whether summoning of the proposed witness was essential for a just decision of the case

Trial court, while passing the impugned order, did not consider the principles and law laid down for deciding applications under S. 540, Cr.P.C and thereby failed to exercise jurisdiction vested in it, besides the illegality and material irregularity

Grounds for dismissing the application under S. 540, Cr.P.C., were neither tenable in law nor in consonance with the principles enunciated in that regard

Application was allowed by the High Court setting aside the impugned order and Trial Court was directed to call the proposed witness to place the said document on record according to law.

Application for summoning of witness was dismissed on the ground that it did not mention any specific purpose or fact to be proved through the said witness

Validity

Court was justified to inquire as t o the relevance of the witness for proving any material fact, which had not been disclosed in the application for summoning of witness

Relevant documents had already been made part of the record of the case

Petitioner had not been able to show the relevancy of the witness in context with alleged documents

Orders passed by the Courts below did not suffer from any error of law

Constitutional petition was dismissed, in circumstances.

Application for summoning of witness was dismissed on the ground that it did not mention any specific purpose or fact to be proved through the said witness

Validity

Court was justified to inquire as to the relevance of the witness for proving any material fact, which had not been disclosed in the application for summoning of witness

Relevant documents had already been made part of the record of the case

Petitioner had not been able to show the relevancy of the witness in context with alleged documents

Orders passed by the Courts below did not suffer from any error of law

Constitutional petition was dismissed, in circumstances.

Law empowered the court to summon and examine any person as a witness at any stage of trial or inquiry under the said section

Such wide jurisdiction had been limited by the legislature with a deliberate use of phrase "if his evidence appears to it essential to the just decision of the case".

Accused-petitioner contended that names of additional witnesses had not been mentioned either in the challan or in the statements of witnesses under S. 161, Cr.P.C. summoning of said witnesses, therefore, would be an attempt to fill up the lacunae

Validity

Record showed that names of said witnesses did not appear in the calendar of witnesses

Neither the statements of said witnesses, in circumstances were recorded under S. 161, Cr.P.C. nor under S. 164 Cr.P.C.

Such witnesses, in circumstances could not be summoned

Order of Trial Court for allowing the application filed under S. 540, Cr.P.C. was set aside.

Law empowered the courts to examine anyone as a witness, which in its wisdom, should necessarily be recorded for a just decision of the case.

Said discretion could be exercised only when evidence appeared to be essential for the just decision of the case.

Complainant categorically submitted and pledged that trial of accused would conclude necessarily within 30 days from the date of examination of persons intended to be called as defence witnesses

Stance was reiterated by complainant so as to lend an impression of certainty and purity of pledge made in words that a day would not exceed the limit of 30 days, as suggested by complainant, for concluding of trial of accused

High Court appreciated such statements of parties in unison

Constitutional petition was allowed in circumstances.

Party could not be allowed to call or produce witnesses through court other than those whose names appeared in the list of witnesses

­Party had to satisfy the Court to produce or call a witness whose name did not appear in the list of witnesses as to the circumstances that existed and prevented such party from writing name of such witness or witnesses in the said list

Court had to record reasons for allowing a party to produce such witnesses

Witnesses in question could not be summoned through court

Writ petition was dismissed in circumstances.

Application was filed on 07-04-2011 whereas defendant lady appeared in witness box on 28-06-2010 when she got recorded her statement

Even if defendant was considered a Pardanasheen lady, she could tell her counsel on 28-06-2010 when she came to Court about summoning of witnesses but she failed to do so

Desire of defendant to produce witnesses proposed to be summoned were not due to any cause of action accrued to defendant at later stage as those were the witnesses of documents in dispute and were even available at the time of filing of suit and framing of issues

Defendant failed to show any cause to produce proposed witnesses

Mere desire of a party to do an act which was required to be done in a particular manner could not be considered to be good cause

Being a lady or ignorant of law did not entitle defendant for any special treatment

High Court set aside the concurrent orders passed by both the courts and dismissed the application filed by defendant

Petition was allowed in circumstances.

Said witness appeared before the Rent Tribunal on issuance of his warrants and got recorded his statement that he did not want to appear as witness of tenant and he had no concern with the agreement

Tenant did not object to the statement of witness when he appeared before the Rent Tribunal and did not raise the plea that witness was employee of landlord at such time

After appearance of witness before Rent Tribunal tenant kept mum for a long period of six months

Law did not favour the indolent rather it would favour the vigilant

Six month period had been provided for disposal of eviction petition

Tenant wanted to gain more and more time to prolong the proceedings for as much time as he could

Court could not compel the witness when he did not want to give evidence in favour of any party

Impugned order was not a final order against which no remedy of appeal had been provided

Constitutional petition was not maintainable where appeal had been barred by the legislature as same would defeat the will of legislature

Impugned order was in accordance with law

No illegality or jurisdictional defect had been pointed out in the impugned order

Constitutional petition was dismissed in circumstances.

Petitioners, who were lawful owners in possession of land in question, alleged that, respondents had illegally encroached upon almost entire land in question by dispossessing the petitioners from said land

Petitioners filed complaint under Ss.3 & 7 of Illegal Dispossession Act, 2005 and the trial of the case commenced

When the matter was at the stage of arguments, without recording of remaining evidence, petitioners requested the Trial Court through application for summoning of the witnesses, as the list of witnesses, could not be attached at the earlier stage of the complaint

Said application was dismissed by the Trial Court

Validity

Witnesses, required to be summoned, were necessary material witnesses for reaching at a just and proper conclusion of the matter; and if they were not summoned, petitioners would suffer irreparable loss

Petitioners did not figure out names of any other prosecution witness in the list, which was initially required to be submitted in compliance of S.265-C, Cr.P.C.

Non-furnishing list whereof, would not disentitle the complainant to call or recall any other prosecution witness during proceedings

Any party to the proceedings; during investigation or trial, as envisaged by S.94, Cr.P.C., could request for summoning the record through witnesses for the purpose of just and fair trial

Administration of criminal justice required that every opportunity to the parties be provided

Petitioners/complainants, had sought examination of those prosecution witnesses, whose names could not be submitted earlier

Charges had not been framed, which was the stage of commencement of trial

Prior to that, an opportunity could be provided to summon the witnesses, as S.265-C, Cr.P.C., required for production of statements of prosecution witnesses and requisition of record

Petitioners under Illegal Dispossession Act, 2005 were not debarred to summon witnesses or the record

Impugned order was set aside

Application moved by the petitioners for summoning of record through witnesses, was allowed, in circumstances.

Intention under O.XVI, R.21, C.P.C. was that it was open to a party to proceedings to cite his opposite party as witness and to examine him

Party to suit had right to call upon his opposite party to give evidence and court had the power to compel giving of evidence by opposite party

Trial Court had properly invoked provisions of O.XVI, R.21, C.P.C. as the court thought it necessary to direct defendants to give evidence and procedure regarding a witness could be applied by court regarding that party as well

High Court declined to interfere in order passed by Trial Court summoning witnesses

Revision was dismissed in circumstances.

Provision of S.540, Cr.P.C., was of wide import and its scope was quite exhaustive and a court of competent jurisdiction could summon any person who was acquainted, in the opinion of the court, with the facts in issue in a criminal case for its just decision

Opinion of Police Officer revealed that witnesses sought to be summoned were the witnesses of last seen of the deceased in the company of accused

Said police officer recorded said fact in the daily diary

For the just decision of the case the Trial Court could summon said persons as court-witnesses, but the court declined to do so

Satisfaction of the court as mentioned in S.540, Cr.P.C. should be objective and not subjective

Application filed by the petitioner under S.540, Cr.P.C. before the Trial Court, was neither out of context nor was moved with any ulterior motive to drag accused through prolonged litigation

Petition was accepted and impugned order whereby application for summoning witnesses was dismissed was set aside with a direction to the Trial Court to summon the required person for recording their statements as prosecution witnesses, in accordance with law.

S. 7 (5)-Summoning of witnesses-Test for determining necessity of-Inquiry officer satisfied as to accused officer having been hampering or attempting to hamper progress of inquiry, accused officer to be administered a warning and inquiry completed in manner thought best suited of course subject to doing "substantial justice".-[Witness].

Ss. 244 & 428Summoning of witnesses-Magistrate of view that application of accused for purpose of vaxation, delay and defeating ends of justice but as matter of abundant caution and as a concession to accused summoning witnesses - Such witnesses could be abandoned subsequently by Magistrate under inherent power under S. 244 (2)Accused not prejudiced by non-summoning of witnesses-Application of S. 428 not attracted.