Summon of witnesses in Criminal Trial: Powers of Court

Power to summon material witness, or examine person present.

Section 311 of Criminal Procedure Code provides as under:

Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.

Continue reading “Summon of witnesses in Criminal Trial: Powers of Court”

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Justice to witnesses

Witnesses appearing in courts also need justice

Now when we speak of the ends of justice, we mean justice not only to the defendant and to the other side but also to witnesses and others who may be inconvenienced.

It is an unfortunate fact that the convenience of the witness is ordinarily lost sight of in this class of case and yet be is the one that deserves the greatest consideration. As a rule, he is not particularly interested in the dispute but he is vitally interested in his own affairs which he is compelled to abandon because a Court orders him to come to the assistance of one or other of the parties to a dispute. His own business has to suffer. He may have to leave his family and his affairs for days on end. He is usually out of pocket. Often he is a poor man living in an out of the way village and may have to trudge many weary miles on foot. And when he gets there, there are no arrangements for him. He is not given accommodation; and when he reaches the Court, in most places there is no room in which he can wait. He has to loiter about in the verandahs or under the trees, shivering in the cold of winter and exposed to the heat of summer , wet and miserable in the rains: and then, after wasting hours and sometimes days for his turn, he is brusquely told that he must go back and come again another day. Continue reading “Justice to witnesses”

Negotiable instruments: Dishonour of cheque trial directions by Supreme Court

Dishonour of Cheques: directions for expeditious trial of cases.

Delay in cases for dishonour of cheques:

Background for direction:
An Association 174 banks/financial institutions as its members, which functions as think tank for banks in the matters of concern for the whole banking industry, raised issue of considerable national importance owing to the reason that in the era of globalization and rapid  technological developments, financial trust and commercial interest have to be restored. According to them the banking industry has been put to a considerable disadvantage due to the  delay in disposing of the cases relating to Negotiable Instruments Act. The Petitioner banks being custodian of public funds find it difficult to expeditiously recover huge amount of public fund which are blocked in cases pending under Section 138 of the Negotiable Instruments Act, 1881. Petitioners submitted that, in spite of the fact, Chapter XIV has been introduced in the Negotiable Instruments Act by Section 4 of the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988, to enhance the acceptability of cheques in settlement of liability by making the drawer liable for penalties 2014 in case of bouncing of cheques due to insufficiency of funds, the desired object of the Amendment Act has not been achieved.
Cheque, though acknowledged as a bill of exchange under the Negotiable Instruments Act and readily
accepted in lieu of payment of money and is negotiable, the fact remains that the cheque as a negotiable
instrument started losing its credibility by not being honoured on presentation.

Directions by Supreme Court about trial:

(1) Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.

(2) MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, immediate follow up action be taken.

(3) Court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest.

(4) Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re- calling a witness for cross-examination.

(5) The Court concerned must ensure that examination-in-chief, cross- examination and re-examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for
cross-examination as and when there is direction to this effect by the Court.

[Source: Indian Bank Association vs. Union of India (Supreme Court of India)]

 

Summoning of witness in Civil Suit

Considerations for court while summoning a witness:

Discretion of court:

Once such an application is filed, it is for the Court to use its discretion and to decide whether summons are to be issued to those witnesses. It has to be pointed out that the issue of summons is not automatic and in appropriate cases or in cases where objections are raised, the bona fides of the request has to be looked into and appropriate orders passed.

Suit for recovery of attorney/lawyer fee:

The controversy between the parties was that the plaintiff, who is an advocate/lawyer, was engaged for services to be rendered to defendant No. 1. The case of the plaintiff is that his dues on account of professional fees have not been cleared by the defendants. Apart from this, the plaintiff has also claimed damages from the defendants. The case of the defendants is that the defendant No. 6, which is an international firm of trade mark attorneys and had been looking after the interests of Defendant No. 1, had dealt with the plaintiff for the purposes of filing oppositions in respect of certain trade mark applications in India. The said oppositions were to be filed by the plaintiff in respect of the trade marks of the defendant No. 1. It is also pertinent to note that initially the plaintiffs’ services had been engaged on behalf of Dunlop Slazenger Group Limited. The latter company was acquired by the defendant No. 1 in 2001. Mr Mike Ashley, who is sought to be summoned as one of the witnesses, is the sole shareholder of the said defendant No. 1 company.

Summoning other party as witness:

While there is no bar to a party seeking the summoning of another party in the same suit as his witness, it is also clear that such an act is unusual and that it should only be permitted if the application for summoning the opposite party is bona fide and is not vexatious or an abuse of the process of the Court. Apart from this, there is the standard question which the Court has to consider in the case of summoning any witness as to whether it is necessary to summon the witness for which the application has been moved. Order 16 Rule 1 (2) CPC clearly stipulates that the 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. This in itself indicates that it is not as if the Court has to allow every application for summoning of a witness. The party seeking the summoning of a person as a witness has to specifically indicate the purpose for which he or she is proposed to be summoned. It is obvious that the Court has to apply its mind and exercise discretion in a judicial manner.

[Source: Dr. Amitabh Sen v. Sports World International. (Delhi High Court)]

Thus a party who seeks for a prayer to the Court to issue summons to a witness, must reveal to the Court the purpose for which the witness is proposed to be summoned.

Comment: It appears, the witness can be summoned by a party to prove a specific point in case but not to make a fishing or roving inquiry to establish a fact not specifically pleaded or fact nor specified in the application to summon the witness.