138 ni act
armaan kapoor
(Querist) 03 July 2015
This query is : Resolved
i am complainant is this 138 NI Act matter, 313 and 2 defense witnesses are already done, but accused advocate want to call more witnesses to prolonging my matter, till now accused advocate have never filed any list of witnesses during trial.
my Query is:
how do i prevent accused advocate to not to use such tactics to prolonging my matter.
also aware me of my other rights and accused rights.
SAINATH DEVALLA
(Expert) 04 July 2015
Accused can’t prolong trial: HC
Accused in criminal cases cannot be allowed to prolong the trial for years by citing mistakes committed by their lawyers in conducting the cases, especially when they have the option of proceeding against the advocates either before the ethics body (Bar Council) or a consumer forum, the Madras High Court Bench here has observed.
Justice M. Sathyanarayanan made the observation while dismissing a criminal revision case filed by Rajan alias Soosairajan in 2008 challenging the refusal of an Assistant Sessions Judge in Kanyakumari district to recall the witnesses in a rape case registered against him in 2005. The petitioner wanted to cross examine the witnesses to prove his innocence.
The judge pointed out that the prosecution had examined 17 witnesses before the Sessions Court between February 23, 2006 and March 5, 2008 to prove the charge levelled against the petitioner. However, the petitioner’s counsel, before the trial court, had “mysteriously” not chosen to cross examine even one of those witnesses to disprove the charge.
It was only on June 18, 2008 that the petitioner filed a petition before the Sessions Court urging it to recall the witnesses for cross examination on the ground that his counsel had failed to perform his professional duty properly. The Sessions Judge rejected the plea on the ground that it had become common practice for accused to misuse the legal provision for recalling witnesses.
Admitting the present revision case on November 4, 2008, the High Court “granted a blanket order of interim stay (of the trial before the Sessions Court) until further orders” and the stay continued for over six years since the case got adjourned at regular intervals until Mr. Justice Sathyanarayanan took it up for final disposal on March 31 this year.
Stating that it would not be prudent to order recalling of witnesses in a decade-old case, the judge quoted the Supreme Court to have said in a similar case that “It is imperative to complete cross examination on the same day of examination-in-chief… The duty of the court is to see that not only the interest of the accused, as per law, is protected but also the societal and collective interest is safeguarded.”
P. Venu
(Expert) 04 July 2015
You may instruct your advocate to remain alert.
Rajendra K Goyal
(Expert) 04 July 2015
Your lawyer should be vigilant against such tactics.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 04 July 2015
The citation provided by expert SAINATH DEVALLA is an HC citation and the main issue was mistake or carelessness of the advocate.
And due to such weak argument the prayer was rejected.
VERY RECENTLY THE APEX COURT HAS TAKEN VERY LIBERAL VIEW.
Best available evidence must be brought before court to prove a fact’
The trial court cannot deny an accused the right to summon witnesses he/she has cited for examination at any stage of trial, the Supreme Court has held.
“Fair trial entails the interests of the accused, the victim and of society, and therefore, includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional as well as human right, said a Bench of Justices B.S. Chauhan and Ibrahim Kalifulla
Adducing evidence in support of defence was a valuable right. Denial of such right would amount to denial of a fair trial. It was a cardinal rule of the law of evidence that the best available evidence must be brought before the court to prove a fact or a point in issue, the Bench said.
The Cr.PC conferred a very wide discretionary power on the court in this respect. It might summon any person as a witness at any stage of the trial or other proceedings, even suo motu if no application was filed by either of the parties.
CARDINAL CAUTION
“However, the court must satisfy itself that it is in fact essential to examine such a witness or recall him for further examination in order to arrive at a just decision of the case. An application [filed by an accused to summon witnesses] under Section 311 Cr.PC must not be allowed only to fill a lacuna in the case of the prosecution, or of 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 opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties,” Justice Chauhan said, writing the judgment.
In the instant case, Natasha Singh was aggrieved over a trial court order rejecting her application, under Section 311 Cr.PC, to summon certain witnesses. It observed that examination of the witnesses sought to be examined by the appellant-accused was in fact unnecessary, and would in no way assist in arriving at a just decision of the case.
The Delhi High Court upheld the trial court order. The Supreme Court, allowing the appeal against this judgment, directed the trial court to examine the witnesses sought to be examined by Natasha.
NEW DELHI; May 8, 2013
