Examining witnesses
V.N.K. MENON
(Querist) 15 May 2014
This query is : Resolved
I filed a case under S.200 crpc in trial court(Delhi) for abuse of process of court by accused.
As pre-summoning evidence, I was asked by the court to submit List of witnesses which was done. Out of which, I opted two to be summoned in the next date of hearing (NDOH). Court allowed the same and summons were issued to the said 2 witnesses.
Query:
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In pre-summoning evidence: Whether the said witnesses can be examined by me the plaintiff in NDOH or the court only can examine the witnesses.
Shall appreciate the opinion/ guidance of experts of LC, please. Tks in anticipation.
Lawyer SALEEMA KABEER
(Expert) 15 May 2014
As per law, the Court shall examine the complainant and witnesses on a private complaint under section 200 Cr.P.C. before issuing summons to accused.
Devajyoti Barman
(Expert) 15 May 2014
It is you who examine the witness. However the court can also examine the witness if it so likes.
Rajendra K Goyal
(Expert) 16 May 2014
Agree with the expert Devajyoti Barman ji.
V.N.K. MENON
(Querist) 16 May 2014
Pl accept my thanks and regards mr. devajyoti and mr goyal and other expert for prompt response.
Lawyer SALEEMA KABEER
(Expert) 16 May 2014
From the query (rightly or wrongly) it is understood by me that the question is related to the examination of witnesses before issuing summons to accused. No doubt, the stage of filing list of witness is at the time of filing complaint. In other words, before taking cognisance and before issuing summons to accused, the list of witness has to be furnished to Court.
However, my understanding about the stage of given case is right, with great respect to the experts who have given different opinions to my view, I would like to give the following explanation only for healthy discussion on legal points.
What the Magistrate is required to do under Section 200 CrPC is examination of complainant and witnesses if any produced by the complainant on oath. This is the duty of the Court and, therefore, examination by the Magistrate under Section 200 CrPC is different from examination of the witness by prosecution/ complainant.
It is settled principle of law that what Magistrate records under Section 200 CrPC is not evidence.
The stage of recording evidence by the parties will be after commencement of trial and not at the stage when the Magistrate is yet to be
decide whether process should be issued or not.
Devajyoti Barman
(Expert) 17 May 2014
In pre-summoning evidence also the court can suo motu ask examine the witness.
Lawyer SALEEMA KABEER
(Expert) 17 May 2014
@ Respected Expert Devajoti Barman,
The stage of case, suo motu powers of criminal Courts and what is pre-summoning evidence as noted in your opinion is explained little more, it will be very helpful.
Advocate. Arunagiri
(Expert) 17 May 2014
By the information given by the querist, i understand that the Magistrate had taken up the case and ordered for inquiry u/s 202 of cr.p.c..
Only under 202 the magistrate can conduct inquiry, and pass orders for summoning u/s 204 cr.p.c. The inquiry may be conducted based on the material evidence and witnesses including the complainant.
Under the above circumstances, the magistrate is having the power to question the witness and record the same.
T. Kalaiselvan, Advocate
(Expert) 18 May 2014
advocate Saleema Kabeer's opinion that "The stage of recording evidence by the parties will be after commencement of trial and not at the stage when the Magistrate is yet to be
decide whether process should be issued or not. " is absolutely correct at trial stage. Also her other sentence "It is settled principle of law that what Magistrate records under Section 200 CrPC is not evidence. " is held to be very correct.
However, u/s 204(2) No summons or warrant shall be issued against the accused until a list of the prosecution witnesses has been filed. The private complaint can be dismissed u/s 203 If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
