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Deposition in affidavit

Page no : 2

Anjuru Chandra Sekhar (Advocate )     11 May 2013

I am actually struggling to put forward my point correctly.  My point is, a judge decides the case based on three factors....they are (in the order of priority, first one occupying top priority)  viz., A. Question of law  B. Question of procedure C. Question of fact.  That is why the question of fact of girl being forced to marry has taken back seat in view of question of law involved that there is no provision in HMA to protect such girls. 


If question of fact takes primacy over question of law, as you said, EIC, CE and RE and all are relevant.  When question of law and question of procedure are priorities over the question of fact, then mere paper work will do.  That is one point.


Second, even if question of fact is given primacy over question of law and question of procedure for argument sake, the deposition of witnesses should be taken as it is without giving them an opportunity to confirm it.  Because an opportunity given will render them an opportunity twist the facts.  We cannot base our judgments based on twisted or manipulated facts. 


At present the system is give primacy to question of law and question of procedure over question of fact.  Even that question of fact is decided on high probability of manipulation or to say on the basis of manipulated facts.  That being the case what is the purpose of hearing.  That is the point I am trying to drive home. First the question of fact is least important.  Second even that being the case, the fact finding mission of court miserably fails when the procedure allows the witnesses to confirm helping them to use their minds to manipulate.  So on all counts it appears to me that paper work is the only best way to deal with cases rather than waste time on hearings if the court has to give primacy to question of law and procedure over facts and apply their minds on twisted facts.

Anjuru Chandra Sekhar (Advocate )     12 May 2013

Instead, the better system would be - take the deposition of witnesses under EIC, CE and RE (Re-examination) through a competent Commissioner appointed for that purpose.  Keep the original as it is without disturbing it.  Handover copy of original to the witnesses and give them time to suggest changes creating two more columns against the original copy - one column of changes made against each question as to how they wanted the answer to be and third column is meant for the comments/reasons adduced for suggesting the same.  And at arguments stage the arguments can also be based on what is the original deposition and what changes are made to original deposition and how their minds worked, whether to twist the facts or they are consistent with the main theme of the pleadings. As in the case of Ashwini Kumar the Supreme Court asked for the original draft and changed draft.  When we see what is dropped we come to know how the mind of government worked  Similarly what is stated spontaneously sometimes may be correct or the Advocate may have cleverly forced the deponent to declare something that the deponent did not want to declare.  It is for this second reason that the court allows the deponent to verify the draft of what is recorded during Cross examination and gives him an opportunity to confirm the same through signature. But it is also true that sometimes truth is known when spontaneously spoken.  Later it can be twisted on application of mind that he may have made a mistake in a hurry without giving proper thought.  The slip of tongue will be covered efficiently by the witness.  That should not be allowed to happen. 


So it would be prudent to keep the original as it is.  Create two more columns against original draft.  One to note for changes made against each question as to how the deponent wants the answer to be and third column is meant for adducing reasons for suggesting the change and how he thinks that is consistent with the pleadings. Final arguments may also include the arguments on these changes made from original draft to changed draft and on the reasons adduced therein.  Then it would be more helpful for the court to arrive at a right judgment rather than merely working on the manipulated and twisted facts under the existing system.

Anjuru Chandra Sekhar (Advocate )     14 May 2013

thanks a lot for giving your time and lets keep pondering over this issues. Once again thanks for giving your time.




:) Assumi saaheb.  If you see me you will feel like saying all these with me, "No...no...it is not like that....it is like this...you should not do like that....that is actually wrong....you are surely mistaken.....I tell you what to do.....you learn from me" ..... and so on.  For, I have all the time in the world.

Anjuru Chandra Sekhar (Advocate )     14 May 2013

There are some people that we do not feel we are competent to disobey.  Some people we take care to disagree saying, "If I may correct....".  Some people we can feel privileged to say without hesitation, "Surely you are wrong...".  I belong to that third category people. You will feel embarrassed to say thanks to me for my giving time to you if you know what I am. :)

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