Compelling witness attendance: Balancing the Needs of Justice and the Rights of Witnesses

Introduction

“Witnesses are the eyes and ears of justice” a quote often attributed to Jeremy Bentham. Witnesses play an important role in the justice system by providing evidence in order to reach the truth and facilitate justice. The term “witness” is not defined in any Indian statute. Black’s Law Dictionary defines a witness as “one who testifies to what he has seen, heard, or otherwise observed”.¹ Section 124 of the Sakshya Adhiniyam, 2023 notes that any person is competent to testify unless the court considers otherwise.² Witnesses provide oral or documentary evidence which assists the court and the parties and plays a pivotal role in the justice system. However, what if a person is unwilling to be a witness? What if a person is unwilling to appear in court and produce evidence? How should a person be compelled to be a witness? This paper seeks to examine this question in light of the Code of Civil Procedure, 1908 (CPC or the Code), particularly the consequences of non-attendance of witnesses under Order 16 Rule 10 and Sections 30 and 32 of the Code. Section 32 and Order 16 Rule 10 of the Code embody a coercive framework to compel the attendance of witnesses or the production of documents.

This paper has a twofold purpose, first, to analyse the provisions and case laws dealing with the coercive framework, under the CPC, which compel the attendance of witnesses and second, to analyse the balancing of the right to fair trial and the fundamental rights of witnesses (right to privacy, free movement and remain silent). The paper analyses relevant provisions and case laws to illustrate the judicial trend in compelling witness attendance under the CPC and argues that there should be a libertarian approach in order to balance the witnesses’ fundamental rights and the parties’ fundamental right to fair trial. This approach involves the courts acknowledging their duty to compel witness attendance and using it cautiously with strict compliance with the prescribed procedure.

The paper will begin with an analysis of the relevant provisions under the CPC which provide the courts the power to compel the attendance of witnesses. The paper will further move on to analyse the various case laws dealing with such provisions of the CPC. The paper will lastly analyse the balancing of the right to a fair trial and the rights of witnesses.

Compelling witness attendance: Provisions in the CPC

The CPC provides the Court with the power to compel witnesses to attend the Court to provide evidence or produce documents. Section 30 of the Code provides the Court certain powers to order discovery and the like upon application by the parties or on its own motion.³ Clause (b) of Section 30 provides the Court power to issue summons to any person whose attendance is required to provide evidence or produce documents.⁴ Section 32 of the Code provides the court the power to compel the attendance of any person to whom a summons has been issued under Section 30 with coercive means like issuing a warrant, attachment of property, etc.⁵ Order16 Rule 10 provides a procedure when a witness fails to comply with a summons.⁶ It is to be noted that such provisions are not unique to civil procedure but are also found in criminal procedure, in the Nagarik Suraksha Sanhita, 2023 i.e. Section 348⁷, read with Section 90.⁸

It is clear that Order 16 holds that there is a duty for any person summoned to provide evidence,⁹ and when such a duty is evaded, the Court may impose penal consequences under Rule 10 and Section 32 of the Code. It is to be noted that both Section 32 of the Code and Order 16 Rule 10 use the word “may”, indicating that the power to impose penal consequences to compel witness attendance is the discretion of the court. Penal consequences should be enforced in compliance with the procedure under Order 16 Rule 10 which requires the court to check whether the summons was duly served,¹⁰ and that the court has reason to believe that the evidence or production of the document is material, and the person has failed to do so without lawful excuse or by intentionally avoiding service of summons.¹¹

Overall, the textual reading of these provisions suggests that enforcing penal consequences to compel the attendance of witnesses is discretionary and such consequences can only be imposed once the preconditions under Order 16 Rule 10 are satisfied. However, different High Courts (HCs) have interpreted and enforced this provision in differing ways and there is no settled position of law or a decision of the Supreme Court regarding the method of application of the provisions to compel witness attendance.

Judicial trend of enforcement of witness attendance under the CPC

This section will examine the various interpretations and standards of application taken by different courts regarding compulsion witness attendance. This section will look into how different courts interpret the purpose of Order 16 Rule 10, the duty of the court under Order 16 Rule 10, the threshold for enforcing coercive actions to compel witness attendance, and the application of Section 30 of the Code.

1. Purpose of Order 16 Rule 10

The Madhya Pradesh High Court in Dwarka Prasad v. Rajkunwar Bai¹² observed that the object of Order 16 Rule 10 is to assist parties in procuring the attendance of recalcitrant witnesses.¹³

The Gujarat High Court, in Vasant Trading Corpn. v. Dhamanvala Arvind Silk Mills¹⁴ observed that Order 16 enacts the machinery for procuring attendance of witnesses and Order 16 Rule 10 embodies a coercive machinery to ensure that the witness respects the summons.¹⁵ These provisions have been enacted so that the Court can assist the party who has no control of the witness and these provisions prevent rendering the justice system ineffective where a party is unable to examine witness which is necessary to procure a just decision.¹⁶ A party who has no control over the witness is helpless, and without this coercive machinery, the Court is also rendered helpless to assist the party to examine the witness.¹⁷ Thus, Order 16 Rule 10 by providing such a coercive mechanism seeks to address these problems.

The Punjab and Haryana High Court in Joginder Singh v. Majit Kaur¹⁸ while referring to Orders 16 and 18 CPC notes that these orders indicate the legislative intention to conclude evidence of parties without unreasonably compromising the expeditious disposal of the suit.¹⁹ The Himachal Pradesh High Court in Sohan Singh v. Mohd. Aishak Tyagi²⁰ observed that the Court should not close the evidence of the party when the party is unable to procure the attendance of the witness duly summoned, rather it becomes incumbent on the Court to assist the party under Order 16 to procure the attendance of the witness,²¹ and similar observations were made by the Madhya Pradesh High Court in Vinod Ramkisan v. Peerchand Bholaram²².

The Madras High Court in Katta Venkatayyagari Srinivasayya v. Gowra Lakshmayya²³ notes that the purpose of Order 16 Rule 10 is to vindicate the authority of the Court and the incidental benefit of the same is to help a party procure the attendance of a witness.²⁴

Thus, largely courts note that Order 16 Rule 10 is a mechanism to procure attendance of witness to assist parties concerned, while Madras High Court in Katta Venkatayyagari case²⁵, noted that assisting parties is merely an incidental benefit while the purpose of the said provision is to vindicate the authority of the Court. Additionally, Joginder Singh case²⁶, and Sohan Singh case²⁷, emphasise that the purpose of Order 16 is to conclude evidence without unreasonable delay and the evidence cannot be closed merely on the absence of witness and the Court should compel the attendance of the witness concerned.

2. Duty of court

The Punjab and Haryana High Court in National Rice & Dal Mills v. Food Corpn. of India²⁸ emphasised that it is the duty of the courts to enforce the attendance of witnesses summoned by the parties and the Court should use coercive methods if necessary.²⁹ Similarly the Rajasthan High Court in Suresh Nath Modi v. Jorawarmal³⁰ notes that it is the Court’s duty to ensure that the process issued is properly issued, duly served and the sought witness appears in court or produces the required document.³¹ Similar observations were made by the Punjab and Haryana High Court in Balwinder Singh Malhi v. Rajinder Singh Bath³² and Jagmohan Singh v. Karamjit Singh³³. The Himachal Pradesh High Court in Sohan Singh v. Mohd. Aishak Tyagi³⁴ observed that there lay a duty on the Court to procure the attendance of a witness once a party has duly summoned the said witness.³⁵

Thus, it is clear that most courts view that it is the duty of courts to procure attendance of served absent witness. However, courts differ as to when and how to enforce coercive methods to compel attendance which would be seen in the subsequent sub-sections of the paper.

3. Coercion by court to compel attendance of witness is mandatory and all coercive measures must be taken

The Rajasthan High Court in Uchhab Kanwar v. Ramswaroop³⁶ observed that once the Court summons a witness, the Court should compel the witness to attend the Court and produce evidence and should take all the measures contemplated under Section 32 CPC and it further noted that “once the Court, after being satisfied, issued summons for his attendance; the Court should not stay its hands at the choice of the witness to attend or not to attend the Court to give evidence”.³⁷ The Court also noted that the word “may” used in Section 32 CPC is to be read as “shall” thus mandating coercive actions to be taken in case a witness does not appear in the Court after proper summons are served.³⁸ The Rajasthan High Court, in Suresh Nath Modi v. Jorawarmal³⁹ concurred with, the aforementioned case.

The Punjab and Haryana High Court in Jasbir Singh v. Surjit Singh⁴⁰ noted that the trial court is obliged to take measures as mandated in Order 16 CPC to procure the attendance of the absent witness.⁴¹ It noted that the trial court shall adopt all the measures to procure the presence of the summoned witnesses as mandated under the provisions of Order 16 CPC and other provisions of the CPC.⁴² The same High Court made similar observations in Deepak Chadha v. Rupa Anand⁴³.

These set of judgments place a large emphasis on coercion of witnesses to compel their presence in court. Uchhab Kanwar case⁴⁴, takes an extreme stance by removing the Court’s discretion to not compel the attendance of a witness and mandating coercive actions contemplated under Section 32. Further, Jasbir Singh case⁴⁵, and Deepak Chadha case⁴⁶, mandate that all prescribed coercive steps should be taken by courts to procure witness attendance.

4. Coercion by court to compel attendance of witness to be exercised with caution

The M.P. High Court, in Dwarka Prasad v. Rajkunwar Bai⁴⁷ observed that the provisions contained in Order 16 Rule 10 are penal in nature thus the procedure laid down should be strictly followed.⁴⁸ Similarly, the Bombay High Court in Dilawarkhan Ahmedkhan v. Manbee Ahmed Khan⁴⁹ while being cognizant of the penal consequences in the coercive process embodied in Order 16 Rule 10 noted that “the Court is expected to be slow” and the coercive process can be employed only after satisfying itself that the witnesses were absent without lawful excuse.⁵⁰

The Madras High Court in T.P. Mani v. Palanisamy⁵¹ notes that the Court must be satisfied that the evidence of the witness is material in nature or document sought is necessary before it takes the extreme step of proclaiming the witness.⁵² The Court rightly emphasises the heavy responsibility of the Court before taking such coercive actions and how the courts should not be a party to harass witnesses through such measures and it noted that the courts should weed out vexatious applications.⁵³ The Court has to check whether there were genuine or unforeseen circumstances which rendered the witness absent, and if the same is found then fresh summons should be issued with sufficient time for appearance.⁵⁴

These set of judgments rightly emphasise that coercive actions must not be taken merely on absence of witness and suggest a cautious approach where procedure is to be strictly followed and the Court should proceed cautiously. while also emphasising the heavy responsibility on the Court before taking such coercive actions. T.P. Mani case⁵⁵, mandates fresh summons to be issued if genuine or unforeseen circumstances rendered the absence of the witness. Thus, these judgments take a much welcome libertarian approach with an emphasis on procedure and caution given the penal nature the provisions.

5. The value of truth and usage of Section 30 CPC

The Supreme Court in Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira⁵⁶ noted that the truth alone has to be the foundation of justice and the entire judicial system has been created only to discern and find out the real truth.⁵⁷ The Court noted that in civil cases adherence to Section 30 CPC would help in ascertaining the truth and this provision which is used rarely ought to be used more.⁵⁸

The Gauhati High Court in Anwar Hussain v. Union of India⁵⁹ observed that Section 30 CPC, may be enforced by the Court to enforce the attendance of witness if required to meet the ends of justice.⁶⁰

These judgments indicate the importance attached to the discovery of truth in the justice system and, in lieu of the same, witnesses may be compelled to produce evidence by using Section 30. This emphasises the importance of witnesses in the justice system who play a pivotal role in the discovery of the truth.

The analysis of the judicial trends reveals the following:

(a) Most courts hold that the purpose of Order 16 Rule 10 is to provide a coercive mechanism to assist parties to secure the attendance of witnesses, while some courts view its purpose to vindicate the Court’s authority or to prevent unreasonable delay while producing evidence.

(b) Courts emphasise the duty of courts to enforce attendance with coercive measures. However, courts differ on the extent of coercion, some courts mandate exhausting all possible coercive actions while others courts take a libertarian view and emphasise caution, noting the penal nature of Order 16 Rule 10 and the importance of strict adherence to procedure.

(c) The courts have also highlighted the role of Section 30 in ensuring justice by compelling witness attendance and stressing on the importance of truth in the judicial process.

Balancing needs of justice and rights of witnesses

Order 16 Rule 10 and the case laws are premised on the duty of a person to be a witness and assist the Court. In fact, Order 16 Rule 15 explicitly places such a duty on persons summoned to give evidence or produce documents.⁶¹ Thus, the CPC places this duty and also provides a coercive procedure under Order 16 Rule 10 to enforce the same. However, what about the rights of the witness who is a person and/or citizen endowed with fundamental rights guaranteed by the Constitution of India? The framework to coerce the attendance of witnesses provides extreme powers to the Court such as issuing warrants to arrest such a person and forcing one to testify, thus depriving one’s personal liberty under Article 21⁶², and fundamental rights to free movement,⁶³ to remain silent,⁶⁴ and the right to privacy.⁶⁵

At the same time, it is also to be noted that, the parties to the proceeding have the right to have a fair trial.⁶⁶ As noted by the Supreme Court, in Zahira Habibullah Sheikh (5) v. State of Gujarat⁶⁷ the operative principles of fair trial permeate both civil and criminal contexts, and the failure to hear material witnesses leads to the denial of a fair trial.⁶⁸ It was again emphasised in Mahender Chawla v. Union of India⁶⁹ that the failure to hear material witnesses is denial of fair trial.⁷⁰ In Mohd. Sahir Sha v. State of Kerala⁷¹ it was noted that the right of the defence to adduce all its evidence is part of the fair procedure contemplated under Article 21 of the Constitution of India.⁷² Therefore, the fundamental right of a party to a fair trial is horizontally applied to third persons to compel them to be witnesses.

On the one hand, the rights of witnesses are at stake when compelled to appear and forced to testify, and on the other hand, when witnesses are not compelled, the rights of the party to have a fair trial and justice is denied. The courts have to adopt a balancing exercise where both the rights can be harmonised without unduly affecting either party.

In order to strike such a balance, the courts need to acknowledge the importance of compelling witness attendance and their duty to the same to ensure a fair trial, while exercising caution and strict adherence to procedure while using the coercive framework to compel such witness attendance. Such a libertarian approach, in strict compliance with procedure, and cautious imposition of penal consequences to compel witness attendance for having a fair trial would strike an acceptable balance. Courts should enforce penal consequences to compel witness attendance only as a last resort, after ensuring that proper summons have been served and reissuing summons, if necessary.

Thus, in terms of Section 32 and Order 16 Rule 10, I argue for the line of cases which acknowledge the Court’s duty to compel witness attendance while taking a cautious approach towards enforcing penal consequences. Cases which strike such a balance include Madras High Court’s T.P. Mani v. Palanisamy⁷³ and the Bombay High Court’s Dilawarkhan Ahmedkhan v. Manbee Ahmed Khan⁷⁴. Courts should stay away from solely focusing on the needs of justice while ignoring the rights of witnesses, an unfortunate case in that sense is Uchhab Kanwar v. Ramswaroop⁷⁵ which mandated coercive action.

Therefore, striking such libertarian balance between the right to fair trial and the fundamental rights of witnesses as individuals would harmonise the said rights.

Conclusion

The coercive framework to compel witness attendance is necessary to uphold the right to a fair trial by securing the presence of material witnesses. However, this must be balanced with the fundamental rights of the witnesses, who also wield the right to privacy, liberty, and free movement. The judicial trends indicate differing HC interpretations of the coercive mechanism to compel witness attendance without an authoritative SC judgment or a settled position of law. The paper argues that a balanced, libertarian approach is required to harmonise the rights of the parties and the witnesses while also considering the need for justice. Courts should ensure that prescribed procedures are complied with and that their duty to compel witness attendance by coercive means is to be done cautiously with a libertarian approach.