Case BriefsHigh Courts

Kerala High Court: A Bench of A. Muhamed Mustaque, J. hearing a civil writ petition, quashed a university’s order directing its ex-student to re-appear for an examination after almost a decade.

Petitioner, a lawyer registered with the Bar Council of Kerala, who graduated with LL.B from the University of Kerala in the year 2007, approached the respondent university for issuance of his transcripts. The University found that he had failed in the paper for Law of Contract in the second semester of his course. In view thereof, it directed the petitioner to re-appear for the said paper. The said order was challenged in this writ petition.

The Court noted that the university had erred in declaring petitioner as passed and since it was the university’s mistake, it could not, after a decade, compel the petitioner to take examination for the said subject.  Relying on  Suresh S. v. Mahatma Gandhi University, 2012 KHC 2794 it was held that the university could not cancel the degree certificate issued to petitioner.

In view of the above, the petition was allowed and university was directed to forward petitioner’s academic transcripts in accordance with regulations without any delay. [Suresh Babu v. University of Kerala, 2018 SCC OnLine Ker 5794, decided on 20-12-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench of Sanjay Kumar Gupta J., allowed the Criminal Revision Petition and set aside the order passed by the Principal District and Sessions Judge, Jammu.

The petitioner had been falsely charged with committing offences under Sections 376, 452 and 323 of the RPC. After the charges had been filed, the date for recording the statement of the prosecutrix was set, after the same had been constantly delayed by the prosecution. In her statement under Section 164 of the CrPC, the prosecutrix categorically denied the charges and allegations made against the petitioner. Subsequently, the prosecution declared the prosecutrix to be a hostile witness. Even during the cross-examination by the Public Prosecutor, the prosecutrix denied the charges and allegations against the petitioner and stated that she had never met him before. An application under Section 540 of the CrPC was moved by the prosecutrix through the Public Prosecutor which was vehemently opposed by the petitioner.

The Court found that the prosecutrix had denied the contents of the seizure memos. The victim at the time of giving her statement was identified by the doctor and her husband, who she claims had forced and coerced her to give the statement, as well as threatened her against recanting the statement. The Court considered the application made by the Public Prosecutor under Section 540 of the CrPC, and stated that the most important consideration is just decision being provided by the court, and in order to do that, the essentiality of the person who is to be re-examined needs to be ascertained.

The Court cited the case of Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461, as the fact situation of the same was very similar to the present case. The Court stated that where the witness was re-examined for the sole purpose of changing the effect of the previous statement when no ambiguity is present, then such an application for re-examination of the witness cannot be allowed. Thus, the petition was allowed and the judgment of the Principal District and Sessions Judge was set aside. [Masoom Hussain Shah v. State,2018 SCC OnLine J&K 792, Order dated 03-11-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and C. Hari Shankar, JJ. dismissed an appeal filed by the appellant-husband against the order of the family court whereby it granted a decree of divorce in favour of the respondent-wife.

It was contended by appellant that he wasn’t given the opportunity to recall PW 1 for fresh cross-examination as the evidence recorded by the family court was self-destructive attributable to unprofessional approach of the earlier counsel for the appellant. The appellant had filed an application under Section 151 read with Order 18 Rule 17 CPC which was dismissed as withdrawn. The present appeal was filed under Section 19 of the Family Courts Act, 1984.

The High Court considered the submissions made by the parties. It referred to Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410 and K.K. Velusamy v. N. Palanisamy(2011) 11 SCC 275. The Court observed that Order 18 Rule 17 CPC is to be exercised sparingly. The provision is not intended to enable the parties to recall any witness for further examination. It is primarily to enable the Court to clarify any issue or doubt by recalling any witness either suo motu or on application of any party so that the Court can itself put questions and elicit answers. Moreover, in the present case, the application filed by the appellant was withdrawn when it came up for hearing. Once the application was dismissed as withdrawn, the appellant could not complain that he wasn’t given the opportunity to re-examine the witness. In such circumstances, the appeal was dismissed. [Rajiv Mehta v. Savita Mehta,2018 SCC OnLine Del 10936, dated 20-08-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Ramendra Jain, J., allowed recalling and re-examination of prosecution witness no. 6 (PW 6)- handwriting expert.

In the matter at hand, a question arose as to the veracity of signatures of the attesting witness to the Will in question. To prove the veracity of signatures, handwriting expert (PW 6) was called. However, he gave his report regarding only one out of two signatures of the attesting witness to the Will. The petitioner prayed for recalling the said witness for re-examination, which was disallowed by the trial court. That decision was challenged in the instant revision.

The High Court found merit in the revision for the simple reason that there was an inadvertence on the part of PW 6 in giving report only in respect of one out of two signatures of the attesting witness. The Court held, ‘no litigant should be non-suited on account of inadvertent lapse of the witness’. Further, recalling and re-examination of PW 6 would neither change nature of the suit nor cause any prejudice to the opposite side. In view of the above, the revision was allowed and re-examination of PW 6 was directed. [Ram Lal v. Lakhbir Singh,2018 SCC OnLine P&H 622, dated 01-03-2018]

Case BriefsHigh Courts

Manipur High Court: A criminal petition seeking to allow the petitioner to recall himself as defence witness for re-examination, was allowed by a Single Judge Bench comprising of Ramalingam Sudhakar, J.

The petitioner, a rifleman in Indian Reserve Battalion, was accused of a murder. During the trial, the petitioner was examined as Defence Witness 1. He was further cross-examined by the Additional Public Prosecutor. Thereafter, the petitioner moved an application for his re-examination stating that though he had given correct facts as to the incident; by oversight, certain relevant factors were not mentioned. He pleaded that the Court may exercise power under Section 311 CrPC to allow the petitioner to be recalled and re-examined as defence witness, otherwise great prejudice would be caused to him due to the improper conduct of examination-in-chief by his counsel. The trial court rejected the application of the accused, thus, the petitioner filed the instant petition.

In order to settle the issue, the High Court perused Section 311 to hold that power granted under the Section can be exercised by the Courts in a case where the petitioner seeks substantial justice to lay his defence at the time of trial so that he should not be convicted on certain errors committed by learned counsel in not properly examining him. The Court found that the petitioner maintained a particular stand during his examination as well as cross-examination. He sought to clarify the events which happened during the intervening night of the incident. The Court was of the opinion that by filing the application, the petitioner was not trying to fill up any lacuna or loopholes in his case. In such circumstances, the petition was allowed giving the benefit of Section 311 CrPC to the petitioner. [Angom Indrajit Singh v.  State of Manipur,2018 SCC OnLine Mani 58, decided on 05-06-2018]

Hot Off The PressNews

Supreme Court: The Bench of SA Bobde and L. Nageswara Rao, JJ dismissed all 5 petitions challenging the decision of the Central Board of Secondary Education (CBSE) to conduct a re-examination of the Class 12 economics paper after an alleged leak. The Bench said that it is CBSE’s discretion to conduct the re-examination and can’t be challenged in the Court.

Several petitions were filed before the Court after the CBSE said on March 28 that the Class 10 maths and Class 12 economics paper had allegedly leaked. The CBSE, however, said yesterday that it has found after assessment there was no impact of alleged paper leak of Class 10 maths paper and no re-examination would be held.

Besides challenging the CBSE’s decision to conduct retest, the petitioners also wanted a CBI probe into the alleged paper leak, saying several incidents were reported from various states and Delhi Police was not competent to hold the nation-wide probe. One of the petitioners also sought a direction to the CBSE to declare the results on the basis of the examinations already conducted.

A petition filed by the students read:

“To penalise the student community for an incident which is under investigation and without completion of that investigation/enquiry and issuing a notice on March 28, 2018 (for re-exams), affects the fundamental rights of students which is arbitrary, illegal and unconstitutional.”

Source: PTI

Case BriefsHigh Courts

Madhya Pradesh High Court: Recently, an application was made under Section 482 CrPC against the order in which the plea of applicants under Section 311 CrPC for recalling witnesses who were already examined and re-examined. The reason given by the applicant was that the counsel who was earlier engaged by the applicants could not put several questions on the material aspects, therefore, they had to change their counsel and because of the inability of their earlier counsel, they pleaded that they were being denied the fair trial. The applicants also took a plea under Section 138 of the Evidence Act which talks about the order of examination of witnesses and re-examination.

To this, it was responded by the counsel from the State that although the free and fair trial is the cardinal principle of criminal jurisprudence, but the applicants had engaged the counsel of their own choice and the applicants were given full opportunity to cross examine the witnesses.

The Court went on to examine both the provisions relied upon by the applicants and their inter-connection. The Court observed that a reading of the provision shows that the expression ‘any’ has been used as a prefix to ‘court’, ‘inquiry’, ‘trial’, ‘other proceeding’, ‘person as a witness’, ‘person in attendance though not summoned as a witness’, and ‘person already examined’. It simply means all that is required to satisfy the court in relation to such evidence that it appears to the court to be essential for the just decision of the case. While Section 138 of the Evidence Act provides for the order of examination of witnesses in the Court. So, the re-examination will be conducted as per the order prescribed under Secion 138 at the desire of ‘any’ person referred to in Secion 311 CrPC and most importantly, at the satisfaction of the Court suggested by Section 311 CrPC that is, paramount for the just decision of the case. In all, the Court meant to convey that such power of allowing re-examination must be used sparingly as well as judiciously with utmost care and caution, only with the purpose of finding the truth or obtaining proper proof of such facts.

The Court citing  Hoffman Andreas v. Inspector of Customs, (2000) 10 SCC 430 explained as to when and under what circumstances such powers must be used. It was held in this case that but illness and death of the counsel was in the facts and circumstances considered to be a valid ground for recall of witnesses.

Another principle that the Court emphasised upon is that it’ll always be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. It even warned that justice will be prejudiced if a retrial is followed on every change of a counsel and would be detrimental to the interests of the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination.

It even went on to deal with the possibility that if the counsel is physically or mentally unfit to deal with the case, the interests of justice would suffer badly. The Bench suggested that the Advocates Act and the other relevant rules be reviewed in order to ensure the fitness of the counsel in larger interest of the society and also to avoid such pleas as presented in the case before it. The Court persuaded that the Law Commission and the Bar Council of India must look into it. [Paijaram v. State of M.P., M.Cr.C. No.11624/2016, decided on 20.01.2017]