Questions and answers on law part 44

 Q 1:- Can prosecution witness be summoned as defense witness in a criminal case. An application is moved at 313 CrPC stage by the accused that he wants to summon prosecution witness although they were discharged by the court. Now accused wants those witness to be summoned in court. Can he do so?

Ans:- The prosecution witnesses may fall under two categories. (1) Witnesses cited by it but not examined (2) Witnesses examined by it. If the prosecution does not examine any witness cited by it, it is open to the defence to cite him and examine him as defence witness (Hukam Singh vs State of Rajasthan : (2000)7 SCC 490). But, then the defence will not be able to contradict him with his previous statement given to police in view of the bar under section 161(1) Cr.P.C.

A close reading of the proviso to section 162(1) Cr.P.C would show that lifting of the aforesaid bar under that provision applies only to prosecution witnesses. Under Section 162 Cr. P.C, only witnesses on behalf of the prosecution could be contradicted by reference to their statements made to the police, and not court witnesses or defence witnesses (See Shakila Khader Vs Nousher Gama: AIR 1975 SC 1324). If the witness cited by the prosecution has been examined on its side, then the defence cannot cite him and examine him on its side. Under the provisions of the Code of Criminal Procedure (like Section 233Cr.P.C) the accused can enter upon defence and he can apply for the issue of process for compelling the attendance of any witness in his defence. But, such provisions cannot be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged to be juxtaposed as defence witnesses( See State of Madhya Pradesh vs Badri Yadav : AIR 2006 SC 1769). The substantive law of evidence or the procedural criminal law does not permit the statement of one witness being recorded twice so as to read the two as separate depositions for two sides. After all the same witness cannot be a witness for prosecution and a little later a witness for defence.

Q 2 :-Whether charge under S 120B of IPC is to be framed separately from charge under main offence?

Ans: For every distinct offence there shall be a separate charge.

Hence in my opinion separate charge is to be framed for S 120B of IPC.

Q 3:- In complaint cases where the accused are resident of place outside jurisdiction of court (mostly in other state) both in IPC and NI Act the summons, warrant, proclamation U/S 82 CRPC and attachment warrant U/S 83 issued by court does not return back to the court. The processes are sent by registered post to the SSP/SP concerned but are not sent back. What  should be done in such cases?

Ans:- The court can adopt procedure provided U/S 105 of CRPC.

Section 105 in The Code Of Criminal Procedure, 1973

105. Reciprocal arrangements regarding processes.

(1) Where a Court in the territories to which this Code extends (hereafter in this section referred to as the said territories) desires that-

(a) a summons to an accused person, or

(b) a warrant for the arrest of an accused person, or

(c) a summons to any person requiring him to attend and produce a document or other thing, or to produce it, or

(d) a search- warrant, ² issued by it shall be served or executed at any place,-

(i) within the local jurisdiction of a Court in any State or area in India outside the said territories, it may send such summons or warrant in duplicate by post or otherwise, to the presiding officer of that Court to be served or executed; and where any summons referred to in clause (a) or clause (c) has been so served, the provisions of section 68 shall apply in relation to such summons as if the presiding officer of the Court to whom it is sent were a Magistrate in the said territories;

Q 4:-  Whether the court can convict accused for an offence of theft if complainant has failed to produce any document regarding his ownership over stolen property?

Ans:- In order to prove the offence of theft, ownership over stolen property need not be proved. The gist of the offence is removal or taking of the article from the possession of another, with dishonest intention.

If there is sufficient evidence that the articles were removed from the possession of another by the accused with dishonest intention, he could be convicted. Otherwise, not.

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