• Can accused-1 in an ACB case be called as defence witness

X is A1 in an ACB case who is alleeged to have stated to the ACB officials that he paid mamools/ bribe to certain Government officials against whom departmental proceedings are initiated under CCA rules and the prosecution case is completed. The charges are framed entirely on basis of the A1 reecorded in the Mediators' Report. Evidently A1 is not a PW in the departmental case. Now the Defence Asst. intends to summon A1 as Defence witness to bring out the truth as to whether what is recorded in the Mediators Reports as having been stated by him are really stated by him or not. The provisions of CrPC and Evidence Act are not applicable to departmental proceedings. Pl. clarify and advise whether X who is A1 can be summoned as Defence Witness, if so under what provision.
Asked 7 years ago in Criminal Law
Religion: Hindu

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7 Answers

1) after the examination and cross-examination of the prosecution witnesses the accused then be called upon to enter upon his defence. Then comes (iii) the third stage when Section 257 comes into play. Section 257 lays down the procedure for issue of process for compelling the production of evidence at the instance of the accused for the purpose of his defence Under the provisions of Section 257 the Magistrate has a duty to issue process to compel the attendance of witnesses named by the accused except where the Court considers that the object for making such process is to cause vexation, delay or to defeat the ends of justice

2) When a prosecution witness is summoned under Section 257 at the instance of the accused, he dues not thereby lose his character as a prosecution witness. The mere fact also that the accused was compelled to be the prosecution witnesses as his own, will not make any change in the legal position for the purpose of Section 257, see Sheo Prakash Singh v. W.D. Rowling. (1901) ILR 28 Cal 594. This view of the Calcutta High Court was followed by the Madras High Court in a case reported in 23 Cr. LJ.. 192 : (AIR 1922 Mad 32) Venku Reddy v. Emperor.

Ajay Sethi
Advocate, Mumbai
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The proceedings in the departmental proceedings are only quasi-judicial proceedings. All the procedure of an ordinary trial or proceedings in a Court of Law is not applicable.

2)departmental inquiries are not bound to follow all the procedure and requirement of a judicial trial or proceedings.

3) The Supreme Court has given clear rulings to that effect that a disciplinary proceeding is not a criminal trial and that the standard of proof required in a disciplinary inquiry is that of preponderance of probability and not proof beyond reasonable doubt, which is the proof required in a criminal trial.

4) the witnesses who are examined in the departmental enquiry shall be made available for cross-examination. Even though the provisions of the Civil Procedure Code and the Evidence Act are not strictly applicable in disciplinary proceedings, the principles behind those provisions cannot be altogether ignored.

[L.I.C of India & Anr. vs. Ram Pal Singh Bisen 2011(1) SLJ 201]

5) make application seeking to examine accused as defence witness

Ajay Sethi
Advocate, Mumbai
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7607 Consultations

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Madras High Court

K. Venku Reddy And Anr. vs Emperor on 20 December, 1921

Equivalent citations: 65 Ind Cas 768

Author: Odgers

Bench: Odgers

ORDER Odgers, J.

1. The only point is, whether the prosecution witnesses ought to have been allowed to be cross-examined. I think the point taken for the accused must succeed The Magistrate having allowed the prosecution witnesses to be recalled as defence witnesses under Section 257, Criminal Procedure Code, must clearly have allowed them to be cross-examined by the accused. There is no finding that the application should not have been allowed as vexatious or dilatory. The cases which support accused's position are Mawla Bux Biswas v. Derasatulla Sarkar 10. W.N. 19 and Sheoprakash Singh v.Rawlins 28 C. 594. Both cases decide that prosecution witnesses summoned under these circumstances, do not change their character and may be cross-examined by the accused. The convictions must be set aside end the case remitted for re-trial according to law.

Ajay Sethi
Advocate, Mumbai
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7607 Consultations

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Regarding summoning of witness one is governed by the concerned Service Rules.

I am sure the service Rules you have mentioned would contain such provision.

In general in absence of summoning of witnesses provision all the DP is guided by the law of natural justice which allows the employee to defend his case by bringing such witness as he wants.

Devajyoti Barman
Advocate, Kolkata
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Pl. clarify and advise whether X who is A1 can be summoned as Defence Witness, if so under what provision.

The departmental proceedings are different to that of the court proceedings in this regard.

In the departmental proceedings if the defence side relies on this witness it can summon this witness provided the witness is willing to depose the same. No force can be put on him to depose evidence.

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

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Provisions of CrPC are not applicable to the departmental inquiries which are governed by a separate set of Rules called A.P. Civil Services (Classification, Control & Appeal) Rules, 1991 in my case. Then what is the alternative? A1 is not a party to the departmental case.

Since the accused is not a party to the departmental inquiry, he can be asked to depose evidence but if he is not willing to depose the same, he cannot be forced to depose the evidence as desired by the defence side.

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

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Section 257 referred to by you is of what Act? Section 257 of CrPC relates to 'withdrwal of complaint'. Pl. correct me. Sorry to trouble you repeatedly.

There is no provision for utilization of section 257 under any law for departmental enquiry.

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

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