Defendant strategy to disallow witness accused in another offence

Abstract

The present article and write-up is an attempt to describe one facet of the question -

What can be a defendant’s strategy to disallow a witness from testifying in the present case, given the fact that the witness is an accused in a serious felony charge in a separate crime?

The intended audience for this article invariably would include -

• Lawyers,
• Jurists
• Academia in the area of Law and other allied subjects
• Other interested parties

A proper appreciation of this article would require at a minimum, basic understanding of

• The Constitution Of India, 1950
• The Code Of Criminal Procedure, 1973
• The Indian Penal Code, 1860
• The Indian Evidence Act, 1872
• The Negotiable Instrument Act, 1881

For the sake of reading and better understanding of the concept, the factual matrix presented herein is meant for illustrative purposes only, without any intention of prejudice towards anyone. Happy reading. 

Vendors[1] (hereinafter “Prosecutor/Respondent”) - Mendez, individually and as next friends of Praveen Babu (“Praveen”), filed a Cheque Bounce Case against Vendee[2] (hereinafter “Accused/Petitioner”) —Swamy Pollard Insurance Company represented by Swamy Narayan in the Trial Court. 

At the time of the Trial, the Prosecutor’s introduce  PW-4, by the name of Ghora. PW-4 has the dubious history of being an accused in a separate Crime being investigated by CB-CID, wherein Ghora  is A-5 (meaning Accused # 5).

The Accused Trial Lawyer would like to bring a petition, in support of the Accused  to disallow PW-4 to testify because of his dubious criminal antecedents.

The Trial Court has disallowed the Petitioner from doing so, on the grounds that Accused in one case can be a Competent Witness in another totally unrelated Case.

• [1] Collectively referred to herein as “the Respondent(s).”
• [2] Collectively referred to herein as “the Petitioner (s)”

Jurisdiction

It is humbly submitted that the supreme court of India has original jurisdiction to entertain this writ petition no.xxx of 2016 along with writ petitions in public interest under article 32 r/w article 132-141 and article 226 of the constitution.

Statement of Facts

The petitioner most respectfully sheweth

• THAT, the case at hand is related to a cheque bounce case wherein the PETITIONER is the accused.
• THAT on or about 25-Aug-2016, the PETITIONER/ACCUSED brought to the attention of the Hon’ble Trial Court, the Criminal Antecedents of PW-4 and prayed for a PETITION IN-LIMINE TO DISALLOW PW-4 from testifying on the grounds that PW-4 is an accused (A-5) in a serious offence that is being investigated by CB-CID.
• The Hon’ble Trial Court disallowed the Petition, on the reasoned grounds that an Accused in a Crime can be a Competent Witness in a separate Crime.
• The PETITIONER/ACCUSED aggrieved by the aforementioned Order was pleased to file an appeal in the High Court, which also declined to interfere with the findings of the Trial Court.
• The PETITIONER has therefore approached the Supreme Court for directions to remand the Orders from the High Court and the Trial Court. 

Synopsis of Issues

ISSUE - 1

The Prosecutor witness PW-4 is himself an accused in on ongoing investigation by CB-CID, on the charges involving grave moral turpitude and unconscionable actions.

Can the Court can allow the testimony of such witness, PW-4, to be used as evidence in the present matter, involving a Cheque Bounce case?

ISSUE - 2

Whether appreciation of evidence vis-à-vis cross-examination of PW4 is sustainable in law

Case Law Index

Cases

Habeeb Mohammad v. State of Hyderabad, AIR SC 51 : 1954 CrLJ 338 : 1954 SCA 514 : 1953 SCJ 678 : 1954 475 : 1954 MWN 233.......15
Jayakar v. State of Karnataka, 1997 (1) Crimes 237 (Kant)........17
Sarwan Singh v. State of Punjab, AIR 1976 SC 2304, 1976 CrLJ 1757 : (1976) 4 SCC 369      16
State of U.P v. Jaggo, AIR 1971 SC 1586 : 1971 CrLJ 1173 : 1971 SCD 557 : (1971) 2 SCCrR 397 : 1971 CrAppR (SC) 323........ 16

Strategies to exclude witnesses

• Strategy 1. File a petition for impeachment pre-cross examination
• Strategy 2. File a petition in-limine to exclude witness
• Strategy 3. File a vior-dire petition along with a set of preliminary interrogatories
• Strategy 4. Cross examination of witness
• Strategy 5. Impeachment petition post cross examination
• Strategy 6. Petition to exclude witness testimony

Grounds for petition in-limine disallowing witness PW-4

The PETITIONER’s Counsel relies on the following Defences in opposing the presentation of PW-4 to testify as a witness, given the fact that PW-4 is listed as A-5 in a different unrelated crime which per se serious offence that is being investigated by CB-CID. The grounds and reasons for the said opposition is as stated below —

• PW-4 is not a competent witness in the Dishonour of Cheque
• PW-4 was not present at any of the events that are related to the present dispute related to Dishonour of Cheque between PETITIONER and RESPONDENT.
• PW-4 is a habitual offender and is involved in a Crime of severe and serious moral turputide.
• Trial Court proceedings would get vitiated if an A-5 in CB-CID is brought in as a witness
• PW-4 can neither confirm nor deny the absence of averments made in the Complaint.
• PW-4 himself is an accused in a serious Crime or Offence that is currently being investigated by CB-CID. Therefore, any reliance placed upon testimony of such a witness and evidence adduced thereof is substantially outweighed by the danger of unfair prejudice to the PETITIONER in this present matter.
• PW-4 is not competent to confirm nor deny the Benefit of doubt that can be accorded to the PETITIONER.
• The reliance placed by the RESPONDENT on PW-4 is only to delay the Trial and commit a vexatious litigation.
• PW-4 has past enmity with the PETITIONER. Therefore, any testimony given by PW-4 would be tainted on the very face of the record.
• The prosecutor/RESPONDENT is attempting to put forth refusal based upon arguments evidences the PETITIONER/DEFENDANT’s refusal to own admission of guilt. Such an argument or evidence adduced in such a matter is inflammatory, and unfair based upon the statutory right of refusal.
• The PETITIONER by and through his attorney, and moves This Honourable Court issue an ORDER prohibiting the PROSECUTOR/RESPONDENT from admitting into evidence any testimony from unreliable witnesses such as PW-4.  Such testimony should be excluded as it is more prejudicial than probative.

Suggested Reading:

• Kelkar R.V.: Criminal Procedure, 3rd Edn. Eastern Book Co., Lucknow, 1993.
• Ratanlal and Dhirajlal, The Code of Criminal Procedure, 15th Edn. Wadhwa & Co.,
• Padala Rama Reddi, The Code of Criminal Procedure, 1973, Asia Law House, Hyderabad.
• Prof. S.N. Misra, The Code of Criminal Procedure, Central Law Agency.
• M.P. Tandon, Criminal Procedure Code, Allahabad Law Agency.
• Shoorvir Tyage, The Code of Criminal Procedure, Allahabad Law Agency.
• Baddi, A. (2016, Dec 10). DEFENDANT STRATEGY TO DISALLOW WITNESS ACCUSED IN ANOTHER OFFENCE. Retrieved from http://satyagraha.com/portal/articles/11-crime-and-criminology/1528-defendant-strategy-to-disallow-witness-accused-in-another-offence.html