Re-Opening of Evidence
When a party approaches the court, it is expected from them that they disclose all the material facts and evidence they rely upon and these facts and evidence further forms the grounds/platform of the case. All the facts and evidence should be produced before the court during the initial stage of the hearing. Once the trial has started, fresh evidence can deviate the case as adducing new evidence can lead to delay the proceedings, new facts have to be considered by the court whether or not they have are part of the original issues or need a separate suit.
Table of Contents
- Why Re-opening of evidence is challenging
- Leave to adduce evidence
- Complaint / First Information Report
- Statement before the magistrate
- Final report
- Charge sheet
- Stage of evidence
- Arguments and Judgement
- K. Velusamy v N. Palaanisamy 2011
- Vadiraj Naggappa Vernekar v Sharad Chand Prabhakar Gogate (2009)
- S.S. Durai Pandian Vs. Samuthira Pandian (1998)
- Jagseen Singh Alias Sonu Alias v the State Of Punjab, 2011
- U T of Dadra and Haveli and another v. Fatehsinh Mohansingh 2006
Jurisprudence has failed to establish the requisites to consider before allowing parties to adduce evidence during the later stage of the trial, as it is a complicated decision. Where at one hand there is equity which suggests that the right of the parties for fair trial and on the other hand justice which will be delayed due to constant disturbance by adducing new evidence.
LEAVE TO ADDUCE EVIDENCE
There are different stage in a criminal trial, from first information report to judgment the entire procedure has to be followed in the following manner;
- Complaint / First Information Report:- An F.I.R is filed by a person who is aggrieved on or the behalf of the aggrieved or any other person about the commission of an offense. Section 154 Criminal Procedure Code describes the form in which the evidence may be given and how it may be recorded.
- Investigation:- once a complaint has been registered, the next stage is an investigation by the concerned police officer. The investigation may include collecting evidence, recording statements, etc. Once the commission of an offense is disclosed the matter is forwarded to the court of law. The investigation by a police officer can be commenced on receiving a complaint or otherwise under Section 157 Cr. P.C.
- Statement before the magistrate:- Under Section 164 Cr. P.C the statement or confession will be recorded before the magistrate. It empowers the Metropolitan Magistrate or Judicial magistrate to record statements and confession during the investigation or any time afterward before trial. The magistrate is bound to tell the person stating facts that he is not bound to do any confession and if he still wishes to give, then such confession can be used against him.
- Final report:- police officer may file a final report which will disclose the commission of an offense or a closure report if no evidence discloses an offense.
- Charge sheet:- it contains all the statements under Section 161, Section 164, list of witnesses, list of seizure, documented evidence, etc.
- Trial: the trial starts at this stage and the evidence is produced by both parties, the prosecutor who is appointed in the case will explain to the court about the offense and the court will frame charges. The accused may file an application under Section 227 for discharging charge or if the accused plead guilty the case stops there and then as the accused has accepted the offense.
- Stage of evidence:- the stage of evidence consists of Examination in Chief, Cross-Examination, and Re-examination. Both the prosecution and defense are allowed to present their witnesses and evidence and first examine their witness and then cross-examine the witness of the other party.
- Arguments and Judgement:- after presenting all the witnesses and arguments, the judgment is passed by the court after considering the veracity of the witnesses and evidence.
The above list is not exhaustive as there are other stages in the trial and proceedings. Each party is given sufficient opportunity to present their witnesses and evidence. When a piece of new evidence is adduced at a later stage it leads to a jolt during the proceedings which can for sure delay the justice.
Where the party at any later stage of the proceeding wishes to produce any evidence the court at its discretion may allow or may reject if there are no material facts that will be left out. While deciding whether to re-open the doors for presenting the evidence the court has to foresee through its judicial mind, the complexity of accepting the evidence and chances of the opposing party to call or produce another evidence in reply. In K.K. Velusamy v N. Palaanisamy 2011, the Hon’ble Supreme Court observed the facts that the application under Section 151 of Civil Procedure Code was filed with a prayer to reopen evidence for further cross-examination. Another application was filed under Order 18 Rule 17 for recalling plaintiff witness 1 and 2 for further cross-examination. The respondent raised the issue and stated that the application is dilatory. The court observed that while determining whether evidence may be reopened or not it should not be deciding mechanically by just imposing the law, rather the circumstances and ultimate aim of justice have to be kept in mind. Section 151 gives power to the court to exercise its judicial power in a matter where there is no specific law and further Order XVIII Rule 17 allows the court on its own or at the application of the parties to allow the parties to produced further evidence. The court in the interest of justice and to prevent abuse of the process of law should decide whether it is necessary to re-open the evidence or not carefully.
Use of Section 151 read Order XVIII Rule 17 is frequent by the parties, the court has to be vigilant, whether to allow such application or not. If there are material fact which can change the outcome of the judgment and were not known to the party earlier, the court may consider such evidence. In Vadiraj Naggappa Vernekar v Sharad Chand Prabhakar Gogate (2009), the Hon’ble Supreme Court held that Order XVIII Rule 17 of C.P.C states that the court may in its discretion or at the application of party may recall the witness to adduce evidence but the main purpose of this suit is to clarify any doubt in respect of evidence which was led by the parties earlier. But this provision cannot be used to fill the lacunae in evidence due to the omission of the parties and for which the witness has already been examined. Even though fresh evidence is introduced the court must see whether they are imbibed in the present case or forming a separate case.
Further in S.S.S. Durai Pandian Vs. Samuthira Pandian (1998) Hon’ble Madras High Court it was held that under Order 18 Rule 17 CPC, the Court could not only recall a witness on its own but also an application made by the parties.
The power of the court to reopen the evidence is given for criminal trial in Criminal Procedure Code, in Jagseen Singh Alias Sonu Alias v the State Of Punjab, 2011, the Hon’ble Punjab and Haryana High Court the matter was, the court was considering the application filed by the public prosecutor under Section 311 of Cr. P.C stated that the documents form an essential part of the judgment and not to fill lacunae. The court allowing the application stated that when a piece of evidence is essential for the just decision the court may allow the same.
The exercise of Section 311 Cr. P.C should only be done with the object to find out the truth or proper proof of the facts which will lead the case to a just decision. In U T of Dadra and Haveli and another v. Fatehsinh Mohansingh 2006, it was held by the Hon’ble Supreme court that to deliver a just decision, Section 311 of Cr. P.C must be used. Section 311 cannot be used for filling the lacuna during the recording or presenting the evidence as there are sufficient opportunities given to a party to present their evidence and omission on their behalf should not compensate with justice. Re-calling a witness who has already been examined cannot be done unless it affects the outcome of the case and serious prejudice to the party.
Justice is the ultimate aim of any criminal trial or civil proceeding, there are procedures to facilitate unforeseen situations such as the introduction of new facts in the later stage. The court has to be vigilant not only about the stages of the proceedings but also the conduct of the parties who intend to delay the proceedings. The scope of discretion of the courts under these provisions is narrower as compared to the scope of judgment as justice should be the outcome of any case instituted before the court. Opening closed evidence shall first be questioned on the relevancy and effect and later whether it helps in the judgment of the case or not.