Summons to Witness Under the Civil Procedure Code, 1908: A Comprehensive Guide

The Civil Procedure Code, 1908 (CPC) provides a comprehensive framework for the administration of civil justice in India. One crucial aspect of this framework is the mechanism for compelling the attendance of witnesses. This article delves into the provisions of the CPC relating to summonses issued to witnesses, examining the procedural aspects, legal requirements, and consequences of non-compliance. Understanding these provisions is essential for legal professionals, litigants, and witnesses alike.

What is a Summons to Witness?

A summons to a witness is a legal document issued by a court, compelling an individual to appear before the court to give evidence or produce documents relevant to a pending case. The purpose of issuing a summons is to ensure that all relevant information is presented before the court to facilitate a just and fair decision. The power to summon witnesses is vested in the court and is exercised to ensure the integrity of the legal process.

Legal Basis: Order XVI of the Civil Procedure Code

The procedure for summoning witnesses is primarily governed by Order XVI of the Civil Procedure Code, 1908. This Order outlines the various aspects related to witness summonses, including:

• Rule 1: Summons to Attend to Give Evidence: This rule stipulates that a party to a suit may apply to the court for summonses to persons whose attendance is required either to give evidence or to produce documents or other material objects. The application must be made within the time prescribed by the court.
• Rule 1A: List of Witnesses and Summons: This rule mandates parties to present a list of witnesses they propose to call, either to give evidence or produce documents. Based on this list, the court can issue summons to the witnesses.
• Rule 2: Expenses of Witness to be Paid: This rule ensures that the expenses incurred by a witness in attending court are paid by the party who summoned them. These expenses typically include travel costs, accommodation, and daily allowance, as per the rules prescribed by the court.
• Rule 3: Tender of Expenses: This rule details the process for tendering expenses to the witness. The expenses are to be tendered at the time of serving the summons, sufficient to cover the witness's travel to and from the court, as well as one day's attendance.
• Rule 4: Procedure Where Insufficient Sum Paid: If the court deems the expenses tendered insufficient, it may order the party to pay such further sum as it considers reasonable. If the party fails to pay, the court may record that the witness was not duly summoned.
• Rule 7: Time of Serving Summons: Summons must be served at least a reasonable time before the date on which the witness is required to attend, allowing the witness sufficient time to prepare and travel to the court.
• Rule 10: Procedure When Witness Fails to Comply: This is a critical rule that deals with the consequences of a witness failing to comply with a summons. We will discuss this in detail later.
• Rule 16: Consequences of Failure to Comply: This rule lays out the penalties for non-attendance despite receiving a summons and expenses.

Who Can Be Summoned as a Witness?

Generally, any person can be summoned to appear as a witness, provided their testimony or evidence is relevant to the case. This includes:

• Ordinary Citizens: Individuals who have witnessed events or possess information relevant to the dispute.
• Experts: Individuals with specialized knowledge or skills who can provide expert opinions on technical or scientific matters. Examples include doctors, engineers, and forensic experts.
• Public Officials: Government employees who possess information relevant to the case, obtained in their official capacity.
• Parties to the Suit: Although parties are usually examined in their own capacity, they can also be summoned as witnesses for cross-examination by the opposing party.

However, there are certain limitations and exceptions. For instance, certain privileged communications (e.g., lawyer-client privilege) may prevent a person from being compelled to disclose specific information.

Procedure for Issuing a Summons to Witness

The process of summoning a witness involves several steps:

1. Application to the Court: The party requiring the witness's attendance must file an application with the court, specifying the name and address of the witness, the purpose for which they are being summoned (to give evidence or produce documents), and the relevance of their testimony or documents to the case.
2. Court's Discretion: The court has the discretion to grant or reject the application. The court will consider the relevance of the witness's testimony or documents, the necessity of their attendance, and whether the application is made in good faith.
3. Issuance of Summons: If the court grants the application, it will issue a summons to the witness, specifying the date, time, and place where the witness is required to appear. The summons will also state whether the witness is required to give evidence or produce documents.
4. Service of Summons: The summons must be served personally on the witness, typically by a court official or a process server. The process server obtains the signature or thumb impression of the witness, acknowledging receipt of the summons. In certain circumstances, alternative modes of service, such as substituted service (e.g., affixing the summons to the witness's residence), may be permitted if personal service is not possible.
5. Tender of Expenses: As outlined in Rule 3 of Order XVI, at the time of serving the summons, the party summoning the witness must tender a sum sufficient to cover the witness's expenses for traveling to and from the court and for one day's attendance.

Consequences of Non-Compliance with a Summons

Failing to comply with a summons is a serious matter and can lead to significant legal consequences. Order XVI, Rule 10, deals with this situation directly.

Order XVI, Rule 10: Procedure When Witness Fails to Comply

If a witness fails to attend court after being duly served with a summons and having their expenses tendered, the court has the following powers:

• Issue a Warrant: The court may issue a warrant to arrest the witness and bring them before the court. This is typically done when the court believes that the witness's absence is deliberate and that their testimony is crucial to the case.
• Order Attachment of Property: The court may order the attachment of the witness's property. This means that the court can seize the witness's assets and hold them until the witness appears before the court or provides a satisfactory explanation for their absence. The attached property can be sold to recover any costs or penalties imposed on the witness.
• Impose a Fine: The court may impose a fine on the witness for failing to comply with the summons. The amount of the fine will depend on the severity of the non-compliance and the circumstances of the case.
• Order the Witness to Furnish Security: The court may require the witness to furnish security to ensure their future attendance in court. If the witness fails to provide the required security, they may be detained in civil prison until they comply with the court's order.

Order XVI, Rule 12: Mode of Attachment
This rule states how the attachment of property is carried out when the witness disobeys the summons. It outlines the legal process for the authorities to seize and manage the witness's property until they comply with the summons.

Order XVI, Rule 16: Consequences of Failure to Comply

This rule further details the penalties for non-attendance:

• Attachment and Sale of Property: If the witness fails to appear without a valid excuse, the court may direct the attachment and sale of their property. The proceeds from the sale will be used to cover the costs of the attachment and sale, as well as any fine imposed on the witness.
• Fine for Default: The court may also impose a fine on the witness for their default.
• Suit for Damages: The party who summoned the witness may also file a separate suit against the witness to recover any damages they suffered as a result of the witness's failure to appear.

Grounds for Exemption from Attending Court

A witness may be excused from attending court if they have a legitimate reason for their absence. Some common grounds for exemption include:

• Illness: If the witness is suffering from a serious illness that prevents them from attending court, they can apply for an exemption, supported by a medical certificate.
• Travel Difficulties: If the witness is unable to travel to the court due to logistical difficulties (e.g., lack of transportation, remote location), they can apply for an exemption.
• Conflicting Obligations: If the witness has prior, unavoidable commitments (e.g., another court appearance, family emergency), they can apply for an exemption.
• Official Duty: Government officials may be excused from attending court if their presence is essential for the performance of their official duties.

To obtain an exemption, the witness must file an application with the court, explaining the reason for their absence and providing supporting documentation. The court will consider the application and decide whether to grant the exemption.

Important Considerations for Witnesses

• Truthfulness: It is crucial for witnesses to provide truthful and accurate testimony. Giving false evidence is a criminal offense punishable under the Indian Penal Code.
• Preparation: Witnesses should prepare for their testimony by reviewing relevant documents and refreshing their memory of the events in question.
• Understanding the Summons: Witnesses should carefully read and understand the summons, paying attention to the date, time, and place of the hearing, as well as any instructions provided by the court.
• Seeking Legal Advice: If a witness is unsure about their rights or obligations, they should seek legal advice from a qualified lawyer.

Conclusion

The provisions of the Civil Procedure Code, 1908, relating to summonses to witnesses are essential for ensuring that all relevant evidence is presented before the court. Understanding these provisions is crucial for all parties involved in civil litigation, including lawyers, litigants, and witnesses. By following the procedures outlined in the CPC, courts can effectively compel the attendance of witnesses and ensure a fair and just outcome. Non-compliance with a summons can have serious consequences, including arrest, attachment of property, and the imposition of fines. Therefore, it is essential for witnesses to take their obligations seriously and comply with the summons unless they have a valid reason for exemption.