IO does not want to testify

[Imnindian Imnindian]

Dear Sir,

In my 498a case which is at the stage of Prosecution evidence, i have been informed that IO in the case does not want to testify. Is there a way i can force him to come and depose? The reason IO does not want to testify is i have documentary evidence that he has played fraud with the court at the time of getting warrant issued against me. If i can get him to appear before the court and testify, i am very sure that he would be prosecuted u/s 167. Please suggest.

Thanks!!

[Dr. Ashok Dhamija]

The trial court has sufficient powers to compel the appearance of a witness. Initially summons are issued to witnesses, but if necessary, the court can issue bailable or non-bailable warrant to ensure the presence of a witness whose evidence may be necessary for the case. Section 87 of the Criminal Procedure Code gives sufficient powers to the court in this regard. So, you may request the court to take necessary action in this regard to ensure the presence of the Investigating Officer.

You have said that you have sufficient evidence to show that the I.O. has played fraud on the court. If that is the case then you may do the needful even if the I.O. does not remain present in the court.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Imnindian Imnindian]

Thank you Sir for the reply!!

But can i interfere in who the Prosecution produces as witness? Can the prosecution not say they have given up IO as their witness? What would be my argument to force him to come to witness box? Is there any case law that i can cite?

As far as evidence is concerned, IO has given 3 different versions of the events(all occurring on the same day):
1. While obtaining arrest warrant, he has told the court that the accused is crafty and clever who ran away on seeing the police.
2. Replying to my contempt petition in HC for not following Arnesh Kumar guidelines, he says he went to serve notice(250kms away) u/s 160 CrPC but it was refused by my mother.
3. In the chargesheet, he has produced statements of 3 witnesses u/s 161 CrPC which are on the same day as he went to serve notice. I have also obtained DDR entry from his PS that he started at 7 in the morning and reached back at 9:30 in the evening. So if he was travelling the entire day how could he record statements of 3 witnesses?

I understand each case is different but I would be grateful if you could help me with any pointers, generic or otherwise.

Thanks!!

[Dr. Ashok Dhamija]

It is for the prosecution to decide whom to produce as prosecution witnesses. You, as accused person, cannot dictate to the prosecution in this regard. The prosecution can drop its witnesses. At the same time, if the prosecution drops any important or crucial witness, whose evidence is essential to prove the prosecution case, then the court may warn the prosecution that it may have adverse consequences for the prosecution case. Dropping a crucial witness may have serious adverse consequences on the prosecution case.

You, as an accused, cannot dictate to the prosecution as to who should be produced as prosecution witnesses. At the same time, if there is some prosecution witness who is essential for your case, you can request the court to examine such witness and point out the circumstances. The court has the power to examine any person even if he is neither a prosecution witness nor a defence witness. Further, even if the court does not agree with your suggestion, you have the option to examine such prosecution witness as a defence witness, if you are confident that such witness would be beneficial to your case.

As regards the facts mentioned by you, these can be shown to the court, may be during the arguments stage, if the IO does not appear as a witness. If the court is convinced, it can force the IO to appear and in any case, if there is documentary evidence to prove these facts, action may perhaps be initiated against the IO even without his cross-examination if there is a default on his part.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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