Q. 7. What type of cases can be filed directly to the Supreme Court of India? What precaution should be taken in filing a case directly to the Supreme Court?
Ans. The following two types of cases can be directly filed in the Supreme Court:-
(1) Under the first category, under Article 131 of the Constitution, disputes relating to the following can only be filed in the Supreme Court –
(a) any dispute between the Government of India and one or more states,
(b) any dispute between the Government of India and any state or states on the one side and one or more than one state on the other,
(c) any dispute between two or more states.
It may, however, be noted that under Article 131, the Supreme Court cannot entertain any suit brought by any private individual against Government of India under its original jurisdiction. The dispute relating to the original jurisdiction of the Court must involve a question of law or fact on which the legal right depends.
In State of Bihar v. Government of India and another, AIR 1970 SC 1446, the Supreme Court has held that any corporation, firm or private citizen either individual or even a State or with Government of India, cannot figure as a disputant. In this case, the Supreme Court held that due to inclusion of Hindustan Steel Company as a defendant alongwith the Union of India, it was not a dispute between the Union of India and State of Bihar rather it was a dispute between the Government of India and Hindustan Steel Company, and therefore, the Supreme Court cannot entertain such suit under Article 131 of the Constitution.
(2) The second category of cases pertains to enforcement of fundamental rights of the citizens. It may be noted that Article 32 of the Constitution confers original jurisdiction on the Supreme Court to enforce fundamental rights. Article 32 provides that every citizen has a right to move directly to the Supreme Court by appropriate proceedings for the enforcement of fundamental rights. The Supreme Court has been given power to issue directions or orders or writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari.
Article 32 provides a quick remedy for the enforcement of fundamental rights. Under this Article, a person can directly move to the Supreme Court, and it is not necessary for this purpose to come to the Supreme Court after exhausting remedy from a High Court. As a guardian and protector of the fundamental rights of the citizens, the Supreme Court is duty bound to enforce such rights against any person or the Government.
In this way, above two types of cases only can be filed directly in the Supreme Court for adjudication.
Q. 8. Discuss the powers and jurisdiction of the Supreme Court.
Ans. The Supreme Court can exercise jurisdiction over following matters:
(1) Supreme Court as a Court of Record. (Article 129)
(2) Supreme Court as a Court of Original Jurisdiction. (Article 131)
(3) Supreme Court as a Court of Appellate Jurisdiction. (Article 132)
(4) Supreme Court as a Court of special leave. (Article 136)
(5) Supreme Court’s Advisory Jurisdiction. (Article 143)
(6) Supreme Court’s power of review of its judgment and order. (Article 137)
(7) Ancillary powers of Supreme Court. (Article 145)
(8) Rule making power of the Supreme Court. (Article 145)
(1) Supreme Court as a Court of record
According to Article 129, the Supreme Court is a Court of record and has all powers of such a Court including the power to punish for its contempt. A Court of Record is a Court whose records are admitted to be of evidentiary value and they are not to be questioned when produced before the Court. In Hira Lal v. State of U.P., AIR 1954 SC 743, it was held that the power to punish for contempt of Court has been expressly conferred on the Supreme Court by our Constitution. This extra-ordinary power has to be sparingly exercised only where the public interest demands.
In Re Vinay Chandra Mishra, (1995) 2 SCC 584, the Supreme Court examined the scope and extent of the power of contempt in detail and has held that under Articles 129, 215 and 142 of the Constitution, it has suo motu power to take cognizance of Contempt proceedings against the contemner. Article 129 vests the Supreme Court not only with the power to punish for contempt of itself but also of lower Courts and tribunals in its capacity as the highest Court of record and is also charged with both the appellate and superintending power over all other Courts and tribunals in the country.
(2) Supreme Court as a Court of Original Jurisdiction
According to Article 131. Supreme Court has original jurisdiction in any dispute:
(a) between the Government of India and one or more States;
(b) between the Government of India and any state or States on one side and one or more other States on the other,
(c) between two or more States.
In its original jurisdiction, Supreme Court cannot entertain any suit brought by private individuals against the Government of India. The dispute relating to original jurisdiction must involve a question of law or fact on which the existence of legal rights depends. The Court has no jurisdictioni over matters of political nature
The Supreme Court has concurrent original jurisdiction under Article 32 of the Constitution, which empowers the Supreme Court to issue following writs:
(i) Habeas Corpus
(ii) Mandamus
(iii) Prohibition
(iv) Quo Warranto, and
(v) Certiorari.
Every High Court has been empowered under Article 226, to issue the above writs over persons living within its territory for the enforcement of fundamental rights.
Power and jurisdiction under Article 131 is exclusive to the Supreme Court.
Exception-Following matters do not come within the scope of Article 131 :
(a) A dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement or which provides that the said jurisdiction shall not extend to such a dispute. (Proviso to Article 131)
(b) Complaint with respect to the use, distribution or control of the waters of or in any inter-State river or river valley. (Article 262)
(c) Matters referred to the Finance Commission (Article 264)
(d) Adjustment of certain expenses between the Union and the State. (Article 290)
(3) Appellate Jurisdiction of Supreme Court
The appellate jurisdiction of Supreme Court can be categorised into following heads:
(a) Constitutional Matters;
(b) Civil Matters;
(c) Criminal Matters:
(d) Special Leave to appeal
(a) Appeal in Constitutional Matters
Under Article 132 (1) of the Constitution, an appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court whether in civil, criminal or other proceedings, if the High Court certifies under Article 134-A that the case involves a substantial question of law as to the interpretation of this Constitution. Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided.
Under Article 132 (1), following three conditions are necessary for the grant of certificate by the High Court:
(i) the order appealed must be against a judgment, decree or final order made by the High Court in civil, criminal or other proceedings;
(ii) the case must involve a question of law as to the interpretation of this Constitution, and
(iii) if the High Court under Article 134-A certifies that the case be heard by the Supreme Court.
The words “other proceedings” include all proceedings other than civil and criminal. They include revenue proceedings which include cases relating to Sales Tax Act or Income Tax Act, etc. Secondly, the question must involve as to the interpretation of the Constitution. A question is not a substantial question of law, which has been decided by the Supreme Court in a previous case.
(b) Appeal in Civil Cases
(1) Article 133 provides that an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court only if the High Court certifies under Article 134-A:
(a) that the case involves a substantial question of law of general importance, and
(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.
(2) Notwithstanding anything in Article 132, any party appealing to o the Supreme Court under Clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided.
(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court.
Civil Proceedings
The words, “civil proceedings” mean the proceedings in which a party asserts the existence of a civil right. A civil proceeding is one in which a person seeks to remedy by an appropriate process the alleged infringement of his civil rights against another person or the State and which if the claim is proved, would result in the declaration, express or implied, of the right claimed and relief. such as payment of debt, damages, compensation, etc.
A proceeding before a High Court under Article 226 for grant of writ constitutes a civil proceeding In Jiyaji Rao Cotton Mills v M.P. Electricity Board, AIR 1989 SC 788, Supreme Court has held that in an appeal it is not permissible to raise new grounds which were not raised before the lower Court.
(c) Appeal in Criminal Cases
Article 134 lays down-
(1) An appeal shall lie in the Supreme Court from any judgment final order, or sentence in a criminal proceeding of a High Court in the territory of India if the High Court-
(a) has, on appeal reversed an order of acquittal of an accused person and sentenced him to death, or
(b) has withdrawn for trial before itself any case from any Court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or
(c) Certifies under article 134-A that the case is a fit one for appeal to the Supreme Court:
Provided that an appeal under sub-clause (c) shall be subject to such provisions as may be made in that behalf under clause (1) of Article 145 and to such conditions as the High Court may establish or require
(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law.
According to Article 134, an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the following two ways:
(1) Appeal without a certificate of High Court;
(2) Appeal with a certificate of High Court.
Every High Court passing or making a judgment, decree or final order, or sentence, referred to in Clause (1) of Article 132 or Clause (1) of Article 133 or Clause (1) of Article 134 –
(a) may, if it deems fit so to do, on its own motion; and
(b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence,
determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in Clause (1) of Article 132 or Clause (1) of Article 133 or, as the case may be, sub-clause (c) of Clause (1) of Article 134, may be given in respect of that case. (Article 134-A).
(d) Appeal by Special Leave
Article 136 of the Constitution provides that Supreme Court is empowered to grant special leave to appeal from-
(i) any judgment, decree, determination, sentence or order;
(ii) in any case or matter;
(iii) passed or made by any Court or tribunal in the territory of India.
The only exception to this power of the Supreme Court is with regard to any judgment, etc. of any Court or tribunal constituted by or under any law relating to Armed forces.
This is a very wide power vested of the Supreme Court. Power to grant special leave to appeal is required to be exercised with great caution and care, so that justice may be secured. [Union of India v. Karnail Singh, (1995) 2 SCC 728].
(4) Advisory Jurisdiction
Article 143 of the Constitution provides that if at any time it appears to the President that a question of law or fact has arisen, or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court gives its opinion thereupon.
Under clause (2), if the President refers to the Supreme Court matters which are excluded from its jurisdiction under proviso to Article 131, the Court shall be bound to give its opinion thereon.
(5) Power of Review of its Judgment and Order
Article 137 provides that subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it. A review of judgment will lie on the Supreme Court on the following grounds:
(i) Discovery of new important matters of evidence;
(ii) Mistake or error on the face of record; and
(iii) Any other sufficient reason.
Under Article 139-A, the Supreme Court may, if it deems it expedient so as to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.
(6) Ancillary Powers of Supreme Court
Article 140 provides that Parliament may by law make provisions for conferring upon the Supreme Court such powers as may appear to be necessary to enable it to perform effectively the functions upon it under the Constitution. But such supplementary power should not be inconsistent with any of the provisions of the Constitution.
Rule Making Powers
According to Article 145, the Supreme Court may from time to time with the approval of the President, may make the following rules:
(a) rules as to the persons practising before the Court;
(b) rules as to the procedure for hearing appeals and other matters pertaining to appeals including the time within which appeals to the Court are to be entered;
(c) rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III of the Constitution;
(cc) rules as to the proceedings in the Court under Article 139-A;
(d) rules as to the entertainment of appeals under sub-clause
(c) of clause (1) of Article 134;
(e) rules as to the conditions subject to which any judgment pronounced or order made by the Court may be reviewed and the procedure for such review including the time within which applications to the Court for such review are to be entered;
(f) rules as to costs of and incidental to any proceedings in the Court and as to the fees to be charged in respect of proceedings therein;
(g) rules as to the granting of bail;
(h) rules as to stay proceedings;
(i) rules providing for the summary determination of any appeal which appears to the Court to be frivolous or vexatious or brought for the purpose of delay;
(j) rules as to the procedure for inquiries referred to in clause (1) of Article 317.
Q. 9. Discuss the powers and jurisdiction of High Court.
Ans. The powers and jurisdiction of the High Court may be discussed under following heads
(1) High Court as a Court of Record;
(2) Power of superintendence over subordinate Courts;
(3) Power of transfer of certain cases;
(4) Writ jurisdiction of High Court.
It is to be noted that where alternate remedy is available, writ petition is not maintainable (M/s Trafalgar House Construction v Government of Orissa, AIR 2014 NOC 224 Orissa).
(1) High Court as a Court of Record
Article 215 provides that every High Court shall be a Court of record and shall have all powers of such a Court including the power to punish for its contempt. The scope and nature of the power of High Court under Article 215 is similar to the powers of the Supreme Court under Article 129 of the Constitution.
High Court has wide and discretionary power to punish the contemner. It has also the power to punish for the contempt of subordinate Courts.
(2) Power of Superintendence over subordinate Courts
According to Article 227, every High Court has power of superintendence over all Courts and tribunals throughout the territory in relation to which it exercises jurisdiction for this purpose. The High Court may call returns from them, make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts and prescribe forms for regulating the practice and proceeding of such Courts and prescribe forms in which books, entries and accounts are to be kept by the officers of such Courts, and settle table of fees to be given to the sheriff, clerks, attorneys, advocates and pleaders. However, this power of superintendence does not extend over any Court or tribunal constituted by law relating to Armed forces.
This power of superintendence conferred on the High Court by this Article is very wide. It is not confined only to administrative superintendence but also judicial superintendence over all subordinate Courts within its jurisdiction.
The power of superintendence is discretionary in nature. The power of superintendence under Article 227 can be exercised by High Court suo motu in the interest of justice. It has been held in Pramod Sarastoat v. Ashok Kumar, AIR 1981 All 441.
In Waryam Singh v Amarnath, AIR 1954 SC 215, the Supreme Court has held that the power of superintendence of High Court is an extra-ordinary power of the High Court, therefore, it should be exercised very sparingly and only in appropriate cases in order to keep the subordinate Courts within the bound of their authority and mere correcting the errors of facts, however, erroneous it may be.
(3) Power of Transfer of Cases
Under Article 228, the High Court has power to withdraw a case from a subordinate Court, if it is satisfied that a case pending in a subordinate Court involves a substantial question of law as to the interpretation of the Constitution. It may then either dispose of the case itself or may determine the said question of law and return the case to the subordinate Court with a copy of its judgment. The subordinate Court will then decide the case in conformity with the judgment of the High Court.
(4) Writ Jurisdiction
Article 226 of the Constitution provides that notwithstanding anything contained in Article 32, every High Court shall have power throughout territorial limits in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases, any Government within those territories, directions, orders or writs including the writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari or any of them-(a) for the enforcement of fundamental rights conferred by Part III, and (b) for any other purpose.
Thus, the jurisdiction of High Court is not limited to the protection of fundamental rights but also other legal rights as is clear from the words “any other purpose”. These words make the jurisdiction of High Court more extensive than that of the Supreme Court, which is confined to only for the enforcement of fundamental rights.
Clause (4) of Article 226 provides that the powers conferred on a High Court shall not be in derogation of the powers conferred on the Supreme Court by clause (2) of Article 32.
However, the writs which can be issued by a High Court are as follows:
(i) Habeas Corpus:
(ii) Mandamus;
(iii) Prohibition;
(iv) Quo-Warranto:
(v) Certiorari.
Q. 9A. What is difference between Article 32 and Article 226?
Ans. There is distinction between the power to issue writs as between the Supreme Court and the High Court. The power to issue writ conferred on Supreme Court by Article 32 is the enforcement of Part III rights, but the power to issue writs as conferred under Article 226 of the Constitution upon the High Court is for enforcement of fundamental rights as against ‘State’ and as against any other person or authority or State for any other purpose. (The Organisor Dehri C.D. & C.M. Union Ltd., Fazalgarh v. State of Bihar, AIR 2014 Patna 67).
Q. 10. Discuss the duties of an advocate towards the Court
Ans. An Advocate is the officer of the Court. Hence, he has to play a dynamic role in the judicial administration of the country. An advocate, besides being sincere towards his profession has to be honest and devoted to his duty towards the peaceful conduct of the Court’s proceedings. However, Section 1 of the Bar Council of India Rules provides following duties of the advocate towards the Court-
Rule 1. An Advocate shall, during the presentation of his case and while otherwise acting before a Court, conduct himself with dignity and self-respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his duty to submit his grievance to proper authority.
Rule 2.- An Advocate shall maintain towards the Court a respectable attitude, bearing in mind that the dignity of judicial office is essential for the survival of a free community.
Rule 3. An Advocate shall not influence the decision of a Court by an illegal or improper means. Private communications with a judge relating to a pending case are forbidden. Consequently, if an advocate attempts to influence the decision of a Court by an illegal or improper means, it will amount to professional misconduct.
Rule 4. An Advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices for doing anything in relation to the Court opposing counsel or parties which the advocate himself ought not to do. An Advocate shall refuse to represent the client who persists in such improper conduct.
Rule 5. An Advocate shall appear in Court at all times only in the prescribed dress, and his appearance shall always be presentable.
Rule 6. -An Advocate shall not enter appearance, act, plead or practise in any way before a Court, tribunal or Authority mentioned in Section 30 of the Act, if the sole or any member thereof is related to the advocate, as father, grand father, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, nice, father-in-law, mother-in-law, son-in-law, brother-in-law, daughter-in-law or sister-in-law. For the purpose of this rule, Court shall mean a Court, a bench or tribunal in which any of the above mentioned relatives of the advocate, is a judge, member or Presiding Officer.
Rule 7.- An Advocate shall not wear bands or gown in public places other than in Courts except on such ceremonial occasions and at such places as the Bar Council of India or the Court may prescribe.
Rule 8.– An Advocate shall not appear in or before any Court or tribunal or any other authority for or against an organisation or an institution, society or corporation, if he is the member of the executive Committee of such organisation or institution or society or corporation. “Executive Committee” by whatever name it may be called, shall include any committee or body of persons which, for the time being, is vested with the general management of the affairs of the organisation or institution, society or corporation:
Provided that this rule shall not apply to such a member appearing as “amicus curiae” or without a fee in a matter affecting the affairs of a Bar Council, Incorporated law society, or a Bar Association.
Rule 9.- An Advocate shall not plead in any matter in which he is himself pecuniarily interested, for example, (i) he shall not act in a bankruptcy petition when he himself is also a creditor of the bankrupt; (ii) he should not accept a brief from a company of which he is a director.
Rule 10. An Advocate shall not stand as a surety, or certify the soundness of a surety, for his client required for the purpose of any legal proceedings.
In this way, by observing above Rules, the status of an advocate would be enhanced in the confidence of the Court as well as in the esteem of the people. In Sarat Chandra Biswal v. Surendra Mohanty, AIR 1969 Orissa 117, two advocates in a representation petition scandalised the Chief Justice of a High Court and relied on Rule 15 framed under Section 19 (i) (c), which provides that it shall be the duty of the advocate fearlessly to uphold the interests of his clients by all fair and honourable means without regard to any unpleasant consequences to himself or any other person This plea of the advocate was rejected. It was held that Rule 15 is subject to the preamble which provides that an advocate shall at all times conduct himself in a manner befitting to his status as an officer of the Court. He must avoid use of scurrilous language. So, both the advocates were held guilty of contempt of Court.
There is a landmark judgment of In Re Rameshwar Prasad Goyal (AIR 2014 SC 850). In this case it is held by the Supreme Court that “Lawyers play an important part in the administration of justice. The profession itself requires the safeguarding of high moral standards. As an officer of the Court the overriding duty of a lawyer is to the Court, the standards of his profession and to the public. Since the main job of a lawyer is to assist the Court in dispensing justice, the Members of the Bar cannot behave with doubtful scruples or strive to thrive on litigation.
Lawyers must remember that they are equal partners with Judges in the administration of justice. If lawyers do not perform their function properly, it would be distructive of democracy and the rule of law. Law is no trade, briefs no merchandise. An advocate being an officer of the Court has a duty to ensure smooth functioning of the Court.
Q. 11. Discuss the duties of an advocate towards his clients.
Ans. Section 2 of the Bar Council of India Rules provides duties of advocates towards their clients. According to following rules of Bar Council of India Rules, the duties of an advocate towards his clients are as follows:
Rule 11. An Advocate is bound to accept any brief in the Courts or tribunals or before any Authority in or before which he professes to practise at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief. It means that an advocate may refuse to accept a particular brief where he specifies the reasons of his refusal to do so.
Rule 12. An Advocate shall not ordinarily withdraw from engagements, once accepted without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon withdrawal from his case, he shall refund such part of the fee as has not been earned.
Rule 13. -An Advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate if he can retire without jeopardising his client’s interests.
Rule 14. An Advocate shall make all such full and frank disclosures to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client’s judgment in either engaging him or continuing the engagement.
Rule 15. It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasent consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.
Rule 16. An Advocate appearing for the prosecution in a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishing the innocence of the accused shall be scrupulously avoided.
Rule 17. An Advocate shall not directly or indirectly commit a breach of the obligations imposed by Section 126 of the Indian Evidence Act.
According to Section 126 of the Indian Evidence Act, no barrister, attorney, pleader or vakil, shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment.
Rule 18. An Advocate shall not, at any time, be a party to formenting of litigation.
Rule 19. An Advocate shall not act on the instructions of any person other than his client or his authorised agent.
Rule 20– An Advocate shall not stipulate for a fee contingeni on the result of the litigation or agree to share the proceeds thereof.
Rule 21. An Advocate shall not buy or traffic in or stipulate for or agree to receive any share or interest in any actionable claim.
Rule 22. An Advocate shall not directly or indirectly bid or purchase either in his own name or in any other name for his own benefit or for the benefit of any other person, any property sold in the execution of a decree or order in any suit.
Rule 23. An Advocate shall not adjust fee payable to him by his client against his own personal liability to the client which liability does not arise in the course of his employment as an Advocate.
Rule 24. An Advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client.
Rule 25. An Advocate should keep accounts of his client’s money, entrusted to him, and the accounts should show the amounts received from the client or on his behalf, the expenses incurred for him and the debits made on account of his fees with respective dates and all other necessary particulars.
Rule 26. Where moneys are received from or on account of a client, the entries in the accounts, should contain a reference as to whether the amounts have been received for fee or expenses.
Rule 27. Where any amount is received or given to him on behalf of his client the fact of such receipt must be intimated to the client as early as possible.
Rule 28. After the termination of the proceeding, the advocate shall be at liberty to appropriate towards the settled fee due to him any sum remaining unexpended out of the amount paid or sent to him for expenses, or any amount that has come into his hands in that proceeding.
Rule 29. Where the fee has been unsettled, the advocate shall be entitled to deduct out of any money of the client remaining in his hand, at the termination of the proceedings for which he has been engaged.
Rule 30. A copy of the client’s account shall be furnished to him on demand provided the necessary copying charge has been paid.
Rule 31. An Advocate shall not enter into arrangements whereby funds in his hands are converted into loans.
Rule 32. An Advocate shall not lend money to his client for the purpose of any action or legal proceedings in which he is engaged by such client.
Rule 33. An Advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings or acted for a party, shall not act, appear or plead for the opposite party.
Q. 11A. What qualities are required for a competent advocate?
Ans. The following qualities are required for a competent advocate-
(1) Voice must be soft but assertive, effective and impressive.
(2) A practicing advocate must have sound command of the legal language and its pedagogy-English, Hindi, Urdu etc..
(3) Confidence is an essential quality that carries an advocate further. It plays an incalculable part in the success of profession
(4) Persistence is a marked characteristic of the successful lawyer. It enables a lawyer to fight cases to the end inspite of gestation difficulties.
(5) Knowledge of all kinds of things is useful to an advocate.
(6) He must have practice in handling cases.
The art of advocacy cannot be taught in theory. It is learnt by individual practice and experience.
Q. 12-A. Who is Consumer? Whether a person purchasing things for earning his livelihood through self employment can be said to be a Consumer or not?
Ans. Consumer- Section 2 (7) of the Consumer Protection Act, 2019 defines the expression “Consumer”. It has been defined in two parts with an explanation appended to clause (ii) of Section 2(7).
According to Section 2 (7) of the Consumer Protection Act 2019.-
“Consumer” means any person who,-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person; but does not include a person who avails of such services for any commercial purposes.
Explanation- for the purposes of this clause-
(a) the expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment:
(b) the expression “buys any goods” and “hires or avails any services” includes off-line or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing.
Definition of the consumer as provided in Section 2(7) of the Act-may be divided into two parts-
(i) Buyer of Goods and (ii) Hirer of Services.
(i) Buyer of Goods. Buyer is a person, who buys or purchases the goods for consideration. However, it is not necessary that the buyer should pay the price for the goods immediately. Such payment for goods may be in full or in part, but a person, who buys the goods for purpose of resale or commercial purpose, is not a consumer within the meaning of Section 2(7) of the Consumer Protection Act, 2019.
Buying of goods for purpose of self-employment. Though, the Consumer Protection Act, 2019 [Section 2(7)) clearly provides that buying of goods for commercial purpose by a person, would not make him consumer under the Act. But there is an exception to this provision. If any person buys the goods for purpose of self- employment, such person shall be a consumer under the Consumer Protection Act, 2019. For example-A handicapped person or a poor person obtained loan from the Government and buys a typewriter, he is a consumer under the Act.
(ii) Hirer of Services. Under the Act, the term “Consumer” includes that person, who avails services for consideration. Therefore, a person who hires services for consideration, is a consumer.
Q. 12-B. Discuss the composition and objects of Central Consumer Protection Council. State the procedure for meetings of the Central Consumer Protection Council (Central Council).
Ans. Composition of Central Consumer Protection Council.- Section 3 of the Consumer Protection Act, 2019 deals with the composition of Central Consumer Protection Council.
According to Section 3(1), the Central Government shall, by notification, establish with effect from such date as it may specify in that notification, the Central Consumer Protection Council to be known as the Central Council.
Section 3(2) lays down that the Central Council shall be an advisory council and consist of the following members, namely:
(a) the Minister-in-charge of the Department of Consumer Affairs in the Central Government, who shall be the Chairperson; and
(b) such number of other official or non-official members representing such interests as may be prescribed.
Objects of the Central Consumer Protection Council.- Section 5 of the Act lays down objects of this Council. According to this section, the objects of the Central Council shall be to render advice on promotion and protection of the consumer’s rights under the Act.
Procedure for meetings of Central Council. According to Section 4(1), the Central Council shall meet as and when necessary, but at least one meeting of the Council shall be held every year.
According to Section 4 (2) the Central Council shall meet at such time and place as the Chairperson may think fit and shall observe such procedure in regard to the transaction of its business as may be prescribed
Q. 12-C. What is ‘consumer dispute’? Define.
Ans. Definition of ‘consumer dispute’. The definition of the term ‘Consumer Dispute’ has been given under Section 2 (8) of the Consumer Protection Act, 2019. ‘Consumer dispute’ means a dispute where the person against whom a complaint has been made, denies or disputes the allegation contained in the complaint.
Identical definition of the term “consumer dispute” was laid down in Section 2(1)(e) of the Consumer Protection Act, 1986. Therefore, the decisions of the cases on this point are good law under the present Act.
Illustrations. Those passengers who travel by trains on payment of stipulated fare charged for ticket are consumers. Complaints with regard to the suffering caused while travelling in trains due to bad condition of first class coupe is held to be a consumer dispute [G.M. S. E. Rly v. Anand Pd. Sinha, [(1991 (1) C.P.J. 10]. However, where the cow of complainant was killed due to electrocution, it is not a consumer dispute.
In the Mayor, Calcutta Municipal Corporation v. Tarapada Chatterjee [(1994 (1) CPR 87), a complaint was made against Municipality for low pressure in water pipes. It was held that tax paid by the complainant is not a consideration for supply of water. Supply of water by municipality is the statutory duty. Hence it is not a consumer dispute. Thus the complainant cannot be said to have hired the services of municipality.
National Commission has held in M/s. Suraj Steel v. R.P. Sharma [(1991) (1) P R. 332] that failure on the part of appellant/ opposite party to carry out its obligation under a contract for supply of certain quantity of iron rods is purely in the realm of contract and it did not constitute a consumer dispute.
Q. 13. Discuss the composition and objects of State Consumer Protection Council.
Ans. Composition of State Consumer Protection Council.- Section 6 of the Consumer Protection Act, 2019 lays down the composition of the State Consumer Protection Council. According to Section 6(1) every State Government shall, by notification, establish with effect from such date as it may specify in such notification, a State Consumer Protection Council for such State to be known as the State Council.
According to Section 6(2), the State Council shall be an advisory council and consist of the following members, namely:
(a) the Minister-in-charge of Consumer Affairs in the State Government who shall be the Chairperson;
(b) such number of other official or non-official members representing such interests as may be prescribed;
(c) such number of other official or non-official members, not exceeding ten, as may be nominated by the Central Government.
According to Section 6(3), the State Council shall meet as and when necessary but not less than two meetings shall be held every year.
According to Section 6(4), the State Council shall meet at such time and place as the Chairperson may think fit and shall observe such procedure in regard to the transaction of its business, as may be prescribed.
Objects of State Council.-Section 7 of the Act lays down the objects of this Council. According to this section, the objects of every State Council shall be render advice on promotion and protection of consumer rights under this Act within the State.
Q. 14. Discuss the provisions of the Consumer Protection Act, 2019 relating to composition and objects of District Consumer Protection Council.
Ans. Section 8 of the Consumer Protection Act, 2019 deals with the composition of the District Consumer Protection Council. Section 8 lays down as follows:
Section 8(1) The State Government shall, by notification establish for every District with effect from such date as it may specify in such notification, a District Consumer Protection Council to be known as the District Council.
Section 8(2) The District Council shall be an advisory council and consist of the following members, namely
(a) the Collector of the district (by whatever name called), who shall be the Chairperson; and
(b) such number of other official and non-official members representing such interests as may be prescribed.
Section 8(3) The District Council shall meet as and when necessary but not less that two meetings shall be held every year.
Section 8(4) the District Council shall meet at such time and place within the district as the Chairperson may think fit and shall observe such procedure in regard to the transaction of its business as may be prescribed.
According to Section 9, the
Objects of District Council. According to Section 9 the objects of every District Council shall be to render advice on promotion and protection of consumer rights under this Act within the district.
Q. 15. Discuss the Composition, Procedure, Powers and Functions of the Central Consumer Protection Authority.
Ans. Composition of the Central Consumer Protection Authority. Section 10 of the Consumer Protection Act, 2019 deals with the establishment and composition of the Central Consumer Protection Authority. According to Section 10(1), the Central Government shall, by notification, establish with effect from such date as it may specify in that notification, a Central Consumer Protection Authority to be known as the Central Authority to regulate matters relating to violation of rights of consumers, unfair trade practices and false or misleading advertisements which are prejudicial to the interests of public and consumers and to promote, protect and enforce the rights of consumers as a class.
According to Section 10(2), the Central Authority shall consist of a Chief Commissioner and such number of other Commissioner as may be prescribed, to be appointed by the Central Government to exercise the powers and discharge the functions under this Act.
According to Section 10(3), the headquarters of the Central Authority shall be at such place in the National Capital Region of Delhi, and it shall have regional and other offices in any other place in India as the Central Government may decide.
Procedure of Central Authority. Section 14 of the Consumer Protection Act, 2019 deals with the procedure of the Central Authority. According to Section 14(1) the Central Authority shall regulate the procedure for transaction of its business and allocation of its business amongst the Chief Commissioner and Commissioners as may be specified by regulations.
According the Section 14(2), the Chief Commissioner shall have the powers of general superintendence, direction and control in respect of all administrative matters of the Central Authority:
Provided that the Chief Commissioner may delegate such of his powers relating to administrative matters of the Central Authority, as he may think fit, to any Commissioner (including Commissioner of a regional office) or any other officer of Central Authority.
Powers and functions of the Central Authority. Section 18 of the Consumer Protection Act, 2019 deals with the powers and functions of the Central Authority. According to Section 18(1), the Central Authority shall:
(a) protect, promote and enforce the rights of consumers as a class, and prevent violation of consumers rights under this Act;
(b) prevent unfair trade practices and ensure that no person engages himself in unfair trade practices;
(c) ensure that no false or misleading advertisement is made of any goods or services which contravenes of provisions of this Act or the rules or regulations made thereunder;
(d) ensure that no person takes part in the publication of any advertisement which is false or misleading
According to Section 18(2), the Central Authority may, for any of the purposes aforesaid,-
(a) inquire or cause an inquiry or investigation to be made into violations of consumer rights or unfair trade practices, either suo motu or on a complaint received or on the directions from the Central Government;
(b) file complaints before the District Commission, the State Commission or the National Commission, as the case may be, under this Act;
(c) intervene in any proceedings before the District Commission or the State Commission or the National Commission, as the case may be, in respect of any allegation of violation of consumer rights or unfair trade practices,
(d) review the matters relating to, and the factors inhibiting enjoyment of, consumer rights, including safeguards provided for the protection of consumers under any other law for the time being in force and recommend appropriate remedial measures for their effective implementation,
(e) recommend adoption of international covenants and best international practices on consumer rights to ensure effective enforcement of consumer rights;
(f) undertake and promote research in the field of consumer rights;
(g) spread and promote awareness on consumer rights,
(h) encourage non-Governmental organizations and other institutions working in the field of consumer rights to co-operate and work with consumer protection agencies;
(i) mandate the use of unique and universal goods identifiers in such goods, as may be necessary, to prevent unfair trade practices and to protect consumers interest;
(j) issue safety notices to alert consumers against dangerous or hazardous or unsafe goods or services;
(k) advise the Ministries and Departments of the Central and State Governments on consumer welfare measures;
(l) issue necessary guidelines to prevent unfair trade practices and protect consumers’ interest.
Q. 16. Discuss the establishment and jurisdiction of the District Consumer Disputes Redressal Commission. Mention also the proceedings before this Commission.
Ans. Establishment of District Consumer Disputes Redressal Commission.- Section 28 of the Consumer Protection Act, 2019 deals with the establishment of the District Consumer Disputes Redressal Commission. Section 28(1) lays down that the State Government shall, by notification, establish a District Consumer Disputes Redressal Commission, to be known as the District Commission, in each district of the State:
Provided that the State Government may, if it deems fit, establish more that one District Commission in a district:
According to Section 28 (2), each District Commission shall consist of:
(a) a President, and
(b) not less than two and not more than such number of members as may be prescribed, in consultation with the Central Government.
Jurisdiction of District Commission.-Section 34 of the Consumer Protection Act, 2019 deals with the jurisdiction of the District Commission. According to Section 39 (1), subject to the other provisions of this Act, the District Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration does not exceed one crore rupees:
Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit.
(2) A complaint shall be instituted in a District Commission within the local limits of whose jurisdiction,-
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case the permission of the District Commission is given; or
(c) the cause of action, wholly or in part, arises; or
(d) the complainant resides or personally works for gain.
(3) The District Commission shall ordinarily functions in the district headquarters and may perform its functions at such other place in the district, as the State Government may, in consultation with the State Commission, notify in the Official Gazette from time to time.
Proceedings before District Commission. Section 36 of the Act deals with the proceedings before District Commission. According to Section 36(1), every proceeding before the District Commission shall be conducted by the President of that Commission and atleast one member thereof, sitting together:
Provided that where a member, for any reason, is unable to conduct a proceeding till it is completed, the President and the other member shall continue the proceeding from the stage at which it was last heard by the previous member.
According to Section 36(2), on receipt of a complaint made under Section 35, the District Commission may, by order, admit the complaint for being proceeded with or reject the same:
Provided that a complaint shall not be rejected under this section unless an opportunity of being heard has been given to the complainant:
Provided further that the admissibility of the complaint shall ordinarily be decided within twenty-one days from the date on which the complaint was filed.
According to Section 36(3), where the District Commission does not decide the issue of admissibility of the complaint within the period so specified, it shall be deemed to have been admitted.
Q. 16-A. Discuss the composition and jurisdiction of the District Commission.
Ans. Composition and jurisdiction of the District Commission. According to Section 28(1) of the Act, the State Government shall, by notification, establish a District Consumer Disputes Redressal Commission, to be known as the District Commission, in each district of the State.
Proviso to Section 28(2) says that the State Government may, if it deems fit, establish more than one District Commission in a district.
According to Section 28(2), each District Commission shall consist of-
(a) a President, and
(b) not less than two and not more than such number of members as may be prescribed, in consultation with the Central Government.
The Central Government may, by notification, make rules to provide for the qualifications, method of recruitment, procedure for appointment, term of office, resignation and removal of the President and members of the District Commission. (Section 29)
Jurisdiction of District Commission. According to Section 34(1) subject to the other provisions of this Act, the District Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration does not exceed one crore rupees.
Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit.
According to Section 34(2), a complaint shall be instituted in a District Commission within the local limits of whose jurisdiction,-
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case the permission of the District Commission is given; or
(c) the cause of action, wholly or in part, arises; or
(d) the complainant resides or personally works for gain.
According to Section 34(3), the District Commission shall ordinarily function in the district headquarters and may perform its functions at such other place in the district, as the State Government may, in consultation with the State Commission, notify in the Official Gazette from time to time.
Q. 16-B. Discuss the proceedings before the District Commission.
Ans. Proceedings before the District Commission. According to Section 36(1) of the Act, every proceeding before the District Commission shall be conducted by the President of that Commission and atleast one member thereof, sitting together.
Proviso to Section 36(1) is to the effect that where a member, for any other reason, is unable to conduct a proceeding till it is completed, the President and the other members shall continue the proceeding from the stage at which it was last heard by the previous member.
According to Section 36(2), on receipt of a complaint made under Section 35, the District Commission may, by order, admit the complaint for being proceeded with or reject the same.
Proviso I to Section 36(2) says that a complaint shall not be rejected under this section unless an opportunity of being heard has been given to the complainant.
Proviso II to Section 36(2) lays down that the admissibility of the complaint shall ordinarily be decided within twenty-one days from the date on which the complaint was made.
Section 36(3) provides that where the District Commission does not decide the issue of admissibility of the complaint within the period so specified, it shall be deemed to have been admitted.
Q. 17. What factors should be taken into consideration for interviewing the Client? Discuss.
Ans. Interaction with clients is one of the most important aspects of advocacy. Conducting interviews during interaction with the client is a trait which is possessed by successful lawyers. The law-students attending the Moot Courts have to observe how advocates conduct interviews with their clients for preparing briefs of their cases.
The secret formula of receiving the clients with sincerity on his premises is an important aspect for a lawyer to remember that every client is a human being who needs sympathy. When a client comes to an advocate, it is essential for him to show sympathy with the client and patiently hear his problems. What is needed for the advocate is to interact with the client with helping hands. His interaction must not be hasty otherwise perfunctory grasp of the matters which the client is trying to lay before the advocate, may be fatal for handling of the case subsequently. So, the advocate must be careful to understand what the client describes before him about his problems. The advocate should give him patient hearing of his problems and encourage him to speak all what he knows about his problems.
In this context Dr. N.P. Asthana, a former Advocate-General of U.P. has advised the advocates as follows:-
Never be weary of irrelevant talk of the client. Encourage him to give full story and all his grievances, for it will be his narrative that you will be able to gather essential facts, which will form the basis of your claim or defence.”
However, following points should be taken into consideration while interviewing the client.
(1) The advocate should give patient hearing of the problems of the client and for this purpose he should encourage the client to speak all what he wants to speak and knows about the case.
(2) After giving a patient hearing, the advocate should try to separate the kernel from the chalf, i.e., he should remove the irrelevant things from the statement of the client, and take seriously what is relevant points for the case. The relevant should be noted carefully for preparing the brief of the case.
(3) It should be noted that the advocate should not be content only with the statement of the client. The documents produced by the client, have to be examined carefully and should be read over for satisfaction by the advocate.
(4) The advocate must write down in a diary what he has gathered from the statements and instructions of his client besides noting down what is written in the documents in the possession of the client, and thereafter comparing both to examine the veracity of the matter.
(5) The advocate should make minute distinction of facts after verifying the statement of the client from those of the contents of documents shown to him.
(6) If the advocate finds that as a result of the examination of the client and after looking to the documents, he finds that the client’s case is hopeless, it is far better that you make him understand this at once without allowing him to be fed with delusive hope for a while, at last to be taxed with fees and costs which he looses the matter in cotroversy. Let it be remembered that you stand to gain in the long run by advising caution.
(7) The advocate should give full and correct account to the client. It is necessary for the advocate to give correct account of the sum entrusted to him by the client. The remaining unspent money should be returned to the client.
(8) The advocate should charge only legitimate fee prescribed by the Bar Council and charge only legal expenses for the suit from the client. Every advocate must maintain a standard of his own and stick to it firmly and at any cost.
(9) Lastly, the advocate should receive the client with kindness and listen with sympathy to all what he has to say. It is less inconvenient to listen his superfluous facts than to stand the chance of missing the facts. You should not interrupt your client in his narration but to reserve your questions to the end, when he makes a pause.
To sum up, the advocate should pay full attention to the interest of the client and try to verify the facts by repeatedly asking the client to repeat the same thing again and again in order to know the exact facts of the case, as well as to draw the conclusion of the statement of the client.
Q. 18. What do you understand by the term, “Charge”? When may a Court alter the charge. Discuss.
Ans. Section 211 of the Code of Criminal Procedure deals with the term, “Charge”. In a criminal proceeding, framing of “Charge” is an important step. The self-explanatory provisions of Section 211 are as follows:
Contents of Charge (Section 211).– (1) Every charge under this Code shall state the offence with which the accused is charged.
(2) If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only.
(3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give to the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge.
(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.
(6) The charge shall be written in the language of the Court.
(7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the Court may add it at any time before sentence is passed.
Illustrations
(a) A is charged with the murder of B. This is equivalent to a statement that A’s act fell within the definition of murder given in Sections 299 and 300 of the Indian Penal Code, 1860 (Act 45 of 1860) that it did not fall within any of the general exceptions of the said Code; and that it did not fall within any of the five exceptions to Section 300, or that, if it did fall within Exception 1, one or other of the three provisos to the exception applied to it.
(b) A is charged under Section 326 of the Indian Penal Code, 1860 (Act 45 of 1860) with voluntarily causing grievous hurt to B by means of an instrument for shooting. This is equivalent to a statement that the case was not provided for by Section 325 of the said Code, and that the general exceptions did not apply to it.
(c) A is accused of murder, cheating, theft, extortion, adultery or criminal intimidation or using a false property mark. The charge may state that A committed murder, or cheating, or theft, or extortion, or adultery, or criminal intimidation, or that he used a false property mark, without reference to the definition of those crimes contained in the Indian Penal Code, 1860 (Act 45 of 1860) but the section under which the offence is punishable must, in each instance, be referred to the charge.
(d) A is charged under Section 184 of the Indian Penal Code, 1860 (Act 45 of 1860) with intentionally obstructing a sale of property offered for sale by the lawful authority of a public servant. The charge should be in those words.
An order of sentence or conviction shall not be deemed to be invalid only on the ground that-
(i) no charge was framed, or
(ii) there was some irregularity or omission or misjoinder of charges,
unless the Court comes to the conclusion that there was also as a consequence, a failure of justice. (Chinnam Kameswara Rao v. State of Andhra Pradesh, AIR 2013 SC 3602).
When may a Court alter the charge
Section 216 of the Code of Criminal Procedure deals with the provisions about when a Court may alter the charge. The self. explanatory provisions of Section 216 are as follows:
(1) Any Court may alter or add to any charge at any time before judgments is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
Q. 19. What do you mean by “examination of witnesses.” Discuss.
Ans. Examination of witnesses, framing of issues and arguments are essential traits of Advocacy for the purposes of judicial investigation, it is necessary that the parties should state what each deems essential to his claim or defence, and that each should be allowed to dispute or deny the statement of his adversary. Hence, examination of witnesses becomes essential for verification of facts of the case to determine the claims and defence of parties by the Court.
The testimony of a witness is recorded in the form of answers to the questions put forth to him. The witnesses are required to answer the questions only but not to deliver at length to the Court. Every witness is examined by the party who has called him in the Court and this is known as examination-in-chief. The said witness is then questioned by the opposite party and that is known as cross- examination. If the party who has called a witness seeks to question him again after the cross-examination, that is called re- examination.
(a) Examination-in-chief
According to para one of Section 137 of the Indian Evidence Act, 1872, the examination of a witness by the party who calls him, shall be called examination-in-chief. Every witness is first examined by the party who has called him and this process is known as examination-in-chief.
When a witness is produced in a Court by the plaintiff, he is examined firstly by the counsel of the plaintiff and that process is known as examination-in-chief. The purpose of Examination-in- chief is to elicit all the material facts within the knowledge of the witness. who tends to prove his case.
The following questions may be asked in the Examination-in- Chief:
(1) Do you know the parties to the suit?
(2) Do you know about their occupations?
(3) How much the houses of the parties are away from your house?
(4) Whether the defendant has borrowed money from the plaintiff?
(5) What was the amount borrowed by the defendant?
(6) Was there any pronote in this regard?
(7) Was a pronote executed before you?
(8) Have you put your signature on the pronote?
(9) Did the transaction take place in your presence?
(10) Who was present there at the time of transaction, except yourself?
(11) Did the defendant put his signature on the pronote in your presence?
(12) Do you know that the signature of defendant is true?
After the Examination-in-Chief is conducted by the counsel of the plaintiff, the counsel for the defendant has the liberty to cross- examine that witness. If any material question has been left by the witness, it can be asked in the process of re-examination also. The Court has the discretion to allow for re-examination of the witness. It is necessary cessary that reasonable opportunity be provided to the counsel of the defendant to cross-examine the witness about the new questions.
(b) Cross-examination
Para second of Section 137 of Indian Evidence Act provides that the examination of a witness by the adverse party shall be called cross-examination. The purpose of cross-examination of a witness is to expose the truth about the testimony of the witness.
The cross-examination of a witness is an art. This can be learnt after great labour. It helps to discover the truth regarding the case. The object of cross-examination is to ascertain the truth of the testimony of witnesses. It is important for knowing the veracity of statement given by the witness.
Cross-examination must relate to the relevant facts. It need not be confined to the facts to which the witness has testified in his examination-in-chief.
In Tulsi Ram v. State of Maharashtra, 1984 Cr LJ 209, it has been held that cross-examination is the most important process. It is the most efficacious means of discovering the truth. No misleading questions should be asked in the cross-examination.
(c) Re-Examination
According to Para three of Section 137 of the Indian Evidence Act, 1872, the examination of witness, which is held after the process of cross-examination, by the party who has called him, shall be called his re-examination. In this way, re-examination of the witness is conducted, after cross-examination is done by the opposite party.
Q. 20. What do you mean by the process of cross-examination. Discuss its process.
Ans. Para second of Section 137 of the Indian Evidence Act provides that the examination of a witness by the adverse party shall be called cross-examination. The purpose of cross- examination is to expose the truth about the testimony of the witness. It may be noted that the purpose of cross-examination is not confined to relevant facts. It should not be within the limits of the examination-in-chief. If the examination-in-chief does not go round all the relevant facts, they may be exposed during the course of the cross-examination. The cross-examination can extend to all the relevant facts whether touched in the examination-in-chief or not.
Section 138 deals with order of witnesses’ examination. It provides that witnesses should be examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. This regularity of process of examination of witnesses has to be maintained at all cost.
According to Section 139, a person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness.
Section 140 provides that only witnesses to character, may be cross-examined. A witness who appears to give evidence of a party’s character may be examined-in-chief and may also be cross- examined, and for that matter may be re-examined.
According to Section 143, leading questions may always be asked in cross-examination. Section 144 deals with evidence as to matters in writing. Section 144 provides that any witness may be asked whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of the document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
If the accused person does not cross-examine the prosecution- witness, no grievance can be made by him afterwards. Where the story of the witness was not creditable, the failure of cross- examination will not amount to an acceptance of testimony of the witness. The mere fact that the witnesses examined by the adverse party, have not been effectively examined, does not mean that the Court is bound to accept the evidence produced by them.
Where the opposite party has admitted the claim of the plaintiff in his written statement he cannot be permitted to be cross-examined.