(1) The petitioner is the defendant. He filed the present revision petition against an order dismissing the petition i. A. No. 3879 of 1982 in o. S. No. 2832 of 1978 on the file of the court of the district munsif, guntur. The circumstances that led to lay that petition are as follows: the respondent initiated the action for perpetual injunction disrestraining the petitioner from interfering with his possession of the plaint schedule property. According to him the petitioner executed an agreement of sale in his favour and, in pursuance thereof, he was inducted into possession but yet his possession and enjoyment thereof was being unlawfully interfered with by the petitioner. The truth and binding nature of the said agreement was denied by the petitioner and was put in issue. In proof thereof the trial is at progress and p. W, 2, the scribe of it was examined in chief.
(2) According to the petitioner, there ensued conversation between p. W. 2 and another regarding the circumstances leading to the alleged transaction of agreement of sale and that it was recorded behind the back of p. W. 2 and that this tape was deposited in the court. It is at variance with the evidence in chief. When the examination in chief of p. W. 2 was being continued, the present application was filed under section 151 c. P. C. To permit the petitioner to tape the voice of p. W. 2 and the evidence while he was being cross - examined in the court.
(3) It was opposed by the respondent. The lower court dismissed the application holding (1) that there is no specific provision of law to give such a permission; (2) that it amounts to testimonial compulsion of the witness; and (3) that it would deter the witness from deposing freely and unhesitatingly.
(4) Sri narasimhachari, the learned counsel appearing for sri p. Ramakrishnam raju, for the petitioner, contended that it is a fact that there is no specific provision of law for according permission to record the voice and evidence on the tape under the provisions of the civil procedure code or under the evidence act. But the power can be invoked under sec. 151 c. P. C. And section 73 of the evidence act, the latter of which is analogus to taking the thumb - impressions or writing of the parties to the proceedings. There more, the order of the lower court missing the petition on the ground that there is no specific provision of law is vitiated by material irregularity in the exercise of its jurisdiction. It is further contended that what is being asked for is to record the voice of p. W. 2, which would be compared at the time of hearing with the voice found in the tape now in the custody of the court and that it would enable the court, at the time of final hearing, to find out whether the voice found in the tape is that of p. W. 2 and whether the conversation recorded in the tape would impeach the credibility of pw. 2 etc. If it is not recorded, in the event of transfer of the present presiding officer of the court, it would cause irremediable injury to the defendant for convincing the court that the evidence of p. W. 2 is unworthy of credit. It is not a testimonial compulsion and the witness is not exhibited to depose freely.
(5) On the other hand sri haranath, learned counsel for the respondent, contends that recording the evidence and voice of the witness on the tape would amount to testimonial compulsion, which is prohibited under the provisions of article 20 (3) of the constitution. The voice in the tape and the voice of the witness have no relevancy in the case. The conversation recorded in the tape now produced before the court is not relevant or germane for the fact in issue. At any rate, it is not evidence on record and, therefore, the witness cannot be compelled to record his voice on the tape while being crossexamined in the court. If there is any sincere intention on the part of the defendant to record the voice of the witness on the tape, the witness can be recalled at a later stage by postponing the cross - examination of the witness. The legislature advisedly omitted to provide this contingency under section 73 of the evidence act. So, neither section 73 of the evidence act nor sec. 151 c. P. C. Can be invoked. The object of the petitioner in filing this petition is only to drag on the proceedings and there are no bonafides on his part.
(6) We are not concerned here with the merits of the cause. Only procedural wrangle and the right of a witness are now in question.
(7) In view of the undisputed fact that there is no specific provision of law to meet this particular situation either under the provisions of the code of civil procedure or under the provisions of the evidence act the questions that arise for consideration are : (1) whether the lower court is justified in dismissing the petition on that ground; (2) whether the voice and cross - examination of p. W. 2 can be permitted to be recorded on tape while he is being cross - examined in the court; (3) whether it amounts to testimonial compulsion; and (4) whether this court, while exercising its jurisdiction under section 115 c p. C. Can interfere with the impugned order.
(8) Though appears to be simple at first blush, a long ground has to be covered by tracking the field of the provisions contained in the constitution the procedural codes and the evidence act, the inherent powers of the court provided under section 151 c. P. C. , the right of a witness against his testimonial compulsion vis - a - vis the duty of the court at trial are to be gleaned through, to arrive at the decision whether the court can permit to record the voice and evidence of p. W. 2 on tape.
(9) Though the plaintiff has dominus litus to conduct trial in proof of his case, it is subject to order xviii of the code of civil procedure which regulates the procedure to examine witnesses. The plaintiff, under order xviii rule 1 has been given the right to begin his case and adduce evidence in proof of the relief sought for in the suit. Rule (2) states that on the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin, shall state his case and produce his evidence in support of the issue which he is bound to prove. In exercise of this right, the plaintiff has begun the trial and adduced evidence and p. W. 2 is being examined. It is not now in dispute that p. W. 2 is the scribe of the alleged agreement of conveyance; in pursuance of which the plaintiff is said to have been inducted in possession of the plaint schedule property. It is the case of the petitioner that there was an anterior conversation ensued between p. W. 2 and some third party whereat he (p. W. 2) divulged the circumstances inconsistent with the evidence now being spoken to in the court. To test the veracity or to impeach credibility of this witness, p. W. 2, and to compare the voice that was found to be in the tape with that of pw. 2 the petitioner is now seeking to permit him to record the evidence of p. W. 2 in the cross - examination on the tape. As stated earlier, the lower court dismissed this petition on one of the grounds that there is no specific provision under the code.
(10) It is contended for by the petitioner, and in fact the application was filed under section 151 c. P. C. That in the circumstances of the case the provisions of the inherent powers of the court contained in section 151 c. P. C. Can be taken aid of, but resisted by the respondent. To appreciate this contention, it is proper to reproduce section 151 c. P. C. Which says that : nothing in the code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. " here, the latter clause is not necessary for our present purpose. Admittedly, either under order 18 rule 2 c. P. C. Or any other provision under the code or under the provisions of the evidence act, there is no specific embargo to grant permission to record the evidence in the cross - examination and the voice of the witness on the tape. In its absence whether the provisions of section 151 c. P. C. Can be taken aid of is the question. The scope of inherent power of the court under section 151 c. P. C. Is subject of several decisions of the highest court. Their lordships of the supreme court did not permit to avail inherent powers when there was specific provision elsewhere covering the field. In arjun singh vs. Mohindra kumar (1) air 1964 s c. 993 at 1003 it was held. '
"it is common ground that the inherent power of the court cannot override the express provisions of the law. In other words if there are specific provisions of the code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the court or the jurisdiction that may be exercised in relation to a matter the inherent power of the court cannot be invoked in order to cut across the powers conferred by the code. The prohibition contained in the code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates."
Therefore, the above law laid down by their lordships of the supreme court is an authority for the proposition that where there is a specific provision, which exhausts its applicability, then the inherent powers cannot be resorted to. The same is the view reiterated in ram chand and sons sugar mills vs kanhayalal (2) a i r 1966 s c 1899. Which reads thus:
"the inherent power of a court is in addition to and complementary to the powers expressly conferred under the code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of sec. 151 of the code, they do not control the undoubted power of the court conferred under
section 151 of the code to make a suitable order to prevent the abuse of the process of the court."
The above are cases where there was specific provision provided under the code of civil procedure and, therefore, their lordships of the supreme court laid down that the inherent power cannot be exercised to override the said specific provision covering the topic.
(11) But in cases where there is no specific provision conferring power under the code, their lordships held that exercise of inherent power is permissible. While considering a case arising under order 39 rule 1 c p c in mandharlal vs seth hiralal (3) a i r. 1962 s c 527 at 532 it was held:
"there is no such expression in section 94 which expressly prohibit the issue of a temporary injunction in circumstances not covered by order 39 or by any rules made under the code. It is well settled that the provisions of the code are not exhaustive for the simple reason that the legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression 'if it is so prescribed' is only this that when the rules prescribe the circumstances in which the temporary injunction can be issued, ordinarily the court is not to use its inherent powers to make the necessary crders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the
provisions of section 94 were not there in the code, the court could still issue temporary injunctions but it could do that in the exercise of its inherent jurisdiction and the court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the court to issue temporary injunction that the
provisions of section 94 of the code have their effect and not in taking away the right of the court to exercise its inherent power."
(underlining is supplied for emphasis) in paragraph 23, it was laid down that 'the inherent power has not been conferred on the courts; it is a power inherent in the court by virtue of its duty to do justice between the parties before it. (emphasis supplied). Further, when the code itself recognises the existence of the inherent power of the court, there is no question of implying any powers outside the limits of the court. '
(12) Before invocation of the inherent power of the court, the court has to see whether the rights of the parties affected thereby is of substantive ct procedural. If it is a substantive right it cannot be nullified by exercise of its inherent power which is only incidental or ancillary to the exercise of its power to meet the ends of justice. This question was considered by their lordships of the supreme court in padmasen vs state of u. P. (4) air 1861 supreme court 218. The question that arose therein was whether a commissisioner appointed to seize certain books of account. While considering the scope of exercise of inherent power it was held that -
"the question for determination is whether the impugned order of the additioonal iv. Unsif appointing sri raghubir pershad commissioner for seizing the plaintiff's books of account can be said to be sn order which is passed by court in the exercise of its inherent powers. The inherent powers saved by sec, 151 of the code or with respect to the procedure to be followed by the court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the courts for passing such orders which would affect such rights of a party. Such powers cannot come within the scope of inherent powers of the court in the matters of procedure, which powers have their source in the court possessing all the essential powers to regulate its praclice and procedure."
therefore, the above is an authority for the proposition that in respect of substantive right, inherent powers of the court cannot be invoked. On the other hand, if the matter pertaining to the procedural right, inherent powers can be invoked.
(13) The immediate questions then arise for considerations are : (1) what is the right p. W. 2 possessed of when he entered into the box as a witness - whether be it substantive right from not being compelled to record his evidence on tape as contended for and held by the lower court or is one of procedural right; and (2) whether it amounts to testimonial compulsion protected by article 20 (3) of the constitution.
(14) To hearken the sweep, scope ambit and reach contained in these rights and hold out, it is pertinant in the first instance to track through article 20 (3) of the constitution of india. It says that "no person accused of an offence shall be compelled to be a witness against himself. " this clause consists of three limbs viz,, (1) the person should be an accused of an offence; (2) he shall not be compelled to be a witness; and (3) that it is against his own interest, the constitution extends protection only to such a person accused of an offence to protect him against compulsion to be a wit - nessself - incriminating in the offence the subject of an investigation or enquiry. In order to successfully avail himself of the above constitutional protection from testimonial compulsion as envisaged under art. 20 (3) of the constitution, all the aforestated three factors should be present.
(15) It is not the case that p. W,2 is an accused of the offence and that he is compelled to be a witness incriminating against himself. The theory of compulsion inheres a pre - existing right to be silent resisting coersion to depose as a witness to the facts within his knowledge or possession. There is a marked distinction between "to be a witness" and "to appear as witness". The constitutional guarantee is extended only to the former and that too to protect incrimination against himself in an offence in which he is an accused but not to the latter.
(16) The constitutional guarantee against testimonial compulsion is the subject of several decisions of their lordships of the supreme court. It is redundant to tread far a field since sold ground was laid, which is nearer to home to the facts in the case, by majority of the full court of their lordships of the supreme court in state of bombay vs. Kathi kalu ogerd (5) a. I. R. 1961 s. C. 1808 therein, the question that arose was whether taking of specimen writings from the accused while in police custody was in violation of the constitutional protection given under article 20 (3) of the constitution. While considering that question, their lordships have referred to the earlier decision of the full court in m. P. Sharma v. Satish chandra (a. I. R. 1954 s. C. 300) and majority negatived the protection and laid down thus :
"to be a witness' may be equivalent to 'furnishing evidence' in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification."
furnishing evidence'' in the latter sense could not have been within his contemplation of the constitution makers for the simple reason that though they may have intended to protect an accused person from the hazards of self - incrimination in the light of the english law on the subject they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. Furthermore it must be assumed that the constitution makers were aware of the existing law, for example, sec. 73 of the evidence act or ss 5 and 6 of the identification of prisoners
act (xxxiii of 1920). Section 5 authorises a magistrate to direct any person to allow his measurement or photographs to be taken, if he is satisfied that it is expedient for the purposes of any investigation or proceeding under the code of criminal procedure to do so. 'measurements' include finger impressions and foot - print impressions. If any such person who is directed by a magistrate, under s. 5 of the act, to allow his measurements or photographs to be taken resists or refuses to allow the taking of the measurements or photographs, it has been declared iaw - ful by s. 6 to use all necessary means to secure the taking of the required measurements or photographs. Similarly s. 73 of the evidence act authorises the court to permit the taking of finger impressions or a specimen handwriting or signature of a person present in court, if necessary for the purpose of comparison.
(17) The matter may be looked at from another point of view. The giving of finger impression or of specimen signature or of handwriting, stricily speaking, is not "to be a witness". "to be a witness" means imparting knowledge in respect of relevant facts, by mesns of oral statements or statemts in writing by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said to be a witness to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay, or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by test writers into three categories, namely, (1) oral testimony; (2) evidence furnished by documents; and (3) material evidence. We have already indicated that we are in agreement with the full court decision in sharma's case, 1954 scr 1077 (air 1954 sc 300 that the prohibition in cl. (3) of art. 20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. The accused may have documentary evidence in his possession which may throw some light on the controversy. If it is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the court to produce that document in accordance with the provisions of s. 139 of the evidence act, which, in terms, provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it; and therefore, he cannot be cross - examined. Of course, he can be cross - examined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if he has given his statements in court otherwise than by reference to the contents of the documents. In our opinion, therefore, the observation of this court in sharma's case, 1954 scr 1077 (air 1954 sc 300) that s. 139 of the evidence act has no bearing on the connotation of the word 'witness' is not entirely well - founded in law. It is well established that cl, (3) of article 20 is directed against self incrimination by an accused person self - incrimination must mean conveying information based upon the personal knowledge of the person giving we information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge for example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impressions. The production of such a document, with a view to comparison of the handwriting or the signature or the impression, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the court of any other authority holding an investigation to give his finger impression or signature or a specimen of his hand - writing, he is not giving any testimony of the nature of a 'personal testimony' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions, or his handwriting, inspite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness'. " (underlining is supplied for empsis) wigmore on evidence, in volume viii, while tracing out in general the history of testimonial compulsion, has stated in section 2190 at page 55 that - "there were. In certain classes of cases, persons not technically jurors, who came as witnesses, - deed - witnesses and transaction - witnesses, i. E. , persons who at the time of signing a deed or striking a bargain or celebrating a marriage had been called upon by the parties to bear witness in case of future need. These had originally served as the very triers themselves, in the days before jury - trial, and their oaths had formed a distinct mode of trial, which survived alongside of jurytrial. As the latter progressed and expanded, these deed - witnesses and transaction - witnesses bacame gradually obsolete as a separate form of trial, and came to be employed in connection with jury - trial. They were summoned with the jurors and they did not. '' at page 56, it is continued in para 2 that - "in the meantime the ordinary modern witness - i. E. , the person who happens to know something in the matter in issue - was gradually appearring. He was asked by the party to come and contribute his help or he came of his own motion and interest in the cause. This tradition was inherited by our law and was at the period in question (the end of the 1400s) still a living force. "
(18) In section 2191 at pages 61 to 63, the learned author traced out the constitutional guaranty against compulsory process. The bill of rights in most of the constitutions have incorporated this statutory right because those clauses of the constitution are intended to sanction permanently the more fundamental features of just and liberal criminal procedure, particularly in the parties which had at various times in the past been found liable to abuse. At page 62, it is stated that -
"the constitutions, in this instance, provided nothing new or exceptional; but gave solid sanction, in the special case of accused persons, to the procedure ordinarily practised and recognised for witnesses in general."
Even while advocating the insistence of privilege to depose against self - incriminating facts, the learned author in section 2251, at page 307, recognises the need thus:
"every influence which tends to suppress the source of truth must be removed. To remove all limits of inquiry into the secrets of the persons who have no stake in the cause but can furnish held in its investigation, would be to add to the motives which now sufficiently dispose them to evade their duty. If the witness' testimony is indispensable, and the incriminating facts is vital to the cause, a pardon, executive or statutory, can for the particular instance remove the privilege."
It may be profitable to remember that the founding fathers of the constitution while making article 20, (3) are aware of the existence of the provisions to compel a witness contained in the procedural codes i. E. , civil procedure code and criminal procedure code to depose to the material facts within their knowledge or possession and be subjected to the cross - examination in the manner prescribed under the provisions of the evidence act and appears to have left out the topic from the purview of protection so as not intended to wittle them down of the efficacy and need to collect material evidence and thus not extended protection to such witness.
(19) The next question is, whether the right of p. W. 2 is a substantive or procedural right. This right of appearing as a witness is thus left out from article 20 (3) of the constitution as they are already engrafted by the legislature in the procedural codes viz code of civil procedure and code of criminal procedure and the evidence act and allowed to operate within its assigned field. Therefore to appreciate the nature of the right enjoyed by the witness under the statutes, it is aposite to apprise some of the salient provisions contained in those codes
(20) Let us first ponder over few relevant provisions contained in order xvi and order xvi - a of the code of civil procedure, 1908.
(21) Rule (1) of order xvi adumbrates that on or before a date fixed by the court for trial but not later than 15 days after settlement of issues, the parties shall present in court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in court on the day fixed fof trial or enquiry.
(22) Rule (3) also empowers the court, for reasons to be recorded after showing sufficient cause for the omission to mention their names in the list submitted earlier, to permit a party to call any witness other than those mentioned in the list furnished under rule (1). Rule i - a enlarges the right to bring any witnesses without summons to give evidence or to produce documents' other rules are only in the realm of issue of summons and service thereof etc. Rule 14 preserves to the court suo motu power to eummon any witness and to examine etc. It says that subject to the above rules and any law for the time being in force, when the court thinks it necessary to examine any person including a party to the suit of its own motion, cause such person to be summoned as a witness to give evidence or to produce any document in his possession, on a specified time and date and may examine him as a witness cr require him to produce such document rule (16) imposes duty that a parson so summoned shall unless the court otherwise directs, attend at each hearing untill the suit has been disposed of. Sections 132 and 133 extends exemption to a specified class of persons from personal appeatance in court. Thus every other person, subject to iaw and rules is amenable to summons. ''code also provides machinery to coerce a witness to give evidence, of course, material to decide a fact in issue or relevant fact.
(23) Rule 10 envisages to visit with penal consequences for failure of the witness to comply with the summons thus issued under rule (1) and rule (3) of order xvi, thus: where a person to whom r summons has been issued fails to attend or produce the document in compliance of such summons and where the court sees reason to believe that such evidence or production is material and that such person has without lawful excuse failed to attend or produce the document in compliance with such summons or has intentionally avoided service it may issue a proclamation requiring him to attend to give or to produce the document at a time and place to be named therein and the procedure for the service thereof.
(24) Sub - rule (3) of rule 10 gives latitude to a court, depending on the exigencies, that in lieu of or at the time of issuing such proclamation or at any time afterwards, to issue warrant either with or without bail for the arrest of such person and may make an order for the attachment of his property to such amount as it thinks fit not exceeding the cost of attachment or any fine which may be imposed under rule 12.
(25) Rule 18 prescribes that "where any person arrested under a warrant is brought before the court in custody and cannot, owing to the absence of the parties or any of them, give the evidence or produce the document which he has been summoned to give or produce, the court may require him to give reasonable bail or other security for his appearance at such time and place as it thinks fit, and, on such bail or security being given, may release him and, in default it of his giving such bail or security, may order him to be detained in civil prison.
(26) Rule (1) of order xvi - a extends the power to persons confined for being summoned by declaring that where it appears to the court that the evidence of a person confined 01 detained in prison within the state is material in a suit, the court may make an order requiring the officer in charge of the prison to produce that person before the court to give evidence. The oiher provisions are not relevant for the purpose
(27) Thus, the code of civil procedure exempts a specified class of persons and for others prescribes the procedure to summon them as witnesses the machinery to enforce attendance at pain or penalty and the obligation of the witness to be present through out till the suit is disposed of or otherwise ordered by the court.
(28) Similar are the provisions contained in chapters xvi, xix and vi of the code of criminal procedure, 1973. Section 204 (2) of chapter xvi provides for furnishing list of witnesses bv the prosecution; section 242 (2) of chapter xix for issue of summons by a magistrate for appearance of the witnesses or for production of document in respect of the trial of cases instituted on a police report, and sec. 244 (2) of the cases by warrant procedure by other persons. Section 234 provides for examination of witnesses on commission, etc. The procedure to compel appearance by summons is provided inchapter vi in sections 62 to 69 in part a; warrant of arrest as provided in part b in sec. 70 etc. Proclamation and attachment provided in part c under secs. 82 and 83; and issue of warrant in lieu of or in addition to summons provided in section 87; for appearance and to take bonds for appearance, under section 88, etc.
(29) In view of peculiar facts and circumstances where it: is difficult to get evidence or satisfactory investigation or trial, legislature recognised the need even to tender pardon to the persons accused of or suspected to be culprits, in other words, accomplice, acquainted with those facts or circumstances as provided under sections 306 and 307 of the code of criminal procedure which say that with a view to obtain the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which these sections apply, the chief judicial magistrate at any stage of enquiry or trial or court of session, may tender pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned whether as principal or abettor in the commission thereof, subject to certain conditions specified, this need also is stated by wigmore on evidence, referred to earlier. It is only to such person immunity from prosecution on the basis of such compelled oral testimony was provided.
(30) But to other persons summoned or produced for giving evidence, the penal consequences have been provided under section 193 of the indian penal code. Section 191 says that whoever being legally bound by an oath or by an express provision of law to state the truth or being bound by law to make a declaration upon any subject, makes any statement which is false and which he either knows or believes to be false or does not believe to be true, is said to give false evidence in any of the judical proceedings, and is, made punishable with imprisonment of a specified description under section 198 l. P. C,
(31) So far, we travelled in the field of the procedure provided under both the code of civil procedure as well as the code of criminal piocedure with regard to the'right of a witness. The ground can be further probed to finally reach the road from the provisions of the indian evidence act (1 of 1872). In proof of the issues in the suit, the party has to establish by adduction of all relevant facts or facts in issue. !n respect thereof, by aid of section 5 evidence may be given to the existence or non - existence of every fact in issue and all other relevant facts and of no other. Section 6 there of broadens that facts, which though not in issue, are so connected with a fact in issue as to form par! of the same transaction, are relevant whether they occurred at the same time and place or at different times and places. Section 9 postulates that facts necessary to explain or introduce a fact in issue or relevant fact or which support or rebut an inference suggested by a fact in issue or relevant fact or which establish the identity of anything or person whose identity is relevant or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.
(32) Therefore, when p. W. 2 is giving evidence to the facts to his knowledge relating to the transaction of the execution of the agreement of sale which is in issue in the suit, he will be subject to the provisions of the evidence act. He is subject to cross - examination under the provisions contained in the same evidence act.
(33) I will deal in greater detail at a little later stage with the question whether the tape produced in the court is evidence or a formal statement, but for the present, i proceed on the footing that it is evidence and that the same has been in custody of the court and p. W. 2 is subject to cross - examination.
(34) The relevant provision is section 137 of the evidence act which enviseges the examination of a witness in chief and cross - examination by the adverse party and re - examination by the party calling him.
(35) Section 132 provides that a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will incriminate or may tend directly or indirectly to incriminate such witness or that it will expose or tend directly or indirectly to expose such witness to a penalty or forfeiture of any kind; provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.
(36) Section 145 gives power to the adverse party to cross - examine the witness as to previous statement made by him in writing or reduced into writing and relevant matters in question, without such writing being shown to him or being proved, but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parties of it which are to be used for the purpose of contradicting him.
(37) His right to depose the facts within his knowledge is subjected to test his credibility under section 146 of the evidence act that lays down the procedure :
"when a witness is cross - examined, he may, in addition to the questions here in before referred to, be asked any question which tend - (1) to test his veracity ; (2). (3). Section 155 (3) of the evidence act gives exemption to put questions impeaching the credibility of the witness. Section 155 (3) reads thus : "the credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him - (1). (2). (3) by proof of former statement inconsistent with any part of his evidence which is liable to be contradicted ; (4). Explanation - 2 'o section 153 of the evidence act reads as follows : "when a witness has been asked and has answered any question which is relevant to the inquiry only, in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but, if he answers falsely, he may afterwards be charged with giving false evidence. Explanation - 1 explanation - 2 : if a witness is asked any question tending to impeach his impracticality and answers it by denying the facts suggested, he may be contradicted. "
Therefore, the above provisions clearly show that a witness can be contradicted with reference to his former statement to impeach his veracity or credibility of character of the witness.
(38) In this regard it may also be relevant to keep in mind that the object of judicial adjudication is dispensation of justice and to that end its paramount animation that appear to pervade through the above provisions is the quest for truth. These fascile of provisions are instruments or means to an end i. E. , to have acceptable evidence to render fair and substantial justice. It is, therefore the duty of the presiding officer of the court to take aid of them and explore every avenue to discover truth to advance cause of justice
(39) In section 2220, at page 195, wigmore on evidence in volume viii, while discussing the law of privilege of a person from exposing his body for examination, he quotes the observation of beck, j. In schroaeder v. R. Co, 47 ia 375 at 379 holding that -
"whoever is a party to an action in a court whether, a natural person or a corporation, has a right to demand therein the administration of exact justice. This right can only be secured and fully respected by obtaining the exact and full truth touching all matters in issue in the action. If truth is hidden, injustice will be done. The right of the suitor, then, to demand the whole truth is unquestioned; it is the correlative of the right to exact justice. To our minds the proposition is plain that a proper examination by learned and skilful physicians and surgeons would have opened a road by which the cause could have been conducted nearer to exact justice than by any other way. The plaintiff, as it were, had under his own control testimony which would have revealed the truth more clearly than any other that could have been introduced. The cause of truth, the right adminisuation of the law demand that he should have produced it."
(40) In section 2290 at pages 204 - 205, the learned author profounds that the exercise (privilage) of this power should no doubt be subject to certain restrictions on the principle that the testimonial duty should not be enforced any further than is necessary with relation to the ends of truth.
(41) Thus, the duty of the court while cause is at trial is to utilise the rules of procedure as hand maid to subserve the ends of justice rather to stand as impediments in its path. At the same time, the court should also see that no unfair result would ensue to the adverse party. In its search to find where truth lies the procedural provisions referred to above should be taken aid of.
(42) From the quivive 'consideration thus made the irresistable conclusions are that the unsuccessful attempt made to swim into the harbour of art. 20 (3) of the constitution to seek shelter under its protective umbrella anchored therein became fruitless. The protection cannot be extended to the field of testimonial compulsion of a person to be a witness or to appear as witness when appears to the court that the facts within his knowledge or his possession are material. He will be subject to the provisions referred to above. His right is not a substantive right but subservient at the alter of truth and thereby relegated to a procedural right. The constitutional protection against testimonial compulsion would be extended only to the person accused of an offence from being compelled to be a witness self - incriminating in the offence charged for.
(43) Admittedly p. W. 2 voluntarily appeared before the court and entered into the witness - box and deposed in chief - examination to the facts within his knowledge in support of the facts in issue spoken to by the plaintiff. By no strech of imagination it can be said that p. W. 2 is compelled to be a witness against himself. Thus the contention that p. W. 2 cannot be compelled to record his evidence in cross - examination and voice on tape is untenable and accordingly is rejected. The further finding of the lower court that p. W. 2 will be detered to depose freely and unhesitatingly is equally devoid of merit.
(44) Then cones the question whether sec. 73 of the evidence act can be taken aid, invoking the inherent powers under section 151 c. P. C.
(45) The second part of section 73 of the evidence act is relevant for the purpose. It provides that the court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person. This is an enabling provision arming the court to direct such person present in the court to write any words or figures to enable the court to compare the words or figures so written with any words or figures alleged to have been written by such person. This provision applies also with necessary modifications to finger - impressions as contemplated under the act. The question is whether the court can fall back upon this provision to permit the petitioner to record the voice of p. W. 2 and his cross - examination on tape to compare with the voice and the statement contained in the tape now produced before the court. It is contended by sri k. Harnath. That this power cannot be invoked, because sec. 73 of the evidence act does not specifically apply to this situation. On the other hand, it is contended by the learned counsel for the petitioner that this is an anologous provision applicable to the facts of this case and it can be called in aid by the lower court. To appreciate this contention, it is profitable to refer to two judgments, one of the madras high court and another of the bombay high court, relied on by the learned counsel for the petitioner. In venkatalakshmamma v. Seshagiri (6) air 1931 madras 303. The question that arose was whether the legal representatives of the judgment debtor can be brought on record after a lapse of time as provided under section 48 of the code of civil procedure. It was contended that there was no specific power conferred under the code. Therefore, the inherent powers cannot be invoked. While repelling that contention it was laid down by a division bench of the madras high cuurt that -
" where rights are conferred by the sections of the code and no provision is made for a particular set of facts, courts ought to apply the. Provisions of the rules which are nearest in point, with such modifications as may be necessary, and not refuse relief on the ground that the legislature has not made provision for a particular case, though within the generality of a section of the code. The object of section 151 is to give such power to courts and to prevent a failure of justice."
The same was the view taken by a division bench of the bombay high court reported on shankar hari v. Damodar vyankaji which was held:
"where rights are conferred by civil procedure code and no provision is made for a particular set of facts, the courts ought to apply the provisions which are nearest in point with such modifications as may be necessary, not refusing relief on the ground that the legislature has not in terms made provision for a particular case. The object of section 115 is to give such power to courts and to prevent a failure of justice."
(46) In this context it is also profitable to refer to a recent decision of their lordships of the supreme court construing the provision of section 73 of the evidence act vis - a - vis an accused person. In state (delhi administration) v. Pali ram (8) air 1979 sc 14 their lordships of the supreme court were considering the question whether the accused can be compelled to give specimen hand - writing in the court to compare with the disputed hand - writing. It was contended that the accused cannot be compelled to give such a specimen hand - writing, the courts below rejected such contention and the same was reiterated before their lordships. While repelling that contention, the court held: "a sample writing taken by the court under the second paragraph of section 73, is, in substance and reality the same thing as 'admitted writing' within the purview of the first paragraph of section 73 also. The first paragraph of the section provides for comparison of signature, writing, etc. Purporting to have been written by a person with others admitted or proved to the satisfaction of the court to have been written by same person. But it does not specifically say by whom such comparison may be made construed in the light of the english law on the subject, which is the legislative source of this provision, it is clear that s. Uph comparison may be made by, a hand writing: expert (section 45) or by one farniliar with the handwriting of the person concerned (section 47) or by the court. The two paragraphs of the section are not mutually exclusive. They aw complementary to each other section73 is therefore to be read as a while in the light of section 45. " in addition to section 73 there are two other provisions resting on the same principle, namely, section 165, evidence act and section 540 cr. P. C. , 1898, which between them invest the court with a wide discretion to call and examine any one as a witness, if it is bona fide of the opinion that his examination is necessary for a just decision of the case. " therefore, this case is also an authority for the proposition that even the accused can be compelled to give his specimen signature to compare with the disputed signature, and this power can b9 exercised to prevent miscarriage of justice. In this regard it is also salutary to keep in mind that the legislature cannot fore - see the peculiar facts or circumstances that may emerge in a given case at a particular point of time while conducting trial or enquiry nor could it be practicable nor feasible to provide necessary rules or to regulate the manner in which it could be dealt with such inconvenient or special facts or circumstances. To meet such exigencies, the legislature inhered in the court its inherent power to make suitable orders to meet the ends of justice and the court can take aid of all the relevant or analogous provisions. The test therefore is whether the court has or has no inherent power to pass an order in a particular case and whether it falls within or outside the ambit of the provisions of the relevant statutes. Where there are express provisions provided, the court cannot invoke its inherent power in derogation to the specific provision. It is not invoking its inherent power not because it has no power to exercise but to give effect to the legislative intent it refrains from exercising its inherent power. On the other hand in cases where there is no express embargo by necessary implication covering the topic, with a view to do justice or undo miscarriage of justice, it is legitimate for the court to call in aid of its inherent powers.
(47) In jones vs. National coal board (9) 1957 (2) all. E l r 155 denning, l j has stated:
"there is one thing to which every one in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. The widow and the national coal board stand in this respect on the level. No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it"
.
This statement of law would show that to do justice or to prevent miscarriage of justice it is the duty of the court to give every opportunity to the parties to have a fair trial and to decide thereafter the cause on the basis of the evidence placed before it. Every litigant is entitled to a fair trial at which he can put his case properly before the court for consideration. This right, if the court is of opinion that it is expedient to meet the ends of justice, cannot be prevented from being, exercised by the litigant merely because there is no specific power provided under the code or under the evidence act. Vvigmore on evidence, in volume viii, at page 62 while considering provilege of a witness to compel to give evidence stated that - "a court has inherent power to issue compulsory process in the traditional manner". Under these circumstances, i have no hesitation to hold that the lower court has committed material irregularity in the exercise of its jurisdiction in holding that there is no specific provision to record the evidence of p w. 2 in cross - examination and his voice on tape. The provisions of section 151 c p c. Read with section 73 of the evidence act are available. It is legitimate and lawful for the court to invoke them to meet the above situation. P w. 2 is thus amenable to record his evidence in the cross - examination on tape under the second part of section 73 of the evidence act.
(48) Now cornes to the quesiion whether the tape produced before the court is evidence. If it is evidence or a former statement it can be used either as substantive evidence or for corroborating the evidence or for contradicting the witness, it is not in dispute that the plaintiff is not relying upon the former statement. Therefore the question of using as substantive evidence or for seeking corroboration does not arise. It may be used for contradicting the witness or to test his veracity or impeach the credibility of the witness. It is also contended that it could be used at a future stage to compare the voice of the witness and the statement contained in the tape now produced in the court. Therefore, the question that arises for consideration is whether the tape is evidence or a former statement. In r. V. Maqsud all (10) 1965 (2) ah england law reports. 464 at 469 the court of appeal (criminal division) had to consider the question whether the tape is to be brought on record as evidence. It was laid down:
"we think that the time has come when this court should state its views of the law on a matter which is likely to be increasingly raised as time passes. For many years now photographs have been admissible in evidence on proof that they are relevant to the issues involved in the case and that the prints are taken from negatives that are untouched. The prints as seen represent situations that have been reproduced by means of mechanical and chemical devices. Evidence of things seen through telescopes or binoculars which otherwise could not be picked up by the naked eye have been admitted, and now there are devices for picking up, transmitting and recording, conversations. We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does not appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise ad - missible."
The above statement of law received the seal of approval from their lordships of our supreme court. In yusuf - ali v. State of maharastra (11) air 1968 s c 147 it was laid dow:
" there was no element of duress,, coercion or compulsion. His statements were not extracted from him in an oppressive manner or by force or against his wishes. He cannot claim the protection of art. 20 (3). The fact that the tape recording was done without his knowledge is not of itself an objection to its admissibility in evidence. In saying so, the court does not lend its approval to the police practice of tapping telephone wires and setting up hidden microphones for the purpose of tape recording."
It was also laid down:
"the process of tape recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is the direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversion is a relevant fact and is admissible under section 7 of the indian evidence act. If a statement is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must by proved by a competent witness and the voices must be properly identified. One of the features of magnetic tape recording is the ability to erase and re - use the recording medium. Because of this facility of erasure and re - use, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with."
(49) The question of admissibility of evidence recorded on tape directly arose in a case reported in rama reddy vs. V v giri (12) air 1971 sc1162 wherein their lordships held:
"the tape itself is primary and direct evidence admissible as to what has been said and pieke up by the recorder. A previous statement, madeby a witness and recorded on tape, can be used not only to corroborate the evidence given by the witness in court but also to contradict the evidence given by the witness in court as well as to test the veracity of the witness and also to impeach his impartiality. Thus apart from being used for corroboration, the evidence is admissible in respect of other three matters, under
section 146 (1) , exception 2 to section 153 and section 155 (3). The weight to be given to such evidence is however distinct and separate from the question of its admissibility"
.
(50) In z b bukhari vs. B r mehra (13) a i r 1975 s c 1788 their lordships of the supreme court held as to when this evidence can be said to have been brought on record thus:
"we think that the high court was quite right in holding that the tape records of speeches were 'documents', as defined by section 3 of the evidence act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions: a) the voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it; b) accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record; c) the subject matter recorded had to be shown to be relevant according to rules of relevancy found in the evidence act."
(51) It is therefore settled law that the statement contained in the tap record is evidence and it is admissible not only as a primary evidence but also to corroborate the witness or to contradict his previous statement, to test his veracity or to impeach his credibility. But in this case, we did not reach that stage yet. Except the petitioner, depositing the tapel into court, no person connected with recording the evidence on tape has been examined so far to prove that what was contained in the tape is the statement made by p. W. 2 or the voice found therein is of this witness. As pointed out by their lordships of the supreme court, before it is being relied upon, the petitioner has to lish "that the voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it and the accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record and the subject matter recorded had to be shown to be relevant according to rules of relevancy found in the evidence act. Since no person or persons connected with the alleged recording of the tape is are examined so far and brought the tape on record, it cannot be said that it is a former statement of p. W. 2 and is evidence. Unless that is done, it cannot be said that the former statement contained in the tape can be used. In view of the facts in this case, the only course the lower court would have adopted was to defer the cross - examination of p. W. 2 till the evidence of the defendants is adduced regarding the tape. Order xviii rule (2) sub - rule (4) empowers it to adopt this course. It says that 'notwithstanding anything contained in this rule the court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage'. This is brought on statute by latest amendment. Thus, there is ample power to the court to defer the cross - examination of p. W. 2 til! the tape is properly brought on record as evidence. But the procedure was not adopted by the lower court.
(52) No doubt it is a discretionary power of the court. But that discretion has to be properly exercised. It cannot be exercised arbitrary or capricious; or in disregard of any legal principle. In view of this legal position, i have no hesitation to hold that the lower court has not properly exercised its discretion and disallowed the request without adverting to any relevant provisions4 therefore, it has committed material irregularity in the exercise of its discretionary jurisdiction conferred on the court under order xviii of the code. In view of these facts, i have no hesitation to hold that the order of the lower court is vitiated by material irregularity in the exercise estabof its jurisdiction amenable to correction under section 115 c. P. C.
(53) Under these circumstances, the lower court is directed to defer the cross - examination of p,w. 2 till the evidence of the plaintiff is completed and the evidence of the defendant is begun and the tape is properly proved and brought on record and then p. W. 2 shall be recalled for the purpose of cross - examination and the petitioner be permitted to record the evidence and voice of p. W. 2 on tape. But how far it is relevant etc is a matter for the trial court to consider on merit at the time of hearing. Under these circumstances, the c. R. P. Is allowed, but in he circumstances, without costs.