1. This revision raises a short but an important question which relates to the power of the Court to issue a warrant of arrest to secure the presence of a witness.
2. All that I need state the facts are these:
Respondents 1 to 3 filed a suit claiming certain rights as 'Fakeers' over the Durgas at Gulbarga. The petitioners who are defendants 2 and 3 therein, to be Sajjadanashin of different religious institutions at various places. The plaintiffs have taken a very bold stand. They have summoned the defendants as their witnesses. Indeed, it is a very unusual practice and has been condemned by Courts as wholly undesirable. (See Shatrugan Das v. Sham Das . The implications of their action are that they have to accept their opponents as witnesses of truth.
The summonses issued to the petitioners were served, but they were not present when the suit was taken up for evidence. One of the petitioners had sent an application for adjournment stating that he was suffering from stomach-ache. The learned Munsiff rejected that application on the ground that it was not supported by any material. The learned Munsiff thereafter, at the request of the counsel for the plaintiffs issued non-bail able warrants against the petitioners. The validity of these warrants has been called into question in this petition.
3. The learned Munsiff has not given any reason in his order. Perhaps he thought that mere absence of the defendants would be sufficient, to issue the non-bail able warrants. If that be the impression, I must state that it is wholly wrong and unsustainable in law.
Clause (2) of R. 10 of O. XVI provides procedure to be followed by Courts when a witness fails to comply with the summons either to attend or to produce the document in compliance with such summons or has intentionally avoided service. On any such default, the Court may issue a proclamation requiring the witness to give evidence or to produce the document. Clause (3) provides that in lieu of or at the time of issuing such proclamation, or at any time afterwards, the Court may, in its discretion, issue a warrant either with or without bail for the arrest of such person and also may make an order for attachment of his property. But the Court cannot in a casual manner issue a proclamation or a warrant when the witness has failed to attend the Court. Before taking any such step, the Court must have reason to believe that the evidence of the witness or the production of any document is material to the case. It must , accordingly , record briefly its reasons.
4. It was, however, contended by counsel for the respondents that the Court has already applied its mind when the summons was taken against the witness and it need not consider again the necessity of securing his presence by coercive steps. It was urged that when a witness without lawful excuse failed to attend the Court, the warrant or proclamation must issue in the usual course.
I do not think that that contention could be accepted. Under O. XVI, R. 1 of the Code of Civil Procedure, the parties may obtain summons to persons whose attendance is required either to give evidence or to produce documents. If the application for that purpose is made after the institution of the suit, the Court is bound to issue summons. The only case in which the Court could refuse to issue a summons is when the application is not made bona fide or when the Court feels that it would lead to abuse of its own process. The Court, while issuing a summons, does not apply its mind whether the witness sought to be summoned is material witness or not. It is only when a warrant is sought to be issued, the Court has to apply its mind whether the evidence of that witness is material to the case. If, in the opinion of the Court, the evidence of that witness is not material, the Court should not take coercive steps.
In the instant case, since the Court has not formed any opinion in that regard, the warrant of arrest issued against the petitioners cannot be sustained.
5. Before parting with the case, I may observe that if the petitioners do not appear before the Court on the next date of hearing, the Court may consider whether their evidence is material to the plaintiffs' case, and if it is so, it may take coercive steps to secure their presence in accordance with law.
6. In the result, the petition is allowed and the warrants issued against the petitioners are set aside.
7. No costs in the circumstances.
8. Petition allowed.