• Chambers of Daksha Kumar

Can a person refuse to be a witness?

According to Indian law, no one has the right to refuse to appear before the court as a witness and in a court of law, one must tell the truth.


On the 17th March 2015, the Hon'ble Supreme Court of India issued a verdict in the case of Nisha Jain vs State, that if a witness is asked a question that is relevant to the issues at hand, he does not have the right to refuse to answer. To put it another way, there is a legal obligation to respond.


The reluctance to testify is considered a form of contempt of court. However, even contempt of court is considered quasi-criminal, which implies that a person is entitled to some constitutional procedures.


In accordance with Indian Law, no one may decline to appear in court as a witness. In a court of law, the truth must be told.


When a witness fails to comply with a summon or appear in a criminal case:


Section 87 Cr.P.C.:

Issue of warrant instead of, or additionally to summons — A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of someone, issue a warrant for his arrest after recording its reasons in writing—a) if, either before the issue of such summons or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.


Section 350 Cr.P.C.:

Summary Procedure for Punishment for non-attendance by a witness in obedience to a summon:


1. If a witness summoned to appear before a tribunal is legally required to appear at a specific place and time in obedience to the summons and without good reason neglects or refuses to appear at that place or time, or departs from the place where he needs to attend before the time at which it is lawful for him to depart, and the Court before which the witness is to appear is satisfied that it is expedient in the interests of justice that such a witness should be dismissed, the Court may take cognizance of the offence and after giving the offender a chance of showing cause why he shouldn't be punished under this section, sentence him to fine not exceeding 100 rupees.


2. In such situation, the Court will follow the procedure specified for summary trials as closely as possible.


When a witness fails to comply with a summon or appear in a civil case:


Rule 10 Order XVI of CPC: Procedure whose witness fails to comply with summons.


(1) If an individual to whom a summons has been issued fails to appear, relinquish evidence, or provide a document in accordance with the summons, the Court- (a) shall, if the certificate of the serving officer has not been verified by affidavit, or if service of the summons has been affected by a celebration or his agent, or (b) may, if the certificate of the serving officer has been so verified, examine on oath the individual.


(2) Where the Court has reason to believe that such evidence or production is material, and such person has failed to attend or supply the document in accordance with such summons or has purposefully avoided service, the Court will issue a proclamation requiring him to attend to provide evidence or to supply the document at a time and place to be named therein, and a copy of such proclamation will be affixed on the outer door or other conspicuous location.


3) visible of or at the time of issuing such proclamation, or at any time thereafter, the Court may, in its discretion, issue a warrant for the arrest of such person, either with or without bail, and will make an order for the attachment of his property to such amount as it thinks fit, not exceeding the number of the prices of attachment and any fine that can be imposed under rule 12: on condition that no Court of Small Causes shall make an order for the attachment of his property.


Rule 12 Order XVI of CPC: Procedure if a witness fails to appear.


(1) Where such person fails to appear, or appears but fails to satisfy the Court, the Court may impose on him any fine not exceeding five hundred rupees that it deems appropriate, having regard to his state of life and all the circumstances of the case, and should order his property, or any part thereof, to be attached and sold or, if already attached under rule 10, to be sold for the purpose of satisfying all costs of such attachment, together with the quantity of such attachment.


(2) If the person whose appearance is required pays the aforementioned prices and fines into Court, the Court will release the property from attachment.


(3) Notwithstanding that the Court has not made a proclamation under Rule 10 sub-rule (2) of rule 10, nor has it issued a warrant or ordered attachment under sub-rule (3) of that rule, the court may impose fine under sub-rule (1) of this rule after giving notice to such person to show cause why the fine should not be imposed.

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