PART IV - PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS AND PROCEEDINGS

127 Summons for witness

If it is made to appear on the statement of the complainant or of the defendant or otherwise that material evidence can be given or is in the possession of any person, it shall be lawful for a court having cognisance of any criminal cause or matter to issue a summons to such person requiring his attendance before such court or requiring him to bring and produce to such court for the purpose of evidence all documents and writings in his possession or power which may be specified or otherwise sufficiently described in the summons.


128 Warrant for witness who disobeys summons

If, without sufficient excuse, a witness does not appear in obedience to the summons, the court, on proof of the proper service of the summons a reasonable time before, may issue a warrant to bring him before the court at such time and place as shall be therein specified.


129 Warrant for witness in first instance

If the court is satisfied by evidence on oath that such person will not attend unless compelled to do so, it may at once issue a warrant for the arrest and production of the witness before the court at a time and place to be therein specified.


130 Mode of dealing with witness arrested under warrant

When any witness is arrested under a warrant the court may, on his furnishing security by
recognisance to the satisfaction of the court for his appearance at the hearing of the case, order him to be released from custody, or shall, on his failing to furnish such security, order him to be detained for production at such hearing.


131 Power of court to order prisoner to be brought up for examination

(1) Any court desirous of examining as a witness, in any case pending before it, any person confined in any prison may issue an order to the officer in charge of such prison requiring him to bring such prisoner in proper custody, at a time to be named in the order, before the court for examination.

(2) The officer so in charge, on receipt of such order, shall act in accordance therewith and shall provide for the safe custody of the prisoner during his absence from the prison for the purpose aforesaid.


132 Penalty for non-attendance of witness

(1) Any person summoned to attend as a witness who, without lawful excuse, fails to attend as required by the summons, or who, having attended, departs without having obtained the permission of the court, or fails to attend after adjournment of the court after being ordered to attend, shall be liable by order of the court to a fine not exceeding $40.

(2) Such fine may be levied by attachment and sale of any movable property belonging to such witness within the local limits of the jurisdiction of such court.

(3) In default of recovery of the fine by attachment and sale the witness may, by order of the court, be imprisoned as a civil prisoner for a term of 15 days unless such fine is paid before the end of the said term.

(4) For good cause shown, the Senior Magistrate or the High Court may remit or
reduce any fine imposed under this section by a magistrate’s court.


133 Power to summon material witness, or examine person present

Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon or call
any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine any person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case:
Provided that the prosecutor or the advocate of the prosecution or the defendant or his advocate shall have the right to cross-examine any such person, and the court shall adjourn the case for such time (if any) as it thinks necessary to enable such cross-examination to be adequately prepared, if, in its opinion, either party may be prejudiced by the calling of any such person as a witness.


134 Evidence to be given on oath

Every witness in any criminal cause of matter shall be examined upon oath or affirmation, and the court before which any witness shall appear shall have full power and authority to administer the usual oath or affirmation:

Provided that the court may at any time, if it thinks it just and expedient (for reasons to be recorded in the proceedings), take without oath the evidence of any person declaring that the taking of any oath whatever is according to his religious belief unlawful, or who by reason of immature age or want of religious belief ought, not, in the opinion of the court, to be admitted to give evidence on oath; the fact of evidence having been so taken being also recorded in the proceedings.


135 Refractory witness

(1) Whenever any person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence —
(a) refuses to be sworn; or
(b) having been sworn, refuses to answer any question put to him; or
(c) refuses or neglects to produce any document or thing which he is required to produce; or
(d) refuses to sign his deposition,
without in any such case offering any sufficient excuse for such refusal or neglect, the court may adjourn the case for any period not exceeding 8 days, and may in the meantime commit such person to prison, unless he sooner consents to do what is required of him.

(2) If such person, upon being brought before the court at or before such adjourned hearing, again refuses to do what is required of him, the court may, if it sees fit, again adjourn the case and commit him for the like period, and so again from time to time until such person consents to do what is so required of him.

(3) Nothing herein contained shall affect the liability of any such person to any other punishment or proceeding for refusing or neglecting to do what is so required of him, or shall prevent the court from disposing of the case in the meantime according to any other sufficient evidence taken before it.


136 Cases when wife or husband may be called without the consent of the accused

In any inquiry or trial the wife or husband of the person charged shall be a competent witness for the prosecution or defence without the consent of such person —
(a) in any case where the wife or husband of a person charged may, under any law in force for the time being, be called as a witness without the consent of such person;
(b) in any case where a person is charged with an offence under Part XVI or section 163 of the Penal Code;
(c) in any case where such person is charged in respect of an act or omission affecting the person or property of the wife or husband of such person or the children of either of them.


137 Issue of commission for examination of witness

(1) Whenever in the course of any proceeding under this Code the High Court or a magistrate is satisfied that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the High Court or magistrate may with the consent of the parties issue a commission to any magistrate, within the local limits of whose jurisdiction such witness resides, to take the evidence of such witness.

(2) The magistrate to whom the commission is issued shall proceed to the place where the witness is or shall summon the witness before him, and shall take down his evidence in the same manner, and may for this purpose exercise the same powers, as in the case of a trial.


138 Parties may examine witnesses

(1) The parties to any proceeding under this Code in which a commission is issued may respectively forward any interrogatories in writing which the court or magistrate directing the commission may think relevant to the issue, and the magistrate to whom the commission is directed shall examine the witness upon such interrogatories.

(2) Any such party may appear before such magistrate by advocate, or, if not in custody, in person, and may examine, cross-examine, and re-examine (as the case may be) the said witness.


139 Return of commission

(1) After any commission issued under section 137 has been duly executed it shall be returned, together with the deposition of the witness examined thereunder, to the High Court or to the magistrate (as the case may be), and the commission, the return thereto, and the deposition shall be open at all reasonable times to inspection of the parties, and may, subject to all just exceptions, be read in evidence in the case by either party, and shall form part of the record.

(2) Any deposition so taken may also be received in evidence at any subsequent stage of the case before another court.


140 Adjournment of inquiry or trial

In every case in which a commission is issued under section 137 the proceedings may be adjourned for a specified time reasonably sufficient for the execution and return of the commission.


141 Competency of accused and husband or wife as witnesses in criminal cases

Every person charged with an offence and the wife or husband, as the case may be, of the person so charged shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person:
Provided —
(a) a person so charged shall not be called as a witness in pursuance of this section except upon his own application;
(b) the failure of any person charged with an offence, or of the wife or husband, as the case may be, of the person so charged, to give evidence shall not be made the subject of any comment by the prosecution;
(c) the wife or husband of the person charged shall not, save as hereinbefore mentioned, be called as a witness except upon the application of the person so charged;
(d) nothing in this section shall make a husband compellable to disclose any communication made to him by his wife during the marriage, or a wife compellable to disclose any communication made to her by her husband during the marriage;
(e) a person charged and being a witness in pursuance of this section may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged;
(f) a person charged and called as a witness in pursuance of this section
shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless —
(i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or
(ii) he has personally or by his advocate asked questions of the witness for the prosecution with a view to establishing his own good character, or has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the complainant or the witnesses for the prosecution; or
(iii) he has given evidence against any other person charged with the same offence;
(g) every person called as a witness in pursuance of this section shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses have given their evidence; and
(h) nothing in this section shall affect the provisions of section 213 or any right of the person charged to make a statement without being sworn.


142 Procedure where person charged is the only witness called

Where the only witness to the facts of the case called by the defence is the person charged, he shall be called as a witness immediately after the close of the evidence for the prosecution.


143 Right of reply

In cases where the right of reply depends upon the question whether evidence has been called for the defence, the fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply.