Mumbai: Court refuses to summon magistrates who recorded witness statements
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A CBI court on Thursday passed an order rejecting the plea of the CBI to issue summons to two magistrates who had recorded statements of three crucial witnesses in a ten-year-old case.

The central agency had sought to summon the two magistrates as one witness among the three had expired and the other two were untraceable. The summons sent by it to the other two were returned unserved as they were no longer living at their addresses. The CBI was not aware of their whereabouts to be able to secure their presence in court.

Special CBI judge Anand L. Yawalkar relied on a 2003 Andhra Pradesh HC order which observed that it was not necessary for sessions judges to summon concerned magistrate when a statement is recorded by the magistrate in discharge of his official duty. It had further observed that such a statement is a public document which does not require any formal proof. Judge Yawalakar stated that the HC order had also observed that even if such a statement is recorded by the magistrate, it is not a substantive piece of evidence and only a previous statement that can be used by the prosecution for corroboration and by the defence for contradiction under the Indian Evidence Act.

The special court said that summoning the magistrate to prove that the statement was recorded on oath and as per say of the witness is not necessary. It opined that calling a magistrate to give evidence results in loss of valuable time of the magistrate as well as of litigants and the exchequer.

The court said that in the present case, the evidence of the prosecution is near completion and the trial has been pending since the last more than ten years, it would not be appropriate to wait any further when the prosecution itself is not aware of the whereabouts of the witnesses.

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