HEADNOTE
Saud Nasir & Anr. v. Late Mohammad Sultan (Through LRs) & Anr.
Court: High Court of Delhi
Bench: Hon’ble Mr. Justice Rajneesh Kumar Gupta
Date of Decision: January 21, 2026
Case Number: CM(M) 161/2026
Laws Involved:
Article 227, Constitution of India
Keywords: Article 227, supervisory jurisdiction, evidence recorded in absence of counsel, consent of witness, procedural fairness
Summary
The Delhi High Court dismissed a petition under Article 227 of the Constitution seeking to set aside the recording of examination-in-chief and cross-examination of a witness on the ground that it was conducted in the absence of counsel. Justice Rajneesh Kumar Gupta held that where the witness himself expressly consents to the recording of evidence in the absence of his counsel, and the counsel remains unavailable despite repeated calls from the court, no procedural illegality or prejudice can be said to arise. The Court found the trial court’s order to be reasoned and in accordance with law, observing that supervisory jurisdiction under Article 227 cannot be invoked to undo proceedings that were conducted with the conscious consent of the party concerned. Accordingly, the petition was dismissed as devoid of merit.
Court’s decision
The Delhi High Court dismissed the petition filed under Article 227 of the Constitution, refusing to interfere with the trial court’s order by which the examination-in-chief and cross-examination of OW-3 were recorded in the absence of counsel. The Court held that no infirmity could be found in the impugned order since the witness himself consented to the recording of evidence and the trial court had taken reasonable steps to secure the presence of counsel.
Facts
The petitioners approached the High Court challenging an order dated 12 January 2026 passed by the trial court, by which the evidence of OW-3 (Petitioner No. 2) was recorded and concluded on the same day. The grievance of the petitioners was that the evidence was recorded in the absence of counsel, allegedly causing prejudice to their case. The record showed that the matter was listed at 12:30 PM, costs imposed earlier were deposited, and the witness expressly stated before the trial court that evidence could be recorded despite the absence of his counsel, who was stated to be busy in another court.
Issues
The key issue before the High Court was whether recording of examination-in-chief and cross-examination of a witness, in the absence of counsel but with the express consent of the witness, amounted to procedural illegality or warranted interference under Article 227 of the Constitution.
Petitioners’ arguments
The petitioners argued that the evidence of OW-3 was improperly recorded as counsel was not present in court. It was contended that due to the absence of legal representation, the examination-in-chief and cross-examination were not conducted effectively, thereby causing serious prejudice to the case of the objector. On this basis, the petitioners sought expunging of the recorded evidence and a direction for de novo examination of OW-3.
Respondents’ arguments
There was no appearance on behalf of the respondents before the High Court. However, from the trial court record, it emerged that the objector himself had requested that evidence be recorded in the absence of counsel and that multiple attempts were made by the court staff to contact the counsel, who remained unavailable.
Analysis of the law
The High Court examined the scope of supervisory jurisdiction under Article 227 and reiterated that such jurisdiction is meant to correct grave jurisdictional errors or perversity, not to re-open procedural steps validly undertaken by subordinate courts. Where a party knowingly consents to a course of action before the trial court, it cannot later invoke Article 227 to challenge the consequences of that consent, unless manifest injustice is demonstrated.
Court’s reasoning
Justice Rajneesh Kumar Gupta noted that the impugned order clearly recorded the consent of OW-3 for commencement of evidence in the absence of his counsel. The Court also noted that repeated calls were made to the counsel, who failed to appear or respond. In these circumstances, the trial court could not be faulted for proceeding with the evidence. The High Court held that the order was reasoned, procedural safeguards were followed, and no prejudice warranting interference was made out.
Conclusion
The Court concluded that no infirmity existed in the trial court’s order recording the evidence of OW-3. Since the witness himself consented to the recording of evidence without counsel, the petition under Article 227 was found to be devoid of merit and was dismissed.
Implications
This ruling underscores that supervisory jurisdiction under Article 227 is not an avenue to undo proceedings conducted with the express consent of parties. It reinforces procedural discipline and places responsibility on litigants and counsel to be vigilant during trial proceedings, particularly when consent is recorded on the judicial file.
Case law references
- Principles governing Article 227 jurisdiction – Supervisory jurisdiction is limited and does not permit interference with reasoned procedural orders unless manifest injustice is shown. Applied.
FAQs
1. Can evidence be recorded in absence of counsel?
Yes, if the concerned party or witness expressly consents and the court records such consent.
2. Will High Court interfere under Article 227 in such cases?
No, unless there is clear illegality, perversity, or grave injustice.
3. What is the significance of consent recorded in court proceedings?
Consent recorded in judicial proceedings binds the party and limits later challenges.
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