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Defendant's right to cross examine witness of co-defendant: by Rakesh Kumar Singh ************** This is an interesting issue though rarely arises in the day to day trial of cases. Nevertheless, such issue may arise and therefore needs to be addressed properly. The present paper would be humble attempt to understand the concept with clarity. clarity.
2.
It is the Evidence ct! "#$% "#$% which primarily deals with the concept of
evidence in a court. It also provides as to how a person who appears in the court as a witness shall be dealt with. Section-" reads Section-" reads as under: (rder of examination Witnesses examination Witnesses shall be first examined in chief, then if the adverse party so desires! cross examined, then if the party calling him so desires! re"examined. The examination and cross examination must examination must relate to relevant facts, but the cross examination need not be confined to the facts to which the witness testified on his examination in chief. Direction of re-examination) re-examination) #The re"examination shall be directed to the explanation of matters referred to in cross examination$ and, if new matter is, by permission of the %ourt, introduced in re"examination, the adverse party may further cross examine upon that matters.
&.
It immediately becomes clear that once a person appears as a witness, he
has to go through three stages, examination"in"chief, cross examination, re" examination. 'irst stage is mandatory but the second and third stages indicate that they are not mandatory with certainty as an expression (if.....so desires) has been used in the context of other stages.
Defendant's right to cross examine witness of co-defendant: prepared by Rakesh Kumar Singh
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*.
+ince, in the present paper we are taling about the right of cross
examination, we will only loo into the second stage. It suggests that after the witness is examined in chief, he shall be cross examined. The only rider is that there must be a desire of adverse party to do so and nothing else. -nce, the adverse party expresses his desire, there would be no discretion left with the court except to permit him to cross examine the witness.
.
The crucial /uestion therefore is as to whose desire is indicated in the
+ection"0&1. -f course, it is of the adverse party. party. It is elementary. elementary. 'or existence of (adverse party) there is a need for existence of the first party to whom the other one will be adverse. Who then is the first party +imple. 3e who examined the witness at first stage i.e. examination in chief. 'ortunately, this expression is a defined term in the 4vidence 5ct. Section-"&$ reads Section-"&$ reads as under: Examination in chief) The chief) The examination of a witness by the party who calls him shall be called his examination in chief. ross examination) #The examination) #The examination of a witness by the adverse party shall be called his cross examination. Re-examination Re-examination The examination of a witness, subse/uent to the cross examination by the party who called him, shall be called his re"examination. 6.
7efinition of (examination"in"chief) suggests that it is done by the party
who calls the witness. %ross examination is defined as the examination done by the adverse party. %learly, first party will conduct examination"in"chief and the adverse party will conduct cross examination.
8.
Now, Now, we can say that two party will be in existence, one is the party and
the second is the adverse party. Interestingly, however, the provisions are only taling about the existence of the parties but nowhere are indicating as to which side both the parties will exist in a given case.
Defendant's right to cross examine witness of co-defendant: prepared by Rakesh Kumar Singh
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1.
5t the first blush, anyone can say that first party will exist on one side and
the adverse party will exist on the opposite side as normally all cases arise out of allegation of one party against the other who becomes the opposite party. party. 3owever, there is no 9ustification at all. The provisions are not supporting such proposition that first party and adverse party will exist opposite to each other. ather, the provisions have not even used any expression such as opposite party. ;.
5s such, the first party and the adverse party in a peculiar situation may
exist on the same side of the case.
0<.
The term (adverse party) however is not defined in the 4vidence 5ct.
Therefore, we need to understand the term in the manner in which it is generally used. 3ow a party can say that it is adverse to another. another. +imple. If a witness produced by one party depose such facts which goes contrary to the stand taen by another party or affects his interest in the case in any manner, manner, such another party can say that he is adverse to the party who has produced such witness.
00.
This understanding also shows that adverseness may arise at any stage
of the proceeding of a case. Two parties of a case may not be adverse to each other at the beginning of the case but may subse/uently for numerous reasons become adverse.
02.
=eeping the aforesaid in mind, we may now try to comment on the issue
involved i.e. right of a defendant to cross examine a witness produced by the co" defendant. Tae a situation where in a given case, (>) is plaintiff and (70) ? (72) are defendants. 70 is fully contesting the plaintiff claim but 72 is only partly denying the plaintiff claim. 72 brings a witness to depose in the case. 3is examination in chief supports some of the claims made by the plaintiff. Needless to say that the plaintiff will utili@e such testimony in his favour. Aut the Defendant's right to cross examine witness of co-defendant: prepared by Rakesh Kumar Singh
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same will go against the interest of 70. 3ow then the court can allow such testimony to go untested through a proper cross examination done by the real adverse party. party. 70 may not have grievance against the entire testimony of witness of 72 but he may have real apprehension in respect of a portion of the testimony which is against his interest. -bviously, the plaintiff would not be interested in impeaching the witness on such material points which go against 70. 5 court cannot allow such testimony to go untested. In such a situation 70 can certainly claim himself to be adverse to 72 who produces the witness and therefore as an adverse party, 70 can certainly express his desire to cross examine such witness.
0&.
Now, Now, after citing the bare provisions which supports the aforesaid view, view, we
may cite supporting 9udgments.
0*.
In Des Ra+ ho,ra vs ooran .a/ 00 0;8! 7BT 6& dated 6& dated 28.<1.0;8*
3onCble 7elhi 3igh %ourt has held as “It will thus be seen that the view of the Additional Rent Controller that simply because one of the pleas taken by the respondent No. 3 and petitioners is common, the later can be denied the basic riht to cross e!amine the witnesses produced by respondent No. 3 is supported neither by precedent nor by any principle or law and must be re"ected. It may also be noted that the evidence that is bein taken is common to all the parties in the case, and if the evidence of R# $ is to be treated as admissible, the same can only be done if an opportunity has been iven to all the parties includin the petitioner to cross e!amine him.%% him.%% -nce the petitioner is refused permission to cross examine".W. 8 his evidence would be inadmissible. That is the another reason why I feel that denial of opportunity to the petitioner to cross"examine .W. 8 was not only manifestly illegal but would have created complications and would really amount to permitting evidence to be taen which later on would have to be declared inadmissible).
Defendant's right to cross examine witness of co-defendant: prepared by Rakesh Kumar Singh
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0.
In Saro+ 0a/a vs Dhan,ati Devi . 5I 2<<8 74B 0< 3onCble 0< 3onCble 7elhi 3igh
%ourt has held as (&n (&n consideration of the submissions made by learned Counsel for the petitioner, I am of the view that the same are meritorious and the trial Court fell into a "urisdictional error in failin to e!ercise "urisdiction vested in it by law. 'he riht of the petitioner petit ioner (oriinal defendant No. $) to cross e!amine the witnesses of the remainin defendants could not be shut out....*
06.
In 0ha+inder Singh vs 1ardev Singh
%DD! 8*
dated
08.<2.2<08, 3onCble 7elhi 3igh %ourt held as “+ence, what these sections provide is that the crosse!amination is to be done by an adverse party. In the present case, the adverse party is the petitioner as the -/C is supportin the case of respondent No.01plaintiff. 'he crosse!amination by respondent No.0 of the witness of the -/C would not have much relevance*.
08.
-ther 3igh %ourts such as Aombay, Aombay, =arnataa, and a9asthan have taen
the similar view. view.
01.
We may therefore say with certainty that a defendant may express its
desire to cross examine a witness produced by other defendant and may cross examine such witness on the premise that he is an adverse party. party.
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Defendant's right to cross examine witness of co-defendant: prepared by Rakesh Kumar Singh