Indian Evidence Act
PART III (CH 7 T0 11)
PRODUCTION AND EFFECT OF EVIDENCE ( SS 101-167)
เคชเฅเคฐเคพเคธเคเคเคฟเค เคคเคฅเฅเคฏเฅเค เคเฅ เคชเคฐเคฟเคฌเฅเคธเคจ เคเคฌเคฎ เคชเคฐเคฟเคฃเคพเคฎ
Section 137- Examination-in-chiefโ The examination of a witness by the party who calls him shall be called his examination-in-chief.
Cross-examinationโ The examination of a witness by the adverse party shall be called his cross-examination.
Re-examinationโ The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.
Introduction
Examination in terms of the provisions of the Indian Evidence Act envisages examination in chief, cross-examination and re-examination, as would appear from Sections 137 and 138 thereof. A person whose evidence has been taken by way of an examination in chief by way of affidavit, keeping in view the statutory scheme noticed both in the Code of Civil Procedure as also in the Code of Criminal Procedure, there cannot be any doubt whatsoever that a person intends to summon a witness who had filed his affidavit would be only for the purpose of his cross-examination. It is, however, possible that a party examining his own witnesses including the complainant may not affirm an affidavit or would like to examine himself in court. Sub-section (2) of Section 145 as also sub-section (2) of Section 296 of the Code of Criminal Procedure, in our opinion, should be interpreted in that manner.[Radhey Shyam Garg vs. Naresh. Kumar Gupta; 2009 (13) SCC 201]
Section 138, Evidence Act 138. Order of examinations- 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 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– 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 Court, introduced in re- examination, the adverse party may further cross-examine upon that matter.
Re-examination in Civil matters
A Three Judge Bench of this Court in Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd. [(2004) 1 SCC 702], held as under :
“13. The other sub-rules of Rule 4 of Order 18 provide for other and further procedures as regards examination of witness.
14. Rule 5 refers to the evidence which is required to be taken in cases where the appeal is allowed in contradistinction with the cases where appeal is not allowed as envisaged in Rule 13 of Order 18 of the Code of Civil Procedure. Rule 5, therefore, envisages a situation where the court is required to take down an evidence in the manner laid down therein which would mean that where cross- examination or re-examination of the witness is to take place in the court.
15. The examination of a witness would include evidence-in-chief, cross-examination or re- examination. Rule 4 of Order 18 speaks of examination-in-chief. The unamended rule provided for the manner in which “evidence” is to be taken. Such examination-in-chief of a witness in every case shall be on affidavit.
16. The aforementioned provision has been made to curtail the time taken by the court in examining a witness-in-chief. Sub-rule (2) of Rule 4 of Order 18 of the Code of Civil Procedure provides for cross-examination and re-examination of a witness which shall be taken by the court or the Commissioner appointed by it.
Re-examination in criminal matters
Rajaram Prasad Yadav v. State of Bihar and Ors: 2013 (14) SCC 461
ย A conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression “any” has been used as a pre-fix to “court”, “inquiry”, “trial”, “other proceeding”, “person as a witness”, “person in attendance though not summoned as a witness”, and “person already examined”.
By using the said expression “any” as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier.
The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.
15. In this context, we also wish to make a reference to certain decisions rendered by this Court on the interpretation of Section 311 Cr.P.C. where, this Court highlighted as to the basic principles which are to be borne in mind, while dealing with an application under Section 311 Cr.P.C. In the decision reported in Jamatraj Kewalji Govani vs. State of Maharashtra – AIR 1968 SC 178, this Court held as under in paragraph 14:- “14. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it.
In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court’s action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.” (Emphasis added)
16. In the decision reported in Mohanlal Shamji Soni vs. Union of India and another – 1991 Suppl.(1) SCC 271, this Court again highlighted the importance of the power to be exercised under Section 311 Cr.P.C. as under in paragraph 10:- “10. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re- examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.”
17. In the decision in Raj Deo Sharma (II) vs. State of Bihar – 1999 (7) SCC 604, the proposition has been reiterated as under in paragraph 9:- “9. We may observe that the power of the court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the five-Judge Bench in A.R. Antulay case nor in Kartar Singh case such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the court to be essential to the just decision of the case it is the duty of the court to summon and examine or recall and re-examine any such person.” (Emphasis added)
18. In U.T. of Dadra and Nagar Haveli and Anr. vs. Fatehsinh Mohansinh Chauhan – 2006 (7) SCC 529, the decision has been further elucidated as under in paragraph 15:- “15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as “filling in a lacuna in the prosecution case” unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice.”
Mir Mohd. Omar & Ors Vs. State of West Bengal [1989 AIR 1785 1989 SCR (3) 735 1989 SCC (4) 436 JT 1989 (3) 316 1989 SCALE (2)292]
There is yet another grave error committed by the High Court. It has expunged the entire examination under sec. 313 of the Code of Criminal Procedure of all the accused. We fail to understand the need for this extraordinary step. It is unfortunate that the High Court should make that order. Assuming it was on account of its permission to re-examine PW 34, even in that case it would be sufficient to further examine the accused with reference to the additional circumstances,’ if any, appearing against the accused on such re-examination. The object of sec. 313 was that the accused may be given an opportunity of explaining each and every circumstance appearing against him. The trial judge need not consult or hear the public prosecutor or the counsel for the accused as to the nature of the circumstances or the type of questions to be put to the accused. It is his duty to examine the accused as per law. It is, however, open to the prosecution to invite the attention of the Court if any incriminating circumstance is left out and not put to the accused. We reserve liberty to the prosecution in this regard.
