Method of oral evidence

This query is : Resolved 
 

(Querist)
30 June 2020

In courts the evidence of witnesses is taken in definite sequence.After examination of one witness,and after his cross examination the next witness is examined.This gives opportunity to parties to correct mistake committed by earlier witness in evidence of subsequent witness.Is there any bar to asking the parties to submit total evidence of all the witnesses at one time by Affidavits and then give an opportunity to opponent to cross examine the witnesses.This would considerably reduce the litigation time.


N.J.S.Rajkumar alias narasimha (Expert)
30 June 2020

Refer the Two Judgement in the case of " Salem Advocates Bar Association Tamilnadu Vs Union of India " and " Ameer Trading corporation Ltd VS Shapoorji data Processing Ltd ' . . which stated that in all cases the examination in chief has to be conducted by way of affidavits.

N.J.S.Rajkumar alias narasimha (Expert)
30 June 2020

In the cas e of where the witness not under the control of the parties who prefers to examine him as witness recourse could be taken to order 16 Rule 1 of the code of civil procedure after he is been summoned by the court the witness could be asked to file an affidavit or could be examined by court it self.

N.J.S.Rajkumar alias narasimha (Expert)
30 June 2020

Role of Witness would play an major role in any Case either Criminal or Civil and time taken to establish the facts should not be treated as wasting of time.

jagadish paranjape (Querist)
30 June 2020

The point is that why all evidence Affidavits of all the witnesses of one party can not be filed on single day.Why party be given an opportunity to improve their case in subsequent Affidavit after the first witness is cross examined.

N.J.S.Rajkumar alias narasimha (Expert)
30 June 2020

Refer the Para mentioned by Bombay High Court on 17 th Dec 1954 in the case of " Yeshpal Jashbhai Parikh VS Rasiklal umarchand Parikh the Honorable Judge of the case had stated " I quite agree that the Court should not as an rule Impose a particular time limit as regards the cross examination of party or an witness. "

N.J.S.Rajkumar alias narasimha (Expert)
30 June 2020

Any how it would be at the Discretion of the concerned Court to complete the Case at the earliest. and it could be pleaded in the concerned Court it self basing on the Legally Justifiable Valid reasons to complete the case at the earliest for example the Parties being a Senior Citizen or Sick Patient etc.

Rajendra K Goyal (Expert)
30 June 2020

The procedure laid down as per evidence act, CPC, Cr PC, various laws need to be followed. Chances to fulfill gap in evidence through subsequent witness is an attempt for the justice to be arrived by giving full and fair opportunity to all.

K Rajasekharan (Expert)
01 July 2020

There is a definite order for witness examination in normal situation as per Section 135 of the evidence act. That is chief, cross and re examination, one by one.

As law mandates such a sequence the court is bound to follow it, except in exceptional circumstances which the criminal code permits.

While a witness is examined no other witness is allowed to hear the deposition.

When the situation demands for fixing a different sequence it is a prerogative of the judge to decide a different order suitable for such a situation.

The judge has sufficient discretion  as per law to make any change in the sequence like deferring a cross examination to a later stage.  In a sessions trial this is done as per Section 231CrPC and in a warrant case as per 242 CrPC.

In order to change the provision the legislature should amend it or the court should interpret it differently. Both do not seem to be  so easy.

When such a demand for a change of order, as is proposed here, was put up to the Kerala High Court and supreme Court in a petition from Trissur by some parties in a controversial murder case a year before, both the courts declined to make any change and dismissed the petitions.

Dr J C Vashista (Expert)
01 July 2020

Very well explained and advised by expert Mr. K Rajsekharan, I fully agree and appreciate his acumen.
To add to the above, counsel of the adverse party (cross-examining witness) shall ensure other witness(es) stay outside court room and do not hear the questions / answers of deposing witness. When the witness is discharged, s/he must remain inside court room itself so that s/he may not communicate the questions asked from him/her during his/her cross-examination.
The counsel of adverse party has a right to seek intervention of court for making other witness(es) out/inside court room at the time of cross-examining a witness.

jagadish paranjape (Querist)
01 July 2020

Thanks learned Experts and Regards.

N.J.S.Rajkumar alias narasimha (Expert)
01 July 2020

The Court could exclude the witness only with Good reason for it..When a Court is sitting in public no one who wishes to be present could be excluded Even an Witness with out any justifiable reason behind it

Rajendra K Goyal (Expert)
01 July 2020

Jagadish Paranjape Sir, (Author)
You have been good contributor as expert at this site, known for your deep understanding of the subject.
Thanks for your contribution.


K Rajasekharan (Expert)
01 July 2020

A cardinal issue which, it seems, has never been addressed conclusively by  any court has come up here.

The issue is whether a court can order an unexamined witness out when another witness is being examined.

It is true that neither the Evidence Act nor the Code of Criminal Procedure contain any specific provision enabling the court for ordering witnesses out of Court. But it is a general practice being done by the Court normally.

A case law in which Justice Krishna Iyer was an advocate states that in Halsbury's Laws of England Vol. 10, at p. 470 it is stated that unexamined witnesses may be ordered out of Court at the request of either party.

The judgement adds adds that in Halsbury's Laws of England Vol. 15, Lord Simond's Edn., p. 439 the rule of practice is stated to be that, at any time during the course of a trial, and on the application of either parly, the Judge may order witnesses in the case to leave the Court until called for.

The case law is there at https://indiankanoon.org/doc/1186879/


N.J.S.Rajkumar alias narasimha (Expert)
01 July 2020

It would be decided by the Pleadings made for it and at the Discretion of the concerned Courts only.



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