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pratik (self working)     15 August 2010

criminal case one prosecution.

In a criminal case one prosecution witness got hostile. When there was my turn to cross examine,learned magistrate said, "if the witness turns hostile defence has no right to cross examine him, only prosecution has right". I wanted to draw out some more favourable points from this witness by cross examining him, but court objected and directed to show the provision.


Query : 1) I am confused becasue as per me i think prosecution means behind the bars but the abovementioned prosecution is something other pls explain me the term "prosecution " & there rights in civil in criminal cases in any court till supreme court.

2)witness turns hostile defence means what also the meaning of defence in civil & criminal cases & meaning of hostile witness , Unfavourable witness if possible with the help of a example.


PLS TELL ME THE MEANING & ANSWER OF THE QUERY.

Thanks In Advance.



Learning

 3 Replies

Basavaraj (Asst, Manager-Legal)     18 August 2010

Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the prosecution to prove that the defendant is guilty beyond any reasonable doubt, as opposed to having the defense prove that s/he is innocent, and any doubt is resolved in favor of the defendant. This provision, known as the presumption of innocence, is required, for example, in the 46 countries that are members of the Council of Europe, under Article 6 of the European Convention on Human Rights, and it is included in other human rights documents. However, in practice it operates somewhat differently in different countries.

Similarly, all such jurisdictions allow the defendant the right to legal counsel and provide any defendant who cannot afford their own lawyer with a lawyer paid for at the public expense (which is in some countries called a "court-appointed lawyer").

Civil Litigation

 

Criminal law regulates conduct by individuals and is enforced by the government. Civil cases fall under civil codes, which regulate conduct between individuals or private parties. Civil litigation involves a dispute between private parties, with the government providing a forum for its settlement. This may be a hearing before a judge, or trial by jury.

In civil litigation cases, investigators may receive a subpoena and be required to give testimony. They must testify orally unless excused by the court, and they must answer questions to the best of their knowledge. Civil cases are usually decided on a “preponderance of evidence” standard, which is less strict than the standard of proof “beyond a reasonable doubt” applied to criminal cases.

In some systems, violations of election law are brought before a civil court by the electoral management or policy-making body. In South Africa, cases are brought by the Chief Electoral Officer. In other instances, civil suits may be brought by those harmed by the electoral process. For example, a disqualified candidate may sue the electoral management body. A non-governmental organization may sue on behalf of candidates who might have been prevented from running or who received unequal treatment. Political party members may sue their party if it prevented them from running as candidates.

Civil litigation is part of the checks-and-balances system. It provides a mechanism enabling individuals to assert their rights before a court.

IVIL CASE:

There are many matter in ordinary life which are not crime and relates to private relations amongst citizen etc; These are covered under Civil Law.

Civil Courts are established for the adjudications of civil matters in normal practice Criminal Courts are also given powers of civil courts. . The procedure use by Civil Courts is described in Code of Civil Procedure. Matters relating to it are to be proved according to Indian Evidence Act.
      
There must be a subject matter, opposing parties and relief claimed in a civil case. For a civil case normally one has to engage a lawyer. He has to pay court fee also.
       
The civil case is instituted in Civil Courts in writing with sufficiently stamped paper as fee. If any law does not bar such suit the court can admit it.
      
Then court issue summons to opposing (defendant) party. The defendant gives a written reply in its defence dealing with each allegation and stating whether he admitted or denied.
        
Next important part of civil case is called discovery. Both parties are entitled to know about the case from each other and to obtain admissions regarding matters related to case.
          
After that court frames issues relating to case and are to be decided by court
       
Both parties then produce evidence in their favour. Defendant produces its evidence after the party, which instituted the case. Both parties’ then give necessary arguments regarding the case.

After the completion of above stages courts pronounce its judgment. It can dismiss the suit or accept the plea and give relief.

Successful parties are issued Decrees in its favour and last stage is Execution. In which courts judgment is implemented

 

Regards

Basavaraj.R

ADVOCATE SRIDHARABABU (Advocate)     19 August 2010

 

Sat Paul vs Delhi Administration AIR 1976 SC 294It is important to note that the English statute differs materially from the law contained in the Indian Evidence Act in regard to cross-examination and contradiction of his own witness by a party. Under the English Law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the court under Section 155. ………. the grant of such leave has been left completely to the discretion of the Court, the exercise of which is not fettered by or dependent upon the "hostility" or "adverseness" of the witness. In this respect, the Indian Evidence Act is in advance of the English law………………….. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as Washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.

 

 

 

 

 

 

 

 

 

Ennen Castings Pvt. Ltd. (In Liquidation) vs M.M. Sundaresh And Ors. AIR 2003 Kant 293, JUSTICE N KUMAR Considering the question whether a co-respondent can cross-examine the other respondent, who has given evidence against him observed that:- “The essence of cross-examination is that it is the interrogation by the advocate of one party of a witness called by his adversary with the object either to obtain from such witness admissions favourable to his cause or to discredit him. Cross-examination is the most effective of all means for extracting truth and exposing falsehood. The object is to impeach the accuracy, credibility and general value of the evidence given in chief to sift the facts already stated by the witness to detect and expose discrepancies or to elicit suppressed facts which will support the case of the cross-examination party. The exercise of his right is justly regarded as one of the most efficacious tests, which the law has devised for the discovery of truth. It is beyond any doubt the greatest legal engine ever invented for the discovery of truth. The right of cross-examination belongs to an adverse party and parties who do not hold that position should not be allowed to take part in the cross-examination.”……….. As a general rule, evidence is not legally admissible against a party, who at the time it was given had no opportunity to cross-examine the witness or of rebutting their testimony by other evidence. When two or more persons are tried on the same indictment and are separately defended any witness called by one of them may be cross-examined on behalf of the others, if he gives any testimony to incriminate them. A defendant may cross-examine his co-defendant who gives evidence or any of his co-defendant's witnesses, if his co-defendant's interest is hostile to his own…………………..Though there is no specific provision in the Indian Evidence Act providing for such an opportunity for a defendant-respondent to cross-examine a co-defendant/co-respondent, however, having regard to the object and scope of cross examination, it is settled law that when allegations are made against the party to the proceedings, before that evidence could be acted upon, that party should have an ample opportunity to cross-examine the person who had given the evidence against him. It is only after such an opportunity is given, and the witness is cross examined that evidence becomes admissible……………. Therefore, it is very clear from the aforesaid passages that it is the settled law that no evidence should be received against one who had no opportunity of testing it by cross-examination ; as it would be unjust and unsafe not to allow a co-accused or co-defendant to cross-examine a witness called by one whose case was adverse to him, or who has given evidence against. If there is no conflict of interest, such an opportunity need not be given. Therefore, the condition precedent for giving an opportunity to a defendant-respondent to cross-examine a co-respondent or a defendant is either from the pleadings of the parties or in the evidence, there should exist conflict of the interest between them. Once it is demonstrated that their interest is not common and there is a conflict of interest and evidence has been adduced, affecting the interest of the co-defendant/co-respondents, then before the court could act on that evidence, the person against whom the evidence is given should have an opportunity to cross-examine the said witness, so that ultimately truth emerges on the basis of which the court can act.

 

 

 

 

 

 

 

 

Madarbi, W/O Mahaboob Sab vs Mulla Sab Mardan Sab ILR 1996 KAR 1674, Referring a case of PANCHAPPA v. STATE OF KARNATAKA, I.L.R 1989 Karnataka 974 wherein it has been held that any minor discrepancy in the order which does not affect the merits and does not result in miscarriage of justice is to be overlooked. Right to cross-examine the witness is a fundamental right of a party against whom the witness has deposed. If a party is not given an opportunity to cross-examine the witness, then it cannot be said to be a minor discrepancy which does not go to the root of the matter. In such a context, the Court cannot brush it aside as a minor contradiction or minor discrepancy and confirm the order of the Tribunal based on such evidence.

 

 

 

 

 

MARY M.D'SOUZA v. MUNICIPAL COMMISSIONER, MANGALORE CITY MUNICIPALITY, 1968(1) Kar.L.J. 90, wherein this Court has held that a plea which has not been raised in the affidavit in support of the Writ Petition cannot be permitted to be raised at the hearing without the leave of the Court.

 

 

 

 

 

AIR 1989 SC 162   Supreme Court in the case of Modula India v. Kamakshya Singh Deo, and has held as under.- "It is a well-established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross-examination. The mere statement of the plaintiffs witnesses cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross-examination. The right of the defence to cross-examine the plaintiffs witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiffs evidence cannot be acted upon. Looked at from this point of view it should be possible to take the view that, though the defence of the tenant has been struck out, there is nothing in law to preclude him from demonstrating to the Court that the plaintiffs witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfill the terms of the statute". Further, it held.- "We, therefore, think that the defendant should be allowed his right of cross-examination and arguments. But, we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. None of the observations or decisions cited have gone to the extent of suggesting that, in spite of the fact that the defence has been struck off, the defendant can adduce evidence of his own or try to substantiate his own case"…… Supreme Court had to say.- "Again under Rule 10 when any party from whom a written statement is required fails to present the same within the time permitted or fixed by the Court, the Court "shall pronounce judgment against him or make such order in relation to the suit as it thinks fit". It will be seen that these rules are only permissive in nature. They enable the Court in an appropriate case to pronounce a decree straightaway on the basis of the plaint and the averments contained therein. Though the present language of Rule 10 says that the Court "shall" pronounce judgment against him, it is obvious from the language of the rule that there is still an option with the Court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the Court may think fit. Therefore, there is nothing in these rules, which makes it mandatory for the Court to pass a decree in favour of the plaintiff straightaway because a written statement has not been filed".

 

 

 

 

 

Basalingappa Chinnappa Goudar And Ors. vs Shantavva And Ors ILR 2002 KAR 260, 2001 (6) KarLJ 460  “In a suit the defendant has the right to show that the case pleaded by the plaintiff is false or cannot be acted upon and in addition to that he can put forth his defence to defeat the claim of the plaintiff. By not filing the written statement he loses his right to put forth his defence to defeat the claim of the plaintiff only but he does not lose his right to demolish the case of the plaintiff by cross-examination. The defendant by cross-examination of the plaintiff and his witnesses can demolish the case of the plaintiff and also address arguments on the basis of the evidence led by the plaintiff, and also make submission on law and satisfy the Court that on the material on record, the plaintiffs case cannot be accepted and no decree can be passed in favour of the plaintiff……….. However, it is made clear that the defendant would not be entitled to lead any evidence nor his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weakness of the plaintiffs case, and he be permitted to project his defence either directly or indirectly or in the form of suggestions to the plaintiffs witnesses.”

 

 

 

 

 

In STATE OF MADHYA PRADESH v. CHINTAMAN SADASHIVA WAISHAMPAYAN, AIR 1961 SC 1623 the Supreme Court while finding flaw in the procedure of the enquiry held thus: "6..... Thus, it was of very great importance for the defence to cross-examine these two witnesses, and for that: purpose the respondent wanted copies of their prior statements recorded by Mr. Ghatwal in his preliminary enquiry. It is difficult to understand how these statements could be regarded as secret papers, for that alone is the reason given for not supplying their copies to the respondent. Failure to supply the said copies to the respondent made it almost impossible for the respondent to submit the said two witnesses to an effective cross-examination; and that in substance deprived the respondent of a reasonable opportunity to meet the charge………..  10. It is hardly necessary to emphasise that the right to cross-examine the witnesses who give evidence against him is a very valuable right and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the enquiry had not been held in accordance with rules of natural justice."

 

 

 

 

 

AIR 1977 SC 170 the Apex Court has held that: "A party will not normally be allowed to cross-examine its own witness and declare the same hostile, unless the Court is satisfied that the statement of the witness exhibits an element of hostility or that he has resiled from a material statement which he made before an earlier authority or where the Court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth."

 

 

 

 

 

 

 

 

The State Of Karnataka vs S. Dhandapani Modaliar  1992 CriLJ 24, ILR 1991 KAR 2040, 1991 (2) KarLJ 486 (DB) :-  “Section 246 of the Criminal P.C. provides that after recording of evidence, if the Magistrate is of the opinion that there is a ground for presuming that the accused has committed an offence triable under this Chapter, he shall frame in writing a charge against the accused. The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon. Further, sub-section (4) of S. 246 lays down that if the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted on a plea of guilt, he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. It is, therefore, apparent from the scheme of S. 246 of the Criminal P.C. that the law provides the accused an opportunity of thinking over the matter in the light of the evidence that has been adduced before the Court and then to inform the Court whether he wishes to cross-examine the witnesses already examined by the prosecution before framing of the charge. Obviously, such an opportunity is to be given to the accused because in large number of cases they are ignorant of the law and must need advice before he can make up his mind whether to further cross-examine the witnesses already examined by the prosecution. The express words employed in S. 246(4) viz., 'at the commencement of the next hearing of the case' emphasises this aspect of the matter, so that the accused is not compelled to make a decision on the spot immediately after framing of charge. It is worth remembering that the evidence that is adduced before the framing of charge is only directed to establish a case which if unrebutted would lead to the conviction of the accused. Since that is the limited purpose for which evidence is adduced before framing of the charge, the accused may not feel it necessary to cross-examine such witnesses at length so as to make out his defence. The stage for serious consideration on this aspect of the matter arises only if the court decides to frame a charge and actually frames a charge against the accused. It is therefore of significance that law provides for some time to intervene between the date on which the charge is framed and the date on which the accused is required to state as to whether he wishes to cross-examine any or all the witnesses examined by the prosecution before the framing of the charge.

 


(Guest)

go throw the commentry of sec.154 of Evidence Act..


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