LIVE Online Course on NDPS by Riva Pocha and Adv. Taraq Sayed. Starting from 24th May. Register Now!!
The Indian Constitution Courses

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Raju (Senior Executive)     11 July 2015

Cross examination

NI138, from accused side..

 

Case proceeded upto S.313, posted for argument/defense evidance...at this stage complainant moved application under S.311 for new documents like invoice etc......accused counsel gave consent to this S.311 thinking that one more opportunity will come for cross examination, where something was missed.

 

application S.311 was allowed, new docs taken on record (no affidavit by complainant), defense oral request for further cross examination denied, application moved for cross examination on new docs also dismissed on the same day, stating that cross examination is already closed.

 

what to do, any citation about right to cross examination once new evidance is taken under S.311....can these documents be read against accused without opportunity for cross...



Learning

 23 Replies

N.K.Assumi (Advocate)     12 July 2015

This provisions is exercise by the court for a just decision of the case and even section 165 of the EA does not apply. If new evidence is recoded the defense has a right to cross-examine the new evidence that has come on records under 311, otherwise, it will vitiate convictions if convicted. Since it is interlocutory order you may move the High court under Article 227 of the Constitutions.   

ADVOCATE TRILOK (CRIMINAL family PROPERTY topfreind@gmail.com )     12 July 2015

This is the problem with the cheque accused that they seek advice after happening of events.

 

Cheque law is technical and guit is presument once you admit cheque and your signatures.

 

Still it can be won by techncail faults of the complainant.

 

As in your case you should not have allowed additional evidence, once you give permission than it is your admission and no cross can be allowed..

 

Similarly earlier yoiu wanted to call bankslips of accused which is also suidal for the case of accused. Once you have  admitted that you had signed the cheque than other handwritting has no relevance.

 

Now you have a slim chance of filing of a revision for order of S311 for additional evidence and not for the rejection of cross.

 

You can argue in revision that it was mistake of advocate to have agreed for submission of new evidence

 

.

COMPLAINANT CAN NOT BE ALLOWED TO GIVE ADDITIONAL EVIDENCE DURING TRIAL AND AT LEAST AFTER CROSS IS OVER.

 

Get a good advocate and revision will be surely admitted result can not be predicted, but  in manwhile search for new defense opportunities before closure of defense evidence which will always be there.

 

N.K.Assumi (Advocate)     12 July 2015

If witness under this section 311 gives evidence against the accused, should accused also be given more opportunity to produce more evidence for rebuttal? in spite of cross examination? There is no provisions under CrPc, that if a witness give evidence as a court witness, the other party should be given opportunity to  produce more evidence for rebuttal as a matter of right.  Notice to the other party is not necessary for summoning witness by the Court under 311 CrPc? As such consent of the party to summon witness under this section can not deprive the other party to cross examine the witness examined under 311 as it was consented.

ADVOCATE TRILOK (CRIMINAL family PROPERTY topfreind@gmail.com )     12 July 2015

Since you say it is INTERLOCUTORY ORDER so the party  has to go to HC which is not easy and most expansive.

 

More ever no results guarnteed since unless there is seasoned advocate just few minture hearing is available.

 

And once you give consent for documents produced  the section 294 comes into play.and so the accused has given up thre right to agitate on that issue.

 

The basic mistake was persmission to produce which can be agitated just at sessions court and may get results.

N.K.Assumi (Advocate)     12 July 2015

Section 294 itself  speak of how to expediate the proceedings by way of admitting it or denying it by the prosecution or by the acused. Witness under 311 are not complainant's witness or the accused witness and when any documents are produced the other party has a right to cross-examine the witness,  as no documents can go down in evidence unless it goes through the test of cross examination. For example if post mortem report is admitted in evidence in murder case without being proved and no opprtunity is afforded to the accused to admit it or deny it's genuineness by way of cross examination, can such be admissible,No: rather it will be violative of Sction 294 itself.Any documnets produced in court has to be proved first followed by denial in cross.

Order under Section 311 for summoning witness or recalling witness are interlocutory in nature and revision under section 397 (2) is clearly not maintainable.

SAINATH DEVALLA (LEGAL CONSULTANT)     14 July 2015

If U R the accused go for a quash in HC by engaging a good competent lawyer.The fate of the quash entirely depends on the merits embeded in the petition.

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     14 July 2015

The solutiones being offered are more costly than disease.and no hope of possible relief..

So please show all these solutions to your advocate and please tell us all the learned experts about his /  her advice.

SAINATH DEVALLA (LEGAL CONSULTANT)     15 July 2015

The NI ACT is itself the most funniest Act's in Indian Judiciary.If the complainant is complacent the accused has a upper hand,if the accused ignores the statutory notice then he is at loggerheads with the ingredients of the Act.Hence every technicality depends on merits of either offence or defence.

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     15 July 2015

Even at this late stage you can find few strategies even at lower court.

 

Whatever is suggested by others that go to HIGH COURT is not easy since expansive and no results expected.

 

In this case as well others in similar situation can also use section 311 of  CRPC.

 

STUDY THE COMPLAINT THREAD BARE AND SEARCH SOME FACTS OR PLEADINGS WHICH WILL SURELY BE THERE ON WHICH THE ACCUSED WAS NOT ABLE TO CROSS LEAVING ASIDE THE ABOVE MENTIONED DOCUMENTS.

 

 

AND APPLY FOR RECALL OF COMPLAINANT AND  IF IT IS  NOT ALLOWED GO TO SESSIONS COURT IN REVISION WHICH WILL SURELY BE ALLOWED., IT WILL ALSO BE EASY SIMPLE AND QUICK.

 

IF YOU CAN SHOW CASE FILE THEN  WE CAN SHOW  HOW TO USE S . 311 EVEN AT THIS LATE STAGE..

Biswanath Roy (Advocate)     15 July 2015

The defence made a blunder mistake by allowing prosecution to produce further evidence after closure of cross examination rather the defence bungled up his case. However, by filing an application the defence can pray for examination of new evidence and let the trial court reject it by an order which may be beneficial to the interest of defence in future.

T. Kalaiselvan, Advocate (Advocate)     15 July 2015

As observed by expert lawyers in this thread, the next best option is to file an application for defence further evidence and on its dismissal, the matter can be take up with high court for revision. Consult your lawyer, discuss and proceed as per your understanding. 

Raju (Senior Executive)     17 July 2015

we moved application for corss examination of complanant and the same was rejected by trial quote citing that we did not object to new evidence by complainant and his cross examination was done earlier.

 

what is the value of this new evidance if we are not allowed to cross, my lawyer says only remedy now is revision with session court..pl advise.

Biswanath Roy (Advocate)     17 July 2015

Benefit of sec.138 of the Indian Evidence Act,1872 was arbitrarily ignored by the court .  Your lawyer also did not claim his legal right by high lighting decided cases under sec.138 of the Evidence Act,1872 for the reason best known to him. If at the time of hearing of your application your lawyer could raise the point that if he is not allowed to re-examine new evidence it will be violative of sec.138 of the Indian Evidence Act,1872 as well as  natural justice will be denied the court ought to have made an order accordingly.  Your defence lacks legal experience. However, you may file revision against the rejection of your application.

N.K.Assumi (Advocate)     17 July 2015

According to Raju the Querist, Witness was summoned under 311 CrPc and that aspecst had been discussed. However, even under NIA which are summary proceedings in nature, and section 143 to 147 NIA are relavant, and under sub section (2) of Section 145 accused has an absolute right to have the complainant and any of his witnesses summoned for cross-examination, though he can not ask for examination-in-chief.Supreme Court held in M/S Mandvi Co-op Bank Ltd Vs Nimesh B Thakore: Criminal Appeal No.of 2010.Date of Judgment January 11, 2010.


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  



Post a Suggestion for LCI Team
Post a Legal Query