Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Cross examination

Page no : 2

Biswanath Roy (Advocate)     17 July 2015

My above opinion relates to and in response to Raju's post made 5 hours ago.

N.K.Assumi (Advocate)     18 July 2015

It appears that the Court has not adopted the procedure of proceedings of NIA under section 143 as Summary proceedings, but the usual criminal procedure under 311 of the CrPc. In any case either under 311 CrPc as usual criminal proceedings or the Summary proceedings under 143 NIA, accused has a right to summon the complainant witness for cross examination.

Raju (Senior Executive)     18 July 2015

Thank you all of you all. As per the opinion of experts I will tell my lawyer to look into s.138 of indian evidance act as suggested by Shri Roy and also M/S Mandvi Co-op Bank Ltd Vs Nimesh B Thakore: Criminal Appeal No.of 2010.Date of Judgment January 11, 2010 as suggested by Shri Assumi.

 

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com)     18 July 2015

1) Whether the lower court should have allowed cross or not that stage is now over.

2) And this being interlocutory order so there will not be any revision before sessions court.

3) Going to High court is not cheap and results not assured.And we do not know the value of cheque so not advisable to spend huge amount To go to HIGH COURT .

SO EVEN AT THIS LATE STAGE EXPLORE FURTHER POSSIBILITES AT LOWER COURT THAT IS YOU CALL APPLY FOR RECALL OF COMPLAINANT ON SOME OTHER VITAL ISSUES WHICH COULT HAVE BEEN LEFT IN CROSS.

BHRIGU DATTA 9475352677 (PRIVATE PRACTICE)     18 July 2015

i think order of court is not proper you should go to high court for relive

 

N.K.Assumi (Advocate)     19 July 2015

As long as judgment is not delivered it is never too late for the court  to recall the witness to avoid miscarriage of justice, the present case is such,  the interest of justice reqires that the witness be recall in spite of moving the higher court.The present case is not to fill up the lacuna in the defense case but to cross the complainants new evidence that has been tendered in the court. See the judgment of Supreme Court delivered by justice K.Thomas and justice M.Shah; in the case of Rajendra Prasad Vs The Narcotic Cell 1999 (2) ALD Cri 345 and also the Classic case of Jamatraj Kewalji Govani Vs The State of Maharasthra 1967 SCR (3) 415 judgment delivered by Justice Hidayatullah, Justice Sikri, Justice S.M.Vaidiyalingam.This old case has been refered in various latest case.

DAULAT DILBAUG (Problems related to money marriage matters.-dostnaye@gmail.com)     19 July 2015

Please tell us if any of the citations allows further cross for documents submited by consent of the accused.in  CRIMINAL CASES.

 

And those suggesting High court is  THE remedy costlier than disease and at this  late stage when the matter is last stage what can be achieved..

R Trivedi (advocate.dma@gmail.com)     19 July 2015

This is a good  real life legal issue, and I concur with Mr Roy and Mr. Assumi.....

1. S.311 CrPC is a wide discretionary power with the court, dissent or consent of the opposing party for this is only of the academic interest.

 

2. The veracity of the 'content of a private document' can only be ascertained at the time of cross examination, admission of document for exhibition is not a proof of the veracity of the content of the document. Consent at the time of exhibit may bar the party from raising admissibility issue later on, thats all.

 

3. Mr Roy has rightly indicated that the denial of the cross examination by the magistrate is against S.138 of the Indian Evidence Act....Defense may be lacking in experience but the magistrate is not even aware of the basic aspect of criminal jurisprudence. What a pity !!

 

4. Mr Assumi has rightly indicated the mandvi case, which is a clear interpretation of S.145 of the NI ACt, and gives absolute right to accused for cross examination.

 

5. and yes, the revision lies in this case, because denial of the right of accused to cross examination is not an interlocutory order. Any order which decides the substantial right of any party, can be agitated at the revision.

 

 

Biswanath Roy (Advocate)     20 July 2015

Section 138 of the Indian Evidence Act,1872 empowers a litigant to examine new evidence.  It is his statutory right no court can deny such right of a litigant because it is not discretionery. Various decided cases supported such statutory right such as,- In the case of Karimnissa Begum vs. The Regional Transport decided on 8th. April, 1970 The Andhra Pradesh High Court said,- " ...THERE WAS NO QUESTION  OF THE DENIAL OF A STATUTORY RIGHT TO BE HEARD "

In the present case rejection of the application filed by the accused for allowing examination of new evidence points to the statutory right u/s.136 Evidence Act, 1872 which cannot be snatched away by the trial Magistrate merely on the plea that the defence did not object to the prayer of the complainant for allowing him to  recall the witness. It is a fit case for Revision since it is denial to the Constitutional right of the accused which does not construe an interlocutory matter.


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