When court should not disallow particular questions in cross examination?
I have given my thoughtful considerations to the learned Senior
Advocates and with their assistance, I have also gone through the records. The
cross examination of the witness is a weapon in the hands of the opposite party to
establish the reliability or otherwise of a witness who is under cross examination.
The witnesses are also cross examined to ascertain the credibility of such witness
and also to see the veracity of the case put forward before the Court. Section 137
of the Evidence Act, inter alia, provides that the examination of a witness by the
party who calls him shall be called his examination-in-chief, whereas the
examination of a witness by the adverse party shall be called his cross
examination. Section 138 provides that a witness shall first record the examinationin-chief
and then if adverse party so desires, be cross examined, thereafter if the
party calling him so desires be 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 testifies on his examination in chief. On
plain reading of the said provisions, the contention of Shri Sudin Usgaonkar,
learned Senior Advocate appearing for the Respondents, that the cross
examination has to be restricted only to the statements made in the examination-inchief
or in the pleadings cannot be accepted. It is always open in the cross
examination to put questions in order that they can nullify or establish the veracity
or otherwise of the allegations made in the proceedings.
7. When the relevancy and the admissibility of a particular question is
seriously raised, it is the endeavour of the Court to elicit the answer after recording
the objectives. The final decision on such objectives can be decided at the end of
the trial. This view has been taken by this Court in the Judgment reported in 2015
SCC Bom 2571 in the case of Neema Hingarh vs. Ashish Hingarh, wherein it has
been observed at Para 8 thus:
“8. In the case of Irfan Badshah (supra), the
learned Single Judge of Delhi High Court considered
Section 148 of the Indian Evidence Act, 1872 as also
the decision of the Apex Court in the case of Special
Cell, New Delhi v. Navjot Sandhi alias Afshan Guru,
(2003) 6 SCC 641, wherein it was observed thus,
“… the endeavour of the Court wherever
there is a serious dispute with regard to the
relevancy and admissibility of a question
should be to elicit the answer of the witness
after noting the objections. The final
decision to reject particular evidence as
irrelevant or inadmissible can be if required
taken at the end of the trial. This procedure
benefits even the appellate court as in a
case where the question is disallowed or
excluded from evidence and the appellate
court feels that the same was essential, it is
at this stage not required to remand back
the matter for re-examination of the witness.
Cross-examination is the main tool of an
accused to test the veracity of the evidence
of the witness and discredit his
trustworthiness. Moreover, this does not
mean that the trial court will not exercise its
discretion in disallowing irrelevant
questions.”
In such circumstances, I find that the procedure followed by the
learned Trial court refusing to allow the questions at the time of the cross
examination, is not at all justified, unless the Court comes to the conclusion that the
questions are inter alia those which a party cannot be forced to answer and are
patent erroneous and put to delay the proceedings and for oblique purpose or have
no nexus with the dispute between the parties.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 411 OF 2015
Mr. Ajit Sukhijia,
V e r s u s
Mr. Edgar Francisco Valles,
Coram :- F. M. REIS, J
Date : 9thJuly, 2015.
Citation;2016(3) MHLJ242
Advocates and with their assistance, I have also gone through the records. The
cross examination of the witness is a weapon in the hands of the opposite party to
establish the reliability or otherwise of a witness who is under cross examination.
The witnesses are also cross examined to ascertain the credibility of such witness
and also to see the veracity of the case put forward before the Court. Section 137
of the Evidence Act, inter alia, provides that the examination of a witness by the
party who calls him shall be called his examination-in-chief, whereas the
examination of a witness by the adverse party shall be called his cross
examination. Section 138 provides that a witness shall first record the examinationin-chief
and then if adverse party so desires, be cross examined, thereafter if the
party calling him so desires be 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 testifies on his examination in chief. On
plain reading of the said provisions, the contention of Shri Sudin Usgaonkar,
learned Senior Advocate appearing for the Respondents, that the cross
examination has to be restricted only to the statements made in the examination-inchief
or in the pleadings cannot be accepted. It is always open in the cross
examination to put questions in order that they can nullify or establish the veracity
or otherwise of the allegations made in the proceedings.
7. When the relevancy and the admissibility of a particular question is
seriously raised, it is the endeavour of the Court to elicit the answer after recording
the objectives. The final decision on such objectives can be decided at the end of
the trial. This view has been taken by this Court in the Judgment reported in 2015
SCC Bom 2571 in the case of Neema Hingarh vs. Ashish Hingarh, wherein it has
been observed at Para 8 thus:
“8. In the case of Irfan Badshah (supra), the
learned Single Judge of Delhi High Court considered
Section 148 of the Indian Evidence Act, 1872 as also
the decision of the Apex Court in the case of Special
Cell, New Delhi v. Navjot Sandhi alias Afshan Guru,
(2003) 6 SCC 641, wherein it was observed thus,
“… the endeavour of the Court wherever
there is a serious dispute with regard to the
relevancy and admissibility of a question
should be to elicit the answer of the witness
after noting the objections. The final
decision to reject particular evidence as
irrelevant or inadmissible can be if required
taken at the end of the trial. This procedure
benefits even the appellate court as in a
case where the question is disallowed or
excluded from evidence and the appellate
court feels that the same was essential, it is
at this stage not required to remand back
the matter for re-examination of the witness.
Cross-examination is the main tool of an
accused to test the veracity of the evidence
of the witness and discredit his
trustworthiness. Moreover, this does not
mean that the trial court will not exercise its
discretion in disallowing irrelevant
questions.”
In such circumstances, I find that the procedure followed by the
learned Trial court refusing to allow the questions at the time of the cross
examination, is not at all justified, unless the Court comes to the conclusion that the
questions are inter alia those which a party cannot be forced to answer and are
patent erroneous and put to delay the proceedings and for oblique purpose or have
no nexus with the dispute between the parties.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 411 OF 2015
Mr. Ajit Sukhijia,
V e r s u s
Mr. Edgar Francisco Valles,
Coram :- F. M. REIS, J
Date : 9thJuly, 2015.
Citation;2016(3) MHLJ242
https://www.lawweb.in/2016/05/when-court-should-not-disallow.html
