RIGHT TO CROSS EXAMINE

Dear Arvind, the issue is very important in the context of Indian criminal trial which is very differenet from English criminal trial.Regarding prosecution to cross examine his own witness is clear in terms of the Indian evidence act, but for the defense to cross examine the hostile witness with the permission of the courts of facts is very different and I would also like to learn from the members. Thank you for posting such thought provoking issues.

Arvind brother.Agree with manoharan sir.
Section 154 only allows the party who has called the witness to ask the question which can be asked in cross examination. It does not bar the right of adverse party to cross examine such witness. that right is given by sec 137.

Anish, in that case both the prosecution as well as the defence will become cross examiners of one witness without examination in chief. Does the statue contemplate such trials?

Assumi sir,

"without examination in chief". This statement is incorrect.  Only after examination in chief can prosecution concluded that the witness has turned hostile.  Therefore examination in chief takes place. Anish is right.

after cross examination of proseqution, defence side can cross examine that witness

Thanks to all learned members.

let me explain the situation. One of prosecution witness was declared hostile. Prosecution declared him hostile and crossed examined him. Court didn't allow me to cross examine that witness. I equested to allow me, court said defence have no right to cross*xamine the hostile witness, if there is any provision show to the court. Actually I could draw out some favourable information if I was allowed. So please guide me, how should I satisfy the court that I have right to cross examine hostile witness also.

Arvind please read third part of S.137 of Evidence Act.  It says

The examinatioin of a witness,

subsequent to the cross examination by the party who called him,

shall be called his re examination.

Please note the positioning of the comma. What sense does it make to you?

Will it make a different sense if an additional comma is positioned after cross examination e.g. as follows

The examination of a wintess,

subsequent to the cross examination,

by the party who called him,

shall be called his re examination.

I think the enactment as it stands today with only two commas will apply to the facts and cricumstances of your case and I think you may be able to re examine the witness subject to the limitation contained in S.138 of Evidence Act.

As per 2nd part of S.137, "The examination of a witness by the adverse party shall be called his cross examination"

Now the witness was not called by you but was called by the prosecution.  Therefore you have in law every right to examine him.  Since the witness was not called by you you have every right to put leading questions also.

Please note that after a prosecution witness has turned hostile, it does not mean law allows the prosecution to cross examine the prosecution witness.  S.154 only allows the prosecution to "to put questions" which might be put in cross examination by the adverse party.

Therefore it does not mean that prosecutiion has cross examined the hostile witness.

Hence you have every right to examine/cross examine the prosecution witness who had turned hostile. If the court has disallowed you put on record denial of reasonable opportunity to you to cross examine the witness.

You are right if the witness is not cross examined it may cause harm to the defense.  Merely because he had turned hostile does not mean his entire evidence is washed away.

Assumi Sir,

Prosecution does not become cross examiner. S.154 as stated earlier only allows proseuction to put questions, it does not allow the prosecution to cross examine.

This is a murky area in the evidence act. Only after the Examination in Chief the issue of hostile witness can arise as rightly pointed out by Anil. Now the situation is that when the examination in chief declared his own witness as Hostile  his right to cross examination shifted to the discreation of the Court and if he is permitted by the Court to Cross examine his own witness who had been declared as hostile can the Court allow the Defence also to cross examine the hostile witness in the usual course of trial?  Here the English statue 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 Engish law a party is not permitted to impeach the credit of his own witness but in India this can be done under section 155 of the EA and under the English law a party calling the witness can cross examine  and contradict a witness only  when the court consider that the witness to be adverse but no such conditions had been laid dowwn in section 154 or 155 of the EA and in this respect the Indian statue is more advance than the English Law, and the grant of such leave has been left completely to the discreation of the Court the exercise of which is not fettered by or dependent on hostility or adverseness of the witness. Here the witness called by the Prosecution was declared Hostile by the Prosecution and was pemitted by the Court  to cross examine the Hostile witness, if so can the defence also Cross examine the said Hostile witness. Since the credit of a witness can be impeached only with the consent of the Court,  when the Court declared a witness as Hostile or adverse etc and permit the party calling such witness to cross examine his own witness no further cross examination by the defence should arise, but this is my own view and I would apprecite if members can throw more lights in this murky area of the Evidence Act.

I wan to know whether such delima never came before. Is there any finding of apex court on this point.

Please note that as per S.137 EA, Examination in chief, Cross examination and re examination are all, "examinatin of a witness"

Cross examination has been defined as "examination of a witness by the adverse party".  Therefore examination of a witness by the prosecution after he turned hostile would not be cross examination within the meaning of Evidence Act as the witness was called to the witness box in the first instance by the prosecution themself.

Thus if the witness was called into the witness box by the prosecution, the adverse party shall have the right to examine him despite the witness having turned hostile to the prosecution.

the right to examine by the adverse party or cross examine comes into existence the moment the witness has been called into the witness box by the opposite party whether the evidence tendered is hostile or not

Arvind the following citation though with regard to civil matter deals with S.137,138 & 154 of evidence act.  May be helpful to you

https://www.indiankanoon.org/doc/1440027/

I have never come across such situation in the judgment of the Supreme Court except cases decided by the Supreme Court with regards to the right of the Prosecution to Cross examine his own witness which is purely within the discreation of the trial court, and as I said this is a murky area in the evidence Act. Yes, Anil is right with regards to section 137 of the EA which define examination in Chief followed by Cross examination ans Re examinarion and there is no doubt about it, but section 154 says; the court may permit, in its discreation, permit the person who calls a witness to put any question to him which might be put in cross examination by the adverse party, and so Anil, I am of the view that it will be a cross examination and I acn not find any other provisions to say that it is not a cross examination. Should we interprete and say that the defence can cross examine the witness which has been permitted to the prosecution to cross examine his own witness by the court in exercise of its discreation? in as much as it is the privilege of the defence to cross examine the witness as permited by law?