Law of Evidence

By Nizam Azeez Sait,

MODULE No. 27

EXAMINATION OF WITNESSES                                       

This is the 26th Module of the subject ‘Law of Evidence’, dealing with “Of Examination of Witnesses” in part IV, chapter X comprising Sections 140 to 168 of the Bharatiya Sakshya Adhiniyam (Sections 135 to 166 of the Evidence Act).

MODULE INDEX

1. Introduction

2. Order of Production and Examination of Witnesses
2.1 Prosecutor’s Discretion to Determine the Order of Examination of Prosecution Witnesses

2.2 Power of Court to Keep Out of the Court Room a Proposed Witness When Other Witnesses are Examined

3. Judge to Decide as to Admissibility of evidence

3.1. Guidelines Laid Down by the Supreme Court for Dealing with Objection as to Relevancy/Admissibility

4. Provisions Relating to Examination of Witness
a. Order of examinations
b. Cross-examination of person called to produce a document
c. Witnesses to character
d. Leading questions
e. Evidence as to matters in writing
f. Cross-examination as to previous statements in writing
g. Questions lawful in cross-examination

h. When witness to be compelled to answer
i. Court to decide when question shall be asked and when witness compelled to answer
j. Question not to be asked without reasonable grounds
k. Procedure of Court in case of question being asked without reasonable grounds
l. Indecent and scandalous questions
m. Questions intended to insult or annoy
n. Exclusion of evidence to contradict answers to questions testing veracity
o. Question by party to his own witness
p. Provisions Relating to Impeaching Credit of Witness
5. The scheme of Indian Evidence Act in Respect of Examination of Witnesses
6. Judge’s Duty to Protect the Witness from Impermissible Questions, duty to Admit Relevant Evidence and Reject Irrelevant Evidence etc
7. Scope of Cross Examination
8. Cross Examination Directed merely to Harass /Humiliate/ Oppress the Witness – Not Permissible
9. Relevancy of Questions Relating to the Credit of a Witness
10. No Witness can be Cited to Contradict Answers Testing Veracity
11. Indecent or Scandalous Questions Cannot be Asked
12. Denying Opportunity to Cross Examine Amounts to Failure of Justice
13. Consequence of Failure to Cross Examine in spite of Opportunity

14. Balancing “the Right of Cross Examination” of the Adverse Party and the Court’s Power to Keep the Cross Examination With in the Boundaries of Law

15. The Evidence Act/ Bharatiya Sakshya Adhiniyam Does not Employ the Terms “hostile” witness, “adverse” witness, “unfavourable” – Permission to Put Questions under Section 157 of the Bharatiya Sakshya Adhiniyam (S 154 of the Evidence Act) Doesn’t Mean a Question Mark On the Veracity of the Witness
16. Permission to Put Questions Under Section 157 of the Bharatiya Sakshya Adhiniyam (S.154 of the Evidence Act) Can Be Granted at the Stage of Cross Examination Also

17. Section 154 of the Evidence Applies in Criminal as well as Civil Cases

18. Manner of Impeaching the Credit of A Witness
19. Provisions Relating to Contradicting the Witness With His Previous Statement
20. Who Can Use Statement Under 161 CrPC to Contradict the Witness – Court Cannot Suo Motu Use the Previous Statement
21. The Manner of Confronting the Witness With the Previous Statement and How it is Proved and Marked in Evidence
22. Substantial Compliance of Section 145 of the Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam)

23. If the Witness Admits the Previous Statement or Omission Then it Need Not be Proved
24. The Entire 162 CrPC (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023) Statement Should not be Admitted in Evidence or Marked
25. Statements Made in Panchnama/ Scene Mahazar /Site Plan

26. Omission When Amounts to Contradiction

27. Tahsildar Singh – Majority View and Minority View and The Impact of the Explanation Regarding ‘Omission’ Added to Section 162 in the 1973 Code of Criminal Procedure
28. There is No Distinction Between A Party Witness and Other Witnesses in the matter of Confrontation with Documents During Cross Examination

29. The Document / Prior Statements Intended For Confrontation Need Not Be Produced Before the Court In Advance – The proposition is Reiterated
30. Provisions Relating to Corroborating the Witness With His Previous Statement

31. “at or about the time when the fact took place” in Section 160 – Meaning

32. The Former Statement May Be In Writing Or May Be Oral
33. Former Statement is Not Substantive Evidence
34. Use of First Information Statement For Corroboration Under Section 160 of the Bharatiya Sakshya Adhiniyam (U/S 157 of the Evidence Act)
35. Statement Made Under S.164 of CrPC (Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023) Is Not Substantive Evidence but Could Be Used For Corroboration Under Section 160 of the Bharatiya Sakshya Adhiniyam (U/S 157 of the Evidence Act)
36. Person Surviving After Giving Purported Statement Section 26 of the Bharatiya Sakshya Adhiniyam (U/S 32 Evidence Act) , Statement May Be Used For Corroboration Section 160 of the Bharatiya Sakshya Adhiniyam (U/S 157 Evidence Act)

37. Questions tending to corroborate evidence of relevant fact, admissible – S 159

38. Matters Which Could be proved in connection with proved statement relevant under section 26 or 27 (section 32 or 33 of the Evidence Act

39. Provisions Relating to Refreshing Memory of Witness By Referring to Previous Writings

40. Production of Documents When Ordered – The Court May Inspect the Document to Decide on the Validity of Objection
41. The Manner of Claiming Privilege

42. Greater Need of Transparancy

43. Sealed Cover Jurisprudence – Deprecated

44. Giving, as evidence, of document called for and produced on notice

45. Using, as evidence, of document production of which was refused on notice

46. Judge’s power to put questions or order production

1. Introduction

Witnesses adduce oral evidence before the court. Oral evidence is adduced through the process of Examination before the Court.

The evidence adduced should be relevant under any of the provisions in Sections 4 to 50 of the Bharatiya Sakshya Adhiniyam (Sections 6 to 55 of the Evidence Act).

Sections 140 to 168 of the Bharatiya Sakshya Adhiniyam (Sections 135 to 166 of the Evidence Act) regulate the process of Examination of Witnesses. Provisions relate to: –

  1. Order of Production and examination of witnesses – Section 140 of the Bharatiya Sakshya Adhiniyam (S.135 of the Evidence Act),
  1. Judges Power to decide admissibility – Section 141 (S.136 of the Evidence Act),
  1. Chief Examination and Cross- Examination including the nature of questions that could be asked and which cannot be asked – Sections 142 to 159 (Ss.137 to 156 of the Evidence Act),
  1. Contradiction of Witnesses with their previous statement – Section 148 (S.145 of the Evidence Act),
  1. Corroboration of witnesses with their previous statements – 160 (S.157 of the Evidence Act).
  1. Refreshing memory by referring to material in writing – 62 to 64 (Ss.159 to 161 of the Evidence Act)
  1. Summons to a witness to produce document (Ss. 162 to 164 of the Evidence Act)
  1. Judges power to put questions (Ss.165 and 166 of the Evidence Act)

2. Order of Production and Examination of Witnesses

Section 140 of the Bharatiya Sakshya Adhiniyam (Section 135 of the Evidence Act) reads as under:

The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.

Order XVIII Rules 1 to 3A of the Code of Civil Procedure and Chapters XVIII, XIX, XXI and XXIX of the Code of Criminal Procedure provides for the order in which Witnesses are to be produced and examined.

2.1 Prosecutor’s Discretion to Determine the Order of Examination of Prosecution Witnesses

In Prithvi Nath v R. C Kaul, 1975 CriLJ 216, A full bench of Jammu and Kashmir High Court, speaking through Justice S. Murtaza Fazal Ali, observed:

Section 135 (Section 140 of the Bharatiya Sakshya Adhiniyam), clearly prescribes two conditions for its applicability. In the first place the regulation of evidence must be according to the law or practice which is for the time being in force. Secondly this provision will apply only in the absence of any such law to the contrary. In our opinion none of these conditions applies to the present case. The general practice in criminal courts is that the evidence is taken in the order in which it is produced by the prosecutor and seldom the court interferes with this order. That this practice should be adhered to in criminal cases is even more important for the reason that in a criminal case the entire brunt of proving a prosecution case falls on the prosecutor and it is therefore for him to choose and devise ways and means of proving a case against an accused beyond any doubt. If the courts starts dictating a change in the order it may lead to serious prejudice and thereby to a serious miscarriage of justice. For instance, a prosecutor wants to examine himself as the last witness but if he is compelled to depose first and depose to all those facts, then it may give an opportunity to the accused to try to gain over witnesses who have been referred to in the statement of the complainant and in the statement which he has made in his deposition. In these circumstances it is not for the court to play the role of the prosecutor or of the defence. Furthermore S.252(old code) itself clearly lays down that the Magistrate shall take all such evidence as may be produced in support of the prosecution. The words ‘as may be produced’ clearly connote that the liberty of determining the order of evidence or production of the same or the choice of the witnesses is entirely that of the prosecutor. This, however, does not mean that the court has not no control over the proceedings. Where the court feels that an important or a material witness has not been examined at all, the court has ample powers under S.540(old code), Criminal P.C. to summon that witness but this power should be exercised sparingly and at the proper time. We are fortified in this view by a decision of the Calcutta High Court in Emperor v. Ahirannessa Bibi, AIR 1923 Cal. 579 at p.

2.2.  Power of Court to Keep Out of the Court Room a Proposed Witness When Other Witnesses are Examined

The inherent power of the Court to order that no witness who is to give evidence should be present when the deposition of other witnesses is being taken until he himself is examined as a witness, has been recognised in India (See Chacko Varghese v Karthiyayani ILR 1988 (1) Ker. 200, A. P. Sarma v. G. C. Veerayya, AIR 1961 AP 420, and (3) Kasi Iyer v. State of Kerala, 1966 KLT 452.)

3. Judge to Decide as to Admissibility of evidence

Section 141 of the Bharatiya Sakshya Adhiniyam (Section 136 of the Evidence Act) reads as:

(1) When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.

(2) If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.

(3) If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.

Illustrations.

(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 26. The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.

(b) It is proposed to prove, by a copy, the contents of a document said to be lost. The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.

(c) A is accused of receiving stolen property knowing it to have been stolen. It is proposed to prove that he denied the possession of the property. The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.

(d) It is proposed to prove a fact A which is said to have been the cause or effect of a fact in issue. There are several intermediate facts B, C and D which must be shown to exist before the fact A can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.

Section 3 of the Bharatiya Sakshya Adhiniyam (Section 5 of the Evidence Act) is a very important/cardinal provision in the Evidence which prohibits the parties from adducing irrelevant evidence which have no bearing on the facts in issue. The provision keeps the proceedings on track and prevents it from derailing on to unnecessary precincts / areas. Relevant portion of Section 4 reads as under:

“Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others”.

Section 3 along with section 141 of the Bharatiya Sakshya Adhiniyam (Section 5 along with section 136 of the Evidence Act) enables the judge to keep the trial within the relevant premises.

A party is entitled to adduce only relevant evidence. In this regard the High Court of Kerala in Sankaran v Dr Ambujakshan Nair, 1989 (2) KLT 570, observed:

“When the accused wanted to cite the counsel representing the complainant as a witness, the learned Magistrate should have asked in what manner the evidence would be relevant for the disposal of the case. The Magistrate should have issued summons only if he thinks that the evidence would be relevant for the decision. Such a duty is cast on him under S.136 of the Evidence Act (Sections 141 of the Bharatiya Sakshya Adhiniyam). The learned Magistrate did not apply his mind to this aspect of the matter either. The impugned order was issued in a mechanical manner.

 The order impugned, if carried out, will result in abuse of process of court. Under S.126 of the Evidence Act (Section 132 of the Bharatiya Sakshya Adhiniyam) no advocate shall be permitted to disclose any communication made to him in the course of and for the purpose of his duties as an advocate, unless his client expressly consents so to do. Nor can an advocate be compelled to state the contents of any document which he became acquainted with in the course of his professional employment. This protection will not extend to communications made in furtherance of any illegal purpose and to facts observed by him during his employment evidencing the commission of any crime or fraud. When an advocate is professionally engaged by a client, all communications which pass between them in the course and for the purpose of the employment are privileged and the advocate cannot be permitted to disclose them. Such a statement, even if volunteered by the counsel, is inadmissible in evidence.”

3.1. Guidelines Laid Down by the Supreme Court for Dealing with Objection as to Relevancy/Admissibility

In Bipin Shantilal Panchal v. State of Gujrat And Another, (2001) 3 SCC 1, the Supreme Court laid the procedure to be followed when any evidence is objected as irrelevant, the Court laid down:

It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re – canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re – moulded to give way for better substitutes which would help acceleration of trial proceedings.”

“When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)”

“The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re – canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.”

“We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence.”     

But, In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials v. State of Andhra Pradesh and Others, 2021 (10) SCC 598 : 2022 CriLJ 1602,  (S. A. Bobde, C. J. ; L. Nageswara Rao; S. RavindraBhat, JJ), a three judges bench of the Supreme Court held that on the timing of deciding the objection as to relevancy Bipin Shantilal Panchal as such is not binding and is modified. The Court observed:

 Apart from S.148 (Section 151 of the Bharatiya Sakshya Adhiniyam), there are other provisions of the Evidence Act (S.149-154) (Sections 152 to 157 of the Bharatiya Sakshya Adhiniyam) which define the ground rules for cross examination. During questioning, no doubt, the counsel for the party seeking cross examination has considerable leeway; cross examination is not confined to matters in issue, but extends to all relevant facts. However, if the Court is not empowered to rule, during the proceeding, whether a line of questioning is relevant, the danger lies in irrelevant, vague and speculative answers entering the record. Further, based on the answers to what (subsequently turn out to be irrelevant, vague or otherwise impermissible questions) more questions might be asked and answered. If this process were to be repeated in case of most witnesses, the record would be cluttered with a jumble of irrelevant details, which at best can be distracting, and at worst, prejudicial to the accused. Therefore, this Court is of opinion that the view in Bipin Shantilal Panchal should not be considered as binding. The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness. This will result in de – cluttering the record, and, what is more, also have a salutary effect of preventing frivolous objections. In given cases, if the Court is of the opinion that repeated objections have been taken, the remedy of costs, depending on the nature of obstruction, and the proclivity of the line of questioning, may be resorted to. Accordingly, the practice mandated in Bipin Shantilal Panchal shall stand modified in the above terms.

4. Provisions Relating to Examination of Witness

Section 142 of the Bharatiya Sakshya Adhiniyam (Section 137 of the Evidence Act) provides as under

Examination-in-chief-

The examination of witness by the party who calls him shall be called his examination-in-chief.

Cross-examination. –

The examination of a witness by the adverse party shall be called his cross-examination.

Re-examination. –

The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

a. Order of examinations

Section 143 of the Bharatiya Sakshya Adhiniyam (Section 138 of the Evidence Act) provides as under:

Witnesses shall be first examined-in chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) 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 testified on his examination-in-chief.

Direction of re-examination –The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

b. Cross-examination of person called to produce a document

Section 144 of the Bharatiya Sakshya Adhiniyam (Section 139 of the Evidence Act) reads as under:

A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness.

c. Witnesses to character

Section 145 of the Bharatiya Sakshya Adhiniyam (Section 140 of the Evidence Act) reads as under:

Witnesses to character may be cross examined and re-examined.

d. Leading questions

Section 146 of the Bharatiya Sakshya Adhiniyam (Sections 141, 142 and 143 of the Evidence Act) provides as under:

1) Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question.

(2) Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court.

(3) The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.

(4) Leading questions may be asked in cross-examination.

Three sections in the Indian Evidence Act relating to ‘Leading Question’ Sections 141, 142 and 143 are integrated into a single section in the Bharatiya Sakshya Adhiniyam as Section 146. This section prescribes what a leading question is, when leading question can be asked and when it cannot be asked.

An example of a leading question:  If a witness is asked “Did you See ‘A’ stabbing ‘B’? It is a leading question because answer is implicitly suggested in the question itself.

Answers elicited through leading questions asked in chief examination will be eschewed from consideration.

e. Evidence as to matters in writing

Section 147 of the Bharatiya Sakshya Adhiniyam (Section 144 of the Evidence Act) provides as under:

Any witness may be asked, while under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.

Explanation:

A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.

Illustration:

The question is, whether A assaulted B. C deposes that he heard A say to D—”B wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant, as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

This section must be read along with Sections 94 and 95 of the Bharatiya Sakshya Adhiniyam (sections 91 and 92 of the Evidence Act) dealing with exclusion of oral evidence.

f. Cross-examination as to previous statements in writing

Section 148 of the Bharatiya Sakshya Adhiniyam (Section 145 of the Evidence Act) provides as under:

A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

(for commentary on this provision see sub title 17 of this Module)

g. Questions lawful in cross-examination

Section 149 of the Bharatiya Sakshya Adhiniyam (Section 146 of the Evidence Act provides as under:

When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend—

(a) to test his veracity; or

(b) to discover who he is and what is his position in life; or

(c) to shake his credit, by injuring his character,

although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture:

Provided that in a prosecution for an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70 or section 71 of the Bharatiya Nyaya Sanhita, 2023 or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.

(Corresponding sections of the of the Indian Penal Code (45 of 1860Section 376, Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB or Section 376E)

h. When witness to be compelled to answer

Section 150 of the Bharatiya Sakshya Adhiniyam (Section 147 of the Evidence Act provides as under:

If any such question relates to a matter relevant to the suit or proceeding, the provisions of section 137 shall apply thereto.

Section 137 of the Bharatiya Sakshya Adhiniyam (Section 132 of the Evidence Act provides as under:

A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:

Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution forgiving false evidence by such answer.

Section 147 reads as under:

i. Court to decide when question shall be asked and when witness compelled to answer

Section 151 of the Bharatiya Sakshya Adhiniyam (Section 148 of the Evidence Act) provides as under:

(1) If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it.

(2) In exercising its discretion, the Court shall have regard to the following considerations, namely: —

(a) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies;

(b) such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies;

(c) such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence;

(d) the Court may, if it sees fit, draw, from the witness’s refusal to answer, the inference that the answer if given would be unfavourable.

j. Question not to be asked without reasonable grounds

Section 152 of the Bharatiya Sakshya Adhiniyam (Section 149 of the Evidence Act) provides as under:

No such question as is referred to in section 151 ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well-founded.

Illustrations.

(a) An advocate is instructed by another advocate that an important witness is a dacoit. This is a reasonable ground for asking the witness whether he is a dacoit.

(b) An advocate is informed by a person in Court that an important witness is a dacoit. The informant, on being questioned by the advocate, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a dacoit.

(c) A witness, of whom nothing whatever is known, is asked at random whether he is a dacoit. There are here no reasonable grounds for the question.

(d) A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living, gives unsatisfactory answers. This may be a reasonable ground for asking him if he is a dacoit.

k. Procedure of Court in case of question being asked without reasonable grounds

Section 153 of the Bharatiya Sakshya Adhiniyam (Section 150 of the Evidence Act) provides as under:

If the Court is of opinion that any such question was asked without reasonable grounds, it may, if it was asked by any advocate, report the circumstances of the case to the High Court or other authority to which such advocate is subject in the exercise of his profession.

l. Indecent and scandalous questions

Section 154 of the Bharatiya Sakshya Adhiniyam (Section 151 of the Evidence Act) provides as under:

The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.

m. Questions intended to insult or annoy

Section 155 of the Bharatiya Sakshya Adhiniyam (Section 152 of the Evidence Act) provides as under:

The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form.

n. Exclusion of evidence to contradict answers to questions testing veracity

Section 156 of the Bharatiya Sakshya Adhiniyam (Section 153 of the Evidence Act) provides as under:

When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but, if he answers falsely, he may afterwards be charged with giving false evidence.

Exception 1. —If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.

Exception 2. —If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted.

Illustrations.

(a) A claim against an underwriter is resisted on the ground of fraud. The claimant is asked whether, in a former transaction, he had not made a fraudulent claim. He denies it. Evidence is offered to show that he did make such a claim. The evidence is inadmissible.

(b) A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it. Evidence is offered to show that he was dismissed for dishonesty. The evidence is not admissible.

(c) A affirms that on a certain day he saw B at Goa. A is asked whether he himself was not on that day at Varanasi. He denies it. Evidence is offered to show that A was on that day at Varanasi. The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Goa. In each of these cases, the witness might, if his denial was false, be charged with giving false evidence.

(d) A is asked whether his family has not had a blood feud with the family of B against whom he gives evidence. He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality.

o. Question by party to his own witness

Section 157 of the Bharatiya Sakshya Adhiniyam (Section 154 of the Evidence Act) provides as under:

(1) The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.

(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.

p. Provisions Relating to Impeaching Credit of Witness

Section 158 of the Bharatiya Sakshya Adhiniyam (Section 155 of the Evidence Act) provides as under:

The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him—

(a) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;

(b) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;

(c) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.

Explanation. —A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.

Illustrations.

(a) A sues B for the price of goods sold and delivered to B. C says that he delivered the goods to B. Evidence is offered to show that, on a previous occasion, he said that he had not delivered goods to B. The evidence is admissible.

(b) A is accused of the murder of B. C says that B, when dying, declared that A had given B the wound of which he died. Evidence is offered to show that, on a previous occasion, C said that B, when dying, did not declare that A had given B the wound of which he died. The evidence is admissible.

5. The scheme of Indian Evidence Act in Respect of Examination of Witnesses – Case Law

Now we shall discuss the above referred provisions from sections 142 to 158 of the Bharatiya Sakshya Adhiniyam (Sections 137 to 155 of the Evidence Act) and case law on these provisions.

Examination of witnesses generally includes three stages as provided under section 142 of the Bharatiya Sakshya Adhiniyam (S.137 of the Evidence Act). Examination – in – chief or chief – examination is examination of a witness by the party who calls him. Cross – examination means examination of a witness by the adverse party and re – examination means examination of a witness by the party who called him subsequent to cross – examination.

Thus, it is clear that when a party cause to issue summons or produces witness, the said party shall examine the witness in chief and the adverse party would have the opportunity to cross – examine the witness.

Cross Examination

Cross – examination is one of the most important processes for the elucidation of truth. A good cross examiner more often than not would be able shake the credit of a false witness.

The right of cross – examination is not a mere formality to be complied with, but it should reflect sufficient opportunity afforded to cross – examine the witness on all disputed matters.

The right of cross – examination of a witness on any crucial aspect and on the documents relied on is an indefeasible right. The only exception to this general rule is under section 144 of the Bharatiya Sakshya Adhiniyam (S.139 of the Evidence Act), when a person is summoned for mere production of a document and not as a witness.

We will now see a few relevant case laws on examination of witnesses and other allied aspects relating to the above quoted provisions.

The scheme of Indian Evidence Act in respect of examination of witnesses and the powers of the Court have been aptly and correctly summarized by Hon’ble Delhi High Court speaking through Justice M.L.Mehta, in R. K. Chandolia v. CBI & Ors., 2012 SCC Online Del 2047 : (2012) 3 DLT (Cri) 471 :

6. Judge’s Duty to Protect the Witness from Impermissible Questions, duty to Admit Relevant Evidence and Reject Irrelevant Evidence etc

The Delhi High Court in ‘R. K. Chandolia’ observed:

“Under the scheme of Evidence Act, Chapter X deals with the examination of the witnesses. Different kinds of responsibility are cast on the judge in different provisions of this Chapter while recording evidence. Then the Courts also have extensive powers for protecting the witnesses from the questions not lawful in cross examination as set out in S.146 to 153, Evidence Act (Sections 149 to 156 of the Bharatiya Sakshya Adhiniyam. Under S.136 (section 141 of the Bharatiya Sakshya Adhiniyam), the Judge has not only to satisfy that the evidence that was to be led was relevant but, in what manner if proved, would be relevant. It was only if he was satisfied that the evidence, if proved, would be relevant, that he could admit the same. If it is his duty to admit all the relevant evidence, it is no less his duty to exclude all irrelevant evidence. S.5 of the Act (section 3 of the Bharatiya Sakshya Adhiniyam) also declares that ” evidence may be given in any suit or proceedings of the existence or non – existence of every facts in issue and of such other facts as hereinafter will be declared to be relevant, and of no others. From this, it comes out to be that the Judge is empowered to allow only such evidence to be given as is, in his opinion, relevant and admissible and in order to ascertain the relevancy of the evidence which a party proposes to give, he may ask the party, in what manner, if evidence proved, would be relevant and, he may then decide as to its admissibility. In fact, the question of relevancy is of great nicety and sometimes, great difficulty is felt by the Trial Judge in deciding question of relevancy. Therefore, it is desired that in doubtful cases, he should admit rather than excluding the evidence.”

7. Scope of Cross Examination

S.137 of the Evidence Act (section 142 of the Bharatiya Sakshya Adhiniyam) gives a statutory right to the adverse party to cross – examine a witness. S.138 (section 143 of the Bharatiya Sakshya Adhiniyam) only lays down the three processes of examination to which a witness may be subjected. It does not deal with the admissibility of the evidence. It also provides that 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 testified in his examination – in – chief. Under this Section, the cross – examination can go beyond the facts narrated in examination – in –  chief, but all such questions must relate to relevant facts. It is not that under the right of cross examination, the party will have the right to ask reckless, irrelevant, random and fishing questions to oppress the witness. The ” relevant facts” in cross examination of course have a wider meaning than the term when applied to examination – in – chief. For instance, facts though otherwise irrelevant may involve questions affecting the credit of a witness, and such questions are permissible in the cross examination as per S.146 and S.153 (sections 149 and 156 of the Bharatiya Sakshya Adhiniyam) but, questions manifestly irrelevant or not intended to contradict or qualify the statements in examination – in – chief, or, which do not impeach the credit of a witness, cannot be allowed in cross examination. It is well –  established rule of evidence that a party should put to each of a witness so much of a case as concerns that particular witness. (See R. K. Chandolia v. CBI & Ors., 2012 SCC Online Del 2047: (2012) 3 DLT (Cri) 471)

8. Cross Examination Directed merely to Harass /Humiliate/ Oppress the Witness – Not Permissible

It is experienced that sometimes, cross examination goes rambling way and assumes unnecessary length and is directed to harass, humiliate or oppress the witnesses. It is also experienced that the Courts often either due to timidity or the desire not to become unpopular or at times, not knowing its responsibilities and powers, allow the reckless, scandalous and irrelevant cross examinations of witnesses. In fact, in such situations, the court has the power to control the cross examination. The court has a duty to ensure that the cross examination is not made a means of harassment or causing humiliation to the witness. While allowing latitude in the cross examination, court has to see that the questions are directed towards the facts which are deposed in chief, the credibility of the witness, and the facts to which the witness was not to depose, but, to which the cross examiner thinks, is able to depose. It is also well – established that a witness cannot be contradicted on matters not relevant to the issue. He cannot be interrogated in the irrelevant matters merely for the purpose of contradicting him by other evidence. If it appears to the Judge that the question is vexatious and not relevant to any matter, he must disallow such a question. Even for the purpose of impeaching his credit by contradicting him, the witness cannot be put to an irrelevant question in the cross examination. However, if the question is relevant to the issue, the witness is bound to answer the same and cannot take an excuse of such a question to be criminating. That being so, it can be said that a witness is always not compellable to answer all the questions in cross examination. The court has ample power to disallow such questions, which are not relevant to the issue or the witness had no opportunity to know and on which, he is not competent to speak. This is in consonance with the well – established norm that a witness must be put that much of a case as concerns that particular witness.

 A protracted and irrelevant cross examination not only adds to the litigation, but wastes public time and creates disrespect of public in the system. The court is not to act a silent spectator when evidence is being recorded. Rather, it has the full power to prevent continuing irrelevancies and repetitions in cross examination and to prevent any abuse of the right of cross examination in any manner, appropriate to the circumstances of the case. The court could have such a power to control the cross examination apart from the Evidence Act as also the Code of Criminal Procedure. (See R. K. Chandolia v. CBI & Ors., 2012 SCC Online Del 2047: (2012) 3 DLT (Cri) 471)

9. Relevancy of Questions Relating to the Credit of a Witness

S.146 of the Evidence Act (section 149 of the Bharatiya Sakshya Adhiniyam) though relaxes the ambit of cross examination and permits the putting of questions relating to the trustworthiness of the witness, but such questions also must be relevant for the purpose of impeaching the credit, though not to the issue. Under the garb of shaking credit, irrelevant or vexatious questions cannot be allowed, if they do not really impeach the credit of witness or do not challenge the evidence given in examination – in – chief relating the matter under enquiry. It is established proposition of law that if the question is directly relevant i.e. if it relates to the matters, which are points in issue, the witness is not protected to answer even it amounts to criminating him but, if it is relevant only tending to impeach the witness’s credit, the discretion lies with the Judge to decide whether witness shall be compelled to answer it or not. Generally, he will not be allowed to be contradicted except in the cases under S.153 (section 156 of the Bharatiya Sakshya Adhiniyam). In fact, S.132, S.146, S.147 and S.148 (section 137,149,150, 151 of the Bharatiya Sakshya Adhiniyam) embrace whole range of questions, which can properly be addressed to witness and these should be read together.

Thus, it can be said that the relevancy of evidence is of a twofold character; it may be directly relevant in the bearing on, elucidating, or disproving, the very merits of the points in issue. Secondly, it can be relevant in so far as it affects the credit of a witness. As regard the relevancy relating to a credit of a witness, the court has to decide the same under S.148 (section 151 of the Bharatiya Sakshya Adhiniyam) whether the witness is to be compelled to answer or not or to be warned that he is not obliged to answer. The Judge has the option in such a case either to compel or excuse. The provisions of S.148-153 (sections 151 to 156 of the Bharatiya Sakshya Adhiniyam) are restricted to questions relating to facts which are relevant only in so far as they affect the credit of the witness by injuring his character; whereas some of the additional questions enumerated in S.146 (section 149 of the Bharatiya Sakshya Adhiniyam) do not necessarily suggest any imputation on the witness’s character. When we talk of the relevancy of the questions relating to character, unnecessarily provocative or merely harassing questions will not be entertained in this class of questions. (See R. K. Chandolia v. CBI & Ors., 2012 SCC Online Del 2047: (2012) 3 DLT (Cri) 471)

10. No Witness can be Cited to Contradict Answers Testing Veracity

The general rule of evidence is that no witness shall be cited to contradict another witness if the evidence is intended only to shake the credit of another witness. The said rule has been incorporated in section 156 of the Bharatiya Sakshya Adhiniyam (S.153 of the Evidence Act) which reads thus:

” Exclusion of evidence to contradict answers to questions testing veracity.- When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but if he answers falsely, he may afterwards be charged with giving false evidence.”

The said rule has only two exceptions.

One is that if the witness denies having been previously convicted then evidence can be adduced to prove that he was so convicted. The other exception is the following:

“Exception 2.- If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted.”

Illustration (d) cited in S.156 (Section 53 of the Evidence Act) is to amplify the aforesaid exception No.2. That illustration is extracted below:

“(d) A is asked whether his family has not had a blood feud with the family of B against whom he gives evidence. He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality.”

The basic requirement for adducing such contradictory evidence is that the witness, whose impartiality is sought to be contradicted with the help of such evidence, should have been asked about it and he should have denied it. Without adopting such a preliminary recourse, it would be meaningless, if not unfair, to bring in a new witness to speak something fresh about a witness already examined.

As the general rule of evidence is one of prohibiting evidence on collateral issues and since it is only by way of exception that such evidence can be permitted, the court must guard that the defence evidence falls strictly within the exception. (See Vijayan v. State JT 1999 (2) SC 347).

11. Indecent or Scandalous Questions Cannot be Asked

As per S.151 and S.152 (sections 154 and 155 of the Bharatiya Sakshya Adhiniyam), the questions which are apparently indecent or scandalous or which appear to be intended to insult or annoy or are offensive in form, are forbidden. Such questions may be put either to shake the credit of witness or as relating to the facts in issue. If they are put merely to shake the credit of the witness, the court has complete dominion over them and to forbid them even though they may have some bearing on the questions before the court. But, if they relate to the facts in issue or are necessary to determine the facts in issue existed, the court has no jurisdiction to forbid them. The court cannot forbid indecent or scandalous questions, if they relate to the facts in issue. It is because what is relevant cannot be scandalous.” (See R. K. Chandolia v. CBI & Ors., 2012 SCC Online Del 2047: (2012) 3 DLT (Cri) 471)

12. Denying Opportunity to Cross Examine Amounts to Failure of Justice

It is trite that the credibility of the witnesses, whether in a civil or criminal case, can be decided only when the testimony is put through the test of fire by cross – examination. Cross – examination, properly conducted, is one of the most useful and efficacious means of discovering the truth and failure to provide an opportunity will no doubt result in grave prejudice and failure of justice. (Suresh @ Sura and another v State of Kerala, 2015 (5) KHC 169)

In Unnikrishnan R v Sub Inspector of Police, ILR 2018 (4) Ker. 964, the trial court order requiring the defence to submit questionnaire of cross examination in a case under POCSO Act was set aside, the High Court of Kerala speaking through Justice Sunil Thomas observed:

Essentially, cross – examination is considered to be the most difficult branch of multifarious duties of an advocate. It is a skill that requires greatest ingenuity, a habit of logical thought, clearness of perception, infinite patience and self-control, power to read men’s minds intuitively, to Judge the witnesses by their face and the ability to cross – examine with force and precision. A Lawyer has to deal with a prodigious variety of witnesses testifying under different circumstances. A skilled lawyer should know the precise moment at which a particular question is to be put and the questions which are not to be put. In a regular cross – examination, questions are often to be moulded and asked on the spur of moment, depending on the answers given by the witness. Considering it, submitting the questionnaire in advance to the Court, that too, with copy to the prosecutor will defeat the very purpose of cross – examination and cross – examination tends to become an empty formality. If the questions proposed to be put to the witness are supplied in advance, there is no purpose in conducting cross – examination.

13. Consequence of Failure to Cross Examine in spite of Opportunity

It is well settled principle of law that a witness should be cross – examined on each and every point and failure to cross – examine him / her on a particular point would entail a presumption that party, not cross – examining the witness, had accepted the evidence. (Gujua Manjhi v State of Jharkand 2015 CriLJ 4303)

When a witness examined by a party states facts against such party or in favour of the opposite party and when the party who has examined that witness fails to put questions which could be asked in cross – examination to the witness with the permission of the Court under Section 154 (Section 157 of the Bharatiya Sakshya Adhiniyam) and to treat him as hostile, the evidence given by that witness may become binding upon the party who has examined him. The opposite party can rely upon such evidence (vide Jagan M. Seshadri v. State of Tamil Nadu (2002 KHC 1480 : AIR 2002 SC 2399 : 2002 (9) SCC 639 : 2002 CriLJ 2982), Raja Ram v. State of Rajasthan (2005 (5) SCC 272), Mukhtiar Ahmed Ansari v. State (NCT of Delhi) (AIR 2005 SC 2804 : 2005 (5) SCC 258 :), Javed Masood v. State of Rajasthan (AIR 2010 SC 979 : 2010 (3) SCC 538 : 2010 CriLJ 2020 : 2010 (2) SCC (Cri) 1176), Assoo v. State of Madhya Pradesh (2011 (14) SCC 448 : 2012 CriLJ 658) and Satyavir Singh v. State (AIR 2011 SC 1748 : 2011 (6) SCC 1).

14. Balancing “the Right of Cross Examination” of the Adverse Party and the Court’s Power to Keep the Cross Examination With in the Boundaries of Law

In Sanjay Shankar Bhalkar v State of Maharashtra, 2020 CriLJ 2033 Vibha Kankanwadi, J, Bombay High Court, observed:

“sometimes intentionally vague questions are put or they are asked in loud voice so that the witness would answer it in fear. Then definitely the control of the cross – examination will have to be in the hands of the Trial Judge. There may also be misleading questions or the questions are not understood due to language barrier. It is the duty of the Court to see that the witness understands the questions and then it should be left to the witness to answer the same.”…..

No straight jacket formula can be laid down as to what should be permitted and what should not be permitted as it depend upon the question that would be put and the relevancy and admissibility of the same and / or of the admissibility will have to be decided at that time. Definitely the learned Additional Sessions Judge is guided by the procedure laid down in Bipin Panchal’s case

“While Courts will not ordinarily interfer with the proper exercise of the right of cross – examination the Courts have the power and authority to control the cross – examination of a witness”.

In, Annubeg Mukimbeg Musalman and another v. Emperor, it is observed that:

The cross – examination of a witness is always a difficult matter. The counsel thinks out before hand on what point the cross – examination will be directed, but the cross – examination can never follow a prearranged plan. The cross – examination has to be moulded according to the nature of the answers given by the witness and the type of the witness a cross – examiner has to deal with. It requires great skill and resourcefulness on the part of counsel. If he is not permitted to cross – examine freely then the effectiveness of the cross – examination is marred……”

In Vassiliades v/s. Vassiliades, reported in [1945] AIR PC 38 it was observed that;

“No doubt cross – examination is one of the most important processes for the elucidation of the facts of a case and all reasonable latitude should be allowed, but the Judge has always a discretion as to how far it may go or how long it may continue. A fair and reasonable exercise of his discretion by the Judge will not generally be questioned”.

15. The Evidence Act/ Bharatiya Sakshya Adhiniyam Does not Employ the Terms “hostile” witness, “adverse” witness, “unfavourable” – Permission to Put Questions under Section 157 of the Bharatiya Sakshya Adhiniyam (S 154 of the Evidence Act) Doesn’t Mean a Question Mark On the Veracity of the Witness

Section 157 of the Bharatiya Sakshya Adhiniyam (Section 154 of the Evidence Act) provides as under:

(1) The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.

(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.

Section 157 of the Bharatiya Sakshya Adhiniyam (Section 154 of the Evidence Act) provides as under:

(1) The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.

(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.

The process of granting permission under section 157(1) is often referred as ‘declaring the witness as hostile’, which in the correct perspective is a misnomer.  The terms “hostile witness”, “unfavourable witness” etc are not used in the Evidence Act/ Bharatiya Sakshya Adhiniyam. They are terms of English Law. In India a witness is generally referred as “hostile witness” when permission is granted under Section 157 of the Bharatiya Sakshya Adhiniyam (Section 154 of the Evidence Act) to the side who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.

In Sat Paul v Delhi Administration, 1976 (1) SCC 727: 1976 CriLJ 295, P. N. Bhagwati; R. S. Sarkaria, JJ., the Supreme Court observed:

To steer clear of the controversy over the meaning of the terms “hostile” witness, “adverse” witness, “unfavourable” witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that in India, the grant of permission to cross examine his own witness by a party is not conditional on the witness being declared “adverse” or “hostile”. Whether it be the grant of permission under S.142 (Section 146 of the Bharatiya Sakshya Adhiniyam) to put leading question, or the leave under S.154 (Section 157 of the Bharatiya Sakshya Adhiniyam)  to ask questions which might be put in cross examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath v. Prasannamoyi), AIR 1922 PC 409. The discretion conferred by S.154 (Section 157 of the Bharatiya Sakshya Adhiniyam)  on the court is unqualified and untrammeled, and is apart from any question of “hostility”. It is to be liberally exercised whenever the court from the witness’s, demeanour temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, think that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as “declared hostile”, ”declared unfavourable”, the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts.

 It 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 S.155(Section 158 of the Bharatiya Sakshya Adhiniyam). Under the English Act of 1865, a party calling the witness, can “cross examine” and contradict a witness in respect of his previous inconsistent statements with the leave of the court, only when the court considers the witness to be ‘adverse.’ As already noticed, no such condition has been laid down in S.154 and 155 of the Indian Act (Sections 157 and 158 of the Bharatiya Sakshya Adhiniyam) and 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.

In Jayachandran v State of Kerala, 1978 KLT 546 : ILR 1978 (2) Ker. 188, a division bench of the High Court of Kerala refered ‘Sat Paul’ and held:

The Evidence Act, 1872, nowhere provides for ‘declaring a witness hostile’ nor allows a person to ‘cross examine’ his own witness. Chap.10 of the Act contains the provisions concerning the examination of witnesses. S.137 (Section 142 of the Bharatiya Sakshya Adhiniyam) defines the expressions: ‘examination in chief’, ‘cross examination’ and ‘reexamination’. Whatever be the form and nature of the questions put to the witness, examination of a witness by the person who calls him is ‘examination in chief’ if it is before the examination of that witness by the adversary, and reexamination’ if the same is after the adversary examines him. ‘Cross examination’ means examination of the witness by the adverse party. To say that one may cross examine his own witness is, in the face of the definition of the word ‘cross examination’ as aforesaid, a contradiction in terms, as stated by Rankin, C. J. in Profulla Kumar v. Emperor (AIR 1931 Cal. 401) (FB). S.142 of the Act (Section 146 of the Bharatiya Sakshya Adhiniyam) bars leading questions or questions suggestive of answers in examination in chief and reexamination. Under S.154 (Section 157 of the Bharatiya Sakshya Adhiniyam), however, the court may allow a person to put to his own witness such questions as might be put in cross examination by the adverse party. But, note that grant of such permission does not mean that the witness is ‘hostile’ or ‘unfavourable’ or ‘adverse witness’ and therefore, a liar……

 Under S.146 of the Evidence Act, 1872 (Section 149 of the Bharatiya Sakshya Adhiniyam) when a witness is cross examined questions which tend to test his veracity, to discover who he is and what is his position in life, and to shake his credit may be asked. With permission granted under S.154 (Section 157 of the Bharatiya Sakshya Adhiniyam), such questions can be put in examination in chief also. Again, under S.155 (Section 158 of the Bharatiya Sakshya Adhiniyam) of the Act, with the consent of the court one may impeach the credit of his own witness in the manner provided therein one of which is by the proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. S.145 of the Act (Section 148 of the Bharatiya Sakshya Adhiniyam) says that if a previous statement in writing or reduced to writing is intended to contradict a witness, before the writing is proved, his attention is to be called to the portions intended to be used for that purpose. However, it should be remembered that the only object of cross examination of a witness or putting in examination in chief with the permission of the court questions of the kind allowed only in cross examination, is not to discredit the witness but also to bring out evidence which would advance the case of the cross examiner or the person calling the witness, as the case may be.

It is by now well settled that merely because a witness has been dealt with under S.154 of the Evidence Act, 1872 (Section 157 of the Bharatiya Sakshya Adhiniyam), his evidence does not become unreliable or unacceptable. The court will have to assess his evidence as any other witnesses’ evidence. Thereupon, the court may accept it in whole or in part. See Sart Paul v. Delhi Administration (AIR 1976 SC 294) and the cases mentioned in Para.47 thereof Acceptance of his evidence or portion or portions thereof would mean that the court considers that the witness has deposed truthfully on those matters on which his evidence is relied on, but rejection of his evidence or portion or portions thereof would not indicate that he swore falsely concerning the matters on which his evidence is rejected as unreliable or undependable, and this is so even if it be that his credit has been successfully impeached and shaken and his veracity doubted.

16. Permission to Put Questions Under Section 157 of the Bharatiya Sakshya Adhiniyam (S.154 of the Evidence Act) Can Be Granted at the Stage of Cross Examination Also

In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, [ AIR 1964 SC 1563: 1964 (2) CriLJ 472 K. Subba Rao; K. C. Das Gupta; Raghubar Dayal, JJ], a Three Judges Bench of the Supreme Court observed:

S.137 of the Evidence Act (Section 142 of the Bharatiya Sakshya Adhiniyam) gives only the three stages, in the examination of a witness, namely examination in chief, cross examination and re-examination. This is a routine sequence in the examination of a witness. This has no relevance to the question when a party calling a witness can be permitted to put to him questions under S.154 of the Evidence Act(Section 157 of the Bharatiya Sakshya Adhiniyam) : that is governed by the provisions of S.154 of the said Act (Section 157 of the Bharatiya Sakshya Adhiniyam), which confers a discretionary power on the court to permit a person who calls a witness to put any questions to him which might be put in cross examination by the adverse party. S.154 (Section 157 of the Bharatiya Sakshya Adhiniyam) does not in terms, or by necessary implication confine the exercise of the power by the court before the examination in chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the court to exercise the power when the circumstances demand. To confine this power to the stage of examination in chief is to make it ineffective in practice. A clever, witness in his examination in chief faithfully conforms to what he stated earlier to the police or in the committing court, but in the cross examination introduces statements in a subtle way contradicting in effect what he stated in the examination in chief. If his design is obvious, we do not see why the court cannot, during the course of his cross examination, permit the person calling him as witness to put questions to him which might be put in cross examination by the adverse party. To confine the operation of S.154 of the Evidence Act (Section 157 of the Bharatiya Sakshya Adhiniyam) to a particular stage in the examination of a witness is to read words in the section which are not there. We cannot also agree with the High Court that if a party calling a witness is permitted to put such questions to the witness after he has been cross examined by the adverse party, the adverse party will not have any opportunity to further cross examine the witness on the answers elicited by putting such questions. In such an event the court certainly, in exercise of its discretion, will permit the adverse party to cross examine the witness on the answers elicited by such questions. The court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the cross examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross examine him on the answers elicited which do not find place in the examination in chief. In the present case what happened was that some of the witnesses faithfully repeated what they had stated before the police in the examination in chief, but in the cross examination they came out with the story of insanity of the accused. The court, at the request of the Advocate for the prosecution, permitted him to cross examine the said witnesses. It is not suggested that the Advocate appearing for the accused asked for a further opportunity to cross examine the witnesses and was denied of it by the court. The procedure followed by the learned Judge does not conflict with the express provisions of S.154 of the Evidence Act (Section 157 of the Bharatiya Sakshya Adhiniyam). Mehta. J., accepted the evidence of the witnesses on the ground that the earlier statements made by them, before the police did not contradict their evidence in the court, as the non mention of the mental state of the accused in the earlier statements was only an omission. This reason given by the learned Judge is also not sound.

17. Section 154 of the Evidence Applies in Criminal as well as Civil Cases

A party in a civil suit can also request the Court for permission to put question that could be asked in cross – examination to the witness called by him, as provided under S.154 of the Evidence Act (Section 157 of the Bharatiya Sakshya Adhiniyam).  (See Thankamani v. Prabhakaran , 2001 (1) KLT 776, and, Ramraj N. and Another v. Madhu and Others. 2008 (2) KHC 486 [2008 (3) KLT SN 2)

(For commentary on Appreciation of the Evidence of a ‘Hostile Witness’ see Module 28)

18. Manner of Impeaching the Credit of A Witness

As per Section 158 of the Bharatiya Sakshya Adhiniyam (Section 155 of the Evidence Act), The credit of a witness may be impeached in any of the following manner:

(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;

(2) by proof that the witness has been bribed, or has accepted the offer of bride, or has received any other corrupt inducement to give his evidence;

(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;

The witnesses, who were treated as hostile by the Prosecution were confronted with their earlier statements to the Police and their evidence was rejected as it was contradicted by their earlier statements. Such use of the statements is permissible under S.155 of the Evidence Act (Section 158 of the Bharatiya Sakshya Adhiniyam) and the proviso to S.162 (1) of the Code of Criminal Procedure (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023) read with S.145, Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam). (See Prakesh Chand v State (Delhi Admn AIR 1979 SC 400 : 1979 CriLJ 329,  R. S. Sarkaria; O. Chinnappa Reddy, JJ.))

One of the permitted modes of impeaching the credit of a witness is proof of former statements which is inconsistent with any part of his testimony, as indicated in S.155(3) of the Evidence Act (Section 158 of the Bharatiya Sakshya Adhiniyam). But the mode of using such former statements for the purposes of contradicting the witness is prescribed in S.145 of the Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam). (State of Rajastan v Teja Ram v Others, AIR 1999 SC 1776: 1999 CriLJ 2588)

The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in Court. This principle is delineated in S.155(3) of the Evidence Act(Section 158 of the Bharatiya Sakshya Adhiniyam) and it must be borne in mind when reading S.145 (Section 148 of the Bharatiya Sakshya Adhiniyam) which consists of two limbs. It is provided in the first limb of S.145 (Section 148 of the Bharatiya Sakshya Adhiniyam) that a witness may be cross examined as to the previous statement made by him without such writing being shown to him but the second limb provides that “if it is intended to contradict him by the writing his attention must, before the writing can be provided, be called to those parts of it which are to be used for the purpose of contradicting him.” There is thus a distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage impeaching the credit of a witness, but it merely enables the opposite party to cross examine the witness with reference to the previous statements made by him. He may at that stage succeed in eliciting materials to his benefit through such cross examination even without resorting to the procedure laid down in the second limb. But if the witness disowns having made any statement which is inconsistent with his present stand his testimony in Court on that score would not be vitiated until the cross examiner proceeds to comply with the procedure prescribed in the second limb of S.145 (Section 148 of the Bharatiya Sakshya Adhiniyam). (See Binay Kumar Singh and Another v State of Bihar AIR 1997 SC 322: 1997 CriLJ 362,  Dr. A. S. Anand; K. T. Thomas, JJ.)

Merely because a witness is not believed in a case, the judgment in that case cannot be put in for impeaching his credit in another case. In Chandrashwar v. Bisheshwar (AIR 1927 Patna 61) the Court held as follows:

“The question whether a witness is entitled to credit or not roust be decided by a Court on the evidence before it. and not on what another court thought of the witness in another case, and therefore opinion of Court in another case as to the witness cannot be put in to impeach his credit.”

The credit of a witness may be impeached as provided under S.155 of the Evidence Act (Section 158 of the Bharatiya Sakshya Adhiniyam). The fact that a witness was not believed in a judgment in another case cannot be used against him in a subsequent case. The former judgment cannot be given in evidence for the purpose of impeaching the credit of a witness. Judgments in other cases are relevant under S.40 to 43 of the Evidence Act (Sections 34 to 37 of the Bharatiya Sakshya Adhiniyam). As the judgments in other cases are relevant only under S.40 to 43 of the Evidence Act (Sections 34 to 37 of the Bharatiya Sakshya Adhiniyam)the credit of a witness cannot be impeached by confronting him with a judgment in another case. (Karunakaran v Sreenivasan ILR 1988 (2) Ker. 129)

19. Provisions Relating to Contradicting the Witness With His Previous Statement

Cross-examination as to previous statements in writing

(Section 148 of the Bharatiya Sakshya Adhiniyam) (Section 145 of the Evidence Act) reads as under:

A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

In this context, Section 158 of the Bharatiya Sakshya Adhiniyam (S.155(3) of Evidence Act) is also relevant, which says that the credit of a witness may be impeached by the adverse party by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. Obviously, this section applies equally in civil and criminal cases.

In criminal cases instituted on a police report, statements of the witnesses recorded previously by the police under S161 of the Code of Criminal Procedure will be available and often such statements under S 161 (Section 180 of the Bharatiya Nagarik Suraksha Sanhita, 2023)

are used to contradict the witness as provided under Section 162 of the Code of Criminal Procedure read with S 145 of the Evidence Act(Section 148 of the Bharatiya Sakshya Adhiniyam).

Section 162 CrPC (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023). deals with the use of statements to police. The statements given by any person and reduced to writing under Section 161 CrPC (Section 180 of the Bharatiya Nagarik Suraksha Sanhita, 2023). by a Police Officer can be used only to contradict the statement of the witness under Section 145 of the Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam).  Under the Indian Evidence Act, a former statement made by a witness can be used to contradict him, to impeach his credit, to corroborate him (only as provided under S.157), or to refresh his memory (S.159) (Section 148 of the Bharatiya Sakshya Adhiniyam). Section 162 CrPC (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023). imposes an absolute bar to the use of the statements otherwise than for contradicting. The intention behind Section 162 CrPC CrPC (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023). is to protect the accused from being prejudicially affected by any dishonest or questionable methods adopted by an overzealous police officer.

In Narayan Swami v. Emperor, AIR 1939 PC 47). Lord Atkin, while dealing with S.162 of the Code of Criminal Procedure (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023) observed;

“Then follows the Section in question which is drawn in the same general way relating to “any person.” That the words in their ordinary meaning would include any person though he may thereafter be accused seems plain. Investigation into crime often includes the examination of a number of persons none of whom or all of whom may be suspected at the time. The first words of the Section prohibiting the statement if recorded from being signed must apply to all the statements made at the time and must therefore apply to statement made by a person possibly not then even suspected but eventually accused.”

Reference may also be made to S.26 of the Indian Evidence Act, (Section 23 of the Bharatiya Sakshya Adhiniyam) according to which no confession made by any person whilst he is in the custody of a Police Officer, unless it be made in the immediate presence of a Magistrate, shall be proved against such person. (See Mahabir Mandal v State of Bihar AIR 1972 SC 1331).

If investigating officer, secures the signature of the person concerned in the statement, it does not mean that the witness’s testimony in the court would thereby become contaminated or vitiated. The court will only reassure the witness that he is not bound by such statement albeit his signature finding a place thereon. (State of Rajastan v Teja Ram AIR 1999 SC 1776)

In, Tahsildar Singh v. State of U.P. (AIR 1959 SC 1012). (B. P. Sinha; S. J. Imam; J. L. Kapur; A. K. Sarkar; K. Subba Rao; M. Hidayatullah, JJ) Majority Judgment authored by Justice K. Subba Rao, in a six judges Constitution Bench of the Supreme Court held:

“Contradict” according to the Oxford Dictionary means to affirm to the contrary. S.145 of the Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam) indicates the manner in which contradiction is brought out. The cross-examining Counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that. there is something in writing which can be set against another statement made in evidence. If the statement before the police officer – in the sense we have indicated – and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot coexist, it may be said that one contradicts the other.

“The procedure prescribed is that if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to S.162 of the Code of Criminal Procedure (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023)only enables the accused to make use of such statement to contradict a witness in the manner provided by S.145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross examining a witness within the meaning of the first part of S.145 of the Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam). Nor are we impressed by the argument that it would not be possible to invoke the second part of S.145 of the Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam) without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of S.145 of the Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam) clearly indicates the simple procedure to be followed. To illustrate: A says in the witness box that B stabbed C; before the police he had stated that D Stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer.”

It was also held as follows: –

“The contradiction, under the section, should be between what a witness asserted in the witness box and what he stated before the police officer and not between what he said he had stated before the officer and what he actually made before him.”

In Mishra V. K v. State of Uttarakhand, AIR 2015 SC 3043: 2015 CrlLJ 4021 (SC), a 3 Judge Bench of the Supreme Court speaking through Justice Bhanumathi, dealt with the interplay of Section 162 CrPC and Section 45 of the Evidence Act. The court explained the manner of confronting the witness with the previous statement:

20. Who Can Use Statement Under 161 CrPC to Contradict the  Witness – Court Cannot Suo Motu Use the Previous Statement

In Mishra V. K, the Court observed:

S.161 Cr.P.C. (Section 180 of the Bharatiya Nagarik Suraksha Sanhita, 2023) titled “Examination of witnesses by police” provides for oral examination of a person by any investigating officer when such person is supposed to be acquainted with the facts and circumstances of the case. The purpose for and the manner in which the police statement recorded under S.161 Cr.P.C (Section 180 of the Bharatiya Nagarik Suraksha Sanhita, 2023) can be used at any trial are indicated in S.162 Cr.P.C. S.162 Cr.P.C. (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023) reads as under:

Statements to police not to be signed – Use of statements in evidence. – (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by S.145 of the Indian Evidence Act, 1872 (1 of 1872) (Section 148 of the Bharatiya Sakshya Adhiniyam); and when any part of such statement is so used, any part thereof may also be used in the re – examination of such witness, but for the purpose only of explaining any matter referred to in his cross – examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of S.32 of the Indian Evidence Act, 1872 (1 of 1872) (Section 26 of the Bharatiya Sakshya Adhiniyam), or to affect the provisions of S.27 of that Act (Proviso to Section 23 of the Bharatiya Sakshya Adhiniyam).

Explanation. –  An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

S.162 Cr.P.C. (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023)bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under S.161(1) Cr.P.C. (Section 180 of the Bharatiya Nagarik Suraksha Sanhita, 2023) can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to S.162 (1) Cr.P.C (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023). The statements under S.161 Cr.P.C. (Section 180 of the Bharatiya Nagarik Suraksha Sanhita, 2023) recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: – 

(i) of contradicting such witness by an accused under S.145 of Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam); (ii) the contradiction of such witness also by the prosecution but with the leave of the Court and (iii) the re – examination of the witness if necessary.

Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The words in S.162 Cr.P.C. (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023)“if duly proved” clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross – examination and also during the cross – examination of the investigating officer. Statement before the investigating officer can be used for contradiction but only after strict compliance with S.145 of Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam) that is by drawing attention to the parts intended for contradiction.

21. The Manner of Confronting the Witness With the Previous Statement and How it is Proved and Marked in Evidence

In Mishra V. K, the Supreme Court correctly reiterated the procedure for marking contradiction under section 45 of the evidence. The Court observed:

Under S.145 of the Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam) when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross – examination. The attention of witness is drawn to that part and this must reflect in his cross – examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with S.145 of Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam) that is, by drawing attention to the parts intended for contradiction.

In George v. State (1988(1) KLT 256) High Court of Kerala laid down the procedure to be followed when the statements recorded under S.161 CrPC(Section 180 of the Bharatiya Nagarik Suraksha Sanhita, 2023). are used for contradiction. It was held as follows: –

The procedure would be to ask the witnesses first whether he made such a statement before police. If the answer is in the affirmative, the previous statement in writing need not be proved. If, on the other hand, the witness denies having made the previous statement, the cross examiner must read out to the witness the relevant portion of the statement recorded which is alleged to be contradictory to his statement in court and give him an opportunity to reconcile the same. All that is required is that the witness must be treated fairly and be afforded reasonable opportunity to explain the contradiction. None of these procedure has been followed in this case.”

22. Substantial Compliance of Section 145 of the Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam)

In Bhagwan Singh’s case (AIR 1952 SC 214), Vivian Bose, J. pointed out in Para.25, that during cross examination of the witnesses concerned the formalities prescribed by S.145 (Section 148 of the Bharatiya Sakshya Adhiniyam) are complied with. The cross examination in that case indicated that every circumstance intended to be used as contradiction was put to him point by point and passage by passage. Learned Judges were called upon to deal with an argument that witnesses’ attention should have been specifically drawn to that passage in addition thereto. Their Lordships were, however, satisfied in that case that the procedure adopted was in substantial compliance with S.145(Section 148 of the Bharatiya Sakshya Adhiniyam), and hence held that all that is required is that the witness must be treated fairly and must be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner. On the facts of that case, there is no dispute with the proposition laid therein. (Binay Kumar Singh and Another v State of Bihar AIR 1997 SC 322: 1997 CriLJ 362, Dr. A. S. Anand; K. T. Thomas, JJ.)

A Division Bench of the High Court of Kerala in Thankappan Mohanan v. State of Kerala, 1990 (1) KLT 21: ILR 1990 (2) Ker. 22: 1990 CriLJ 1477 considered the matter extensively and held thus:

“What is really necessary is substantial compliance of the requirements of S.145 of the Indian Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam)and the purpose of the second part of S.145 (Section 148 of the Bharatiya Sakshya Adhiniyam) is to treat the witness fairly by giving him a reasonable opportunity to explain the contradictions after his attention has been drawn to them in a fair and reasonable manner. The matter is one of substance and not of mere form. Previous statement if denied must be properly proved through the person who recorded the statement. The Court must be satisfied that there is a contradiction between the previous statement in writing and the statement made in Court. When that portion has been brought to the attention of the witness, he is given a reasonable opportunity to explain the contradiction and the previous statement is duly proved. The question is how and in what manner the deposition should reflect these factors. The ideal procedure would be to record and extract in the deposition relevant previous statement, whether it be a long or a short passage. But it is really unnecessary to subject the overworked Sessions Judges with the task of recording the entire portions. There is nothing wrong in principle if instead of writing the relevant portions of the statement, only the commencing words and the ending words are recorded within inverted commas to indicate the particular passage in the written case diary statement and that portion is marked subject to proof and the deposition indicates that the relevant portion has been read out to the witness. There is no reason why the same procedure should not be adopted when the previous statement is attempted to be proved through the Investigating Officer; there is nothing wrong in the officer deposing that the witness had stated to him as seen stated in such and such exhibit (already marked). What is necessary is that the deposition shows that the making of the previous statement is proved by him and that statement is seen in the recorded statement in the case diary. When the relevant portion is marked and the Investigating Officer refers to that portion or exhibit, ordinarily that is sufficient to show that he has proved the previous statement which is part of the statement in writing.”

23. If the Witness Admits the Previous Statement or Omission Then it Need Not be Proved

If the witness admits the previous statement or explains the discrepancy or contradiction, it obviously makes it unnecessary for the statement thereafter to be proved by marking it. If the statement still requires to be proved, that can be done later by calling the police officer before whom the statement was made. It is well settled position of law that before using the statement, the witness must be afforded a reasonable opportunity of explaining the contradictions, after his attention has been drawn to such statements, in a fair and reasonable manner. (State of Kerala v Thomas).

In Bhagwan Singh’s case (AIR 1952 SC 214), (Vivian Bose, J, Fazal Ali), the Supreme Court observed:

A witness is called and he says in chief, “I saw the accused shoot X”. In cross examination he resiles and says “I did not see it at all.” He is then asked “but didn’t you tell A, B and C on the spot that you had seen it?” He replies “yes, I did.” We have, of set purpose, chosen as an illustration a statement which was not reduced to writing and which was not made either to the police or to a Magistrate. Now, the former statement could not be used as substantive evidence. It could only be used as corroboration of the evidence in chief under S.157 of the Evidence Act (Section 160 of the Bharatiya Sakshya Adhiniyam) or to shake the witness’s credit or test his veracity under S.146(Section 149 of the Bharatiya Sakshya Adhiniyam). S.145 (Section 148 of the Bharatiya Sakshya Adhiniyam) is not called into play at all in such a case. Resort to S.145 (Section 148 of the Bharatiya Sakshya Adhiniyam) would only be necessary if the witness ‘denies’ that he made the former statement. In that event it would be necessary to prove that he did, and ‘if the former statement was reduced to writing,’ then S.145 (Section 148 of the Bharatiya Sakshya Adhiniyam) requires that his attention must be drawn to those parts which are to be used for contradiction. But that position does not arise when the witness admits the former statement. In such a case all that is necessary is to look to the former statement of which no further proof is necessary, because of the admission that it was made.

24. The Entire 162 CrPC (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023) Statement Should not be Admitted in Evidence or Marked

The wholescale marking of the entire 162 CrPC (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023) is deprecated.

In State of Kerala v Thomas 2005 KHC 1823, it was observed:

The entire statement recorded under S.161(3) CrPC (Section 180 of the Bharatiya Nagarik Suraksha Sanhita, 2023). is not admissible in evidence. So, the entire statement cannot be marked as an exhibit. The correct procedure to contradict a witness is to draw his attention to the relevant part of the contradictory statement which he had made before the Police Officer and to question him whether he did make that statement. If he replies in the affirmative, that admission establishes the contradiction. When the particular sentence or assertion in the statement under S.161 CrPC. (Section 180 of the Bharatiya Nagarik Suraksha Sanhita, 2023) is put to the witness it must be marked by being underlined or enclosed in a circle and exhibited. That admission is to be recorded in the deposition. If he denies that part of the statement, that is to be proved in accordance with the provisions of the Evidence Act. If he denies having made such a statement or states that he does not remember having made the assertion or spoken the sentence, the officer who recorded the statements will have to be called to prove that he had made or spoken it. It is to be noted that when a statement is put to the witness, he may admit it. He may deny having made such a statement or he may admit a part or portion of the statement and deny the rest of it. The admission if it amounts to a contradiction is to be recorded and it needs no further proof and rest of it alone is to be proved. He may also plead lack of memory and state that that he does not remember. If the witness states that he does not remember, then also the statement has to be properly proved. The procedure to be followed in such cases is well established.

In Imbayi v. State (1989 (1) KLT 956) a Division Bench of the High Court of Kerala held that the entire case diary statements of witnesses marked en block without incorporating in the depositions are illegal and will vitiate the trial.

25. Statements Made in Panchnama/ Scene Mahazar /Site Plan

In Mohanan v State of Kerala 2011 (3) KHC 680: 2011 (4) KLT, The High Court of Kerala speaking through Justice Hema correctly observed:

An investigating officer may also gather information from the witnesses about some relevant details with respect to the scene of offence. He may also incorporate such details in the scene mahazar, but such details are not admissible in evidence, in the light of S.60 of Evidence Act (Section 55 of the Bharatiya Sakshya Adhiniyam). Even if an investigating officer deposes in Court, regarding what he gathered from the statement of a witness about scene of offence and recorded in the scene mahazar, such ‘evidence’ shall be eschewed from consideration, since it is inadmissible, by virtue of S.162 of the Code of Criminal Procedure (‘the Code’ for short). As per S.162 of the Code (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023), a statement made by a person to a Police Officer in the course of investigation shall not be used for any purpose, except as stated in the said Section.

The contents of scene mahazar cannot be treated as ‘evidence’. The mere production of scene mahazar or marking of it through the Police Officer who prepared the same will not prove the ‘facts’ stated therein. A scene mahazar may, ordinarily, contain two types of facts: one consists of facts which are personally observed by the investigating officer at the scene; the other constitutes facts which are gathered from the statements of witnesses made to him during the course of investigation.

An investigating officer may notice blood at the scene, tyre mare marks, destruction of certain property, weapon or other materials which may be relevant to prove the guilt of accused. He may therefore, record such facts in the scene mahazar which are based on his personal observations, at the scene. Such facts cannot be proved by mere marking of the scene mahazar through its maker.

It is held in Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003 KHC 1695: 2003 (8) SCC 745 : AIR 2004 SC 175, that the legal position is not in dispute that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents.

The observations made personally by investigating officer at the scene, such as what he saw etc., have to be deposed to by him in Court in the light of S.60 of the Evidence Act (Section 55 of the Bharatiya Sakshya Adhiniyam). Those facts must be proved by direct oral evidence of investigating officer and not by producing scene mahazar. In the absence of Police Officer’s oral evidence in Court regarding the facts observed by him at the scene which are stated in the scene mahazar, it will be illegal for the Court to rely upon the contents of scene mahazar as ‘evidence’. In other words, the relevant facts which investigating officer observed at the scene and which are recorded by him in scene mahazar must be deposed to by him in Court, if the Court wants to rely upon them as ‘evidence’.

In ‘Mohanan’ the Kerala High Court relied on Rameshwar Dayal v. State of U.P., 1978 (2) SCC 518: AIR 1978 SC 1558, wherein referring to inquest report, site plans etc., it is held by the Supreme Court, as follows:

‘That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under S.60 of the Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam)  whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under S.162 CrPC (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023) except for the limited purpose mentioned in that section.’

A site plan relating to the offence prepared by a police officer relying on the statement of witness would be affected by section 162 of the Criminal Procedure code (Section 181 the Bharatiya Nagarik Suraksha Sanhita, 2023) and would not be relevant (See Dharam Singh v State of Uttar Pradesh (1964)1 CrLJ 78.). Whereas a site plan prepared by a police officer based on his own observations is relevant (See Tori Singh v. State of Uttar Pradesh AIR 1962 SC 399)

26. Omission When Amounts to Contradiction

Explanation to Section 162 of Criminal Procedure Code 1973(Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023), reads as follows:-

 An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

This explanation was inserted in the Code of Criminal Procedure 1973 and it was not there in the old code.

In State of Kerala v Thomas 2005 KHC 1823: 2005 (4) KLT SN 103 (K. Padmanabhan Nair; V. Ramkumar, JJ.), High Court of Kerala observed:

An omission may amount to a contradiction. Before the police a witness may state that A and B committed the murder. But in court he may state that A, B and C took part in the commission of the offence. That omission is in the form of a positive contradiction. If the witness admits that he did not state the name of C before the police officer that admission proves the omission. But if the witness asserts that he had stated the name of C also to the police officer that omission is to be proved by putting that omission to that officer during his examination. He must be asked whether a certain statement was made by the witness before him. The records must show that the statement of the witness recorded under S.162 CrPC. (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023) is read out to him and his attention was drawn to the nonexistence of a certain statement therein.

27. Tahsildar Singh – Majority View and Minority View and The Impact of the Explanation Regarding ‘Omission’ Added to Section 162 in the 1973 Code of Criminal Procedure

In, Tahsildar Singh v. State of U.P. (AIR 1959 SC 1012), the Majority Judgment was authored by Justice K. Subba Rao for himself B. P. Sinha, Kapur and Sarkar. While the minority Judgment was authored by Justice M. Hidayatullah for himself and S. J. Imam. It was a murder case. The Counsel for the accused put to the eye witness following two questions in cross examination:

  1. “Did you state to the investigating officer that the gang rolled the dead bodies of Nathi, Saktu and Bharat Singh, and scrutinise them and did you tell him that the face of Asa Ram resembled that of the deceased Bharat Singh?”
  2. “Did you state to the investigating officer about the presence of the gas lantern?”

Both the questions were denied by the trial court.

The majority judgment and the minority judgment held that the questions were not proper as per S.145 of the Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam) and that the questions on that line were rightly denied and ultimately the appeal was dismissed by the majority and minority judgments. But on the question of the scope of omissions and the incidental right to cross examine the witness Justice Hidayatulla expressed his dissent with the opinion of Justice Subba Rao.

Justice Subba Rao in the majority judgment observed:

From the foregoing discussion the following propositions emerge: (1) A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases: (i) when a recital is necessarily implied from the recital or recitals found in the statement: illustration: in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word “only” can be implied i. e., the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement: illustration: in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion; and (iii) when the statement before the police and that before the Court cannot stand together: illustration: the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but in the Court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing i. e., at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false.

The witness stated in the Court that there was a gas lamp and that some of the miscreants scrutinised the faces of the dead bodies. In their statements before the police they did not mention the said two facts and some of the witnesses stated that there were lanterns. Taking the gas lamp first: the scene of occurrence was not a small room but one spread over from the well to Bankey’s house. From that omission in the statement it cannot necessarily be implied that there was no gas lamp in any part of the locality wherein the incident took place; nor can it be said that, as the witnesses stated that there were lanterns, they must be deemed to have stated that there was no gas lamp, for the word “lantern” is comprehensive enough to take in a gas lantern. It is also not possible to state that the statements made before the police and those made before the Court cannot coexist, for there is no repugnancy between the two, as even on the assumption that lantern excludes a gas lantern, both can exist in the scene of occurrence. The same can be said also about the scrutiny of the faces of the dead bodies. In the statements before the police, the movements of the appellants were given. It was stated that they shot at the people and decamped with the gun of Bharat Singh. The present evidence that in the course of their pursuit, they looked at the faces of two of the dead bodies does not in any way contradict the previous versions, for the said incident would fit in with the facts contained in the earlier statements. The appellants could have shot at the audience, pursued them, taken the gun of Bharat Singh and on their way scrutinized the dead bodies. The alleged omission does not satisfy any of the principles stated by us. (para 26)

Justice Hidayatulla expressed his disagreement with the views of Justice Subba Rao as under:

The section analysed gives the following result:

(1) Witnesses can be cross examined as to previous statements in writing or reduced into writing;

(2) These writings need not be shown to the witnesses or proved beforehand;

(3) But if the intention is to contradict them by the writings,

(a) their attention must be drawn to those parts which are to be used for contradiction;

(b) This should be done before proving the writings.

Our learned brother, Subba Rao, J. restricts the use by the accused of the previous statements to the mechanism of contradiction as detailed in (3) above, but says that the accused has no right to proceed under (1) and (2). He deduces this from the words of S.162 of the Code of Criminal Procedure, where it is provided:

“in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by S.145 of the Indian Evidence Act 1872.”

The fact that the accused can use the previous statement for the purpose of contradicting, shows that the previous statement cannot be used for corroborating the witness. Also, there must be some basis for contradicting. This may arise, because of there being a contrary statement, irreconcilable statement or even material omissions. The accused can establish a contradiction by cross examining the witness but only so as to bring out a contradiction and no more. We regret we cannot agree (and we say this with profound respect) that the accused is not entitled to cross examine but only to contradict. In our opinion, the reference to S.145 of the Indian Evidence Act brings in the whole of the manner and machinery of S.145 and not merely the second part. In this process, of course, the accused cannot go beyond S.162 or ignore what the section prohibits but cross examination to establish a contradiction between one statement and another is certainly permissible.

This question loses much of its importance when there are patent contradictions and they can be put to the witness without any cross examination as in the two statements :

(a) I saw A hit B,

(b) I did not see A hit B.

But there are complex situations where the contradiction is most vital and relevant but is not so patent. There are cases of omissions on a relevant and material point. Let us illustrate our meaning by giving two imaginary statements :

(a) When I arrived at the scene I saw that X was running away, chased by A and B who caught him.

(b) When I arrived at the scene I saw X take out a dagger from his pocket, stab D in his chest and then take to his heels. He was chased by A and B who caught him.

There is an omission of two facts in the first Statement, viz., (a) X took out a dagger from his pocket, and (b) he stabbed D in the chest. These two statements or their omission involve a contradiction as to the stage of the occurrence, when the observation of the witness began.

It must not be overlooked that the cross examination must be directed to bringing out a contradiction between the statements and must not subserve any other purpose. If the cross examination does anything else, it will be barred under S.162, which permits the use of the earlier statement for contradicting a witness and nothing else. Taking the example given above, we do not see why cross examination may not be like this :

  1. I put it to you that when you arrived on the scene X was already running away and you did not actually see him stab D as you have deposed today?
  2. No. I saw both the events,
  3. If that is so, why is your statement to the police silent as to stabbing?
  4. I stated both the facts to the police.

The witness can then be contradicted with his previous statement. We need hardly point out that in the illustration given by us, the evidence of the witness in Court is direct evidence as opposed to testimony to a fact suggesting guilt. The statement before the police can only be called circumstantial evidence of complicity and not direct evidence in the strict sense.

Of course, if the questions framed were :

  1. What did you state to the police? or
  2. Did you state to the police that D stabbed X?

they may be ruled out as infringing S.162 of the Code of Criminal Procedure, because they do not set up a contradiction but attempt to get a fresh version from the witnesses with a view to contradicting him. ….

The word “contradict” has various meanings, and in the Oxford English Dictionary it is stated as “To be contrary to in effect, character, etc.; to be directly opposed to; to go counter to, go against” as also “to affirm the contrary of; to declare untrue or erroneous; to deny categorically” and the word “contradiction” to mean “A state or condition of opposition in things compared; variance; inconsistency, contrariety”. In Shorter Oxford English Dictionary, “contradict” is said to mean “To speak against; to oppose in speech; to forbid ; to oppose; to affirm the contrary of; to declare untrue or erroneous; to deny; to be contrary to; to go counter to and go against” and “contradiction” to mean “A state of opposition in things compared; variance; inconsistency”. The meaning given to the words “contradict” and “contradiction” in these Dictionaries must at least include the case of an omission in a previous statement which by implication amounts to contradiction and therefore such an omission is a matter which is covered by the first proviso to S.162. (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023) and questions in cross examination can be put with respect to it in order to contradict the witness. It is difficult to say as an inflexible rule that any other kind of omission cannot be put to a witness in order to contradict him, when the proper foundation had been laid for putting such questions. The words “to contradict him” appearing in S.145 of the Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam) must carry the same meaning as the words “to contradict such witness” in S.162 of the Code. (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023). In a civil suit, where the provisions of S.162 of the Code of Criminal Procedure. (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023) have no application, would it be correct to say that only questions concerning omissions of the kind suggested by our learned brother could be put and none other? We cannot see why a question of the nature of cross examination regarding an omission with respect to a matter which the witness omitted to make in his previous statement and which, if made, would have been recorded, cannot be put. The facts and circumstances of each case will determine whether any other kind of omission than that referred to by our learned brother could be put to a witness in order to contradict him. It would be for the Judge to decide in each case whether in the circumstances before him the question could be put. The purpose of cross examination is to test the veracity of the statement made by a witness in his examination in cheif as also to impeach his credit. Not only is it the right of the accused to shake the credit of a witness, but it is also the duty of the Court trying an accursed to satisfy itself that the witnesses are reliable. It would be dangerous to lay down any hard and fast rule. (para 52)

So, there was a conflict of views between justice Subba Rao and Justice Hidayatullah on the scope of Omission for the purpose of S.145 Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam) and 162 CrPC.

After this judgment when the 1973 Code of Criminal Procedure was enacted the following Explanation was added to S.162 (.

Explanation. –  An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

The above Explanation appears to be in tune with the Minority view of Justice Hidayatulla and the scope of ‘Omissions’ is made broader than what has be laid down by the majority judgment of justice Subba Rao in Tahsildar Singh Case.

28. There is No Distinction Between A Party Witness and Other Witnesses in the matter of Confrontation with Documents During Cross Examination

While under cross examination sometimes witnesses are confronted by the opposite party with documents not already produced before the court mostly containing their previous statements. Surprising element in such process is significant. The civil procedure code prescribes for filing of documents before the courts at early-stage of the suit.  But at the same time the Code of Civil Procedure recognises such right upon a party to produce documents for cross examination of opposite party’s witness, in the following provisions.

Order VIII Rule 1A of the Code of Civil Procedure reads as under:

(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.

(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to documents–

(a)     produced for the cross-examination of the plaintiff’s witnesses, or

(b)     handed over to a witness merely to refresh his memory.

Order XIII Rule 1 of the Code of Civil Procedure reads as under:

(1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement.

(2) The Court shall receive the documents so produced:

Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.

(3) Nothing in sub-rule (1) shall apply to documents–

(a)     produced for the cross-examination of the witnesses of the other party; or

(b)     handed over to a witness merely to refresh his memory.

In Mohammed Abdul Wahid v Nelifor and Anr (B R Gavai and Sanjay Karol) decided on December 14, 2023, the Supreme Court reversed a Bombay High Court Division Bench Judgment which held that “A party to a suit (plaintiff/defendant) cannot be equated with a witness. The provisions of Order VII, Rule 14(4), Order VIII, Rule 1-A (4) which includes Rule 1-A(4)(a) and Order XIII, Rule 1(3) which includes Rule 1(3)(a) of Civil Procedure Code are not applicable to a party, who enters the witness box to tender evidence in his own cause. The provisions are applicable to a witness alone.”

The Supreme Court in Mohammed Abdul Wahid v Nelifor, framed the following questions for considerations.

  1. a) Whether under the Code of Civil Procedure, there is envisaged, a difference between a party to a suit and a witness in a suit? In other words, does the phrase plaintiff’s/ defendant’s witness exclude the plaintiff or defendant themselves, when they appear as witnesses in their own cause?
  2. b) Whether, under law, and more specifically, Order VII Rule 14; Order VIII Rule 1-A; Order XIII Rule 1 etc, enjoin the party under-taking cross examination of a party to a suit from producing documents, for the purposes thereof, by virtue of the use of the phrase(s) plaintiff/defendant’s witness or 11-SLP (C) No.14445 of 2021 witnesses of the other party, when cross examining the opposite party?

After evaluating the provisions, the Supreme Court held as under:

  1. There is no difference between a party to a suit as a witness and a witness simpliciter
  2. Production of documents for both a party to the suit and a witness as the case may be, at the stage of cross-examination, is permissible within law.

The Supreme Court in Mohammed Abdul Wahid v Nelifor and Anr in the process of deciding the case referred to the following High Court Judgments:

Miss T.M. Mohana v. V. Kannan 1984 SCC Online Mad 145 had in as far back as 1984, held that the production of documents for the purpose of cross-examinations can be availed only for a witness of a party and not the party themselves, is an untenable argument. Also, that the “Plaintiff’s witnesses” would not only be witnesses for the plaintiff, but also the plaintiff himself.

This proposition was referred to and agreed upon by the Gujarat High Court in Amit M. Pathakji, Sr. Manager (Mech.) & Anr v. Bhavnaben Amitkumar Pathakji (2007 SC OnLine Guj 78)

29. The Document / Prior Statements Intended For Confrontation Need Not Be Produced Before the Court In Advance – The proposition is Reiterated

In XXX v State of Kerala, 2022 KHC 584 (Dr. Kauser Edappagath, J.), in a case under Protection of Children from Sexual Offences Act, the trial court directed that the document relied by the accused for contradiction of the witness has to be produced before the court 3 days prior to examination of the witness. In this regard the High Court reiterated and observed:

The accused has every right to confront a document to the witness during the examination of the witness. If the accused is directed to produce the document in advance, the surprising element will be lost. It is settled that a document confronted to a witness during the cross examination, especially relating to a previous statement given by the witness, need not be produced in court in advance.

30. Provisions Relating to Corroborating the Witness With His Previous Statement

Former statements of witness may be proved to corroborate later testimony as to same fact

Section 160 of the Bharatiya Sakshya Adhiniyam (Section 157 of the Evidence Act reads as under:

In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

Former Statement as Corroborative Evidence

Section 148 of the Bharatiya Sakshya Adhiniyam (S.157 of the Indian Evidence Act) states that, in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

Section 160 of the Bharatiya Sakshya Adhiniyam (S.157 of the Indian Evidence Act) envisages two categories of statements of witnesses which can be used for corroboration. First is the statement made by a witness to any person “at or about the time when the fact took place”. The second is the statement made by him to any authority legally bound to investigate the fact.

It is clear that there are only two things which are essential for Section 160 of the Bharatiya Sakshya Adhiniyam (S.157 of the Evidence Act) to apply. The first is that a witness should have given testimony with respect to some fact. The second is that he should have made a statement earlier with respect to the same fact at or about the time when the fact took place. If these two things are present, the former statement can be proved to corroborate the testimony of the witness in the court.

If the statement is made to an authority competent to investigate the fact, such statement gains admissibility, no matter that it was made long after the incident. But if the statement is made to a non – authority, it loses its probative value due to lapse of time.

If the statement was made contemporaneous with the occurrence, the statement has a greater value as res gestae and then it is substantive evidence. But if it was made only after some interval of time, the statement loses its probative utility as res gestae, still it is usable, though only for a lesser use.

Any former statement made by a witness at or about the time when the incident took place becomes usable as of corroborative value under Section 160 of the Bharatiya Sakshya Adhiniyam (S.157 of the Evidence Act). Even if such statements are not part of the main transaction, they have probative value for corroborative purposes if such statements have been made without delay. If delay is involved in making such statement, its utility would be restricted to confronting the maker for contradicting him. A delayed statement would have no corroborative value. If there is no appreciable delay, the statement made by the witness can be used for corroborating his own testimony as provided in Section 160 of the Bharatiya Sakshya Adhiniyam (S.157 of the Evidence Act). (See Sasi v State of Kerala and another, 2022 CriLJ 507 : ILR 2022 (1) Ker. 794, High Court of Kerala. (Justice Narayana Pisharady))

31. “at or about the time when the fact took place” in Section 160 – Meaning

What is meant by the expression “at or about the time when the fact took place”? This expression in Section 160 of the Bharatiya Sakshya Adhiniyam (S.157 of the Evidence Act) should be understood in the context according to the facts and circumstances of each case. The mere fact that there was an intervening period of a few days, in a given case, may not be sufficient to exclude the statement from the use envisaged in Section 160 of the Bharatiya Sakshya Adhiniyam (S.157 of the Evidence Act). The test to be adopted, therefore, is this : Did the witness have the opportunity to concoct or to have been tutored? The main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or concoction (See State of Tamil Nadu v. Suresh: AIR 1998 SC 1044).

The words “at or about the time” in Section 160 of the Bharatiya Sakshya Adhiniyam (S.157 of the Evidence Act) must receive a pragmatic and liberal construction. The principle is that the time interval between the incident and the utterance of the statement should not be such as to afford occasion for reflection or even contemplation. If the time interval was so short as between the two that the mind of the witness who made the statement was well connected with the incident without anything more seeding into, such statement has credence, and hence can be used, though not as substantive evidence but as corroborating evidence, on the principle adumbrated in Section 160 of the Bharatiya Sakshya Adhiniyam (S.157 of the Evidence Act) (See Nathuni Yadav v. State of Bihar: AIR 1997 SC 1808)).

The statement relating to the incident made by a victim of sexual assault, at or about the time when the incident occurred, to a close relative comes within the first limb of Section 160 of the Bharatiya Sakshya Adhiniyam (S.157 of the Indian Evidence Act) and it can be used for corroborating her testimony in the Court. Unless that statement was made as part of the same transaction, it cannot fall within the purview of S.6 of the Evidence Act ( Sasi v State of Kerala and another, State of Madhya Pradesh v Mohammed Shaid and Others, 2019 CriLJ 803 (Hemant Gupta, C. J. ; Atul Sreedharan, J.))

32. The Former Statement May Be In Writing Or May Be Oral

The former statement may be in writing or may be made orally to some person at or about the time when the fact took place. If it is made orally to some person at or about the time when the fact took place, that person would be competent to depose to the former statement and corroborate the testimony of the witness in the court. (Sasi v State of Kerala and another)

33. Former Statement is Not Substantive Evidence

Statement / Oral Evidence given before the Court is the Substantive Evidence, Former statement could be used to Corroborate. A statement referred to in Section 160 of the Bharatiya Sakshya Adhiniyam (S.157 of the Evidence Act) cannot become substantive evidence unless the statement falls within the purview of one of the provisions in the second chapter of the Evidence Act. Otherwise, the statement has only the limited utility of corroborating the witness concerned. In either case, the statement is admissible in evidence, though utility wise it may have some variation (See Rajan v. State of Kerala : 1992 Cri L J 575).

A corroborative piece of evidence can only corroborate a substantive piece of evidence and not another corroborative piece of evidence (See Udhyanithi v. State: 2019 SCC OnLine Madras 9061).

34. Use of First Information Statement For Corroboration Under Section 160 of the Bharatiya Sakshya Adhiniyam (U/S 157 of the Evidence Act)

As already dealt with, statements recorded by the Police under S 161 CrPC. (Section 180 of the Bharatiya Nagarik Suraksha Sanhita, 2023) can be used only for the purpose of contradiction, whereas Statements under Section 154 CrPC. (Section 180 of the Bharatiya Nagarik Suraksha Sanhita, 2023) can be used for corroboration as well as contradiction.

The first information statement also does not constitute substantive evidence. It can only be used as a previous statement for the purpose of either corroborating its maker or for contradicting him (See Utpal Das v. State of West Bengal, AIR 2010 SC 1894).

The principal object of F.I.R. is to set the criminal law in motion from the point of view of the informant and to obtain information about the alleged crime. It is not a substantive piece of evidence and it can be used only for the purpose of corroboration under Section 160 of the Bharatiya Sakshya Adhiniyam (S.157 of Indian Evidence Act) or for under Section 148 of the Bharatiya Sakshya Adhiniyam (S.145 of the Indian Evidence Act). (Sunny Rai v State of West Bengal and Others 2018 CriLJ 2294)

(See also Ram Krishna v Harmit Kaur 1972(3) SCC 280 and Sunder Singh v State 2010(10) SCC 611)

Telephonic information to police station about cognizable offence recorded in daily diary book, Entry discloses, notwithstanding the absence of the names of the assailants therein, a cognizable offence, would be treated as FIR (See Sunil Kumar v State of MP)

35. Statement Made Under S.164 of CrPC (Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023) Is Not Substantive Evidence but Could Be Used For Corroboration Under Section 160 of the Bharatiya Sakshya Adhiniyam (U/S 157 of the Evidence Act)

In many grave cases the police use to get the statements of important witnesses under S.164 (5) of the CrPC. (Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023).

Statement of a witness recorded under S.164 of the Code of Criminal Procedure (Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023). is not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness under Section 160 or Section 148 of the Bharatiya Sakshya Adhiniyam (S 157 or S 145 of the Evidence Act respectively. An admission by a witness that his statement was recorded under S.164 of the Code (Section 180 of the Bharatiya Nagarik Suraksha Sanhita, 2023). and that what he had stated in it was true would not make the entire statement admissible much less that any part of it could be used as substantive evidence in the case (See State of Delhi v. Shri Ram Lohia,AIR 1960 SC 490).

In other words, A statement made under S.164 of the Code of Criminal Procedure can never be used as substantive evidence of the facts stated, but it can be used to support or challenge evidence given in court by the person who made the statement (See Bhuboni Sahu v. The King, AIR 1949 PC 257).

As the defence had no opportunity to cross – examine the witnesses whose statements are recorded under S.164 of the Code of Criminal Procedure. (Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023), such statements cannot be treated as substantive evidence (See R. Shaji v. State of Kerala, AIR 2013 SC 651)).

The word “statement” is used in S.164 of the CrPC (Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023), in a wider sense. A statement made under S.164 CrPC. (Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023). is not inadmissible in evidence. It can be used either to corroborate or contradict the statements made in the court by a person who gave statement before the Magistrate in the manner provided in Sections 148 and 160 of the Bharatiya Sakshya Adhiniyam (S.145 and 157 of the Evidence Act). Admission of such statements in evidence are governed and controlled by the provisions of Indian Evidence Act. It can be used for the purpose of cross examining him and to discredit the evidence of the maker of the same, but the same cannot be used as a substantive piece of evidence. The wholescale marking of a statement of a witness recorded by the Magistrate in evidence is also not legal. (State of Delhi v. Shri Ram Lohia (AIR 1960 SC 490), Ram Kishan v. Harmit Kaur (AIR 1972 SC 468) and Sawal Das v. State of Bihar (AIR 1974 SC 778).”

The statement of a witness recorded under S.164 (5A) (b). (Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023)of the Code of Criminal Procedure may be an exception to the above principle because that provision specifically states such statement shall be considered as statement in lieu of examination – in – chief.

To sum up the “S.164 CrPC. (Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023). statement recorded by a Magistrate is not substantive evidence and it can be used only for the purpose of corroboration under Section 160 or contradiction under 148 of the Bharatiya Sakshya Adhiniyam (S.157 or under S.145 of the Evidence Act).

36. Person Surviving After Giving Purported Statement Section 26 of the Bharatiya Sakshya Adhiniyam (U/S 32 Evidence Act) , Statement May Be Used For Corroboration Section 160 of the Bharatiya Sakshya Adhiniyam (U/S 157 Evidence Act)

In Suresh Chandra Jana v State of West Bengal and Others, 2017 (16) SCC 466 (Prafulla C. Pant; N. V. Ramana, JJ), the Supreme Court reiterated:

…..If the person making the dying declaration survives, then such statement would not be admissible under S.32 of the Indian Evidence Act (Section 26 of the Bharatiya Sakshya Adhiniyam), rather such Statements may be admissible under S.157 of the Indian Evidence Act (Section 160 of the Bharatiya Sakshya Adhiniyam) [refer Gajula Surya Prakasrao v. State of Andhra Pradesh, 2010 (1) SCC 88]

37. Questions tending to corroborate evidence of relevant fact, admissible – S 159

Section 159 of the Bharatiya Sakshya Adhiniyam (Section 156 of the Evidence act) reads as under:

When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.

Illustration

A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed.

Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.

38. Matters Which Could be proved in connection with proved statement relevant under section 26 or 27 (section 32 or 33 of the Evidence Act

Section 161 of the Bharatiya Sakshya Adhiniyam (Section 158 of the Evidence Act) reads as under:

Whenever any statement, relevant under section 26 or 27, is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.

39. Provisions Relating to Refreshing Memory of Witness By Referring to Previous Writings

Refreshing memory

Section 162 of the Bharatiya Sakshya Adhiniyam (Section 159 of the Evidence Act) reads as under:

  1. A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory:

Provided that the witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it, he knew it to be correct.

When witness may use copy of document to refresh memory.

      2. Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document:  

      3. Provided that the Court be satisfied that there is sufficient reason for the non-production of the original:

      4. Provided further that an expert may refresh his memory by reference to professional treatises.

Often, the cases come for trial after a long time since the incident had happened and a witnesses like an investigation officer would not be able to depose true facts without referring to the case diary or other relevant contemporaneous records.

In, State of Karnataka v Yarappa Reddy, 1999 (8) SCC 715: AIR 2000 SC 185: 2000 CriLJ 400 (K. T. Thomas; A. P. Misra, JJ), the Supreme Court observed:

“Trial Court cannot overlook the reality that an investigating officer comes to the court for giving evidence after conducting investigation in many other cases also in the meanwhile. Evidence giving process should not bog down to memory tests of witnesses. An investigating officer must answer the questions in court, as far as possible, only with reference to what he had recorded during investigation. Such records are the contemporaneous entries made by him and hence for refreshing his memory it is always advisable that he looks into those records before answering any question. S.159 of the Evidence Act (Section 162 of the Bharatiya Sakshya Adhiniyam) is couched in a language recognising the aforesaid necessity.”

In Andhra Pradesh v. Cheemalapati Ganeswara Rao AIR 1963 SC 1850 : 1963 (2) CriLJ 671 (K. Subba Rao; Raghubar Dayal; *J. R. Mudholkar, JJ), in a trial for offences under S.120B Indian Penal Code, S.409, S.477A and S.471 read with S.467, I.P.C, the approver witness was permitted to refer account books and other contemporaneous documents produced by the prosecution. The Supreme Court held:

“In our opinion, where a witness has to depose to a large number of transactions and those transactions are referred to or mentioned either in the account books or in other documents there is nothing wrong in allowing the witness to refer to the account books and the documents while answering the questions put to him in his examination. He cannot be expected to remember every transaction in all its details and S.160 (Section 163 of the Bharatiya Sakshya Adhiniyam) specifically permits a witness to testify the facts mentioned in the documents referred to in S.159 (Section 162 of the Bharatiya Sakshya Adhiniyam) although he has no recollection of the facts themselves if he is sure that the facts were correctly recorded in the document. That is precisely what happened in this case and we do not think that the Additional Sessions Judge adopted a procedure which was either a violation of law or was an abuse of the powers of the Court.”

In Padmanabhan Nair v Grasim Industries, ILR 1997 (3) Ker. 612: 1997 (1) KLT 924: AIR 1997 Ker. 356 (P. V. Narayanan Nambiar, J.), the High Court of Kerala held that a commissioner who’s report was setaside by the court was cited as a witness for the plaintiff, is entitled to refresh his memory with the report he prepared and to testify any matters mentioned in his report. The Court observed:

“I am aware that the Commissioner’s report has been set aside and so the same cannot be marked in evidence. Still, whether such a report could be referred to by the witness invoking the power under S.159 and 160 of the Act (Sections 162 and 163 of the Bharatiya Sakshya Adhiniyam) is to be considered. Under S.159 of the Act (Section 162 of the Bharatiya Sakshya Adhiniyam), a witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory. Under S.160 of the Act (Section 163 of the Bharatiya Sakshya Adhiniyam), a witness may also testify to fact mentioned in any such document as is mentioned in S.159 (Section 162 of the Bharatiya Sakshya Adhiniyam), although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.

Inspection of the property involved in the suit was made by the Commissioner, Sri. Gopalakrishnan who was later being examined as a witness on the side of the plaintiffs. The purpose of examination was to bring out the nature and condition of the plaint schedule properties and the nature of nuisance alleged to have been caused by the defendants. On inspection, the Commissioner has reduced in his report what he had seen in the premises. The report cannot be relied on in evidence as the same was set aside. But as made clear in the order in CRP No. 1942 of 1993, the witness is not being examined in his capacity as the Commissioner but as an ordinary witness who has witnessed a fact. As he was being examined as a witness after a long lapse of time, he cannot be expected to remember the meticulous details of what he had seen at the time of inspection, especially when he has no personal interest in the dispute which resulted in filing the suit. So, to prove what he had seen and noticed at the time of inspection, a reference to his report to refresh his memory is permissible.”

The Privy Council in Jewon Lal Daga v. Nilmani, AIR 1928 Privy Council 80, had occasion to consider whether the account books produced at the late stage, not admitted in evidence, could be allowed to be perused by the party to refresh his memory at the time of evidence and held in the affirmative. The decision was rendered on the ground that refusal to permit a man to refresh his memory by proper relevant contemporaneous documents might lead to grave injustice.

In Abdulla v. Emperor, AIR 1933 Lahore 716 (FB), a Full Bench considered the question whether a Magistrate while giving oral evidence can refresh his memory by looking into the written memorandum prepared by him which is inadmissible in evidence as the same was not recorded under S.164 Cr.P.C. The Court held that the oral evidence of the Magistrate is admissible, but his memorandum is not admissible though he can refresh his memory under S.159 of the Evidence Act (Section 162 of the Bharatiya Sakshya Adhiniyam) when under examination, by referring to the memorandum.

In Mohammed Salabat v. Emperor, AIR 1937 Lahore 475, it was held that a witness who is to be examined on the side of the prosecution can refer to the documents which he had prepared, under S.159 of the Evidence Act (Section 162 of the Bharatiya Sakshya Adhiniyam)and state in Court everything which is material.

In Choudhri Ramprasad v. Nathuram, AIR 1923 Nag. 32, the Nagpur High Court considered the question whether a copy of an unstamped Receipt though inadmissible in evidence, can be used by a witness to refresh his memory by referring to it and held that such a course is permissible.

Testimony to facts stated in document mentioned in section 162

Section 163 of the Bharatiya Sakshya Adhiniyam (corresponding to Section 160 of the Evidence Act) reads as under:

A witness may also testify to facts mentioned in any such document as is mentioned in section 162, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.

Illustration.

A book-keeper may testify to facts recorded by him in books regularly kept in the course of business, if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.

In Kanti Prasad Jayshanker Yagnik v Purshottamdas Ranchhoddas Patel, 1969 (1) SCC 455: AIR 1969 SC 851 (S. M. Sikri; R. S. Bachawat; K. S. Hegde, JJ.), a case relating to corrupt practice in an election, the speech made during the campaign were noted and reported by policemen and reported to their higher officials. Court held that S160 could be invoked even though the witness did not use the reports for refreshing memory. The Court observed:

“In this case it is clear that the reports were written by the witnesses themselves at the time of the speeches or soon afterwards when the speeches were fresh in their memory. It seems to us that it is not necessary that a witness should specifically state that he has no specific recollection of the facts and that he is sure that the facts were correctly recorded in the document, before the document can be used under S.160 (Section 163 of the Bharatiya Sakshya Adhiniyam). It is enough if it appears from his evidence that these conditions are established. In this particular case the witnesses were giving their testimony in Court after a lapse of nearly nine months and one would have to have super human memory to specifically recollect the details of the speeches, especially when the witness may have attended and reported many similar meetings as a part of his duty during the election campaign. It may be implied in this case that the witnesses had no specific recollection of the facts.

The second requirement would be satisfied if the Court comes to the conclusion that the witness was in a position to correctly record the facts in the document.”

Right of adverse party as to writing used to refresh memory

Section 164 of the Bharatiya Sakshya Adhiniyam (corresponding to Section 161 of the Evidence Act) reads as under:

Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.

When any writing is used for refreshing memory by a witness the adverse party would be entitled to access such writing/ document.

For example, when investigation officer refers the case dairy the counsel for the adverse party will then be entitled to get access to the case diary and go through the case diary and cross examine the investigation officer on the entries in such case diary.

40. Production of Documents When Ordered – The Court May Inspect the Document to Decide on the Validity of Objection

Now let us see the law relating to the Courts Power to Inspect the Documents of which Privilege is claimed to Decide on Such Claim.

In the context of the power to inspect the document to decide the claim of privilege under Section 165 of the Bhartiya Sakshya Adhiniyam (Section 162 of the Evidence Act) is significant. The Section reads as under:

  1. (1) A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility: Provided that the validity of any such objection shall be decided on by the Court.

(2) The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.

(3) If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence and, if the interpreter disobeys such direction, he shall be held to have committed an offence under section 198 of the Bharatiya Nyaya Sanhita, 2023:

Provided that no Court shall require any communication between the Ministers and the President of India to be produced before it.

The proviso is a new addition in the Bhartiya Sakshya Adhiniyam, 2023. The proviso was not there in the Evidence Act 1872. In this era of demand for greater transparency and accountability in government functions this new provision appears to be regressive and a step backward.

Now let us see the law relating to the Courts Power to Inspect the Documents of which Privilege is claimed to Decide on Such Claim – ‘S.P Gupta Proposition’.

State of Punjab v. Sodhi Sukhdev Singh  AIR 1961 SC 493, a  5 Judges Constitution Bench decision of the Supreme Court was the first important decision which dealt with the issue as to whether the Court is entitled to inspect the document of which privilege on the ground of it being ‘records relating to affairs of State’. On a combined interpretation of Sections 123 and 162 of the Evidence Act (Sections129 and 165 of the Bhartiya Sakshya Adhiniyam), the Supreme Court negative the contention that to determine the issue of privilege U/s 123 (Section 129 of the Bhartiya Sakshya Adhiniyam)the Court can inspect the document and observed as under:

“Thus our conclusion is that reading S.123 and 162 (Sections129 and  165 of the Bhartiya Sakshya Adhiniyam)together the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. That is a matter for the authority concerned to decide; but the Court is competent, and indeed is bound, to hold a preliminary enquiry and determine the validity of the objections to its production, and that necessarily involves an enquiry into the question as to whether the evidence relates to an affair of State under S.123 (Section 129 of the Bhartiya Sakshya Adhiniyam) or not.

 In this enquiry the Court has to determine the character or class of the document. If it comes to the conclusion that the document does not relate to affairs of State then it should reject the claim for privilege and direct its production. If it comes to the conclusion that the document relates to the affairs of State it should leave it to the head of the department to decide whether he should permit its production or not.”

But later, a constitutional bench of 7 Judges  in S.P Gupta v. President of India AIR 1982 SC 149, took a different view, the Court held that the court is entitled to inspect the document to decide on its admissibility. The Court would allow the objection to disclosure if it finds that the document relates to affairs of State and its disclosure would be injurious to public interest, but on the other hand, if it reaches the conclusion that the document does not relate to affairs of State or that the public interest does not compel its non-disclosure or that the public interest in the administration of justice in the particular case before it overrides all other aspects of public interest, it will overrule the objection and order disclosure of the document.

In this regard the Court observed as under:

“There is nothing sacrosanct about the immunity which is granted to documents because they belong to a certain class. Class immunity is not absolute or inviolable in all circumstances. It is not a rule of law to be applied mechanically in all cases. The principle upon which class immunity is founded is that it would be contrary to public interest to disclose documents belonging to that class, because such disclosure would impair the proper functioning of the public service and this aspect of public interest which requires that justice shall not be denied to any one by withholding relevant evidence. This is a balancing task which has to be performed by the Court in all cases.”

 “There can therefore, be no doubt that even where a claim for immunity against disclosure of a document is made under S.123 (Section 129 of the Bhartiya Sakshya Adhiniyam), the Court may in an appropriate case inspect the document in order to satisfy itself whether its disclosure would, in the particular case before it, be injurious to public interest and the claim for immunity must therefore be upheld. Of course this power of inspection is a power to be sparingly exercised, only if the Court is in doubt, after considering the affidavit, if any, filed by the minister or the secretary, the issues in the case and the relevance of the document whose disclosure is sought.”

In S p Gupta, the claim of privilege against disclosure of correspondence exchanged between the Chief Justice of the Delhi High Court, Chief Justice of India and the Law Minister of the Union concerning extension of term or appointment of Addl. Judges of the Delhi High Court was rejected and such communications were disclosed.

In R.K Jain v Union of India and Others, 1993 (4) SCC 119; AIR 1993 SC 1769, a 3 judges bench of the Supreme Court dealt with the public Interest Litigation raising challenge against the appointment of the President of the Customs, Excise and Gold Control Appellate Tribunal (CEGAT’). The allegation was that there was some adverse report against the incumbent and on that ground his appointment was challenged. The court observed:

“It is the duty of the Minister to file an affidavit stating the grounds or the reasons in support of the claim from public interest immunity. He takes grave risk on insistence of oath of secrecy to avoid filing an affidavit or production of State documents and the Court may be constrained to draw such inference as are available at law. Accordingly we hold that the oath of office of secrecy adumbrated in Art.75(4) and Schedule III of the Constitution does not absolve the Minister either to State the reasons in support of the public interest immunity to produce the state documents or as to how the matter was dealt with or for their production when discovery order nisi or rule nisi was issued. On the other hand it is his due discharge of the duty as a Minister to obey rule nisi or discovery order nisi and act in aid of the Court.”

Court also held:

“It has been averred that respondent No. 3 had been in the past proposed for appointment as a Judge of the Delhi High Court but his appointment did not materialise due to certain adverse reports. Assuming for the sake of argument that these allegations are factually accurate, this Court cannot sit in judgment over the choice of the person made by the Central Government for appointment as a President if the person chosen is qualified and eligible for appointment under the Rules.”

Upholding the claim of privilege under S.123 of the Evidence Act (Section 129 of the Bhartiya Sakshya Adhiniyam), the court further held that it is not necessary to disclose the contents of the records in the case to the petitioner or his counsel.

41. The Manner of Claiming Privilege

In S.P Gupta v. President of India. AIR 1982 SC 149, the Supreme reiterated the manner of claiming privilege U/s 123 (Section 129 of the Bhartiya Sakshya Adhiniyam)in the following words:

“…..a claim for immunity against disclosure should be made by the minister who is the political head of the department concerned or failing him, by the secretary of the department and the claim should always be made in the form of an affidavit. Where the affidavit is made by the secretary the Court may in an appropriate case require an affidavit of the minister concerned. The affidavit should show that the document in question has been carefully read and considered and the person making the affidavit has formed the view that the document should not be disclosed either because of its actual contents or because of the class of documents to which it belongs.”

42. Greater Need of Transparancy

In this Information Technology era there is more demand for transparency in the government/public affairs. The Right to Information Act was also enacted and brought into force in the year 2005.

In Chief Information Commissioner v. State of Manipur, 2011 (15) SCC 1 Supreme Court had occasion to observe the object and purpose behind the enactment of the Right to Information Act in the following terms:

“The preamble (of the Right to Information Act, 2005) would obviously show that the Act is based on the concept of an open society. As its preamble shows, the Act was enacted to promote transparency and accountability in the working of every public authority in order to strengthen the core constitutional values of a democratic republic. It is clear that the Parliament enacted the said Act keeping in mind the rights of an informed citizenry in which transparency of information is vital in curbing corruption and making the Government and its instrumentalities accountable. The Act is meant to harmonise the conflicting interests of Government to preserve the confidentiality of sensitive information with the right of citizens to know the functioning of the governmental process in such a way as to preserve the paramountcy of the democratic ideal.”

In Yashvant Sinha and Others v Central Bureau of Investigation AIR 2019 SC 1802: 2019 (6) SCC 1,

“. S.162 (Section  165 of the Bhartiya Sakshya Adhiniyam)deals with the aspect of inspection of documents covered by privilege. In England, the law relating to privilege has been entirely court made. It cannot be in dispute that the claim for privilege under S.123 of the Indian Evidence Act (Section 129 of the Bhartiya Sakshya Adhiniyam)being based on public policy cannot be waived (see in this regard judgment of this Court in M/s. Doypack Systems Pvt. Ltd. v. Union of India and Others, 1988 (2) SCC 299 at page 327). The basis for the claim of privilege is and can only be public interest.”

43. Sealed Cover Jurisprudence – Deprecated

In a few cases the Supreme Court has deprecated what is called the Sealed cover Procedure/Jurisprudence.

In Nisha Priya Bhatia v Ajit Seth and Others AIR 2016 SC 2319: 2016 (12) SCC 451, The appellant had complained of sexual harassment by her senior a Joint Secretary in the department. There was departmental enquiry. The government refused to furnish the copy of the enquiry report and filed the same in a sealed cover before the Supreme Court, claiming privilege under S. 123 of the Evidence act (Section 129 of the Bhartiya Sakshya Adhiniyam). The Supreme Court directed to furnish copy to the Appellant and observed as under:

“ With respect to furnishing the Report dated 23rd January, 2009 an affidavit has been filed on behalf of the Union of India claiming privilege under S.123 and S.124 of the Evidence Act (Sections 129 and  130 of the Bhartiya Sakshya Adhiniyam). We have been taken through the affidavit dated 22nd July, 2010 and all that the affidavit says is that disclosure of the contents of the Report would be against national interest and would compromise national security. Apparently, this is only because the appellant happens to belong to the highly sensitive organization which is entrusted with the delicate job of collecting and analyzing intelligence inputs necessary to maintain the unity, integrity and sovereignty of the country.

 Both the Reports and the accompanying documents have been filed by the Union of India in a sealed cover in this Court.

 We have gone through both the Reports and the accompanying documents and find absolutely nothing therein which could suggest that there is any threat to the integrity of the country or anything contained therein would be detrimental to the interests of the country. We had also specifically asked the learned Additional Solicitor General to tell us exactly what portion of the Reports and the documents would be detrimental to the interests of the country but nothing could be pointed out during the hearing.”

 We find it very odd that in a matter of an enquiry in respect of an allegation of sexual harassment, the Union of India should claim privilege under S.123 and S.124 of the Evidence Act (Sections 129 and 130 of the Bhartiya Sakshya Adhiniyam). The contents of Reports alleging sexual harassment can hardly relate to affairs of State or anything concerning national security. In any event, absolutely nothing has been shown to us to warrant withholding the Reports and the documents from the appellant in relation to the enquiry of allegations of sexual harassment made by the appellant.”

Recently, in Cdr Amit Kumar Sharma etc V. Union of India & Ors etc, the Supreme Court again deprecated the indiscriminate practice of the Executive of submission of facts in Sealed Covers. The Court observed:

“The elementary principle of law is that all material which is relied upon by either party in the course of a judicial proceeding must be disclosed. Even if the adjudicating authority does not rely on the material while arriving at a finding, information that is relevant to the dispute, which would with ‘reasonable probability’ influence the decision of the authority must be disclosed. A one-sided submission of material which forms the subject matter of adjudication to the exclusion of the other party causes a serious violation of natural justice. In the present case, this has resulted in grave prejudice to officers whose careers are directly affected as a consequence.

  1. The non-disclosure of relevant material to the affected party and its disclosure in a sealed-cover to the adjudicating authority (in this case the AFT) sets a dangerous precedent. The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque. The disclosure in a sealed cover perpetuates two problems. Firstly, it denies the aggrieved party their legal right to effectively challenge an order since the adjudication of issues has proceeded on the basis of unshared material provided in a sealed cover. The adjudicating authority while relying on material furnished in the sealed cover arrives at a finding which is then effectively placed beyond the reach of challenge. Secondly, it perpetuates a culture of opaqueness and secrecy. It bestows absolute power in the hands of the adjudicating authority. It also tilts the balance of power in a litigation in favour of a dominant party which has control over information. Most often than not this is the state. A judicial order accompanied by reasons is the hallmark of the justice system. It espouses the rule of law. However, the sealed cover practice places the process by which the decision is arrived beyond scrutiny. The sealed cover procedure affects the functioning of the justice delivery system both at an individual case- to case level and at an institutional level. However, this is not to say that all information must be disclosed in the public. Illustratively, sensitive information affecting the privacy of individuals such as the identity of a sexual harassment victim cannot be disclosed. The measure of nondisclosure of sensitive information in exceptional circumstances must be proportionate to the purpose that the non-disclosure seeks to serve. The exceptions should not, however, become the norm.

44. Giving, as evidence, of document called for and produced on notice

Section 166 of the Bharatiya Sakshya Adhiniyam (corresponding to Section 163 of the Evidence Act) reads as under:

When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

45. Using, as evidence, of document production of which was refused on notice

Section 167 of the Bharatiya Sakshya Adhiniyam (corresponding to Section 164 of the Evidence Act) reads as under:

When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.

IllustrationA sues B on an agreement and gives B notice to produce it. At the trial A calls for the document and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so.

46. Judge’s power to put questions or order production

Section 168 of the Bharatiya Sakshya Adhiniyam (corresponding to Section 165 of the Evidence Act) reads as under:

The Judge may, in order to discover or obtain proof of relevant facts, ask any question he considers necessary, in any form, at any time, of any witness, or of the parties about any fact; and may order the production of any document or thing; and neither the parties nor their representatives shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:

Provided that the judgment must be based upon facts declared by this Adhiniyam to be relevant, and duly proved:

Provided further that this section shall not authorise any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 127 to 136, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 151 or 152; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.

(Section 166 of the Evidence Act related to the similar Power of jury or assessors to put questions. This provision has been omitted in the Bharatiya Sakshya Adhiniyam, as the jury trial is not in existence in India now)

Judge Has Very Wide Power Under Section 168 to Put Questions to the Witness

On, going through the above Section, there would not be any doubt about the powers of a Court in putting any question either relevant or irrelevant. The purpose behind the Section is for enabling the Court to elicit any information or material which the Court deems necessary for a just disposal of the case. The powers of the Court, as an adjudicator under the provision is so wide that it can put an irrelevant question also, which even the parties to the lis are prohibited from. The proviso to S.165 (Section 168 of the Bharatiya Sakshya Adhiniyam) only provides that judgment should be based upon facts which are relevant and duly proved. It is also very clear from the section itself that without the leave of the Court nobody can cross examine any witness to a reply given to any Court question. So that would underline the wide powers of the Court in putting questions during examination of a witness. (Sunil Kumar v State of Kerala 2021 KHC OnLine 155)

Judge Should Not Appear Partisan

In Ram Chander vs. The State of Haryana, AIR 1981 SC 1036, the Supreme Court speaking through Justice Chinnapa Reddy observed:

…it is the duty of a judge to discover the truth and for that purpose he may “ask any question, in any form, at any time, of any witness or of the parties, about any fact, relevant or irrelevant” (Sec. 165, Evidence Act) (Section 168 of the Bharatiya Sakshya Adhiniyam). But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten or bully witnesses. He must take the prosecution and the defence with him. The Court the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The judge, ‘like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous. encourage the timid, conspire with the young, flatter the old”.

Section 165 of the Evidence Act (Section 168 of the Bharatiya Sakshya Adhiniyam) indeed gives right to the trial Judge to ask any questions he pleases and in any form. This provision is enacted ultimately in order to see that the justice is done and is in aid of the quest for the truth. However, though the court is invested with such wide, unrestricted and unbridled powers, the trial Judge is also required to keep in mind that witnesses are not accustomed to proceedings in the court. They are likely to be overawed by aura of the court. If the trial Judge starts assuming the role of the prosecutor, then, the parties may begin to think that the Judge is not holding the scale of justice quite evenly. It needs to be noted that under S.165 of the Evidence Act (Section 168 of the Bharatiya Sakshya Adhiniyam), though the court has vast and unlimited powers to ask any question he pleases at any time, to any party or any witness, such power is to be exercised in order to discover or to obtain proper proof of relevant facts. Improper or capricious exercise of this power can lead to undesirable results. The discretion conferred by S.165 of the Evidence Act (Section 168 of the Bharatiya Sakshya Adhiniyam) is required to be exercised judicially and not capriciously or arbitrarily. The object for use of such discretion must be – discovery of relevant facts or obtaining proper proof of such facts. Though the Judge is not expected to be a mute spectator, referee or umpire in the criminal trial, he is also not expected to assume the role of the prosecutor or as the case may be, that of the defence lawyer. (See Usha Pandurang Tanpure v State of Maharashtra, 2017 CriLJ NOC 714 (A. M. Badar, J), Bombay High Court).

It was further held in Usha Pandurang Tanpure, that:

…..when material adverse to the appellant / accused was elicited by the learned trial Judge by putting court questions to all relevant witnesses, then it was incumbent on his part to accord an opportunity to the defence of further cross – examination to such witnesses. This does not seem to have been done, and as such, for want of an opportunity to the defence to further cross – examine the witnesses after court questions, such evidence obtained through court questions cannot be used against the appellant / accused.

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence’.

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Exercise Questions

  1. Discuss the Judges Power to decide the admissibility of evidence?
  2. Under what circumstances previous statement of a witness could be used for contradicting and corroborating the witness?
  3. A witness for the prosecution gives evidence in Court, contrary to the statement made by him to the police under Section 161 (3) Cr. P.C. Can the prosecution make use of his previous statement, and if so under what condition.
  4. Write a short note on the famous decision “Tahsildar Singh v. State of U.P.” (AIR 1959 SC 1012). Does the majority dictum on omission in the said decision hold good now?
  5. What is meant by leading questions? Who can put such question to a witness, and when? Under which circumstances can a leading question be asked in examination-in-chief? What is the jurisprudential reason for imposing restrictions on leading questions? Discuss.
  6. Whether First Information Statement is Substantive Evidence? Discuss the use of First information Statement
  7. Discuss the use of statement of witness recorded under S 164(5) CrPC. Is it substantive Evidence?
  8. Discuss provisions relating to “Refreshing Memory. Can an investigation officer use case diary statements during examination?
  9. Discuss “Counsel seek only for their client’s success, but the judge must watch that justice triumphs”, How the judge’s power to put question or order production of documents could be used to bring out truth? Is there any restriction on judge’s power to put questions to the witness?
  10. Judge asked an official witness to give certain answers based on some unpublished official records. The witness replied that he can answer only after getting permission from his superior officer. Judge insisted the witness to answer. Is the judge correct?