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

Examination-in

chief.

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

nation.

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

Vide notes to section 138 post.

Order of exami

138. Witnesses shall be first examined-in-chief, then (if the adverse party so desires) nations. Direc- cross-examined, then (if the party calling him so desires) re-examined.

tion of re-exami

nation.

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.

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.

Examination-in-chief.-Every litigant is entitled himself to examine the witnesses who can give evidence in support of his case, in order that he may bring out the necessary information as fully as he thinks possible, and in the form which he considers most favourable to himself. It follows that evidence given when the party never had the opportunity to examine is not legally admis

sible as evidence.

Right to cross-examine.-It is a well-known rule of law that all witnesses examined-in-chief, or sworn, are subject to cross-examination. The right to cross-examine an adversary's witness is in

accordance with the elementary principles of judicial procedure, and the Evidence Act provides for a cross-examination as part of the record of evidence taken in a judicial proceeding. "It is by no means necessary that the witness should have been actually examined-in-chief; for, if he has been intentionally called and sworn, and is, moreover, a competent witness, the opposite party has, in strictness, a right to cross-examine him, though the party calling him has declined to ask a single question. Where witnesses are simply called to speak to the character of a prisoner, it is not usual to crossexamine them, excepting under special circumstances; but no rule of law expressly forbids this course. Where any person, whether he be a party to the proceedings or not, has made an affidavit which has been filed for the purpose of being used before the Court, he becomes liable to cross-examination, and he cannot be exempted from liability by the subsequent withdrawal of the affidavit.”*

Limits of cross-examination.-" The cross-examination is not limited to the matters upon which the witness has already been examined-in-chief, but extends to the whole case; and, therefore, if a plaintiff calls a witness to prove the simplest fact connected with his case, the defendant is at liberty to cross-examine him on every issue, and by putting leading questions to establish, if he can, his entire defence. So far has this doctrine been carried, that even where it was requisite that the substantial, though not the nominal, party in the cause should be called by his adversary, for the sake of formal proof only, it was held that he was thereby made a witness for all purposes, and might be cross-examined as to the whole case. America, however, the Supreme Court has determined that a party has no right to cross-examine any witness except as to circumstances connected with matters stated in his direct examination; and that if he wishes to examine him respecting other matters, he must do so by making him his own witness and by calling him as such in the subsequent progress of the cause." Vide Queen v. Ishan Dutt, 6 B. L. R. App. 88.

In

Questions, lawful in cross-examination.-(a). Besides questions relating to relevant facts, a witness may further be asked in crossexamination questions intended to test his veracity, to discover who he is and what is his position in life, and to shake his credit by injuring his character. Vide sec. 146 post.

(b). The moment a witness begins to give evidence which is inadmissible, he should be stopped by the Court. It is not safe to rely on a subsequent exhortation to the jury to reject the hearsay evidence

* Vide Taylor, sec. 1429.

and to decide on the legal evidence alone-Queen v. Pitambar Sardar, 7 W. R. Cr. 25.

Object and use of Cross-examination.-The essence of crossexamination is, that it is the interrogation by the advocate of one party of a witness called by his adversary with the object either to obtain from such witness admissions favourable to his cause or to discredit him. Cross-examination is the most effective of all means for extracting truth and exposing falsehood.* The following passage of Quintilian from his Inst. Orat., lib. v, Ch. 7, De Testibus is worthy of careful study. He says: "In dealing with a witness who is to be compelled to speak the truth against his will, the greatest success consists in drawing out what he wishes to keep back. This can only be done by repeating the interrogation in greater detail. He will give answers which he thinks do not hurt his cause; and afterwards, from many things which he will have confessed, he may be led into such a strait that what he will not say, he cannot deny. For, as in an oration, we generally collect scattered proofs, which singly do not appear to press on the accused, yet, by being put together, prove the charge. So a witness of this sort should be asked many things as to what went before-what came after-as to place, time, and persons, and other things, so that he may fall upon some answer after which he must necessarily either confess what is desired, or contradict his former statements. If this does not happen, it may become apparent that he will not speak, or he may be drawn out and detected in some falsehood foreign to the cause; or by being led on to say more than the matter requires in favour of the accused, the Judge may be led to suspect him, which will damage his cause not less than if he had spoken the truth against the accused. It sometimes happens that the testimony given by a witness is inconsistent with itself. Sometimes (and that is the more frequent case) one witness contradicts another. A skilful interrogation may produce by art that which usually happens accidentally. Apart from the cause, witnesses are usually asked many questions which may be useful, as to the lives of other witnesses, as to their own character and position, any crimes they have committed, their friendship or enmity to the parties,-in the answers to which, they may either make some useful admission, or be detected either in a falsehood or the desire of injuring the opposite party."

Right of co-accused to cross-examine witness called by another co-accused.-(a). In the case of Ram Chand Chatterji v. Hanif Sheikh, I. L. R. 21 Cal. 401, Trevelyan and Rampini JJ. observed:

* Vide Meer Sujad Ali Khan, Newat Toolfukar Dowla Bahadoor v. Lalla Kaskeenath Dass, 6 W. R. 181.

"We think there might be many cases of failure of justice if a coaccused were not allowed to cross-examine witnesses called by a person whose case was adverse to his, for the effect might be, practically, that a Court might act upon evidence which was not subjected to cross-examination. The Evidence Act gives a right to crossexamine witnesses called by the adverse party."

Right to cross-examine witness called by the Court.-A witness called by the Court is liable to be cross-examined by any of the parties to a suit. Vide (1) Tariny Charn Chowdhry v. Saroda Sundari Dassi, 11 W. R. 146; (2) Gurudass Roy v. Greedhur Sen, 11 W. R. 110; (3) Sharfaraz Mollah v. Dhunnoo, 16 W. R. 257.

Right of accused persons to recall and cross-examine witnesses for the prosecution.-(a). When a charge has been framed and the defendant put on his defence, he has a right to have the witnesses for the prosecution recalled for the purpose of cross-examination. Vide (1) J. R. Belilios v. Queen, 19 W. R. Cr. 53; (2) In the mitter of Thakoor Dyal Sen, 17 W. R. Cr. 51; (3) Queen v. Mussumut Itwarya, 22 W. R. Cr. 14; (4) Nobin Chunder Banerji, Petitioner, 25 W. R. Cr. 32; (5) Queen v. Ram Kishen Halwai, 25 W. R. Cr. 48; (6) Talluri Venkayya v. Queen, I. L. R. 4 Mad. 130; (7) Queen v. Amiraddin Fakir, 21 W. R. Cr. 29; (8) Khurruckdhari, Singh, 22 W. R. Cr. 44.

(b). In the case of Empress v. Baldeo Sahai, I. L. R. 2 All., Spankie J. held that the accused has the right to recall and crossexamine the witnesses for the prosecution at any time while he is engaged in his defence and before his trial is concluded. But in the case of Sheikh Faiz Ali, I. L. R. 7 Cal. 28, it was held that the right of an accused person to recall and cross-examine the witnesses for the prosecution must be exercised at the time when the charge is read over and explained to him, and if not exercised at the time, it cannot afterwards be insisted on, although it is in the discretion of the Magistrate to recall the witnesses, if he thinks fit.

(c). In the case of Nilkant Singh v. Queen-Empress, I. L. R. 20 Cal. 469, Pigot and Hill JJ. held that there is, under sec. 257 of the Criminal Procedure Code, no absolute right of cross-examination, which would enable the accused to recall and cross-examine the witnesses for the prosecution, at any stage of the case, no matter how completely and fully they have already been cross-examined. If the prayer for recall be rejected, the party who thinks himself aggrieved is bound to show that the ends of justice have been in some way frustrated in consequence of the refusal to recall the witnesses.

Inadmissibility of depositions of witnesses whom the adverse party had no opportunity of cross-examining.—(a). The test for determining whether the depositions of witnesses, who are absent or who have been examined in a former suit, can be received is whether the party against whom they are to be used had the power to crossexamine. If he could not have cross-examined, the depositions of the witness ought not to be admitted against him-Meer Sujad Ali Khan, Nawab Zoolfukar Dowla Bahadoor v. Lalla Kashinath Dass, 6 W. R. 181.

(b). Evidence taken in the absence of a defendant at an ex-parte hearing cannot be used against him on a retrial-Ram Buksh Lall v. Kishoree Mohun Saha, 12 W. R. 131. *

(c). As a general rule, evidence is not legally admissible against a party, who, at the time it was given, had no opportunity of cross-examining the witnesses, or of rebutting their testimony by other evidence-Gorachand Sirkar v. Ram Narain Chowdhari, 9 W. R. 587. Vide also Radha Jiban Mustafi v. Taramani Dassi, 12 Moo. I. A. 380.

(d). A, B and C having been charged with murder before a Magistrate, two vakils presented their vakalatnamas, and applied to be allowed to conduct the defence of the accused. The Magistrate refused permission, and after recording the depositions of the witnesses, committed the accused to take their trial before the Sessions Court. In the Court of the Magistrate the only material evidence for the prosecution was that of threo witnesses, who, on being examined in the Sessions Court, denied all knowledge of the facts to which they had deposed before the Magistrate. The Sessions Court, disbelieving the statements made in his Court, thereupon, under sec. 249 of the Code of Criminal Procedure, used the previous depositions as evidence in the case, and mainly upon these convicted the accused. On appeal, it was urged that the previous depositions ought not to have been used as evidence in the case, as the Magistrate had refused to allow their pleaders to appear and cross-examine the witnesses who made the depositions. Jackson and Tottenham JJ. held that there was no force in the objection, observing: "It does not appear that the pleaders who were retained by the accused made any attempt to cross-examine the witnesses, for they might have suggested to the accused the proper questions to be put to the witnesses; nor in fact are we disposed to think that at that stage of the proceedings, cross-examination, if resorted to, would have been of any benefit to the accused. Very probably it would not, the Court thinks, have been resorted to at all." In re Dharu Mundul, 6 C. L. R. 53. The reasoning of their Lordships does not seem to us