Whether a witness can be re-examined prior to cross examination?

 It is therefore, clear that the question of 're-examination' would arise only after a witness has been cross examined. It is not possible to hold that re-examination of a witness can be taken before he has been cross examined. This is clear also from the fact that the section lays down that the re-examination shall be directed to explanation of matters referred to in the cross examination. Now, a witness whose cross-examination is not completed, cannot be said to be one who 'has been cross-examined'.

It is easy to see that if a witness is permitted to be re examined, before his cross examination is complete, it would create several complications. On the same analogy, even an accused may seek cross examination of a witness before his examination in chief is complete. When a specific procedure has been laid down by the Evidence Act, it would not be permissible to depart from the specific procedure. If such departures are permitted, there would be requests by the parties, even to permit the cross examination in the midst of the examination in chief, or re-cross examine him in the midst of the re-examination. This, if permitted would result in throwing the entire procedure for trials out of gear.

10. The contention that only one question had been asked in cross examination, does not impress me. It is because there would be no demarcating line as to when and till how many questions are asked in the cross-examination, the re-examination should be permitted in the midst of the cross examination. The simple proposition be 'that re-examination cannot be permitted to be taken in the midst of the cross-examination' cannot be sought to be diluted on the plea that 'only one or two, or only a few questions have been asked in the cross-examination'

IN THE HIGH COURT OF BOMBAY

Criminal Application No. 770 of 2012

Decided On: 19.07.2012

Appellants: Santos Maria Teresa Pinto Ferriers Dos
Vs.
Respondent: Union of India and anr

Hon'ble Judges/Coram:
A.M. Thipsay, J.

Citation;2012 ALLMR(CRI)3220,2013(2)MHLJ(CRI)124

1. Rule. Rule made returnable forthwith. By consent, heard forthwith. Heard Mr. Ayaz Khan, learned counsel for the applicant, Mr. N. Natarajan, learned counsel for the Union of India - Respondent no. 1 and Mr. A.S. Shitole, learned APP for the State.

2. The applicant is the accused in NDPS Special Case No. 51 of 2011 pending before the Special Judge for NDPS, Greater Mumbai. The recording of the evidence commenced on 26 September 2011. However, the examination in chief of the first witness for the prosecution i.e. the complainant herself, could not be completed on that date. It was completed on 30 September 2011. After the examination in chief, the cross examination commenced. One question in cross examination, was put to the PW no.1. The matter was thereafter adjourned and further cross examination was deferred till 11 October 2011. The matter was then adjourned from time to time and on 7 March 2012, the prosecution filed an application "for permission to re-examine the prosecution witness no.1". The defence objected for adopting such a course on the ground that the cross examination of the witness had already started; and that re-examination in the midst of cross-examination was not permissible. The learned Special Judge, however, allowed the said application by his order dated 19 June 2012. Being aggrieved by the said order passed by the learned Judge of the Special Court, the applicant has approached this Court invoking its inherent powers and praying that the said order be quashed and set aside.

3. I have gone through the impugned order.

4. The contention of Mr. Khan, learned counsel for the applicant, is that it was not open for the learned Judge to have permitted re-examination in the midst of the cross examination and by obstructing the further cross examination. Except this contention, no other points have been raised and therefore, the issue is not whether in the facts and circumstances of the case permitting re-examination of the prosecution witness, would be proper. The issue is 'whether it was open for the learned Judge to have permitted the re-examination, when cross examination was still going on.'

5. Mr. Natarajan, learned counsel for the Union of India attempted to suggest that the course adopted by the learned Judge would not cause any prejudice to the applicant. He submitted that only one question had been asked in the cross examination and therefore, no prejudice would be caused to the accused, if the re-examination would be permitted at that stage. He submitted that the prosecutor in charge of the matter had made an elementary mistake in not showing the contraband articles to the witness, by opening the sealed packets which were produced before the Court and that to remedy the situation, the permission to re-examine the PW No. 1 was sought.

6. I am unable to accept this contention.

7. Section 138 of the Indian Evidence Act lays down the order of examinations. It reads as under:-

138. Order of examinations.- 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.

8. It is therefore, clear that the question of 're-examination' would arise only after a witness has been cross examined. It is not possible to hold that re-examination of a witness can be taken before he has been cross examined. This is clear also from the fact that the section lays down that the re-examination shall be directed to explanation of matters referred to in the cross examination. Now, a witness whose cross-examination is not completed, cannot be said to be one who 'has been cross-examined'.

9. It is easy to see that if a witness is permitted to be re examined, before his cross examination is complete, it would create several complications. On the same analogy, even an accused may seek cross examination of a witness before his examination in chief is complete. When a specific procedure has been laid down by the Evidence Act, it would not be permissible to depart from the specific procedure. If such departures are permitted, there would be requests by the parties, even to permit the cross examination in the midst of the examination in chief, or re-cross examine him in the midst of the re-examination. This, if permitted would result in throwing the entire procedure for trials out of gear.

10. The contention that only one question had been asked in cross examination, does not impress me. It is because there would be no demarcating line as to when and till how many questions are asked in the cross-examination, the re-examination should be permitted in the midst of the cross examination. The simple proposition be 'that re-examination cannot be permitted to be taken in the midst of the cross-examination' cannot be sought to be diluted on the plea that 'only one or two, or only a few questions have been asked in the cross-examination'.

11. It cannot be doubted that the question of commencing re-examination would arise only after cross examination would be complete.

12. The learned Judge while passing the impugned order has emphasized on the proposition that re-examination can be allowed 'at any stage of the proceedings'. He has referred to the decision of the Apex Court in "Godrej Pacific Tech. Ltd V/s. Computer Joint India Ltd." reported in 2008 AIR SCW 6398, (ii) Rama Paswan and Ors Vs. State of Jharkant", reported in 2007 ALL MR (Cri) 1732 (S.C) and (iii) Rajendra Prasad Vs. Narcotic Cell through its Officer-in-charge, Delhi", reported in MANU/SC/0397/1999 : AIR 1999 SC 2292. '.None of these judgments suggest that the re-examination can be taken in the midst of cross-examination and by preventing the cross examiner to continue further with the cross examination. The term 'at any stage of proceedings' has to be understood in a reasonable manner. The 'stage' referred to in such a proposition refers to various stages in the trial and indicates that re-examination may be permitted to be carried out even after its normal stage - which is after the cross-examination - has passed; and the proceedings are switched over to another stage.

13. In the result, the impugned order is set aside.

14. The application is allowed in terms of prayer clause (a).

15. The learned Magistrate shall proceed further with the case in accordance with law. Rule is made absolute in the aforesaid terms.

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