Defendant's right to cross examine witness of co-defendant:
prepared by Rakesh Kumar Singh
This is an interesting issue though rarely arises in the day to day trial of cases. Nevertheless, such issue may arise and therefore needs to be addressed properly. The present paper would be humble attempt to understand the concept with clarity.
2. It is the Evidence Act, 1872 which primarily deals with the concept of evidence in a court. It also provides as to how a person who appears in the court as a witness shall be dealt with. Section-138 reads as under:
138. "Order of examination" 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 matters.
3. It immediately becomes clear that once a person appears as a witness, he has to go through three stages, examination-in-chief, cross examination, re-examination. First stage is mandatory but the second and third stages indicate that they are not mandatory with certainty as an expression “if.....so desires” has been used in the context of other stages.
4. Since, in the present paper we are talking about the right of cross examination, we will only look into the second stage. It suggests that after the witness is examined in chief, he shall be cross examined. The only rider is that there must be a desire of adverse party to do so and nothing else. Once, the adverse party expresses his desire, there would be no discretion left with the court except to permit him to cross examine the witness.
5. The crucial question therefore is as to whose desire is indicated in the Section-138. Of course, it is of the adverse party. It is elementary. For existence of “adverse party” there is a need for existence of the first party to whom the other one will be adverse. Who then is the first party? Simple. He who examined the witness at first stage i.e. examination in chief. Fortunately, this expression is a defined term in the Evidence Act. Section-137 reads as under:
137. "Examination in chief. The examination of a 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.
6. Definition of “examination-in-chief” suggests that it is done by the party who calls the witness. Cross examination is defined as the examination done by the adverse party. Clearly, first party will conduct examination-in-chief and the adverse party will conduct cross examination.
7. Now, we can say that two party will be in existence, one is the party and the second is the adverse party. Interestingly, however, the provisions are only talking about the existence of the parties but nowhere are indicating as to which side both the parties will exist in a given case.
8. At the first blush, anyone can say that first party will exist on one side and the adverse party will exist on the opposite side as normally all cases arise out of allegation of one party against the other who becomes the opposite party. However, there is no justification at all. The provisions are not supporting such proposition that first party and adverse party will exist opposite to each other. Rather, the provisions have not even used any expression such as opposite party.
9. As such, the first party and the adverse party in a peculiar situation may exist on the same side of the case.
10. The term “adverse party” however is not defined in the Evidence Act. Therefore, we need to understand the term in the manner in which it is generally used. How a party can say that it is adverse to another. Simple. If a witness produced by one party depose such facts which goes contrary to the stand taken by another party or affects his interest in the case in any manner, such another party can say that he is adverse to the party who has produced such witness.
11. This understanding also shows that adverseness may arise at any stage of the proceeding of a case. Two parties of a case may not be adverse to each other at the beginning of the case but may subsequently for numerous reasons become adverse.
12. Keeping the aforesaid in mind, we may now try to comment on the issue involved i.e. right of a defendant to cross examine a witness produced by the co-defendant. Take a situation where in a given case, “P” is plaintiff and “D1” & “D2” are defendants. D1 is fully contesting the plaintiff claim but D2 is only partly denying the plaintiff claim. D2 brings a witness to depose in the case. His examination in chief supports some of the claims made by the plaintiff. Needless to say that the plaintiff will utilize such testimony in his favour. But the same will go against the interest of D1. How then the court can allow such testimony to go untested through a proper cross examination done by the real adverse party. D1 may not have grievance against the entire testimony of witness of D2 but he may have real apprehension in respect of a portion of the testimony which is against his interest. Obviously, the plaintiff would not be interested in impeaching the witness on such material points which go against D1. A court cannot allow such testimony to go untested. In such a situation D1 can certainly claim himself to be adverse to D2 who produces the witness and therefore as an adverse party, D1 can certainly express his desire to cross examine such witness.
13. Now, after citing the bare provisions which supports the aforesaid view, we may cite supporting judgments.
14. In Des Raj Chopra vs Pooran Mal dated 27.08.1974 Hon'ble Delhi High Court has held as “It will thus be seen that the view of the Additional Rent Controller that simply because one of the pleas taken by the respondent No. 3 and petitioners is common, the later can be denied the basic right to cross examine the witnesses produced by respondent No. 3 is supported neither by precedent nor by any principle or law and must be rejected. It may also be noted that the evidence that is being taken is common to all the parties in the case, and if the evidence of RW 7 is to be treated as admissible, the same can only be done if an opportunity has been given to all the parties including the petitioner to cross examine him. Once the petitioner is refused permission to cross examine-R.W. 7 his evidence would be inadmissible. That is the another reason why I feel that denial of opportunity to the petitioner to cross-examine R.W. 7 was not only manifestly illegal but would have created complications and would really amount to permitting evidence to be taken which later on would have to be declared inadmissible”.
15. In Saroj Bala vs Dhanpati Devi Hon'ble Delhi High Court has held as “On consideration of the submissions made by learned Counsel for the petitioner, I am of the view that the same are meritorious and the trial Court fell into a jurisdictional error in failing to exercise jurisdiction vested in it by law. The right of the petitioner (original defendant No. 7) to cross examine the witnesses of the remaining defendants could not be shut out....”
16. In Bhajinder Singh vs Hardev Singh dated 17.02.2017, Hon'ble Delhi High Court held as “Hence, what these sections provide is that the cross-examination is to be done by an adverse party. In the present case, the adverse party is the petitioner as the SDMC is supporting the case of respondent No.1/plaintiff. The cross-examination by respondent No.1 of the witness of the SDMC would not have much relevance”.
17. Other High Courts such as Bombay, Karnataka, Rajasthan have taken the similar view.
18. We may therefore say with certainty that a defendant may express its desire to cross examine a witness produced by other defendant and may cross examine such witness on the premise that he is an adverse party.