Can a court allow a party to call a witness to put a question in the nature of cross-examination at the stage of re-examination?

Question: Can a court allow a party to call a witness to put a question in the nature of cross-examination at the stage of re-examination? Give reasons and also refer to the case law, if any, on the point.

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Answer

Section 154 of the Evidence Act allows a party who calls a witness to ask any question to their own witness like they are cross-examining him.

In the leading case of Dahyabhai v. State of Gujarat, AIR 1964 SC 1563, it was clarified by the Hon’ble SC that the court 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 adverse party to cross-examine him on the answers elicited which do not find a place in examination-in-chief.

The value of his testimony is not destroyed by such permission.

In the case of Atul Bora v. Akan Bora, AIR 2007 Gau 51, the trial was under an election petition. The court said that the right to cross-examine one’s own witness is not necessarily confined only to the situation where the witness exhibits hostility or is resiles from his earlier statement.

Such cross-examination may be permitted to retract the truth if the court finds that the witness is withholding the truth. Permission can be granted at any stage of the trial since the power of the court under section 154 is not fettered by section 137 or section 138.

However, declaration of a witness as hostile is to be done immediately at the time of examination of witness and cannot be permitted to be done long after the witness has been examined

For instance, in the case of State of Bihar v. Lalu Prasad 2002 Cr LJ 3236 (SC), a witness made statements favourable to the defence even during his examination-in-chief. The public prosecutor allowed his cross-examination to proceed without making an application for permission for cross-examining him.

He applied for permission after the cross-examination by the defence. The court refused it and the Supreme Court also refused to interfere in the order refusing permission.

The court observed in State of Bihar v. Lalu Prasad (2002) 9 SCC 626 that though it is open to the party who calls the witness to seek the permission of the court at any stage of the examination, nonetheless, discretion has been vested with the court whether to grant the permission or not.

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Important Mains Questions Series for Judiciary, APO & University Exams

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