Report No. 185

Section 135

This Section is in Chapter X bearing the heading: "Of the examination of witnesses" and consists of secs. 135 to 166.

Section 135 refers to the 'Order of production and examination of witnesses'. It reads as follows:

"135. 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."

Sarkar (15th Ed, 1999, p. 2142) says that: 'The authorities on the subject present almost a chaos'. This was the position long back and now, there is no such chaos.

There are cases arising under the civil and criminal procedures. There are again special statutory provisions which lay the onus of proof on the defendant in civil cases. In criminal cases, the onus is always on the prosecution. Some statutes say that upon the prosecution proving certain basic facts, the burden shifts to the accused in certain circumstances. Again, in civil cases, there may be various issues and the initial burden of proof may lie in the case of some issues on plaintiff and in the case of some other issues, on the defendant.

There may be counter-claims and questions arise in regard to the issues raised in the counter-claim as to when the defendant should speak to them or whether, the plaintiff while dealing with his main claim is entitled simultaneously to adduce evidence in regard to the counterclaim even before the defendant has spoken about it. If burden of proof on different issues is oscillating, nice questions arise as to who should start and on what issue evidence is to be adduced. No wonder, there is considerable confusion in the trial Courts on the procedure.

In civil cases, the Code of Civil Procedure regulates this procedure in Order 18 Rules 1 to 3.

Order 18 Rule 1 says that the plaintiff has the right to begin. Order 18 Rule 2 says that the party having the right to begin shall state his case and produce evidence on which he relies. Then the other party shall do the same. The party beginning may then reply Order 18 Rule 2(4) (inserted in 1976), empowers the Court to direct or permit any party to examine any witness at any stage for reasons to be recorded.

Order 18 Rule 3 states that where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on these issues or reserve it by way of answer to the evidence produced by the other party.

Witnesses are to be examined orally in open Court as per the provisions of Order 18 Rule 4. Witnesses are exempted from personal attendance by reason of residence outside certain distance and these matters are provided in Order 16 Rule 19 and secs. 75 to 78 (PC). Women who, according to custom, do not appear in public (Section 132 CPC) and certain persons of rank (Section 133 CPC) are exempt from personal appearance in Court. Such persons and persons who are unable to attend Court on account of sickness or infirmity may be examined on Commission (Order 26 and ss. 75 to 78 CPC). As to examination of witness about to leave jurisdiction, provision is made in Order 18 Rule 16.

By introduction of Rule 3A in Order 18 (under the 1976 Amendment of the CPC), the practice of litigants giving evidence at the and after other witnesses on their side have been examined, has been stopped. Now the 430 party has to examine himself first unless the Court, for reasons to be recorded, allows him to examine himself later.

Rule 17 of Order 18 permits the Court to recall and examine a witness. Under Order 16 Rule 7, any person present in Court may be required by the Court to give evidence.

In criminal cases, the prosecution always starts. As to the opening of the case and mode of trial in summons cases, there are provisions in secs. 251 to 259 of the Code of Criminal Procedure, 1973. So far as warrant cases instituted on a police report are concerned, the provisions of ss. 238 to 243 apply; other warrant cases are governed by ss. 244 to 249. The procedure in sessions cases is contained in ss. 225 to 237.

Section 234 of the Code of Criminal Procedure, 1973 refers to the accused's right to reply. When the examination of witnesses (if any) for the defence is complete and the prosecutor sums up his case, the accused is entitled to reply.

There are various principles laid down by Courts to supplement the provision. In civil cases, a person whom a party to the cases proposes to examine as a witness on his side must not be present when other witness of the same party are being examined until after the evidence of such witness is over. If he is present in Court, the Court has power to order him to go out of the Court (Achyutani v. Gorantla: AIR 1961 AP 420).

There are other rules laid down which govern the right of parties to examine number of witnesses and as to whether or when the Court may refuse to examine a witness.

In the light of the elaborate provisions in the Civil and Criminal Procedure Codes, and the guidance available from case law, there is 'no chaos' now in the procedure.

We agree with para 75.12 of the 69th Report that no amendments are necessary in Section 135.

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