Report No. 185

Section 138

It refers to 'Order of examination'. It reads as follows:

"138. 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."

The 69th Report recommended numbering of the paragraphs. We agree. As stated below in the opening clause, for 'witnesses', the words 'A witness' have to be substituted.

We find that in Sri Lanka, these three paragraphs are numbered as (1), (2) and (3) and a fourth paragraph was inserted as follows:

"(4) The Court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and

if the Court does so, the parties have the right of further crossexamination and re-examination respectively."

We may explain the second para relating to cross-examination which permits a person to be cross-examined on matters relevant but not referred to in the chief examination. For example, a plaintiff might have spoken to what he stated in the plaint but may not have referred to certain relevant facts alleged in the written statement. It is open to the defendant to crossexamine the plaintiff not only with reference to what the witness stated in the chief examination but also with reference to the written statement.

But, re-examination is normally confined to facts stated in cross-examination and the witness is given an opportunity to clarify. However, para 3 makes it clear that if any new matter comes out in the re-examination, there could be further cross-examination. Such things do happen when a person is crossexamined in respect of answers to the questions which, even if it related to the chief examination, is not complete unless some new facts are stated.

There is considerable discussion in the 69th Report on Section 138 but only a minor amendment was suggested in para 77.23 that in the last paragraph as follows:

"The last paragraph should use the singular 'witness' in view of the singular 'him' which occurs in the Section. We recommend that Section 138 should be so amended."

We are not clear what the Commission meant by this recommendation. We find that para three has not used the word 'witness'. Probably the reference is to the first para which uses the word 'witnesses'.

We recommend the use of "A witness" in the place of "witnesses" in para one.

We also recommend that the three paras be numbered (1), (2), (3) and that a fourth para be added as done in Sri Lanka.

We recommend that Section 138 should be substituted as follows:-

"138. Order of examinations.- (1) A witness shall be first examined-in-chief, then (if the adverse party so desires) cross examined, then (if the party so desires) re-examined.

(2) 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.

(3) 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 reexamination, the adverse party may further cross-examine upon that matter.

(4) Further examination-in-chief: The Court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if the court does so, the parties have the right of further cross-examination and re-examination or reexamination, as the case may be."

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