Report No. 69

Chapter 75

Order of Examination of Witnesses

Section 135

75.1. Introductory.-

Under section 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.

75.2. Civil cases.-

In civil cases, the rule governing the production of evidence depends on the principles applicable to the right to begin. This is governed by the Code of Civil Procedure. Very briefly, the scheme of that Code is this.1 The plaintiff has a right to begin. To this, there is an exception where the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.

1. Order 18, rules 1 to 3, Code of Civil Procedure, 1908.

75.3. The party having the right to begin has to state his case on the first hearing and produce his evidence in support of the issues which he is bound to prove. After this, the other party has to state his case and produce his evidence, if any, and may then address the court generally on the whole case.

75.4. There may be situations where there are several issues, the burden of proving some of which lies on the other party. The burden of proof, it may be recalled, is governed by the Evidence Act-we have already considered the relevant provisions.1 The party beginning may, in such a situation, 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; and in that case, that is to say, where the party beginning has reserved his evidence on some of the issues, he may produce evidence on those issues after the other party has produced all his evidence. After such production of evidence the other party is entitled to reply specially on the evidence so produced by the party beginning: but the party beginning will then be entitled to reply generally on the whole case.

1. 93lialS101. et seq.

75.5. Criminal cases.-

In criminal trials, the prosecution always begin.- in fact, provisions expressing or implying this position are contained in the various chapters of the Code of Criminal Procedure applicable to the different kinds of trials under the Code. By way of example, the provisions in that Code, in so far as they are relevant to the subject under consideration, may be thus summarised as regards warrant cases and sessions cases.

(a) Warrant cases before Magistrates1

In warrant cases tried before Magistrates, if the accused does not plead guilty or though he pleads guilty, he is not convicted on that plea, the Magistrate fixes a date for the examination of witnesses. On that date, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution, but he may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined, or recall any witness for further cross-examination. The accused shall then be called upon to enter upon his defence and produce his evidence. After such evidence is taken, arguments are heard, and the judgment is pronounced.

1. Sections 242 to 247, Code of Criminal Procedure, 1973.

(b) Sessions trials

In a trial before a Court of Sessions,1 the procedure is slightly different. When the accused appears before the court or is brought before it, the public prosecutor opens his case by explaining the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. Unless the accused is discharged by the Sessions Judge on the ground that there is not sufficient proof, the charge is framed by the Court of Sessions2 and the accused is asked whether he pleads guilty or claims to be tried. Except when the accused pleads guilty and is convicted on that plea, the judge has to fix a date for the examination of the witnesses. On the date fixed, the judge shall proceed to take all such evidence as may be produced in support of the prosecution.

But he may, in his discretion, permit the cross-examination of any witness to be deferred. If, after taking the evidence of the prosecution and the defence, the judge considers that there is no evidence that the accused has committed the offence, he shall record an order of acquittal. Otherwise, the judge shall call upon the accused to enter upon his defence and to adduce any evidence which he may have in support thereof. When the examination of the witnesses for the defence is complete, the prosecutor sums up his case. After hearing arguments, the judge gives the judgment in the case.

1. Sections 225 to 237, Code of Criminal Procedure, 1973.

2. This is the new procedure.

75.6. It would have been noted that this scheme does not contemplate the leading of evidence initially by the accused. The prosecution always begins.

75.7. Order of examining party's witnesses.-

The provisions of the two Codes to which we have referred above regulate the order of production of evidence as between the parties. As between a party's witnesses inter se, it is counsel's privilege to determine, subject to the limitations mentioned in section 135, the order in which witnesses should be produced and examined; but the court has always the power to direct the order in which witnesses should be examined, if the circumstances of the case require the making of such an order.1

1. Achyutana Pirchaiah v. Gwantla Chinaiah, AIR 1961 AP 420 (422) (reverse cases).

75.8. In general, a court cannot refuse to examine a witness produced by a party.1-2 There are, however, express provisions in the Code of Criminal Procedure whereunder the court may refuse to summon unnecessary witnesses. And the same practice is followed in civil cases.

1. Jaswant Singhjee v. Jat Singhjee, 2 MIA 242: 6 WR 46 (PC).

2. Sheikh Ibrahim v. Sheikh Suleman, 1885 ILR 9 Born 146 (149, 150) (West, J.).

75.9. Not calling a party as witness.-

The disreputable practice under which counsel does not call his own client who is an essential witness but endeavours to force the other party to call him and so suffer the discomfiture of having him treated as his own, the other party's witness, has been repeatedly condemned by the Privy Council in numerous cases.1 Lord Atkinson dealt with the subject in Lal Kunwar v. Chiranji Lal, 1910 ILR 32 All 104 (PC); see Bidan Das v. Mangal Singh, AIR 1929 Lah 868, calling it "a vicious practice, unworthy of a heightened or reputable system of advocacy."

1. Sardar Gurbaksh Singh v. Gurdial Singh, AIR 1927 PC 230 (233).

75.10. On refusal of a party to entry witness-box.-

Generally, when a party calls the opponent as a witness, the opponent must be asked whether he is going to appear as his own witnesses. If that party then declares that he does not propose to appear as his own witness, the court should point out to the party producing him that ordinarily speaking the matter should be left as it is, and the court be left to draw any adverse inference which may justifiably be drawn from the refusal of the party to appear in the witness-box and subject himself to cross-examination. If the party, however, insists on examining the opponent as his own witness, the court should be careful not to allow the counsel for the opponent to cross-examine his own witness, because unless the witness is declared hostile, a party has no right to cross-examine his own witness.1

1. Puran Singh Relu Singh v. Mathra Das, AIR 1934 Lah 126 (127).

75.11. Witnesses should be called one by one.-

Certain matters are governed by the practice of the courts. For example, witnesses should be called one by one. In LaImam v. Bejai Ram, AIR 1934 All 840, Bonnet, J. held that the universal practice in the courts in India is that witnesses should be called in one by one, and that no witness who is to give evidence should be present when the deposition of a previous witness is being given in the court, and this may well be termed an abuse of the process of the court, and, therefore, under section 151, Code of Civil Procedure, the court has inherent power to prevent that abuse and the court can order that such witness should not be heard as a witness.

75.12. Conclusion.-

This is a broad outline of the law and practice relating to the order of examination of witnesses. We have no changes to recommend in the section in the Evidence Act.

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