Report No. 69

VI. Co-defendants and Co-accused

77.15. Co-defendants and co-accused.-

So much as regards the scope of cross-examination and the effect of incomplete cross-examination. As to the party to whom the right is available, the Act gives a right to cross-examine a witness called by the "Adverse party".1This raises interesting questions in criminal cases. By virtue of the expression "adverse party", one accused person may cross-examine a witness called by another co-accused for his defence, when the case of the second accused is adverse to that of the first.2 There might be many cases of injustice if that were not so. The section does not, however, make any special provision for the case of cross-examination of the co-accused or co-defendant. This matter bears some investigation.

1. Ram Chand v. Hanif Sheikh, 1894 ILR 21 Cal 401 (403) (Trevelyan & Rampini, JJ.).

2. Ram Chand v. Hanif Sheikh, 1893 ILR 21 Cal 401 (403).

77.16. Examination of co-accused.-

Since cross-examination is described in the section in terms of the right of an "adverse party", the answer depends on the meaning of that expression. On the question whether an accused person who gives evidence on his behalf can be cross-examined by any of the other co-accused, neither the Evidence Act nor the Code of Criminal Procedure seems to contain a specific provision. Though there is no reported decision on the subject, we can, having regard to the words "adverse party", assume that if one accused has given evidence against any other co-accused-that is to say, evidence implicating him,-then the co-accused can claim the right of cross-examination of the accused who has given such implicatory evidence. But where the accused giving evidence has not given such implicatory evidence and their defences do not clash, is it permissible?

77.17. Position in England.-

This question has arisen in England, and the currently accepted view is that even in such a case there is a right to cross-examine the accused at the instance of the co-accused.1 The position has been stated by Cross2 in these terms:-

"All parties have the right to cross-examine the witnesses not called by them whether or not the witness himself is a party, whether or not the witness was given evidence against the party seeking to cross-examine him and even though the witness is a co-accused."

The case of R. v. Hilton, (1971) 3 AU ER 541 (543), and the observation of Lord Morris in an earlier case of Murdock v. Taylor, (1965) 1 All ER 406: (1965) 2 WLR 425 (HL), before the House of Lords, also indicate a trend in this direction. Take the analogy of defendants, in the case of Lord v. Colvin, 3 Drew 222, the Vice-Chancellor consulted the whole of the Judges, and said: "The opinion of the whole of the Judges is that a defendant may cross-examine a co-defendant's witness." In Allen v. Allen, 1894 PD 248 (254), Lopes, L.J. after quoting this decision, observed:

"If a defendant may cross-examine his co-defendant's witnesses, a fortiori, he may cross-examine his co-defendant, if he gives evidence. If it is objected that there is no issue between a respondent and a co-respondent, the answer is that in most cases there is no issue between defendants, but still the right to cross-examine exists; In our judgment, no evidence given by one party affecting another party in the same litigation can be made admissible against that other party, unless there is a right to cross-examine, and we are at a loss to see why there should be any deviation from that rule in the Divorce Court."

1. R. v. Hilton, (1971) 3 All ER 541 (543), (Court of Appeal, Criminal Division).

2. Cross Evidence, (1974), p. 227.

77.18. In England, therefore, it would appear that when a witness has been intentionally called and sworn by either party, any other party has a right, if the examination-in-chief is either waived or closed, to cross-examine him. Or, to state the matter more neatly, any witness may be cross-examined by any party who did not call him.1

1. Phipson Manual of Law of Evidence, (1972), pp. 282-283.

77.19. The right, therefore, of a defendant to cross-examine a co-defendant is, according to the English cases, unconditional and not dependent upon the fact that the cases of the defendant and co-defendant are adverse, or that there is an issue between the defendant and his co-defendant.1 If a defendant may cross-examine a co-defendant's witnesses, a fortiori, he may cross-examine his co-defendant, if the co-defendant gives evidence.2

1. Lord v. Colvin, 3 Drewery 222, followed in Allen v. Allen, 1894 PD 222.

2. Allen v Allen, 1894 PD 222 (254).

77.20. It is well settled in England that the evidence of one party cannot be received in evidence against another party unless the latter had an opportunity of testing the evidence by cross-examination1. It has been held2 that all evidence taken, whether in examination-in-chief or any cross-examination, is common and open to all the parties. Since all evidence is common and that which is given by one party may be used for or against another party, it follows that the other party must have the right to cross-examine him.

Of course, the above proposition may require qualification where the law of evidence itself lays down limitations as to the parties against whom particular evidence can be used-e.g. admissions. Thus, in a suit for divorce, the fact3that the co-respondent's counsel has raised questions in cross-examination upon the contents of letters which had properly been admitted as evidence against the respondent, does not make the letters evidence against the co-respondent, since the respondents admission are no evidence against a co-respondent. But the general position is as stated above.

1. Allen v. Allen, 1894 PD 248 (254).

2. Lord v. Colvin v. Brewery 222, cited by Woodroffe.

3. Vrasa PiHai v. Ellieamsi, (1925) 52 IA 372: AIR 1925 PC 229.

77.21. Position in India.-

The points raised above relating to the accused and co-accused do not seem to have arisen in any reported case in India in criminal trials. However, on general principles, one could state that the position in India may not be substantially different. Irrespective of the question whether a defence witness has, in his examination-in-chief or cross-examination by the prosecution, given evidence unfavourable to the co-accused, the co-accused should be regarded as an "adverse party". Once a person is before the court, all other parties have the right to utilise his knowledge of facts.

77.22. As regards civil cases in India, the current view seems to be that, even if there is no issue between the co-defendants, each defendant has a right to cross-examine a witness of the other defendant.1 Although sometimes it is stated that the right exists where a defendant's witness has made a statement injurious to another defendant, it would appear from the text books and authorities cited that the right exists even if he does not make any such injurious statement.2 The position could hardly be different in criminal cases. How far an accused person can, in his cross-examination, be asked questions not relevant to the facts in issue but throwing reflections on his character, is a matter which is governed by a special provision,3 in England. This will require consideration later.4

1. Des Raj v. Puran Mul, AIR 1975 Del 111, para. 16 (Sachar, J.).

2. Sohan Lai v. Gulab Chand, AIR 1966 Raj 229 (232), para. 27 (Jagat Narain, J.).

3. Section 1(f)(iii), Criminal Evidence Act, 1898, (English).

4. Sections 145 to 148.

VII. Conclusion

77.23. Conclusion-Section 138 to be amended.-

The above discussion does not show any need for amending section 137. As to section 138, only a verbal change is required. 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.

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