Examination In Chief Of Witnesses Without Recording Their Cross-Examination Is Contrary To Law: Supreme Court

The Supreme Court (on March 18) observed that recording only the examination in chief of witnesses without recording their cross-examination is contrary to the law. To strengthen this, the Court also referred to Section 138 of the Indian Evidence Act of 1872, which outlines the examination order of witnesses. As per this provision, the witnesses are required to be first examined-in-chief, cross-examined, and then re-examined. In this respect, the Court also noted that though in warrant cases, cross-examination of witnesses can be postponed, that is also an exception to the ordinary practice of law. It may be noted that a warrant case relates to offences punishable by death, imprisonment for life, or imprisonment for a term exceeding two years. The Division bench of Justices Abhay S. Oka and Ujjal Bhuyan was hearing a bail application of appellants who were charged, among other things, with cheating under several sections of the Information Technology (Amendment) Act, 2008. Having been unsuccessful in securing bail from the High Court, the accused persons/ appellants approached the Supreme Court. While the Top Court was hearing the case, it was apprised that the Trial Court recorded the examination-in-chief of 12 prosecution witnesses one after the other on different dates without recording their cross-examination. Against this backdrop, the Court asked to submit a report. After perusing the same, the Court came to know that the High Court had directed the Trial Court to submit a report within four months. The report also disclosed that no advocate was present for the appellant while the evidence of prosecution witnesses was being recorded. This was because the appellants had not engaged any advocate. In this respect, the Court pointed out the discrepancy in this approach. The Court observed that during the examination in chief of prosecution witnesses, the accused, through his advocate, has a right to object to the leading or irrelevant question being asked to the witnesses. Thus, the Trial Court should have provided the legal aid to the appellants. “Before recording the examination-in-chief of the first prosecution witness, after finding that the appellants-accused had not engaged any Advocate, the Trial Court ought to have provided a legal aid Advocate to the appellants accused so that the evidence of the prosecution witnesses could have been recorded in the presence of the Advocate representing the appellants-accused. The order sheet enclosed with the report does not record that the appellants declined to accept the services of a legal aid lawyer.,” the Court stated. Based on this, the Court observed that if the trial is conducted in such a manner, an argument of prejudice will be available to the accused. Adverting to the timeline fixed by the High Court, it opined that the Trial Court could seek an extension of the same. “The learned Judge seems to have adopted this method only because the High Court had fixed a time-bound schedule for the case disposal. He could have always sought an extension of time from the High Court. Therefore, recording only the examination-in-chief of 12 prosecution witnesses without recording cross-examination is contrary to the law.” In view of this, the Court directed the Trial Court to conduct a de novo trial and provide legal aid to the appellants. Also, considering that the appellants have been in custody for around a year, the Court granted them bail. The Court also clarified that the bail is subject to stringent terms and conditions, including the condition of depositing the appellants' passports. Case Title: EKENE GODWIN & ANR v. STATE OF TAMIL NADU.Citation : 2024 LiveLaw (SC) @61 Click here to read/ download the judgment

Examination In Chief Of Witnesses Without Recording Their Cross-Examination Is Contrary To Law: Supreme Court

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Examination In Chief Of Witnesses Without Recording Their Cross-Examination Is Contrary To Law: Supreme Court

Gyanvi Khanna

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