Monday, 20 January 2020

Whether cross examination should be restricted to what witness has stated in his examination in chief?

In Yeshpal's case (Supra) it has been observed that,
“While Courts will not ordinarily interfer with the proper exercise of the
right of cross-examination the Courts have the power and authority to
control the cross-examination of a witness”.
This Court is not agreeing with the submission by learned Advocate
for petitioners that, the Court cannot control the cross-examination
or he has free hand at the time of cross-examining the witness of
the prosecution; but then agree to the submission that the crossexamination
need not be restricted to what the witness has stated in
his examination-in-chief. A balance has to be struck here while
issuing directions to the learned Additional Sessions Judge that he
has to decide the relevancy of the question which he may get
explained from the learned advocate for the accused orally and then
allow him to put the said question to the witness. On any count

learned Additional Sessions Judge will not be justified in entirely
putting the shutter down while disallowing of the questions and
asking the defence advocate to restrict himself while crossexamining
P.W.18 to the post mortem examination report Exhibit
216, sketch Exhibit 217 and certificate Exhibit 218. It is, therefore,
again clarified that neither the learned advocate for the accused has
unfettered right to put any question to the witness in the crossexamination
but at the same time the learned Additional Sessions
Judge shall also not restrict him in putting questions in the cross to
the above referred documents only. There might be certain
questions which would be beyond those documents and as an expert
they are required to be elucidated from him. No straight jacket
formula can be laid down as to what should be permitted and what
should not be permitted as it depend upon the question that would
be put and the relevancy and admissibility of the same and / or of
the admissibility will have to be decided at that time. Definitely the
learned Additional Sessions Judge is guided by the procedure laid
down in Bipin Panchal’s case (Supra), and it is specifically laid down that,
it may be advantages for the Appellate Court in future. He has to
bear those advantages which have been laid down in para No.15 of
the case, in mind while recording the evidence.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1764 OF 2019

 Sanjay Shankar Bhalkar, Vs The State of Maharashtra. 

CORAM : SMT.VIBHA KANKANWADI, J.

Dated  : 13-01-2020.


1. Present petition has been filed by the original accused persons
challenging the order in deposition of P.W.18 (Exhibit 215) in para
No.14 and 15 in Sessions Case No.153 of 2015, by learned

Additional Sessions Judge, Aurangabad on 04-10-2019. Application
No.3620 of 2019 has been filed by the original informant for
intervention.
2. The present petitioners–original accused persons are facing
charge under Section 302 read with 34 of Indian Penal Code in the
said case. The prosecution has examined P.W.18 Dr. Kailash Zine
who had conducted the autopsy. His examination-in-chief is
complete and he is under cross-examination. It is contended in the
petition that, the post mortem report is exhibited as Exhibit 216 and
the diagram of injuries sketched and appended to the report are at
Exhibit 217. P.W.18 Dr. Kailash Zine had brought file of treatment
papers of the deceased and produced it before the Court before the
commencement of cross-examination of the said witness as those
papers were required by the defence. It is stated that, in post
mortem report Exhibit 216 in column No.5 it is stated that the
deceased was admitted to Government Medical College and Hospital,
Aurangabad in unconscious state at about 12.45 hours on 14-03-
2015 and during treatment he died on the same day around 16.05
hours in the hospital. It is stated that, the said fact is contrary to
the file of treatment on record, and therefore, the learned defence
advocate wanted to cross-examine the said witness in respect of

those papers. When the questions were asked, the learned Special
Public prosecutor had taken objection that, the said witness has no
knowledge about the contents of the document and he cannot
depose in respect of those documents. The learned Judge has
upheld the said objection and has not allowed the witness to answer
certain questions. The learned Judge had surprisingly endorsed the
scope of the evidence of the witness that it is restricted only to post
mortem report Exhibit 216, diagram Exhibit 217, and death
certificate Exhibit 218. It is stated that, the defence had not put any
questions regarding treatment given to the deceased, and therefore,
the learned Judge ought not to have restricted and prevented the
defence from putting further questions in respect of the documents.
Though the Judge may come to a conclusion that, the question is not
relevant at that stage, however possibility cannot be ruled out that
the said question may become relevant at the later stage, and
therefore, based on the decision in Bipin Shantilal Panchal v. State of
Gujrat And Another, reported in (2001) 3 Supreme Court Cases 1 : 2001 Supreme
Court Cases (Cri) 417, it was requested to the Court that, all the
questions be taken and subject to objections the answers be taken
and then the relevancy or admissibility of the questions may be later
on considered. But then rejecting the prayer of the advocate for the

defence to put certain questions will not amount to fair trial and,
hence, prayer is made for setting aside the impugned order and
direction have been sought to the trial Court to record all the
questions ans answers given by the witness during the crossexamination.
3. Heard learned advocate Mr. S. G. Ladda for petitioners and
learned Additional Public Prosecutor Mr. A. A. Jagatkar for
respondent – State assisted by learned advocate Ms. Rashmi S.
Kulkarni for the informant who filed application No.3620 of 2019 for
intervention.
4. The learned advocate appearing for the petitioners had drawn
the attention of this Court to the contents of Serial No.5 in post
mortem report Exhibit 216 and also the contents of the treatment
papers and submitted that, there are contradictions in these two
documents, which he wanted to bring on record and wanted to ask
certain questions which were definitely not in respect of what kind of
treatment was given and why certain treatment was not given. The
said document regarding treatment papers was brought by the
concerned witness, and taking into consideration the fact that they
were the treatment papers, learned advocate for the accused

wanted to put certain questions. When the question was asked as to
whether there was anything to hide in the papers of treatment; the
learned Special Public Prosecutor raised objection contending that
the witness is not the author of that document nor he had given
treatment to the deceased. The learned Judge has endorsed that
the scope of the evidence of the said witness i.e. P.W.18 is restricted
to the post mortem report Exhibit 216, diagram of injuries sketched
Exhibit 217 and certificate Exhibit 218. Any first aid or immediate
treatment was not under the supervision of the witness nor he has
deposed about it in his examination-in-chief, and therefore, the
objection was sustained, that means the questions were not allowed
to be put. Same happened when it was asked to him as to whether
he had not understood the contents of the treatment papers. The
said question has then been disallowed by the learned Judge. The
learned Judge cannot control the cross-examination in such a way
and take away the vital right of the accused to bring truth on record
by way of cross-examination. It was also requested to the learned
Judge that, in view of the procedure laid down in Bipin Panchal’s case
(Supra) the evidence may be recorded even after the objection is
raised so that the Appellate Court should be benefited, if it is found
at a later stage that any question was or questions were relevant.

With a limited purpose that the Court should be accordingly directed,
the petition has been filed.
5. Per contra, the learned Additional Public Prosecutor submitted
that, the witness had specifically stated that, he had not given
treatment to the deceased then questions in respect of contents of
the document could not have been put to the said witness. Those
papers were produced by the said witness on the request of the
learned advocate for the defence. Therefore, the learned Judge was
justified in upholding the objection raised by the learned Special
Public Prosecutor. Learned Advocate for the accused persons can not
ask any question which is not relevant. The Court has power to
control the cross-examination.
6. At the outset it can be seen that, the point raised in this
petition pertains to the regular work of those Courts, where the
evidence of witness is recorded. As regards the recording of
evidence of a witness is concerned, the Courts are mainly guided by
the Evidence Act and various pronouncements of the Hon’ble
Supreme Court and High Courts. It is a regular scene, mostly in
criminal cases that, to the questions asked in cross-examinations,
objections are raised and then Courts are required to consider those

objections. Here the examination-in-chief of P.W.18 Dr. Kailash
would show that, he has stated that he had conducted the autopsy
of the deceased and then during the course of his examination-inchief
the post mortem report, the sketch appended to it and the
death certificate came to be exhibited. When it was the turn for the
cross-examination, it appears that prior to his entry in the witness
box, on the request of the learned advocate for the accused, he had
produced the treatment papers. Pursis to that effect has been filed
at Exhibit 222.
7. Learned advocate for the defence has pointed out Serial No.5
column of the post mortem report Exhibit 216 and then it was stated
that it mentions about unconscious state of the deceased when he
was brought to Mortuary of Government Medical College and
Hospital Aurangabad. At the first place it is to be noted that the
second column of serial No.5 states that,
“Substance of accompanying report from Police Officer or Magistrate,
together with the date of death if known. Supposed cause of death or
reasons for examination.”
That means, it was in respect of the substance to be written, of the
report stated by Police Officer or Magistrate in the accompanying
report together with the other particulars. It is the usual practice

that, when a dead body is sent for autopsy, it would be with a report
submitted by the police to the medical officer. Therefore, in view of
the said requirement stated in second column, the third column
states that,
“As per police inquest and requisition letter, the deceased had alleged
history of assault at Hrideya farm, Jatwada Road, Aurangbad on
14/03/2015 at 12.45 hrs and sustained injuries and became
unconscious was brought to GMCH, Aurangabad. He was admitted in
Truama ward for treatment. During treatment he died on 14-04-2015 at
16.05 p.m.”
Thus, the said answer was based on the police inquest and
requisition letter.
8. It is to be noted that, though the treatment papers were
produced by the said witness P.W.18 Dr. Kailash, they were not
exhibited when the learned advocate for accused had started the
cross-examination. But still he wanted to cross-examine the witness
based on the contents of the said document. Further, it can be
clearly seen from the record i.e. the deposition part, that the form of
the question from where the objections began put forward by
learned advocate for the accused was wrong. When the witness had
brought those documents from the official custody of the hospital
and if at all there was no attempt on the part of the police to seize

those documents, the witness could not have been held in any way
responsible for the non production of the document. But then the
question was asked, “Is there anything to be hide from the papers which you
have brought today ?”. Learned advocate for the accused ought to have
seen that if there was anything to hide, the witness would not have
produced it, but then since the document was produced, there was
in fact no occasion for him to ask this question. Therefore it can be
said that the form of the question was wrong. The objection that was
raised by the learned Special Public Prosecutor appears to be in
respect of the scope of the witness on the ground that the witness
had not given the treatment and he had no knowledge about the
document. In fact the concerned witness should say that, he has no
knowledge of that document and in any way it could not have been
said by the learned Special Public prosecutor. The learned Additional
Sessions Judge went on to observe that, the scope of the evidence
of the witness is restricted to certain documents and when the
witness has not deposed earlier about his knowledge of admission of
the deceased in the hospital, then the question relating to treatment
are not relevant and cannot be put to the witness. Here the learned
Sessions Judge could not have put entire shutter down in respect of
putting forth the questions but then he was supposed to consider the

relevancy of the question first. While deciding the relevancy of the
question it could not have been travelled beyond the limits laid down
by the law. In certain cases the cross cannot be limited to the
contents of the examination-in-chief. It may go beyond that as the
purpose of the cross-examination is to test the veracity or impeach
the credit of the witnesses.
9. Here the observations from the decision in Ram Bihari Yadav v.
State of Bihar and Others, reported in AIR 1998 SC 1850 : 1998 Criminal Law
Journal 2515 are noted ;
“More often the expressions 'relevancy and admissibility' are used as
synonyms but their legal implications are distinct and different for more
often than not facts which are relevant are not admissible; so also facts
which are admissible may not be relevant, for example, questions
permitted to be put in cross-examination to test the veracity or impeach
the credit of witnesses, though not relevant are admissible. The
probative value of the evidence is the weight to be given to it which has
to be judged having regard to the facts and circumstances of each
case”.
Thus it is clear that, though the relevancy and admissibility are used
as synonyms terms, they are different and distinct. Therefore, the
relevancy and / or the admissibility will have to be judged from
different angles. Relevancy of the question, generally, comes first
and then admissibility is required to be decided.

10. After sustaining the first objection raised by learned Special
Public Prosecutor, when cross further proceeded, the witness i.e.
P.W.18 told that, he had gone through the papers i.e. the admission
papers of the deceased with the hospital. But then again the
question is asked, “Do you have any difficulty to answer questions relating to
these documents ?”, and the witness answered that, “He had not given
treatment to the patient.” Then again the question is asked, “Do you want to
say that you did not understood the contents of these documents ?”. Thereafter,
the Court disallowed the said question on the ground that since the
witness has already stated that he had not given the treatment to
the patient, no occasion arises for him to say anything about
contents of the document. It appears that, thereafter the learned
defence advocate insisted that the answer that might be given by
the witness be recorded and then he relied on Bipin Panchal’s case
(Supra). The learned Additional Sessions Judge observed that, the
ratio in Bipin Pancha’s case though made applicable, the question
cannot be allowed and there is no question to record the answer to
the said question which is disallowed. It is, therefore, necessary to
consider the ratio laid down in Bipin Panchal’s case ;
“13. It is an archaic practice that during the evidence collecting
stage, whenever any objection is raised regarding admissibility of any
material in evidence the court does not proceed further without passing

order on such objection. But the fall out of the above practice is this:
Suppose the trial court, in a case, upholds a particular objection and
excludes the material from being admitted in evidence and then
proceeds with the trial and disposes of the case finally. If the appellate
or revisional court, when the same question is re-canvassed, could take
a different view on the admissibility of that material in such cases the
appellate court would be deprived of the benefit of that evidence,
because that was not put on record by the trial court. In such a situation
the higher court may have to send the case back to the trial court for
recording that evidence and then to dispose of the case afresh. Why
should the trial prolong like that unnecessarily on account of practices
created by ourselves. Such practices, when realised through the course
of long period to be hindrances which impede steady and swift progress
of trial proceedings, must be recast or re-moulded to give way for better
substitutes which would help acceleration of trial proceedings.”
“14. When so recast, the practice which can be a better substitute is
this: Whenever an objection is raised during evidence taking stage
regarding the admissibility of any material or item of oral evidence the
trial court can make a note of such objection and mark the objected
document tentatively as an exhibit in the case (or record the objected
part of the oral evidence) subject to such objections to be decided at
the last stage in the final judgment. If the court finds at the final stage
that the objection so raised is sustainable the judge or magistrate can
keep such evidence excluded from consideration. In our view there is no
illegality in adopting such a course. (However, we make it clear that if
the objection relates to deficiency of stamp duty of a document the court
has to decide the objection before proceeding further. For all other
objections the procedure suggested above can be followed.)”

“15. The above procedure, if followed, will have two advantages.
First is that the time in the trial court, during evidence taking stage,
would not be wasted on account of raising such objections and the
court can continue to examine the witnesses. The witnesses need not
wait for long hours, if not days. Second is that the superior court, when
the same objection is re-canvassed and reconsidered in appeal or
revision against the final judgment of the trial court, can determine the
correctness of the view taken by the trial court regarding that objection,
without bothering to remit the case to the trial court again for fresh
disposal. We may also point out that this measure would not cause any
prejudice to the parties to the litigation and would not add to their
misery or expenses.”
“16. We, therefore, make the above as a procedure to be followed by
the trial courts whenever an objection is raised regarding the
admissibility of any material or any item of oral evidence.”
(Stress supplied by me)
11. It can be seen that the main point that was required to be
addressed in the above said case of Bipin Panchal was in respect of
question of admissibility of a document, and then while laying down
the procedure that is to be followed, Hon’ble Supreme Court has
stated that the Trial court can make a note of objection when an
objection is raised during evidence recording or oral evidence. That
means, the discretion is given to the Trial Court to take note of such
objection and to record the objected part of the oral evidence. Now
definitely the said discretion will have to be exercised judicially.

When the above said procedure was suggested or laid down, the
Hon’ble Supreme Court has not made it compulsory that all the
questions those would be put in the cross-examination, should be
recorded by the concerned Court. Hon'ble Supreme Court has also
used words “can make”. If interpretation is to be made that it has
been made compulsory, then the Courts will have no power to
control the process of evidence recording, which is not the intention
of the legislature. The scheme of Indian Evidence Act in respect of
examination of witnesses and the powers of the Court have been
aptly and correctly summarized by Hon’ble Delhi High Court
(M.L.Mehta, J.) in the decision between R. K. Chandolia v. CBI & Ors.,
reported in 2012 SCC Online Del 2047 : (2012) 3 DLT (Cri) 471.
“14. Under the scheme of Evidence Act, Chapter X deals with the
examination of the witnesses. Different kinds of responsibility are cast
on the judge in different provisions of this Chapter while recording
evidence. Then the Courts also have extensive powers for protecting the
witnesses from the questions not lawful in cross examination as set out
in Sections 146 to 153, Evidence Act. Under Section 136, the Judge has
not only to satisfy that the evidence that was to be led was relevant but,
in what manner if proved, would be relevant. It was only if he was
satisfied that the evidence, if proved, would be relevant, that he could
admit the same. If it is his duty to admit all the relevant evidence, it is
no less his duty to exclude all irrelevant evidence. Section 5 of the Act
also declares that "evidence may be given in any suit or proceedings of
the existence or non-existence of every facts in issue and of such other

facts as hereinafter will be declared to be relevant, and of no others.
From this, it comes out to be that the Judge is empowered to allow only
such evidence to be given as is, in his opinion, relevant and admissible
and in order to ascertain the relevancy of the evidence which a party
proposes to give, he may ask the party, in what manner, if evidence
proved, would be relevant and, he may then decide as to its
admissibility. In fact, the question of relevancy is of great nicety and
sometimes, great difficulty is felt by the Trial Judge in deciding question
of relevancy. Therefore, it is desired that in doubtful cases, he should
admit rather than excluding the evidence.
15. Section 137 gives a statutory right to the adverse party to crossexamine
a witness. Section 138 only lays down the three processes of
examination to which a witness may be subjected. It does not deal with
the admissibility of the evidence. It also provides that the examination
and cross-examination must relate to relevant facts, but the crossexamination
need not be confined to the facts to which the witness
testified in his examination-in-chief. Under this Section, the crossexamination
can go beyond the facts narrated in examination-in- chief,
but all such questions must relate to relevant facts. It is not that under
the right of cross examination, the party will have the right to ask
reckless, irrelevant, random and fishing questions to oppress the
witness. The "relevant facts" in cross examination of course have a
wider meaning than the term when applied to examination-in-chief. For
instance, facts though otherwise irrelevant may involve questions
affecting the credit of a witness, and such questions are permissible in
the cross examination as per Section 146 and 153 but, questions
manifestly irrelevant or not intended to contradict or qualify the
statements in examination-in-chief, or, which do not impeach the credit
of a witness, cannot be allowed in cross examination. It is well-

established rule of evidence that a party should put to each of a witness
so much of a case as concerns that particular witness.
16. It is experienced that sometimes, cross examination goes
rambling way and assumes unnecessary length and is directed to
harass, humiliate or oppress the witnesses. It is also experienced that
the Courts often either due to timidity or the desire not to become
unpopular or at times, not knowing its responsibilities and powers,
allow the reckless, scandalous and irrelevant cross examinations of
witnesses. In fact, in such situations, the court has the power to control
the cross examination. The court has a duty to ensure that the cross
examination is not made a means of harassment or causing humiliation
to the witness. While allowing latitude in the cross examination, court
has to see that the questions are directed towards the facts which are
deposed in chief, the credibility of the witness, and the facts to which
the witness was not to depose, but, to which the cross examiner thinks,
is able to depose. It is also well-established that a witness cannot be
contradicted on matters not relevant to the issue. He cannot be
interrogated in the irrelevant matters merely for the purpose of
contradicting him by other evidence. If it appears to the Judge that the
question is vexatious and not relevant to any matter, he must disallow
such a question. Even for the purpose of impeaching his credit by
contradicting him, the witness cannot be put to an irrelevant question in
the cross examination. However, if the question is relevant to the issue,
the witness is bound to answer the same and cannot take an excuse of
such a question to be criminating. That being so, it can be said that a
witness is always not compellable to answer all the questions in cross
examination. The court has ample power to disallow such questions,
which are not relevant to the issue or the witness had no opportunity to
know and on which, he is not competent to speak. This is in consonance

with the well-established norm that a witness must be put that much of a
case as concerns that particular witness.
17. A protracted and irrelevant cross examination not only adds to
the litigation, but wastes public time and creates disrespect of public in
the system. The court is not to act a silent spectator when evidence is
being recorded. Rather, it has the full power to prevent continuing
irrelevancies and repetitions in cross examination and to prevent any
abuse of the right of cross examination in any manner, appropriate to
the circumstances of the case. The court could have such a power to
control the cross examination apart from the Evidence Act as also the
Code of Criminal Procedure. Section 146 though relaxes the ambit of
cross examination and permits the putting of questions relating to the
trustworthiness of the witness, but such questions also must be relevant
for the purpose of impeaching the credit, though not to the issue. Under
the garb of shaking credit, irrelevant or vexatious questions cannot be
allowed, if they do not really impeach the credit of witness or do not
challenge the evidence given in examination-in-chief relating the matter
under enquiry. It is established proposition of law that if the question is
directly relevant i.e. if it relates to the matters, which are points in issue,
the witness is not protected to answer even it amounts to criminating
him but, if it is relevant only tending to impeach the witness's credit, the
discretion lies with the Judge to decide whether witness shall be
compelled to answer it or not. Generally, he will not be allowed to be
contradicted except in the cases under Section 153. In fact, Section 132,
146, 147 and 148 embrace whole range of questions, which can
properly be addressed to witness and these should be read together.
18. Thus, it can be said that the relevancy of evidence is of a twofold
character; it may be directly relevant in the bearing on,

elucidating, or disproving, the very merits of the points in issue.
Secondly, it can be relevant in so far as it affects the credit of a witness.
As regard the relevancy relating to a credit of a witness, the court has to
decide the same under Section 148 whether the witness is to be
compelled to answer or not or to be warned that he is not obliged to
answer. The Judge has the option in such a case either to compel or
excuse. The provisions of Section 148-153 are restricted to questions
relating to facts which are relevant only in so far as they affect the
credit of the witness by injuring his character; whereas some of the
additional questions enumerated in Section 146 do not necessarily
suggest any imputation on the witness's character. When we talk of the
relevancy of the questions relating to character, unnecessarily
provocative or merely harassing questions will not be entertained in
this class of questions.
19. As per Section 151 and 152, the questions which are apparently
indecent or scandalous or which appear to be intended to insult or
annoy or are offensive in form, are forbidden. Such questions may be
put either to shake the credit of witness or as relating to the facts in
issue. If they are put merely to shake the credit of the witness, the court
has complete dominion over them and to forbid them even though they
may have some bearing on the questions before the court. But, if they
relate to the facts in issue or are necessary to determine the facts in
issue existed, the court has no jurisdiction to forbid them. The court
cannot forbid indecent or scandalous questions, if they relate to the
facts in issue. It is because what is relevant cannot be scandalous.”
The above summary of the various provisions of the Evidence Act
and settled law, noted by the Delhi High Court is hereby endorsed

and would make it clear that, the Court has to control and have
power to decide the relevancy and admissibility of any question that
may be put to a witness.
12. Further decision in Inder Sain v. CBI Sector 30-A, Chandigarh, (CRR
No.2251 of 2018 decided by Hon’ble Punjab and Haryana High Court on 06-08-2018)
gives summary of those very provisions of the Evidence Act and the
observations therein are also relevant, and are required to be
endorsed which are as follows ;
“Different types of responsibilities are cast on the judge in different
provisions of this Chapter while recording evidence. The Courts also
have extensive powers for protecting the witnesses from the questions
which are not lawful in cross-examination as provided under Sections
146 to 153 of the Evidence Act. Under Section 136, the Judge is not
only to satisfy that the evidence which was to be led was relevant but, in
what manner if proved, would be relevant. Section 137 of the Evidence
Act gives a statutory right to the adverse party to cross- examine a
witness. Similarly, Section 138 of the Evidence Act lays down the three
processes of examination to which a witness may be subjected. It does
not deal with the admissibility of the evidence. It provides that 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 in his examination-in-chief. Under this Section, the
cross-examination can go beyond the facts narrated in examination-inchief,
but all such questions must relate to relevant facts. It does not
mean that under the right of cross- examination, the party will have the
right to ask irrelevant questions to oppress the witness. The "relevant

facts" in cross examination has a wider meaning than the term when
applied to examination-in-chief. For example, facts though otherwise
irrelevant may involve questions affecting the credit of a witness but
only such questions are permissible in the cross- examination as per
provision of Sections 146 and 153 of the Evidence Act. The irrelevant
question or not intended to contradict or qualify the statements in
examination-in-chief, or, which do not impeach the credit of a witness,
the same cannot be allowed in cross-examination. Irrelevant crossexamination
not only adds to the litigation, but wastes public time. The
Court is not to act as a silent spectator when evidence is being
recorded. The Court has full power to prevent continuing irrelevant
questions and repetition in cross-examination and also to prevent any
abuse of right of cross-examination. The Court is having power to
control the cross-examination apart from the Evidence Act as also the
Code of Criminal Procedure. Section 146 of the Evidence Act though
relaxes the ambit of cross-examination and permits the putting of
questions relating to the trustworthiness of the witness, but such
questions must be relevant for the purpose of impeaching the credibility
of the witness.
It has been held in various judgments of Hon'ble the Apex Court as
well as of this Court that trial Judge is the best Judge to decide the
relevancy of questions put by the defence counsel during crossexamination
of a witness.”
Thus, it has been reiterated in Inder Sain’s case above that, the trial
Court is the best judge to decide the relevancy of the questions put
up by the defence counsel during cross- examination of a witness. In
addition to what has been covered in the above decisions One more

fact that is required to be considered is that, some times
intentionally vague questions are put or they are asked in loud voice
so that the witness would answer it in fear. Then definitely the
control of the cross-examination will have to be in the hands of the
Trial Judge. There may also be misleading questions or the questions
are not understood due to language barrier. It is the duty of the
Court to see that the witness understands the questions and then it
should be left to the witness to answer the same.
13. In, Annubeg Mukimbeg Musalman and another v. Emperor, reported in
1944 SCC OnLine MP 78 : AIR 1944 Nag 320 : 1945 Cri LJ 601, it is observed
that,
“8. The cross-examination of a witness is always a difficult matter.
The counsel thinks out before hand on what point the cross-examination
will be directed, but the cross-examination can never follow a
prearranged plan. The cross-examination has to be mounded
according to the nature of the answers given by the witness and the type
of the witness a cross-examiner has to deal with. It requires great skill
and resourcefulness on the part of counsel. If he is not permitted to
cross-examine freely then the effectiveness of the cross-examination is
marred……….”
14. Decision of this Court in Yeshpal Jashbhai Parikh v/s. Rasiklal
Umedchand Parikh, reported in 1954 SCC OnLine Bom 145 : (1955) 57 Bom LR
282, is also relevant on the point involved in the petition. Note of

certain earlier decisions right from Privy Council were taken. In
Vassiliades v/s. Vassiliades, reported in [1945] AIR PC 38 it was observed
that ;
“No doubt cross-examination is one of the most important processes for the
elucidation of the facts of a case and all reasonable latitude should be
allowed, but the Judge has always a discretion as to how far it may go or
how long it may continue. A fair and reasonable exercise of his discretion
by the Judge will not generally be questioned”.
15. In Yeshpal's case (Supra) it has been observed that,
“While Courts will not ordinarily interfer with the proper exercise of the
right of cross-examination the Courts have the power and authority to
control the cross-examination of a witness”.
This Court is not agreeing with the submission by learned Advocate
for petitioners that, the Court cannot control the cross-examination
or he has free hand at the time of cross-examining the witness of
the prosecution; but then agree to the submission that the crossexamination
need not be restricted to what the witness has stated in
his examination-in-chief. A balance has to be struck here while
issuing directions to the learned Additional Sessions Judge that he
has to decide the relevancy of the question which he may get
explained from the learned advocate for the accused orally and then
allow him to put the said question to the witness. On any count

learned Additional Sessions Judge will not be justified in entirely
putting the shutter down while disallowing of the questions and
asking the defence advocate to restrict himself while crossexamining
P.W.18 to the post mortem examination report Exhibit
216, sketch Exhibit 217 and certificate Exhibit 218. It is, therefore,
again clarified that neither the learned advocate for the accused has
unfettered right to put any question to the witness in the crossexamination
but at the same time the learned Additional Sessions
Judge shall also not restrict him in putting questions in the cross to
the above referred documents only. There might be certain
questions which would be beyond those documents and as an expert
they are required to be elucidated from him. No straight jacket
formula can be laid down as to what should be permitted and what
should not be permitted as it depend upon the question that would
be put and the relevancy and admissibility of the same and / or of
the admissibility will have to be decided at that time. Definitely the
learned Additional Sessions Judge is guided by the procedure laid
down in Bipin Panchal’s case (Supra), and it is specifically laid down that,
it may be advantages for the Appellate Court in future. He has to
bear those advantages which have been laid down in para No.15 of
the case, in mind while recording the evidence.

16. Application for intervention stands allowed and with the abovesaid
observations the writ petition is disposed of and also with the
direction that, henceforth the learned Additional Sessions Judge
would be guided by the above said decisions in recording the
evidence.
(SMT. VIBHA KANKANWADI)
JUDGE

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