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2018 Supreme(P&H) 1005
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ANIL KSHETARPAL, J.
Dera Baba Ram Chandergir and another - Petitioners
Versus
Haridev Bharti and others - Respondents
CR No.8743 of 2017 (O&M)
Decided on : 23-01-2018
Advocate Appeared:
For the Appellant :Mr. Lajpat Sharma, Advocate
For the Respondent:Mr. Pankaj Bali, Advocate
The court has the discretion to permit a party to put questions to their own witness, which might be put in cross-examination by the adverse party, as provided in Section 154 of the Evidence Act.
Headnote:
Hostile Witness - Examination of Witness - The court declared the witness as hostile and granted permission to cross-examine him, citing Section 154 of the Evidence Act and the interpretation provided by the Supreme Court in the case of Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat.
Fact of the Case:
Plaintiffs-petitioners sought to declare a witness as hostile and cross-examine him, but the trial court declined their request, stating that the witness had been partly cross-examined by the defendants.
Finding of the Court:
The court set aside the trial court's order, declared the witness as hostile, and granted permission for cross-examination, allowing the plaintiffs to tender documentary evidence as well.
Issues: Request to declare a witness as hostile, permission for cross-examination, and tendering of documentary evidence.
Ratio Decidendi: The court relied on Section 154 of the Evidence Act and the interpretation provided by the Supreme Court in the case of Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat to declare the witness as hostile and grant permission for cross-examination.
Final Decision: The order under challenge was set aside, and the revision petition was allowed, granting the plaintiffs permission to cross-examine the witness and tender documentary evidence.
ANIL KSHETARPAL, J.
1. Plaintiffs-petitioners are in the revision petition against the order dated 20.09.2017 declining their request to declare PW-9 Mukesh Kumar, a witness as hostile and grant opportunity to the plaintiffs to cross-examine him.
2. Learned trial Court has refused to declare Mukesh Kumar, PW- 9 as hostile on the ground that since Mukesh Kumar has been partly cross-examined, therefore, now Mukesh Kumar is a witness of the defendant and the plaintiffs at this stage cannot be permitted to get the witness declared hostile and hence, no permission to cross-examine him can be granted.
3. Section 154 of the Evidence Act deals with such situation. It is extracted as under:-
“Question by party to his own witness – The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.
[Nothing in this section shall disentitle the person so permitted under sub-section (1), to reply on any part of the evidence of such witness].”
4. A reading of the Section 154 does not restrict the operation of the provision to a particular stage in the examination of a witness. A witness can be got declared hostile during the examination which includes examination-in-chief as well as cross-examination.
5. Hon'ble Supreme Court in AIR 1964 (SC) 1563 titled 'Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat' has already dilated upon this aspect and held as under:-
“Section 154 does not in terms, or by necessary implication confine the exercise of the power by the court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the court to exercise the power when the circumstances demand. To confine this power to the stage of examination-in-chief is to make it ineffective in practice. A clever, witness in his examination-in-chief faithfully conforms to what he stated earlier to the police or in the committing court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If his design is obvious, we do not see why the court cannot, during the course of his cross-examination, (sic-reexamination) permit the person calling him as witness to put questions to him which might be put in cross-examination by the adverse party. To confine the operation of Section 154 of the Evidence Act to a particular stage in the examination of a witness is to read words in the section which are not there. We cannot also agree with the High Court that if a party calling a witness is permitted to put such questions to the witness after he has been cross-examined by the adverse party, the adverse party will not have any opportunity to further cross-examine the witness on the answers elicited by putting such questions. In such an event the court certainly, in exercise of its discretion, will permit the adverse party to cross-examine the witness on the answers elicited by such questions. The court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination-in-chief. In the present case what happened was that some of the witnesses faithfully repeated what they had stated before the police in the examination-in-chief, but in the cross-examination they came out with the story of insanity of the accused. The court, at the request of the Advocate for the prosecution, permitted him to cross-examine the said witness. It is not suggested that the Advocate appearing for the accused asked for a further opportunity to cross-examine the witnesses and was denied of it by the court.”
6. In view of the aforesaid, the impugned order passed by the learned
