IMPORTANT POINT
The court clarified that relevancy of evidence governs cross-examination, and no blanket restrictions can be placed on questioning witnesses.

JUDGMENT :

(Ravindra Maithani, J.)

The challenge in this revision is made to an order dated 07.10.2023, passed in Sessions Trial No. 01 of 2023, State of Uttarakhand Vs. Pulkit Arya and others by the court of Additional Sessions Judge, Kotdwar, District Pauri Garhwal. By it, an application under Section 39 of the Indian Evidence Act, 1872 (“the Act”), moved by the prosecution has been allowed.

2. Heard learned counsel for the parties and perused the record.

3. The revisionist is put to trial, in Sessions Trial No.1 of 2023, State of Uttarakhand Vs. Pulkit Arya and others, in the court of Additional Sessions Judge, Kotdwar Pauri Garhwal (“the Trial”). During investigation, the data from the mobile phone of PW 23 was retrieved and sent to Forensic Science Laboratory for examination. It appears that the entire chat was given to the revisionist. Before PW 23 could be examined, an application was moved on behalf of the Special Public Prosecution with the following request:-

“It is therefore, more respectfully prayed that as the whatsapp chat has voluminous data and it is evident according to the INDIAN EVIDENCE ACT 1872 that evidence can only be given of the facts in issue and relevant facts hence in the light of this defence counsel must be barred to cross examine the PW 23 on those whatsapp chats which was prior to the joining date of the deceased in the alleged hotel because it hit by section 39 of the INDIAN EVIDENCE ACT 1872 and also infringes the article 21 The Constitution of India right to privacy of PW 23 and dignity of the deceased.

Such other orders be also passed as deemed fit and proper in facts and circumstances of the case in the interest of justice.”

4. After hearing the parties, by the impugned order dated 07.10.2023, the Court observed that as per prosecution the WhatsApp chats from the date, the deceased joined the resort till her death, are relevant and any chat prior to the deceased joining the resort would be violative of the privacy of the deceased. The Court further observed that it would be justified and as per law, if the defence ask questions on the relevant and related chats of the deceased and the witnesses. The Court also observed that as and when the defence will cross-examine the witness, the relevancy of the question would be examined and the prosecution may then raise objection, which may be decided accordingly.

5. Learned counsel appearing for the revisionist would submit that evidence is recorded as per the provisions of the Act. There cannot be any general blanket order restricting defence from asking questions before the cross-examination begins. It is argued that at the most, in case, any objection is raised with regard to any question during cross-examination that could be decided by the court during the course of examination. But, it is argued that in the impugned order, the Court has pre-decided the issue and has already observed that it would be justified and as per law that question may be asked with regard to related and relevant facts. It is also argued that the observation of the Court is against the provisions of Section 146 of the Act.

6. On the other hand, learned counsel appearing for the State would submit that the impugned order is as per law. He would submit that the court has not pre-judged any issue. The Court has observed in the impugned order that as and when any objection is raised with regard to any question that may be asked in cross-examination, it shall be decided at that stage.

7. Essentially, the application was filed by the prosecution under the provisions of Section 39 of the Act, which is as follows:-

“39. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.- When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electroni