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Defendant's right to cross examine witness of co-defendant:

by Rakesh Kumar Singh

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This is an interesting issue though rarely arises in the day to day trial of cases.
Nevertheless, such issue may arise and therefore needs to be addressed properly.
The present paper would be humble attempt to understand the concept with clarity.

2. It is the Evidence Act, 1872 which primarily deals with the concept of
evidence in a court. It also provides as to how a person who appears in the court
as a witness shall be dealt with.

Section-138 reads as under:

"Order of examination" Witnesses shall be first examined in chief, then (if the
adverse party so desires) cross examined, then (if the party calling him so desires)
re-examined.

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
on his examination in chief.

Direction of re-examination. "The re-examination shall be directed to the

explanation of matters referred to in cross examination; and, if new matter is, by
permission of the Court, introduced in re-examination, the adverse party may
further cross examine upon that matters.

3. It immediately becomes clear that once a person appears as a witness, he

has to go through three stages, examination-in-chief, cross examination, re-
examination.

First stage is mandatory but the second and third stages indicate that they are not
mandatory with certainty as an expression if.....so desires has been used in the
context of other stages.

Defendant's right to cross examine witness of co-defendant: prepared by Rakesh Kumar Singh
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4. Since, in the present paper we are talking about the right of cross
examination, we will only look into the second stage. It suggests that after the
witness is examined in chief, he shall be cross examined.

The only rider is that there must be a desire of adverse party to do so and nothing
else. Once, the adverse party expresses his desire, there would be no discretion
left with the court except to permit him to cross examine the witness.

5. The crucial question therefore is as to whose desire is indicated in the

Section-138. Of course, it is of the adverse party. It is elementary. For existence of
adverse party there is a need for existence of the first party to whom the other
one will be adverse. Who then is the first party? Simple. He who examined the
witness at first stage i.e. examination in chief. Fortunately, this expression is a
defined term in the Evidence Act.

Section-137 reads as under:

"Examination in chief. The examination of a witness by the party who calls him
shall be called his examination in chief.

Cross examination. "The examination of a witness by the adverse party shall be

called his cross examination.

"Re-examination" The examination of a witness, subsequent to the cross

examination by the party who called him, shall be called his re-examination.

6. Definition of examination-in-chief suggests that it is done by the party

who calls the witness. Cross examination is defined as the examination done by
the adverse party. Clearly, first party will conduct examination-in-chief and the
adverse party will conduct cross examination.

7. Now, we can say that two party will be in existence, one is the party and
the second is the adverse party. Interestingly, however, the provisions are only
talking about the existence of the parties but nowhere are indicating as to which
side both the parties will exist in a given case.

Defendant's right to cross examine witness of co-defendant: prepared by Rakesh Kumar Singh
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8. At the first blush, anyone can say that first party will exist on one side and
the adverse party will exist on the opposite side as normally all cases arise out of
allegation of one party against the other who becomes the opposite party.

However, there is no justification at all. The provisions are not supporting such
proposition that first party and adverse party will exist opposite to each other.
Rather, the provisions have not even used any expression such as opposite party.

9. As such, the first party and the adverse party in a peculiar situation may
exist on the same side of the case.

10. The term adverse party however is not defined in the Evidence Act.
Therefore, we need to understand the term in the manner in which it is generally
used. How a party can say that it is adverse to another.

Simple. If a witness produced by one party depose such facts which goes contrary
to the stand taken by another party or affects his interest in the case in any manner,
such another party can say that he is adverse to the party who has produced such
witness.

11. This understanding also shows that adverseness may arise at any stage
of the proceeding of a case. Two parties of a case may not be adverse to each
other at the beginning of the case but may subsequently for numerous reasons
become adverse.

12. Keeping the aforesaid in mind, we may now try to comment on the issue
involved i.e. right of a defendant to cross examine a witness produced by the co-
defendant. Take a situation where in a given case, P is plaintiff and D1 & D2
are defendants. D1 is fully contesting the plaintiff claim but D2 is only partly denying
the plaintiff claim. D2 brings a witness to depose in the case. His examination in
chief supports some of the claims made by the plaintiff.

Needless to say that the plaintiff will utilize such testimony in his favour. But the

Defendant's right to cross examine witness of co-defendant: prepared by Rakesh Kumar Singh
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same will go against the interest of D1. How then the court can allow such
testimony to go untested through a proper cross examination done by the real
adverse party. D1 may not have grievance against the entire testimony of witness
of D2 but he may have real apprehension in respect of a portion of the testimony
which is against his interest.

Obviously, the plaintiff would not be interested in impeaching the witness on such
material points which go against D1. A court cannot allow such testimony to go
untested. In such a situation D1 can certainly claim himself to be adverse to D2
who produces the witness and therefore as an adverse party, D1 can certainly
express his desire to cross examine such witness.

13. Now, after citing the bare provisions which supports the aforesaid view, we
may cite supporting judgments.

14. In Des Raj Chopra vs Pooran Mal 11 (1975) DLT 63 dated 27.08.1974
Hon'ble Delhi High Court has held as It will thus be seen that the view of the
Additional Rent Controller that simply because one of the pleas taken by the
respondent No. 3 and petitioners is common, the later can be denied the basic
right to cross examine the witnesses produced by respondent No. 3 is supported
neither by precedent nor by any principle or law and must be rejected. It may also
be noted that the evidence that is being taken is common to all the parties in the
case, and if the evidence of RW 7 is to be treated as admissible, the same can
only be done if an opportunity has been given to all the parties including the
petitioner to cross examine him.

Once the petitioner is refused permission to cross examine-R.W. 7 his evidence

would be inadmissible.

That is the another reason why I feel that denial of opportunity to the petitioner to
cross-examine R.W. 7 was not only manifestly illegal but would have created
complications and would really amount to permitting evidence to be taken which
later on would have to be declared inadmissible.

Defendant's right to cross examine witness of co-defendant: prepared by Rakesh Kumar Singh
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15. In Saroj Bala vs Dhanpati Devi . AIR 2007 DEL 105 Hon'ble Delhi High
Court has held as On consideration of the submissions made by learned Counsel
for the petitioner, I am of the view that the same are meritorious and the trial Court
fell into a jurisdictional error in failing to exercise jurisdiction vested in it by law. The
right of the petitioner (original defendant No. 7) to cross examine the witnesses of
the remaining defendants could not be shut out....

16. In Bhajinder Singh vs Hardev Singh CM(M) 740/2016 dated

17.02.2017, Hon'ble Delhi High Court held as Hence, what these sections provide
is that the cross-examination is to be done by an adverse party. In the present
case, the adverse party is the petitioner as the SDMC is supporting the case of
respondent No.1/plaintiff. The cross-examination by respondent No.1 of the
witness of the SDMC would not have much relevance.

17. Other High Courts such as Bombay, Karnataka, and Rajasthan have taken
the similar view.

18. We may therefore say with certainty that a defendant may express its
desire to cross examine a witness produced by other defendant and may cross
examine such witness on the premise that he is an adverse party.

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Defendant's right to cross examine witness of co-defendant: prepared by Rakesh Kumar Singh