This article is written by Kanya Saluja from the Institute of Law, Nirma University. The article talks about the power of the court to order re-call and the re-examination of witnesses.
Table of Contents
Introduction
Re-examination has been broadly and on occasion, threateningly utilized by lawyers and law researchers. Enthusiastic conversations have occurred over the authenticity and need of recalls and re-examinations of witnesses when they have already been examined and cross-examined. At the point when a procedural area of law is encircled by incessant varying opinions, it becomes necessary to recognize the eventual outcomes that come with these conflicting suppositions. Therefore, the imperativeness of the results and questions, which tag along the law of re-examination should be managed.
Two significant inquiries that spring up with the current remain of the law concerning recall and re-examination, are:
- When is it appropriate to recall a witness?
- What is the role of a judge? Is it accurate to say that he or she is a searcher of truth or a mere mediator?
Order 18 Rule 17 of the Civil Procedure Code manages recall and re-examination of a witness by a court. The aforementioned rule expresses that: The court may at any phase of a suit recall any witness who has been examined and may (subject to the law of evidence in power) put such inquiries to him as the court might suspect fit.”
Alongside the aforesaid rule, Section 151 of the Civil Procedure Code and Sections 138 and 154 of the Indian Evidence Act are related to the recalling and re-examination of the witness by the court. These laws have been referred to and examined as and when required during the trailing conversation.
The proper circumstance to recall a witness
Even though there exists a settled provision about the vulnerabilities and questions that surface with the use of ‘may’ under “Order” 18 Rule 17, there still exists a few obscurities that haven’t been managed down the middle with as much detail. Indeed, even as the presence of a decision to the court to recall and re-analyze a witness remains clear, the ideal chance to settle on the decision isn’t discussed enough. While the law, verbally, states that the judge has the power to re-analyze ‘at any stage’ of the procedures, a mooting banter exists concerning the perfect time joined by the need for recalling and re-looking at the witness.
While lawyers, more often than not, have raised this pondering during the court procedures, researchers of the subject haven’t occupied with a guideline conversation of the mediation of this rule of the Civil Procedure Code. Consequently, this uncertainty has been conveyed up to this point on procedural and strict grounds. It has been reasoned that re-examination conveys bunches of translucent mishaps and glitches alongside the advantages it reaps as it hasn’t generally been used in a bonafide way.
India being a nation including a various populace of 133.92 crores with over 3.5 crores pending cases, the stroll to create a target regulation can’t be lovely. The circumstance for each situation, however equal, can be pretty disparate and owing to each case. Given this subjectivity, it appears to be incautious and uncalled for to go for an encompassing umbrella law. Correspondingly, there exists a need to decipher the disparate circumstances featuring relevance and the need for a judge to recall a witness.
In a situation where cross-examination has featured a witness’ disordered and confused confirmation or exhibition, re-examination turns into a need. Furthermore, the equivalent must be material when discrepancies or logical inconsistencies are spotted in between the witness’ confirmation and any previous presentation done by him. On the other hand, if the court needs and is sure of re-examination prompting explanation of evidence related to the topic, at that point re-examination must be taken into consideration. Re-examination has been interestingly used to draw out the varieties and irregularities on the contrary side’s case and rectify any escape clauses that surfaced in the cross-examination.
In State of West Bengal v. Arunesh Pathak, the court held that intrigue for re-examination can’t be denied on the ground that the inquiries that should be explained from the witness (in the re-examination) had not been determined. The aforesaid order harmonizes with Justice Altamas Kabir’s judgment in Vernekar v. Gogate to a significant degree. In his choice, Justice Kabir expressed that “the position to re-look at a witness can be used to clear any dubiousness that may have come up during the cross-examination.” Conclusively, it isn’t important to express the inquiries that the advice wishes to advance the witness if there exists a requirement of getting a few ambiguities out through re-examination.
Moreover, in the creator’s feeling, if in cross-examination, an entirely new arrangement of facts is discovered, the witness shouldn’t be threatened. In such a case, while the decision to accept the witness or not ought to remain with the court, re-examination must be granted.
Re-examination comprises an arroyo that hasn’t been visited much often. The Delhi High Court has seen that Order 18 Rule 17 is to be practised monetarily and carefully. The rules administering re-examination, are not intended to just recall a witness for an extra examination. In like manner, without equivocalness, re-examination for harm control, that is, re-examination to get rid of the result of a past declaration shouldn’t be promoted. While re-examination is a need to render equity, a check should be kept on its practice. Lawyers and judges have disapproved of the work of re-examination for mala–fide goals as a protracting tactic to defer procedures and its activity without adequate reason to back it up. In 2017, Allahabad High Court, in Leeladhar v. Mohammad Ismail Qureshi, expressed that the decision rendered to courts under Order 18 Rule 17 and Section 151 of the Civil Procedure Code, should be practised regularly or constantly.
What is the role of a Judge? Is it accurate to say that he/she is a searcher of truth or a mere referee?
It is rude to not take note of the trading of blows in between the stands or positions referenced previously. While the prominent sentiment can be that the legal executive is bound to setting down decisions to hold the framework under wraps, the hidden truth encouraging the course to any judgment should be recognized.
The Civil Procedure Code is a procedural arrangement and not a considerable one, thus, not Section 151 ponders any power or ward to the courts. Section 151 essentially reinstates the decision inserted in the courts. The aforementioned section requires results that harmonize with uprightness and equity to render what should be ‘correct’. Moving a judgment is a simpler undertaking than looking for a definitive reality. To ensure equity isn’t undermined and no one is violated, the courts need to consider the entire picture. Communicatively, ‘truth’ has been called for in recent decisions that talk about re-examination. Sunita Agarwal J. (Calcutta High Court) shed light upon the significance of re-examination. It was expressed that “to wipe out an uncertainty threw by the cross-examination on the examination-in-boss and enable the witness to come ahead with the entire ‘truth’ of the issues just mostly discussed in the cross-examination, re-examination is essential.”
Judge Elliot, in his work Advocate, underlined the need to reach reality. He said that cross-examination can cloud a genuine witness. In this situation, disarray must be explained and the intensity of the resources must be reinstated. Ambiguities can be explained and facts can be re-built up by questions that recollect the witness’ psyche. An investigation of Judge Elliot’s words shows how cross-examination and re-examination empower the court to reach reality by getting the vulnerabilities out. To reach this normal, unambiguous ground known as ‘reality’, the gathering who requested the witness can advance inquiries relating to the cross-examination.
Therefore, if the court accepts that the intrigue to re-inspect is simply and will prompt lucidity or disentangle the evidence, or will add to reach reality and inevitably execute equity, the legal executive must exercise its decision to re-analyze the witness. In any case, re-analyzing renders the obligation (on the court) to ensure that it isn’t utilized as a deferring weapon frustrating equity. Courts’ need and power to reach the core of the issue can be stressed upon by hampering the incorrect conviction that re-examination is bound to issues raised in the cross-examination. During a re-examination, any inquiry can advance the witness if consent is conceded by the court. Thus, if the court permits the re – analyst to move separated from the issue talked about during the cross-examination, the person in question has the freedom to do as such. The Civil procedure Code and The Indian Evidence Act elevate the courts to affirm that each significant resource related to the case reaches the record. This is important to reach the correct judgment which considers the standards of equity and truth.
Power of court to recall and re-examine a witness
This occurs toward the finish of cross-examination and is done by the gathering that called the witness. Section 214(3) of the Evidence Act 2011 accommodates re-examination by expressing that where a witness has been cross-examined and is then examined by the gathering who calls him, such examination will be called his re-examination. Section 215(3) of the Evidence Act 2011 further gives that re-examination will be directed to the clarification of issues referred to in cross-examination and if another issue is, by authorization of the court, presented in re-examination, the antagonistic party may additionally cross-analyze upon that issue.
In like manner, therefore the object of re-examination is to offer the witness a chance to clarify any conflicting answer during his cross-examination and give him a chance to clear any uncertainty in his declaration and it must be restricted to issues raised during the cross-examination. No new issues ought to be raised without the leave of court. On the off chance that the court permits the re-analyst to present new issues during the re-examination, the other party is qualified for re-cross inspection on the new issue raised. Driving inquiries are not permitted in re-examination. Section 221(2) of the Evidence Act 2011 gives that driving inquiries will not be posted in examination-in-chief or re-examination.
The power of a court to recall a witness and re-examine him during the trial of a criminal case is laid down in Section 311 of the Criminal Procedure Code, which is reproduced as under:
Power to summon material witness, or examine person present.— Any Court may, at any stage of any inquiry, trial or another proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”
Even a cursory look at the above section shows that the court has a vast power to recall and re-examine a witness during a trial or inquiry or another proceeding under the Criminal Procedure Code. In a recent case, namely, Rajaram Prasad Yadav v. the State of Bihar,, the Supreme Court has highlighted as to how vast the power of the court is in this regard, by observing that:
“A prominent reading of Section 311 Code of Criminal Procedure would show that the largest of the powers have been contributed with the courts with regards to the subject of gathering a witness or to recall or re-analyze any witness already inspected. A reading of the arrangement shows that the expression “any” has been utilized as a prefix to “court”, “inquiry”, “trial”, “other continuing”, “individual as a witness”, “individual in participation however not called as a witness”, and “individual already inspected”.
By utilizing the said expression “any” as a prefix to the different expressions referenced above, it is, at last, expressed that every one of that was required to be fulfilled by the court was uniquely about such evidence that appears to the court to be fundamental for the only choice of the case. Section 138 of the Evidence Act, prescribed the request for examination of a witness in the court. The request for re-examination is additionally prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr.P.C. Furthermore, Section 138 Evidence Act, to the extent that it goes to the subject of a criminal trial, the request for re-examination at the desire of any individual under Section 138, should fundamentally align with the prescription contained in Section 311 Cr.P.C.
It is, therefore, basic that the summon of Section 311 Cr.P.C. What’s more, its application in a specific case can be ordered by the court, just by remembering the article and indicating the said arrangement, to be specific, for accomplishing an only choice of the case as supported by us before. The power vested under the said arrangement is made accessible to any court at any phase in any inquiry or trial or other continuing started under the Code to call any individual as a witness or for looking at any individual in participation, even though not brought as a witness or to recall or re-inspect any individual already analyzed. To the extent that recalling and re-examination of any individual already inspected is concerned, the court should fundamentally consider and ensure that such recall and re-examination of any individual, shows up in the perspective of the court to be basic for the only choice of the case. Therefore, the central requirement is only a choice and for that reason, the vitality of an individual to be recalled and re-inspected must be found out. To put it differently, while such a broadest power is contributed with the court, it is unnecessary to express that activity of such power ought to be made judicially and with extreme care and alert.”
In R v. Asuquo Etim, it was settled that under Section 200 of the Criminal Procedure Act, the court can call a witness considerably after the end of the instance of the barrier, yet to do as such or to so act at such a phase of the procedure calls for great alert and ought to regularly be restricted to evidence in rebuttal of the issue raised by the resistance just because – West v. Police or to clear an issue that has emerged ex-improviso and which no human resourcefulness would host foreseen on the gathering of the accused.
In R v. Asuquo Etim, the litigant was charged with homicide. It was the examiner’s case that the thought process of the homicide was the conviction that the murdered man had caused the passing of someone else by methods for black magic. One of the appellants presented the offence fresh and matters relating to native custom in instances of suspected black magic which if genuine could have truly discredited the evidence of the investigator witness.
The way the judge thereupon called a Native Chief who had been sitting in court to assert with respect most definitely of this remarkably raised ex-improvise and the West African Court of Appeal held that the calling of the witness was fitting. Regardless, it isn’t directly for the court to call evidence after the get-togethers have closed their respective cases to strengthen the contention against the charges “Denloye v. MPDC (1968)”
On account of Mohanlal Shamji Soni v. Association of India,, while managing Section 540 of the old Criminal Procedure Code (which is identical to Section 311 of the new Cr.P.C.), the Supreme Court held that so as to empower the court to discover the reality and render a fair choice, the helpful arrangements of Section 540 of the Code (Section 311 of the new Code) are enacted where-under any court by practising its discretionary authority at any phase of the enquiry, trial or other continuing can bring any individual as a witness or look at any individual in participation however not brought as a witness or recall or re-inspect any individual in participation however not gathered as a witness or recall and re-analyze any individual already analyzed who are relied upon to have the option to illuminate the issue in question; in such a case that decisions happen to be rendered on rudimentary, uncertain and theoretical presentation of facts, the closures of justice would be vanquished.
On account of Jamatraj Kewalji Govani v. Province of Maharashtra, the Supreme Court held that:
“No doubt in our criminal ward, legal law gives a power in outright terms to be practised at any phase of the preliminary to gather a witness or analyze one present in court or to recall a witness already examined and makes this the obligation and commitment of the court given the only choice of the case requests it. As it were, where the court practices the power under the subsequent part, the request can’t be whether the blame has brought anything out of nowhere or surprisingly yet whether the court is directly in believing that the new evidence is required by it for an only choice of the case. In case the court has acted without the requirements of a reasonable decision, the action is accessible to examination anyway if the court’s action is real as being in the help of an impartial decision the action can’t be regarded as outperforming the area.”
In the wake of thinking about different previous decisions, in the above instance of Rajaram Prasad Yadav v. Province of Bihar, a seat involving Justices T.S. Thakur and F.M. Ibrahim Kalifulla of the Supreme Court held that while managing an application under Section 311 Cr.P.C. [read alongside Section 138 of the Evidence Act], the accompanying standards should be borne as a primary concern by the courts:
- Regardless of whether the court is directly in feeling that the new evidence is required by it? Regardless of whether the evidence tried to be driven in under Section 311 is noted by the court for an only choice of a case?
- The activity of the most stretched out discretionary power under Section 311 Cr.P.C. ought to ensure that the judgment ought not to be rendered on undeveloped, uncertain, and theoretical presentation of facts, as thereby the closures of justice would be crushed.
- On the off chance that evidence of any witness appears to the court to be basic to the only choice of the case, it is the intensity of the court to call and inspect or recall and re-look at any such individual.
- The activity of intensity under Section 311 Cr.P.C. ought to be resorted to just with the object of discovering reality or acquiring legitimate evidence for such facts, which will prompt a fair and correct choice of the case.
- The activity of the said power can’t be named as filling in a lacuna in an arraignment case, except if the facts and conditions of the case make it apparent that the activity of intensity by the court would result in making genuine prejudice to the accused, resulting in the premature delivery of justice.
- The wide discretionary power ought to be practised sensibly and not discretionarily.
- The court must fulfil itself that it was in each respect basic to look at such a witness or to recall him for an additional examination to show up at an only choice of the case.
- The object of Section 311 Cr.P.C. at the same time powers an obligation on the court to decide reality and to render a fair choice.
- The court comes to the result that extra evidence is fundamental, not because it is difficult to articulate the judgment without it, but since there would be a failure of justice without such evidence being considered.
- The exigency of the circumstance, reasonable play, and great sense ought to be the shield while practising discretion. The court should remember that no gathering in a trial can be foreclosed from correcting blunders and that if appropriate evidence was not illustrated or a relevant material was not welcomed on the record because of any coincidence, the court ought to be unselfish in allowing such slip-ups to be rectified.
- The court ought to be aware of the position that after all the trial is basically for the detainees and the court ought to manage the cost of a chance to them in the fairest way conceivable. In that equality of reasoning, it is sheltered to blunder for the denounced getting an open door as opposed to ensuring the arraignment against conceivable prejudice at the expense of the charged. The court should remember that inappropriate or fanciful exercise of such discretionary power, may prompt unwanted results.
- The extra evidence must not be received as camouflage or to change the nature of the body of evidence against any of the gatherings.
- The power must be practised remembering that the evidence that is probably going to be tendered, would be pertinent to the issue in question and ensure that a chance of rebuttal is given to the next gathering.
- The power under Section 311 Cr.P.C. should, therefore, be summoned by the court just to meet the closures of justice for solid and substantial reasons and the equivalent must be practised with care, alert, and prudence. The court should remember that reasonable trial involves the interest of the charged, the person in question, and the general public and, therefore, the award of reasonable and legitimate chances to the people concerned, must be ensured being a constitutional objective, just as a human right.
Conclusion
Therefore, it ought to be obvious from over that the intensity of the court to recall and re-inspect a witness during a trial is very wide, yet this power isn’t to be practised for topping off the lacunae in the indictment case. Such a witness ought to be recalled whether it is fundamental for an only choice of the case or to decide reality. For your situation (as it shows up from your inquiry), on the off chance that you feel that a witness is being recalled to top off the lacunae in the indictment case, you may question the equivalent and refer to the above rules set somewhere near the Supreme Court.
Thus, the unavoidable need to evaluate the layers of laws overseeing recall and re-examination. Moreover, the author has attempted to transliterate and think over the insufficiencies, logical inconsistencies, and different issues that revolve around the current remain of law. While the Judiciary, among numerous different issues, has passed up a major opportunity to intercede in the interaction of re-examination and the different impediments that go with it, researchers of the subject are still to invest the requisite quantum of energy into this investigation.
The author accepts that surfacing with a target regulation or an achievement to observe whether to allow re-examination is indiscreet and treacherous, given the subjectivity of cases that Indian Courts experience. On one hand, consent to re-inspect can’t be conveyed against each intrigue; then again, its significance to reach the essence of the issue and get rid of ambiguities can’t be given up. Hence, the legal executive requires an interpretation of unmistakable circumstances gauging the centrality and certainty to re-analyze any witness.
Quick approval or objection to bids is requisite to render equity in time, given the accumulation of cases in India. To keep in a mind that mala-fide requests or deferring tactics, they shouldn’t be given up without any problem. Appropriate costs must be given to the gathering who needed to confront the delay. Moreover, in such cases, a specific date must be taken up to wrap the case to compensate for the deferral. Re-examination, when used with sick goals, turns into a case of the Italian expression: “I was well; I needed to feel good; I took medication, and here I am.”
Exact arbitration alongside the investigation of the reality of the core of the case is looked for by the legal executive. Re-examination fills in as a viable apparatus to reach the actuality. The very need to proceed with examination, cross-examination, re-examination, and another cross-examination or re-cross-examination (if necessary), reveals to us why the court must reach the core of each issue and uncover the reality. In the author’s sentiment, the obligation to reach a judgment is incorporated inside the obligation to look for reality.
References
- https://www.livelaw.in/court-can-recall-witness-even-power-s-311-crpc-exercised-supreme-court/
- https://www.scconline.com/blog/post/2018/09/04/order-18-rule-17-cpc-not-intended-for-parties-to-recall-witness-for-re-examination-it-enables-court-to-recall-witness-to-clarify-issues/
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