Analysis of Section 137, Indian Evidence Act, 1872

The Architecture of Witness Examination in Indian Law: A Comprehensive Analysis of Section 137 of the Indian Evidence Act, 1872

Introduction

The Indian Evidence Act, 1872 (hereinafter "IEA") lays down the foundational principles governing the admissibility and appreciation of evidence in judicial proceedings in India. Central to the trial process is the examination of witnesses, a mechanism designed to elicit truth and enable the court to arrive at a just decision. Section 137 of the IEA defines the three distinct stages of witness examination: examination-in-chief, cross-examination, and re-examination. This article undertakes a comprehensive analysis of Section 137, exploring its provisions, its interplay with other sections of the IEA and procedural laws, and its interpretation by the Indian judiciary. The significance of this section lies in its role in structuring the presentation of oral evidence, ensuring fairness to parties, and upholding the principles of natural justice. The analysis will draw heavily upon the provided reference materials, integrating statutory provisions and relevant case law to present a scholarly perspective on this cornerstone of evidentiary procedure.

Understanding Section 137 of the Indian Evidence Act, 1872

Section 137 of the IEA delineates the procedural framework for the examination of a witness. It states:

"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."

This tripartite structure is fundamental to the adversarial system of justice followed in India. The Supreme Court in MOHAMMED ABDUL WAHID v. NILOFER (2023)[12] reiterated these definitions while considering the scope of witness examination. The Gauhati High Court in State Of Assam v. Prabin Paul (2012)[17] also emphasized that the IEA defines only these three types of examination.

Examination-in-Chief

Examination-in-chief is the first stage where the party calling the witness elicits testimony relevant to the facts in issue or relevant facts that support their case. The primary objective is to present the witness's account of events or their expert opinion to the court. Traditionally conducted orally, modern amendments to procedural laws, particularly the Code of Civil Procedure, 1908 (CPC), have introduced provisions for examination-in-chief by way of affidavit. In Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. (2003)[6], the Supreme Court harmoniously interpreted Order 18 Rules 4 and 5 of the CPC, upholding the admissibility of affidavit-based examination-in-chief even in appealable cases to streamline proceedings. Similarly, in Mandvi Cooperative Bank Limited v. Nimesh B. Thakore (2010)[21], the Supreme Court, while interpreting Section 145(2) of the Negotiable Instruments Act, 1881, clarified that a witness giving evidence on affidavit need not be subjected to a fresh examination-in-chief in court unless the court deems it necessary, underscoring that Section 137 IEA does not rigidly mandate oral examination-in-chief in all contexts if other statutes provide for affidavit evidence.

Cross-Examination

Cross-examination is the examination of a witness by the adverse party. It is widely regarded as a powerful tool for testing the veracity of a witness and the accuracy of their testimony. As affirmed in Jayendra Vishnu Thakur v. State of Maharahstra and another (2009)[20], the right to cross-examine a witness is not merely a procedural formality but a valuable statutory and natural right. The objectives of cross-examination are manifold: to impeach the witness's credibility, to expose inconsistencies or contradictions in their testimony, to elicit facts favorable to the cross-examining party, and to test the witness's means of knowledge, memory, and perception (Prakash Rajaram v. State Of Maharashtra, 1974)[19]. The Bombay High Court in Prakash Rajaram further elaborated on the lawful ambit of cross-examination as indicated in Section 146 of the IEA, which permits questions to test veracity, discover identity and position, or shake credit.

The denial of an adequate opportunity to cross-examine can have serious repercussions. The Madhya Pradesh High Court in Ballabhdas Rathi v. Smt. Gopal Krishna Goushala (2005)[26] observed that an examination-in-chief, in the absence of cross-examination (where the opportunity was not properly available or denied), may not be admissible or carry weight. The importance of this stage is such that even statements recorded under special statutes, like Section 108 of the Customs Act, 1962, become fully relevant for prosecution only when the witness is offered for cross-examination, as highlighted in Sampad Narayan Mukherjee v. Union Of India And Others (2019)[14].

Re-Examination

Re-examination follows cross-examination and is conducted by the party who called the witness. Its purpose, as stipulated by Section 138 of the IEA, is to explain or clarify any ambiguities or new matters that may have arisen during cross-examination. New matters can only be introduced with the permission of the court, and if such permission is granted, the adverse party has the right to further cross-examine the witness on those new matters (MOHAMMED ABDUL WAHID v. NILOFER, 2023)[12]; (State Of Assam v. Prabin Paul, 2012)[17]. This ensures that the witness's testimony is presented comprehensively and fairly, allowing for the reconciliation of apparent discrepancies or the provision of context to answers given under cross-examination.

The Order and Scope of Examination: Section 138 of the IEA

Section 138 of the IEA prescribes the order of examination: first examination-in-chief, then cross-examination (if the adverse party desires), and finally re-examination (if the party calling the witness desires). It also specifies that the examination and cross-examination must relate to relevant facts. Crucially, Section 138 states that "the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief." This provision grants considerable latitude to the cross-examiner to explore any relevant fact, even if not touched upon during the examination-in-chief, to test the witness or elicit information beneficial to their case (MOHAMMED ABDUL WAHID v. NILOFER, 2023)[12].

The direction of re-examination, as noted earlier, is limited to the explanation of matters referred to in cross-examination. The introduction of new matter requires court permission, triggering a right for the adverse party to further cross-examine on that new matter. This structured approach ensures a methodical unfolding of evidence, balancing the rights of both parties.

The Right to Cross-Examine: A Fundamental Tenet

The right to cross-examine is a cornerstone of a fair trial. The Supreme Court in Jayendra Vishnu Thakur v. State of Maharahstra and another (2009)[20] emphasized that this right is not only statutory under Sections 137 and 138 of the IEA but also a facet of natural justice. It is through cross-examination that the credibility of a witness (State Of M.P v. Badri Yadav And Another, 2006)[1] and the reliability of their assertions are rigorously tested. The process allows the court to observe the demeanor of the witness and assess the truthfulness of their statements. The significance of this right is underscored by the principle that evidence not subjected to cross-examination, where the opportunity was due, generally holds little evidentiary value (Ballabhdas Rathi v. Smt. Gopal Krishna Goushala, 2005)[26]. This principle ensures that evidence is not accepted at face value without being scrutinized by the opposing party.

Navigating Complex Scenarios in Witness Examination

The application of Section 137 and 138 IEA encounters various complexities in practice, which have been addressed by procedural laws and judicial pronouncements.

Hostile Witnesses and Section 154 of the IEA

When a witness displays animus against the party calling them or makes statements contrary to their previous position, the party calling the witness may, with the permission of the court, cross-examine their own witness under Section 154 of the IEA. In Sat Paul v. Delhi Administration (1975)[24], the Supreme Court clarified that the purpose of such cross-examination is not solely to discredit the witness but also to elicit facts or admissions. The Court noted that Section 154 permits putting "questions which might be put in cross-examination," which is not strictly "cross-examining" by an adverse party as defined in Section 137. The testimony of such a witness is not automatically discarded; rather, the court assesses its evidentiary value in light of all circumstances (Mtp Muhammed Faisal v. Inspector Of Police Neeleswar And Another, 2021)[25]. The Andhra Pradesh High Court in Tanala Satyanarayana v. Tanali Ramarao And Others (2005)[18] dealt with a situation where a plaintiff was permitted to cross-examine his own witness (PW2) who made adverse statements, and subsequently, the defendant sought to cross-examine PW2 again, highlighting the procedural dynamics that can arise.

Cross-Examination by Co-Defendants/Co-Accused

A question often arises whether a defendant can cross-examine a co-defendant. Section 137 defines cross-examination as examination by an "adverse party." The Karnataka High Court in Sri Mohamed Ziaulla v. Mrs. Sorgra Begum And Another (1997)[23] held that a co-defendant can be permitted to cross-examine another defendant if there is a conflict of interest between them, rendering them "adverse" to each other for the purpose of the testimony in question. The court reasoned that the object of cross-examination is to test the evidence, and this right should extend to a co-defendant whose interests are prejudiced by the testimony of another defendant.

Recalling Witnesses for Further Examination (Section 311 CrPC / Order 18 Rule 17 CPC)

Procedural codes like Section 311 of the Code of Criminal Procedure, 1973 (CrPC) and Order 18 Rule 17 of the CPC empower the court to recall and re-examine any witness if their evidence appears essential for a just decision. This power can lead to further examination-in-chief, cross-examination, or re-examination as the situation demands. In VIJAY v. STATE ( GOVT OF NCT OF DELHI) (2015)[15], the Delhi High Court dealt with applications for recalling witnesses for further cross-examination, emphasizing that such opportunities should be granted judiciously. The Gauhati High Court in State Of Assam v. Prabin Paul (2012)[17] also touched upon the interplay between Section 311 CrPC and the examination stages under Sections 137 and 138 IEA, including the concept of "re-cross-examination" if new matter is introduced in re-examination permitted under Section 311 CrPC.

Examination-in-Chief by Affidavit

As discussed earlier, in civil matters, Order 18 Rule 4 of the CPC allows for examination-in-chief to be tendered by way of affidavit. The witness is then made available for cross-examination. The Supreme Court in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. (2003)[6] affirmed this procedure, emphasizing its aim to expedite trials. The witness who has filed an affidavit must be available for cross-examination on the contents of the affidavit, thus preserving the adverse party's rights under Section 137 IEA. The principles laid down in Mandvi Cooperative Bank Limited v. Nimesh B. Thakore (2010)[21] regarding Section 145 of the NI Act further support this streamlined approach, balancing efficiency with the tenets of fair examination.

Judicial Discretion and Control over Examination

While parties have rights regarding witness examination, the court exercises control over the process. Section 136 of the IEA empowers the judge to decide on the admissibility of evidence. If the relevancy of one fact depends on another being proved, the judge may permit evidence of the first fact before the second is proved, or vice-versa (State Of Gujarat v. Shailendra Kamalkishor Pande & Ors., 2007)[11]. During cross-examination, the court can disallow questions that are indecent, scandalous, or intended to insult or annoy, unless they relate to facts in issue or matters necessary to be known to determine whether or not the facts in issue existed (Sections 151 and 152, IEA). The Bombay High Court in SANJAY S/O. SHANKAR BHALKAR AND OTHERS v. THE STATE OF MAHARASHTRA (2020)[16] discussed the court's role in determining the relevancy of questions during cross-examination, referencing the Bipin Shantilal Panchal guideline that questions should generally be recorded subject to objections on admissibility, to be decided later, to ensure a fair trial.

The Interplay of Section 137 with Other Evidentiary Principles

The process of examination defined in Section 137 is instrumental in applying various other evidentiary principles:

  • Witness Credibility and Corroboration: The examination process is the primary means by which the credibility of witnesses, including eyewitnesses (Binay Kumar Singh v. State Of Bihar, 1996)[8] or child witnesses (Gurcharan Singh v. State Of Haryana, 1972)[4], is assessed. Cross-examination helps reveal inconsistencies or falsehoods (State Of M.P v. Badri Yadav, 2006)[1], and the need for corroboration (Vinod Kumar v. State Of Punjab, 2015)[2] can become apparent through this process. The reliability of evidence, especially when there are conflicts, such as between medical evidence and eyewitness testimony, is scrutinized through examination (State Of Haryana v. Ram Singh, 2002)[7].
  • Admissibility of Statements and Documents: Statements made to the police under Section 161 CrPC can be used for contradiction during cross-examination under Section 145 IEA (V.K. Mishra And Another v. State Of Uttarakhand And Another, 2015)[3]. Facts discovered pursuant to information from an accused (Section 27 IEA) are often proved through the testimony of investigating officers, who are then subject to examination under Section 137 (Abuthagir v. State, 2009)[13]. Similarly, documentary evidence, once admitted (e.g., certified copies as discussed in the context of the Trade Marks Act in B. Kishore Jain v. Navaratna Khazana Jewellers, 2007[10], drawing an analogy to Section 77 IEA), may be put to a witness during examination.
  • Power of Attorney and Personal Knowledge: Section 137 presumes that the person being examined has personal knowledge of the facts they depose to. The Supreme Court in Janki Vashdeo Bhojwani And Another v. Indusind Bank Ltd. And Others (2004)[9] clarified that a holder of a Power of Attorney can act and plead on behalf of the principal but cannot depose for the principal in respect of matters of which only the principal has personal knowledge. The principal must enter the witness box for such testimony, which would then be subject to the stages of examination under Section 137.

Conclusion

Section 137 of the Indian Evidence Act, 1872, by defining examination-in-chief, cross-examination, and re-examination, provides the structural backbone for the adduction of oral evidence in Indian courts. It is intrinsically linked with Section 138, which dictates the order and scope of these examinations. The right to cross-examine, enshrined within this framework, is a vital safeguard for ensuring a fair trial and is crucial for the discovery of truth. Judicial interpretations have continuously refined the application of these provisions, adapting them to new procedural mechanisms like affidavit evidence and addressing complex situations such as hostile witnesses and the rights of co-defendants. The meticulous process outlined by Section 137, when diligently followed and judicially supervised, plays an indispensable role in upholding the integrity of the adversarial system and enabling courts to effectively adjudicate disputes based on thoroughly tested evidence. Its principles remain fundamental to the administration of justice in India, ensuring that evidence is not only presented but also rigorously scrutinized.

References

  1. [1] State Of M.P v. Badri Yadav And Another (2006 SCC CRI 3 337, Supreme Court Of India, 2006)
  2. [2] Vinod Kumar v. State Of Punjab. (2015 SCC 3 220, Supreme Court Of India, 2015)
  3. [3] V.K. Mishra And Another v. State Of Uttarakhand And Another (2015 SCC 9 588, Supreme Court Of India, 2015)
  4. [4] Gurcharan Singh v. State Of Haryana . (1972 SCC 2 749, Supreme Court Of India, 1972)
  5. [5] Kartar Singh v. State Of Punjab . (1994 SCC CRI 899, Supreme Court Of India, 1994)
  6. [6] Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. . (2004 SCC 1 702, Supreme Court Of India, 2003)
  7. [7] State Of Haryana v. Ram Singh . (2002 SCC 2 426, Supreme Court Of India, 2002)
  8. [8] Binay Kumar Singh v. State Of Bihar . (1997 SCC 1 283, Supreme Court Of India, 1996)
  9. [9] Janki Vashdeo Bhojwani And Another v. Indusind Bank Ltd. And Others (2005 SCC 2 217, Supreme Court Of India, 2004)
  10. [10] B. Kishore Jain v. Navaratna Khazana Jewellers (Madras High Court, 2007)
  11. [11] State Of Gujarat v. Shailendra Kamalkishor Pande & Ors. (Gujarat High Court, 2007)
  12. [12] MOHAMMED ABDUL WAHID v. NILOFER (Supreme Court Of India, 2023)
  13. [13] Abuthagir v. State (Supreme Court Of India, 2009)
  14. [14] Sampad Narayan Mukherjee v. Union Of India And Others (Calcutta High Court, 2019)
  15. [15] VIJAY v. STATE ( GOVT OF NCT OF DELHI) (Delhi High Court, 2015)
  16. [16] SANJAY S/O. SHANKAR BHALKAR AND OTHERS v. THE STATE OF MAHARASHTRA (Bombay High Court, 2020)
  17. [17] State Of Assam v. Prabin Paul . (Gauhati High Court, 2012)
  18. [18] Tanala Satyanarayana v. Tanali Ramarao And Others (Andhra Pradesh High Court, 2005)
  19. [19] Prakash Rajaram v. State Of Maharashtra (Bombay High Court, 1974)
  20. [20] Jayendra Vishnu Thakur v. State of Maharahstra and another (2010 SCC CRI 2 500, Supreme Court Of India, 2009)
  21. [21] Mandvi Cooperative Bank Limited v. Nimesh B. Thakore . (2010 SCC 3 83, Supreme Court Of India, 2010)
  22. [22] Madura Muthu Vannian, In Re (1922 SCC ONLINE MAD 173, Madras High Court, 1922)
  23. [23] Sri Mohamed Ziaulla v. Mrs. Sorgra Begum And Another (1997 SCC ONLINE KAR 70, Karnataka High Court, 1997)
  24. [24] Sat Paul v. Delhi Administration . (1976 SCC 1 727, Supreme Court Of India, 1975)
  25. [25] Mtp Muhammed Faisal v. Inspector Of Police Neeleswar And Another (Kerala High Court, 2021)
  26. [26] Ballabhdas Rathi v. Smt. Gopal Krishna Goushala (Madhya Pradesh High Court, 2005)