Vol. 12 · pages 661–665

640 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Answer to Question 3. Part I—Effect of the refusal 1. …………… of the party to take oath or make an affirmation. 2. Such refusal only affects the value of the evidence. Part II—Effect of the failure 1. The evidence remains of the Judge to give oath. admissible. 2. Obligation to tell the truth remains. 6. The Provisions of the Oaths Act in India are not so strict as they are in England. (1) Oath is not a necessary condition precedent for the obligation of telling the truth. It is necessary merely to remind a witness of its sanction. (2) The Indian Act condones the failure to remind or failure to take oath. The English law makes the evidence inadmissible. IV. COURSE OF EXAMINATION 1. There are two possible ways in which a witness can depose (i) By narrating the facts. (ii) By answering questions put to him. 2. The Evidence Act provides that the testimony of a witness shall be taken in the form of Examination, not in the form of a narration. The reasons why the law prefers examination as the mode of giving evidence are to be traced to the rules of relevancy. A person is permitted to give evidence of matters which are relevant. He is not permitted to give evidence of all matters relating to the issue. Matters which are related to the issue are not necessarily relevant to the issue and under the Evidence Act it is the duty of the Judge to decide whether any particular fact is relevant or irrelevant and to rule out their relevant then and there. If a witness is permitted to give his testimony in the form of a narration two things will happen :— (i) The witness will in all probability tell all facts relevant as well as related and this introduce irrelevant matter and (ii) The action that a Judge may be able to take to rule out irrelevant matters will be ex-post facto.

641LAW OF EVIDENCE On the other hand if the witness was required to give his testimony in the form of answers to questions, two objects will be achieved:— (i) his testimony could be made to confine to relevant matters only not being permitted to wander and (ii) the Court can immediately check and rule out the introduction of irrelevant testimony. 3. 4. With regard to the examination of witnesses, there are two questions which are distinct and which are regulated by different law. The order in which parties are to produce their witnesses for examination, and the course of Examination to which each witness is to be subjected when he is produced before the Court, are two separate questions. Sections 135,138 The order in which witnesses are to be produced by the parties is a matter which is regulated by the Civil and Criminal Procedure Codes. While the course of examination to which a witness is to be subjected, when produced, is laid down by the Evidence Act. § Order of Production of Witnesses 1. In Civil cases In Criminal cases Order XVIII Rule 1. Summons cases 224 Cr. P. C. Warrant cases 252 254 257 Summary cases. 262 Rule seems to be this. 1. The first question to be determined is who has the right to begin. 2. The right to begin depends upon on whom is the burden of proof. § Course of Examination 1. The Course of examination of a witness prescribed by the Evidence Act is to consist of 3 parts.

642 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Section 138 (i) Examination in chief. (ii) Cross Examination. (iii) Re-Examination. 2. Examination in chief is the Examination of the witness by the party who calls him. Section 137 Cross Examination is the examination of the witness by the adverse party. Re-Examination is the examination of the witness by the party who called him subsequent to his cross examination by the adverse party. Questions to be considered 3. Examination in chief is a matter of choice. No one can compel a party to call witnesses. But if witnesses are called and examined in chief, then the question that arises is this:— Is Cross-Examination and Re-Examination a matter of right or a matter of privilege, which may be granted or withheld according to the discretion of the Court ? The answer to this question is that Cross-Examination and Re-examination are matters of right and not of privilege. The Court cannot stop a party from Cross-examining or Reexamining a witness who has been examined in chief by the party. What about a witness who is called by the Court and not by any party to the proceedings ? Is there any right to cross examine such a witness ? If so which party ? The Evidence Act makes no provision for such a case. It has however been held that a witness summoned and examined by the Court cannot as of right be Cross-Examined by either party without the permission of the Judge. (1894) 2 Q. B. 316, 3 B. L. R. 145 11 W.R. 110 24 Col. 288 5 Cal. 614 16 W. R. 257.

643LAW OF EVIDENCE 4. When can the right to Cross examine be exercised ? As to this, there is a difference between civil cases and criminal cases. (i) In Civil Cases, the right must be exercised immediately. It cannot be postponed to a future date. (ii) In Criminal Cases, in a summons case before the Magistrate and in the Sessions case the right must be exercised immediately. But in a warrant case, the accused has a right to postpone the Cross-examination of the prosecution witness to the next date of hearing. The case of a person who is called as a witness by both the parties : In a litigation between A and B, C is cited as a witness by both A and B. First he is called as a witness by A on his behalf. After his cross-examination by B and Re-Examination by A, he is called as a witness by B on his behalf. Can B Cross-examine C ? There is no specific provision answering this question in the law of evidence. It is a question of judicial opinion. On this question there is a divergence of view. (1) One view is that, when a person once gets a right to Cross-examine a witness, that right continues to him at all subsequent stages of the case against that witness, no matter in what role the witness reappears, so that, even if he comes as his own witness he can Cross-examine him. This view is based on the theory that every witness is favourably disposed towards the party calling him. (2) The other view is that, each party should alternatively have the right of X Examining such a witness as to his adversary’s case, while both should be precluded in the course of the respective Examinations-in-Chief from leading questions with regard to their own case. So that a Plaintiff may Cross-Examine any of his own witnesses, on hearing afterwards called on behalf of the Defendant. The better opinion is that the right to X Examine does not survive and he cannot be asked leading questions on his Second Examination. If the adversary again called the same witness who has been examined by the other side and Cross-examined by him, he could clearly examine him in-chief. This rule appears to have been adopted by the Evidence Act

644 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 5. Does this prescribed course of Examination apply to every witness ? 1. There are three sorts of witnesses who are called before the Court: (i) Those who are called to depose to relevant facts. (ii) Those who are called to speak to character. (iii) Those who are called to produce documents. 2. With regard to witnesses who are called to depose to relevant facts or to speak to character, they are subject to the full prescribed course of examination, Cross-examination and Re-examination. But the witness, who is called to produce documents, stands on a different footing. He is not a witness and therefore cannot be cross-examined. 6. Can one Co-accused Cross-examine a witness called by another co-accused ? Can one Co-defendant Cross-examine another co-defendant or the witness called by a co-defendant ? (1) The Section does not make special provision for the case of Cross-examination by co-accused and co-defendants. (2) The Evidence Act gives a right to Cross-examine witnesses called by the adverse party and to no other. Consequently, it follows that one co-accused can cross-examine a witness called by another Co-accused only when the case of the second is adverse to that of the first. 21 Cal. 401. (3) The rule of English law in this respect is different. Under the English law the right of a defendant (and a fortiori an Accused) to Cross-examine a co-defendant or co-accused is, according to the English-cases, is unconditional and not dependent upon the fact that the cases of the accused and co-accused are adverse or that there is an issue between the defendant and his co-defendant. And one co-defendant may Cross-examine a co-defendant’s witness and the co-defendant if he gives evidence. The reasons for this English rule are : (i) It is settled that the evidence of one party cannot be received as evidence against another party unless the latter has had an opportunity of testing it by Cross-examination. Allen vs. Allen. L. R. P. D. (1894) 248/254. (ii) It is also scaled that all evidence taken, whether in examinationin-chief or Cross-examination, is common open to all the parties. Lord vs. Coloin. 3 Drewery 222. (iii) It follows that if all evidence is common and that which is given by one party may be used for or against another party, the latter must have the right to Cross-examine.