This question comes to mind: can a defendant cross-examine another defendant in a suit? During a civil suit trial, there are many legal aspects and technical issues that come up for the parties and advocates of the suit. Which questions are covered in the law point related to the lawsuit, and according to the Civil Procedure Code 1908, we also have to know the answer.
In this article, we discuss provisions of the CPC that can be considered for the answer to the question when a defendant is entitled to cross-examine another co-defendant in a suit.
To better understand the answer to the question, let’s refer to some legal propositions that cover the criteria under which a defendant in the suit can cross-examine another defendant in a lawsuit.
In the case of Sri Mohamed Ziaulla vs. Mrs Sorgra Begum and Anr, the Karnataka High Court deals with the question of whether a co-defendant has any right to cross-examine another defendant in the suit.
The court rightly observed that, according to the Evidence Act, no special provision was made for cross-examination of the co-accused witnesses or co-defendant’s witnesses. However, Sections 137 and 138 of the Indian Evidence Act have a relevant provision in that regard. Section 137 of the IE Act deals with the examination-in-chief as well cross examination of a witness by the oppose party. Section 138 of the Act deals with the cross-examination if the adverse party wishes to cross-examine a witness who was first examined-in-chief.
Now these two sections which clear mention that a party has a right to cross examine of his opposite party and his witness. In the bothe s.137 and s.138 of the Evidence Act are not specifically described to cross examination of the co-defendant and his witness. However, the court can apply the golden rule that no evidence can be received against a party without giving an opportunity of cross-examination.
Therefore, a defendant has a right to cross-examine his co-defendant who gives adverse evidence against him. However, there is no question of cross-examination of a co-defendant if no adverse evidence was given by the other defendant in the suit.[1].
In the case of Sohanlal and others vs Gulab Chand (AIR 1966 Raj 299), the Rajasthan High Court held that, if any witness for a defendant makes a statement which is harmful to another co-defendant, in that situation he has a right to cross-examine such witness.[2].
In the case of Shiv Pratap Singh Tomar vs Smt. Seema Tomar, the Madhya Pradesh High Court answered this question in para- 8. Though there is no specific provision in the Indian Evidence Act providing for such an opportunity for a defendant-respondent to cross-examine a co-defendant/ co-respondent, however, having regard to the object and scope of cross-examination, it is settled law that when allegations are made against the party to the proceedings, before that evidence could be acted upon, that party should have an ample opportunity to cross-examine the person who had given the evidence against him. It is only after such an opportunity is given, and the witness is cross-examined, that evidence becomes admissible. In this regard, it is useful to refer to passages in the law of evidence by the learned authors on the subject. In this regard, it is useful to refer to passages in the law of evidence by the learned authors on the subject. Sarkar on Evidence, eighth edition, p.1141:
“No special provision is made in the Evidence Act for the cross-examination of the co-accused’s or co-defendant’s witnesses. But the procedure to be adopted may be regulated by the well-known rule that no evidence should be received against one who had no opportunity of testing it by cross-examination; as it would be unjust and unsafe not to allow a co-accused or co- defendant to cross-examine a witness called by one whose case was adverse to his, or who has given evidence against. If there is no clash of interest or if nothing has been said against the other party, there cannot be any right of cross-examination.” Principles and Digest of the Law of Evidence by M. Monir, third edition, p.1114 :
“A defendant may cross-examine a co-defendant or any other witness who has given evidence against him, and reply on such evidence, though there is no issue joined between them.” Phipson on Evidence, tenth edition, para.1538 :
“A defendant may cross-examine a co-defendant or any other witness who has given evidence against him, and reply on such evidence though there is no issue joined between them.”[3].
Conclusion
After the refers of the above observation of the various High Courts. We can say that a defendant can cross-examine another defendant or witnesses who give adverse evidence against him. There is no specific provision mentioned in the Evidence Act. However, sections 137 and 138 of the Indian Evidence Act refer to the related provisions. The court may permit the defendant to cross-examine a co-defendant or witness if they produce any adverse statement or evidence that causes harm to the defendant.
Reference
(1) Section 137 of the Indian Evidence Act.
(2) Section 138 of the Indian Evidence Act.
(3) Sri Mohamed Ziaulla vs Mrs. Sorgra Begum And Anr,
(4) Sohanlal and others vs Gulab Chand.
(5) Shiv Pratap Singh Tomar vs Smt. Seema Toamar
Also Read: Can defendant cross-examine of plaintiff’s witness without filing written statement in suit?
