Can a defendant cross-examine another defendant in a suit?

This question comes to our mind can a defendant cross-examine another defendant in a suit? During the civil suit trial, there are many legal aspects and technical issues which come across to 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 that answer.

Here this article, we discuss provisions of the CPC that can be considered for the answer of 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 covered the criteria in which a defendant of 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 that whether a co-defendant has any right to cross examine the another defendant of the suit? 

The court is rightly observed that, accpording to the Evidence act there is no special provision was made for coss examination of the co-accused witnesses or co-defendant’s witnesses. However, Sections 137 and 138 of the Indian Evidence Act has a relevant provision on 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 advers party wish a witness who 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 take the golden rule that there is no evidence can be received against the party without giving an opportunity of cross examination. 

Therefor a defendant has a right to cross examine his co-defendant who gives an edvers evidence agaist him. However there is no question of cross examination of a co-defendant arise if there in no adverse evidence was given by 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 who makes a statement which is harmful for other co-defendant, in that situation he has a right to coss examine such witness.[2].

In the case of Shiv Pratap Singh Tomar vs Smt. Seema Toamar, the Madhya Pradesh High Court answer 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 passage in the law of evidence, by the learned authors on the subject. In this regard it is useful to refer to passage in the law of evidence, by the learned authors on the subject. Sarkar on Evidence, eight 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 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 the law 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 law. 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 cause 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?

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