The power of the trial courts to disallow to cross examine a defendant is subject to certain exception and is not absolute. This was adjudicated by the High Court of Karnataka in the case TK Ramakrishnappa v K Gopalagowda [W.P No 27796 of 2019] by Hon’ble Justice Krishna S.Dixit.
This judgement was made in response to a writ petition made to quash an order which disallowed the first defendant of the case from being cross-examined. The reasoning provided by the lower court for this was “The defendants in the affidavit annexed to the application contended that even though they are supporting the case of plaintiff but disputing the measurement. It is so, why they have not cross examined PW.1 in this regard is not stated. It shows that they filed this application only to drag the proceedings. In the same the plaintiff was not cross examined. If the contention raised is really true, definitely they would cross examine the concerned person on this point. Instead of the same, now they wants to cross examine the other person. This shows that they have not approached this court with clean hands. If the plaint averment not disclosed the proper measurement as alleged by the defendant, then they have to cross examine PW1. Hence the defendant has not made an y reasonable grounds or sufficient cause to allow the application”
The high court heavily criticized the reasoning given by the lower court in order to refuse permission for cross-examination. For this it relied upon multiple scholarly legal texts that deal with the law of evidence. One such source was the works of Mr. Rupert Cross, an Oxford Professor of Law and author of treatise of “EVIDENCE”. Relevant portion from this book highlighted by the judge were “All witnesses are liable to be cross- examined with very few exceptions. A witness otherwise is probably liable to be cross-examined, not merely by the opponent of the party calling him, but also by all other parties.”
The court then went on to list the situations where the witness may not be cross-examined. The most notable instances are (1) A witness summoned to produce merely to produce a document (2) a witness sworn by mistake (3) one whose examination has been stopped by the judge before any material question has been put which not liable to cross examination. (4) a witness giving replies to answer to question by the court only be cross-examined with leave(5) A witness who has given no evidence in chief, may not be cross-examined as to credit (6) Under s.138 of the Indian Evidence Act, cross examination follows chief-examination.
It further stated that the right to cross examination is not an objective thing and “it can vary depending upon the pleadings”. However, this should not be conditioned to the state of the parties and the court rightly observed that this aspect was not taken into consideration by the lower court thereby making it liable to be faltered.