LAW OF EVIDENCE 643
- 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