644 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES
Does this prescribed course of Examination apply to every witness ?
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.
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.
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.