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Whether a party can confront a witness in cross-examination by showing him inadmissible document?

In the High Court of Bombay
(Before G.S. Patel, J.)

Vijay Kumar Gupta


Naresh Kumar Gupta

Testamentary Suit No. 72 of 2005
Testamentary Petition No. 528 of 2005
Decided on May 4, 2016
Citation: 2016 SCC OnLine Bom 8659

G.S. Patel, J.:— I have heard Dr. Chandrachud for the Plaintiff and Mr. Jagtiani for the Defendant for some time. It seems to me that an altogether unusual, certainly irregular and possibly eccentric trial procedure is being attempted in this matter. The Plaintiff’s witnesses were cross-examined. All evidence led by the Plaintiff being complete, the Plaintiff closed his case. Now the Defendant is under cross examination by Dr. Chandrachud.

2. It seems that on the last occasion Dr. Chandrachud sought to confront the witness with some documents. These were not originals. They were photocopies. They had not been earlier disclosed by the Defendant. Dr. Chandrachud says they were kept back to be used as documents with which to confront the witness. This is possibly a legal problem on its own, for I do not believe our procedure on the Original Side of the High Court, governed by its Rules, permits such ‘holding back’. Rule 172 and the form of the Affidavit of Documents is clear: the disclosure is required of all documents in the power and possession of a party, save those exempted by law from disclosure (such as privileged communications). That, however, is not directly germane, and however nice an issue, its determination must await another day and another case.

3. Incidentally, Dr. Chandrachud is instructed by his client to say that the documents were not in fact held back but were not available till last week. This is an evidently incorrect statement. I note this only for the record.

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4. At the time when Dr. Chandrachud essayed this confrontation, the Court (A.K. Menon J) felt that without a foundation being laid for the use of copies, being in the nature of secondary evidence, those copies could not be allowed to be put to the witness. Personally, I have even more misgivings, given that the witness is not the author or the addressee of these documents; but I will let that, too, pass for the nonce.

5. It seems that Dr. Chandrachud then sought and obtained an order for the issuance of witness summons to a Co-Operative Society and the bank for production of the originals of the documents he sought to use in cross-examination. The two witnesses summoned are present in Court today.

6. Mr. Jagtiani points out, and I think he is completely correct, that the whole procedure is not merely irregular; it is plainly wrong. It turns our trial procedure not so much on its head but inside out. Effectively, what seems to be happening is that in the midst of the cross-examination by the Plaintiff of the Defendant’s witness, the Plaintiff now seeks to interpose his own additional witnesses; and he does so after he has closed his case. Mr. Jagtiani must be allowed to cross-examine these summoned witnesses. That cannot be denied to him. The result will be an examination and a cross-examination in the midst of another cross-examination commenced earlier. How all of this will be successfully unravelled, how the record will be arranged and when this innovative procedure will ever stop, and how many more witnesses the Plaintiff will then seek to interpose, constantly improving a case already closed, is something that escapes me entirely.

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7. I do not think that there is any basis of justification for this. The Plaintiff has a right, if he makes out good cause, to lead rebuttal evidence. But to interpose a witness in the midst of the Defendant’s cross-examination can be permitted in one and in only one circumstance, and that is where the Defendant himself accepts the document and nothing further is required. Mr. Jagtiani accepts nothing. He opposes everything. He insists on his right to cross examine the two witnesses who have been summoned to Court today.

8. Clearly the procedure sought to be adopted is unviable. If the Plaintiff wanted to lead these documents in evidence, he ought to have done so before he closed his case. If he wished to hold them back for use in confronting the witness, he ought to have ensured that he had documents that were otherwise properly admissible in evidence. Dr. Chandrachud attempts an argument that a document used in this fashion is not substantive evidence. That is only partly correct. It may not, in and of itself, be substantive evidence of any fact that otherwise needs to be proved; but as a piece of evidence it has no higher or lower status than any other material that is duly received in evidence. Evidence is either primary or secondary. Material in evidence is not stratified by class or degree as higher or lower, as if to suggest that within the pool of evidence there is some sort of hierarchical taxonomy. The probative value of any piece of evidence may vary and may be the subject of argument; but once a document is marked as an Exhibit in evidence, it is like every other piece of evidence. If a witness is confronted with a document in a manner permitted by law, that document will be read in evidence; it will not be read in evidence at any lower level. It may not be proof in and of itself, substantively, of any given fact but that does not mean that it is relegated to some inferior position.

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9. In any case, none of this alters the position that the orderly progression of the trial will be entirely subverted and undermined if one is to constantly allow the Plaintiff to interject and lead now evidence that ought to have been adduced earlier but was not.

10. The two summonses are discharged. Dr. Chandruchud will be at liberty to apply for leave to lead rebuttal evidence. He will need then to make out sufficient cause and to show that such an application is maintainable. That leave will not be granted for the asking. Should be succed, he may then apply for the issue of fresh witness summonses. All of this will be subject to such conclusions and terms and condition as the Court then may think fit. That application when made will be considered on merits.

11. List the matter for directions on 10th June 2016.

12. The Plaintiff will pay the two witness’s costs, quantified at Rs. 1,500/- each.

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