IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 1764 OF 2019

1) Sanjay s/o Shankar Bhalkar,

Age 44 years, Occupation Agriculture,

2) Sahebrao s/o Shankar Bhalkar,

Age 52 years, occupation Agriculture,

3) Shrinath s/o Shankar Bhalkar,

Age 46 years, Occupation Agriculture,

4) Manohar @ Shivaji s/o Shankar Bhalkar,

Age 56 years, Occupation Agriculture,

5) Anita w/o Sanjay Bhalkar,

Age 35 years, Occupation Household,

All R/o. Village Ovar At Post : Jatwada

Tq. And Dist. Aurangabad. ...Petitioners.

VERSUS

The State of Maharashtra. ...Respondent.

…..
Advocate for Petitioners : Mr. S. G. Ladda And Mr. S. S.
Khivansara.
APP for respondent-State : Mr. A. A. Jagatkar.
…..

WITH
CRI.APPLN.NO.3620/2019 IN CRI.WP/1764/20149

Aruna w/o Vishwas Shinde,

Age 58 years, Occupation Household,
R/o. No-3, Plot No.397, CIDCO,
Aurangabad. ...Applicant.

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VERSUS

1) Sanjay s/o Shankar Bhalkar,

Age 44 years, Occupation Agriculture,

2) Sahebrao s/o Shankar Bhalkar,

Age 52 years, occupation Agriculture,

3) Shrinath s/o Shankar Bhalkar,

Age 46 years, Occupation Agriculture,

4) Manohar @ Shivaji s/o Shankar Bhalkar,

Age 56 years, Occupation Agriculture,

5) Anita w/o Sanjay Bhalkar,

Age 35 years, Occupation Household,

All R/o. Village Ovar At Post : Jatwada

Tq. And Dist. Aurangabad.

6) State of Maharashtra. ...Respondents

(Accused)
…..
Advocate for Applicant : Ms. R. S. Kulkarni.
APP for respondent-State : Mr. A. A. Jagatkar.
…..

CORAM : SMT.VIBHA KANKANWADI, J.

Date of Rerseving the Judgment :

03-01-2020.

Date of Pronouncing the Judgment :

13-01-2020.

JUDGMENT :

1. Present petition has been filed by the original accused persons

challenging the order in deposition of P.W.18 (Exhibit 215) in para

No.14 and 15 in Sessions Case No.153 of 2015, by learned

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Additional Sessions Judge, Aurangabad on 04-10-2019. Application

No.3620 of 2019 has been filed by the original informant for

intervention.

2. The present petitioners–original accused persons are facing

charge under Section 302 read with 34 of Indian Penal Code in the

said case. The prosecution has examined P.W.18 Dr. Kailash Zine

who had conducted the autopsy. His examination-in-chief is

complete and he is under cross-examination. It is contended in the

petition that, the post mortem report is exhibited as Exhibit 216 and

the diagram of injuries sketched and appended to the report are at

Exhibit 217. P.W.18 Dr. Kailash Zine had brought file of treatment

papers of the deceased and produced it before the Court before the

commencement of cross-examination of the said witness as those

papers were required by the defence. It is stated that, in post

mortem report Exhibit 216 in column No.5 it is stated that the

deceased was admitted to Government Medical College and Hospital,

Aurangabad in unconscious state at about 12.45 hours on 14-03-

2015 and during treatment he died on the same day around 16.05

hours in the hospital. It is stated that, the said fact is contrary to

the file of treatment on record, and therefore, the learned defence

advocate wanted to cross-examine the said witness in respect of

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those papers. When the questions were asked, the learned Special

Public prosecutor had taken objection that, the said witness has no

knowledge about the contents of the document and he cannot

depose in respect of those documents. The learned Judge has

upheld the said objection and has not allowed the witness to answer

certain questions. The learned Judge had surprisingly endorsed the

scope of the evidence of the witness that it is restricted only to post

mortem report Exhibit 216, diagram Exhibit 217, and death

certificate Exhibit 218. It is stated that, the defence had not put any

questions regarding treatment given to the deceased, and therefore,

the learned Judge ought not to have restricted and prevented the

defence from putting further questions in respect of the documents.

Though the Judge may come to a conclusion that, the question is not

relevant at that stage, however possibility cannot be ruled out that

the said question may become relevant at the later stage, and

therefore, based on the decision in Bipin Shantilal Panchal v. State of

Gujrat And Another, reported in (2001) 3 Supreme Court Cases 1 : 2001 Supreme

Court Cases (Cri) 417, it was requested to the Court that, all the

questions be taken and subject to objections the answers be taken

and then the relevancy or admissibility of the questions may be later

on considered. But then rejecting the prayer of the advocate for the

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defence to put certain questions will not amount to fair trial and,

hence, prayer is made for setting aside the impugned order and

direction have been sought to the trial Court to record all the

questions ans answers given by the witness during the cross-

examination.

3. Heard learned advocate Mr. S. G. Ladda for petitioners and

learned Additional Public Prosecutor Mr. A. A. Jagatkar for

respondent – State assisted by learned advocate Ms. Rashmi S.

Kulkarni for the informant who filed application No.3620 of 2019 for

intervention.

4. The learned advocate appearing for the petitioners had drawn

the attention of this Court to the contents of Serial No.5 in post

mortem report Exhibit 216 and also the contents of the treatment

papers and submitted that, there are contradictions in these two

documents, which he wanted to bring on record and wanted to ask

certain questions which were definitely not in respect of what kind of

treatment was given and why certain treatment was not given. The

said document regarding treatment papers was brought by the

concerned witness, and taking into consideration the fact that they

were the treatment papers, learned advocate for the accused

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wanted to put certain questions. When the question was asked as to

whether there was anything to hide in the papers of treatment; the

learned Special Public Prosecutor raised objection contending that

the witness is not the author of that document nor he had given

treatment to the deceased. The learned Judge has endorsed that

the scope of the evidence of the said witness i.e. P.W.18 is restricted

to the post mortem report Exhibit 216, diagram of injuries sketched

Exhibit 217 and certificate Exhibit 218. Any first aid or immediate

treatment was not under the supervision of the witness nor he has

deposed about it in his examination-in-chief, and therefore, the

objection was sustained, that means the questions were not allowed

to be put. Same happened when it was asked to him as to whether

he had not understood the contents of the treatment papers. The

said question has then been disallowed by the learned Judge. The

learned Judge cannot control the cross-examination in such a way

and take away the vital right of the accused to bring truth on record

by way of cross-examination. It was also requested to the learned

Judge that, in view of the procedure laid down in Bipin Panchal’s case

(Supra) the evidence may be recorded even after the objection is

raised so that the Appellate Court should be benefited, if it is found

at a later stage that any question was or questions were relevant.

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With a limited purpose that the Court should be accordingly directed,

the petition has been filed.

5. Per contra, the learned Additional Public Prosecutor submitted

that, the witness had specifically stated that, he had not given

treatment to the deceased then questions in respect of contents of

the document could not have been put to the said witness. Those

papers were produced by the said witness on the request of the

learned advocate for the defence. Therefore, the learned Judge was

justified in upholding the objection raised by the learned Special

Public Prosecutor. Learned Advocate for the accused persons can not

ask any question which is not relevant. The Court has power to

control the cross-examination.

6. At the outset it can be seen that, the point raised in this

petition pertains to the regular work of those Courts, where the

evidence of witness is recorded. As regards the recording of

evidence of a witness is concerned, the Courts are mainly guided by

the Evidence Act and various pronouncements of the Hon’ble

Supreme Court and High Courts. It is a regular scene, mostly in

criminal cases that, to the questions asked in cross-examinations,

objections are raised and then Courts are required to consider those

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objections. Here the examination-in-chief of P.W.18 Dr. Kailash

would show that, he has stated that he had conducted the autopsy

of the deceased and then during the course of his examination-in-

chief the post mortem report, the sketch appended to it and the

death certificate came to be exhibited. When it was the turn for the

cross-examination, it appears that prior to his entry in the witness

box, on the request of the learned advocate for the accused, he had

produced the treatment papers. Pursis to that effect has been filed

at Exhibit 222.

7. Learned advocate for the defence has pointed out Serial No.5

column of the post mortem report Exhibit 216 and then it was stated

that it mentions about unconscious state of the deceased when he

was brought to Mortuary of Government Medical College and

Hospital Aurangabad. At the first place it is to be noted that the

second column of serial No.5 states that,

“Substance of accompanying report from Police Officer or Magistrate,

together with the date of death if known. Supposed cause of death or
reasons for examination.”

That means, it was in respect of the substance to be written, of the

report stated by Police Officer or Magistrate in the accompanying

report together with the other particulars. It is the usual practice

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that, when a dead body is sent for autopsy, it would be with a report

submitted by the police to the medical officer. Therefore, in view of

the said requirement stated in second column, the third column

states that,

“As per police inquest and requisition letter, the deceased had alleged
history of assault at Hrideya farm, Jatwada Road, Aurangbad on
14/03/2015 at 12.45 hrs and sustained injuries and became
unconscious was brought to GMCH, Aurangabad. He was admitted in
Truama ward for treatment. During treatment he died on 14-04-2015 at
16.05 p.m.”

Thus, the said answer was based on the police inquest and

requisition letter.

8. It is to be noted that, though the treatment papers were

produced by the said witness P.W.18 Dr. Kailash, they were not

exhibited when the learned advocate for accused had started the

cross-examination. But still he wanted to cross-examine the witness

based on the contents of the said document. Further, it can be

clearly seen from the record i.e. the deposition part, that the form of

the question from where the objections began put forward by

learned advocate for the accused was wrong. When the witness had

brought those documents from the official custody of the hospital

and if at all there was no attempt on the part of the police to seize

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those documents, the witness could not have been held in any way

responsible for the non production of the document. But then the

question was asked, “Is there anything to be hide from the papers which you

have brought today ?”. Learned advocate for the accused ought to have

seen that if there was anything to hide, the witness would not have

produced it, but then since the document was produced, there was

in fact no occasion for him to ask this question. Therefore it can be

said that the form of the question was wrong. The objection that was

raised by the learned Special Public Prosecutor appears to be in

respect of the scope of the witness on the ground that the witness

had not given the treatment and he had no knowledge about the

document. In fact the concerned witness should say that, he has no

knowledge of that document and in any way it could not have been

said by the learned Special Public prosecutor. The learned Additional

Sessions Judge went on to observe that, the scope of the evidence

of the witness is restricted to certain documents and when the

witness has not deposed earlier about his knowledge of admission of

the deceased in the hospital, then the question relating to treatment

are not relevant and cannot be put to the witness. Here the learned

Sessions Judge could not have put entire shutter down in respect of

putting forth the questions but then he was supposed to consider the

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relevancy of the question first. While deciding the relevancy of the

question it could not have been travelled beyond the limits laid down

by the law. In certain cases the cross cannot be limited to the

contents of the examination-in-chief. It may go beyond that as the

purpose of the cross-examination is to test the veracity or impeach

the credit of the witnesses.

9. Here the observations from the decision in Ram Bihari Yadav v.

State of Bihar and Others, reported in AIR 1998 SC 1850 : 1998 Criminal Law

Journal 2515 are noted ;

“More often the expressions 'relevancy and admissibility' are used as

synonyms but their legal implications are distinct and different for more
often than not facts which are relevant are not admissible; so also facts
which are admissible may not be relevant, for example, questions
permitted to be put in cross-examination to test the veracity or impeach
the credit of witnesses, though not relevant are admissible. The
probative value of the evidence is the weight to be given to it which has
to be judged having regard to the facts and circumstances of each
case”.

Thus it is clear that, though the relevancy and admissibility are used

as synonyms terms, they are different and distinct. Therefore, the

relevancy and / or the admissibility will have to be judged from

different angles. Relevancy of the question, generally, comes first

and then admissibility is required to be decided.

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10. After sustaining the first objection raised by learned Special

Public Prosecutor, when cross further proceeded, the witness i.e.

P.W.18 told that, he had gone through the papers i.e. the admission

papers of the deceased with the hospital. But then again the

question is asked, “Do you have any difficulty to answer questions relating to

these documents ?”, and the witness answered that, “He had not given

treatment to the patient.” Then again the question is asked, “Do you want to

say that you did not understood the contents of these documents ?”. Thereafter,

the Court disallowed the said question on the ground that since the

witness has already stated that he had not given the treatment to

the patient, no occasion arises for him to say anything about

contents of the document. It appears that, thereafter the learned

defence advocate insisted that the answer that might be given by

the witness be recorded and then he relied on Bipin Panchal’s case

(Supra). The learned Additional Sessions Judge observed that, the

ratio in Bipin Pancha’s case though made applicable, the question

cannot be allowed and there is no question to record the answer to

the said question which is disallowed. It is, therefore, necessary to

consider the ratio laid down in Bipin Panchal’s case ;

“13. It is an archaic practice that during the evidence collecting

stage, whenever any objection is raised regarding admissibility of any
material in evidence the court does not proceed further without passing

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order on such objection. But the fall out of the above practice is this:
Suppose the trial court, in a case, upholds a particular objection and
excludes the material from being admitted in evidence and then
proceeds with the trial and disposes of the case finally. If the appellate
or revisional court, when the same question is re-canvassed, could take
a different view on the admissibility of that material in such cases the
appellate court would be deprived of the benefit of that evidence,
because that was not put on record by the trial court. In such a situation
the higher court may have to send the case back to the trial court for
recording that evidence and then to dispose of the case afresh. Why
should the trial prolong like that unnecessarily on account of practices
created by ourselves. Such practices, when realised through the course
of long period to be hindrances which impede steady and swift progress
of trial proceedings, must be recast or re-moulded to give way for better
substitutes which would help acceleration of trial proceedings.”

“14. When so recast, the practice which can be a better substitute is

this: Whenever an objection is raised during evidence taking stage
regarding the admissibility of any material or item of oral evidence the
trial court can make a note of such objection and mark the objected
document tentatively as an exhibit in the case (or record the objected
part of the oral evidence) subject to such objections to be decided at
the last stage in the final judgment. If the court finds at the final stage
that the objection so raised is sustainable the judge or magistrate can
keep such evidence excluded from consideration. In our view there is no
illegality in adopting such a course. (However, we make it clear that if
the objection relates to deficiency of stamp duty of a document the court
has to decide the objection before proceeding further. For all other
objections the procedure suggested above can be followed.)”

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“15. The above procedure, if followed, will have two advantages.

First is that the time in the trial court, during evidence taking stage,
would not be wasted on account of raising such objections and the
court can continue to examine the witnesses. The witnesses need not
wait for long hours, if not days. Second is that the superior court, when
the same objection is re-canvassed and reconsidered in appeal or
revision against the final judgment of the trial court, can determine the
correctness of the view taken by the trial court regarding that objection,
without bothering to remit the case to the trial court again for fresh
disposal. We may also point out that this measure would not cause any
prejudice to the parties to the litigation and would not add to their
misery or expenses.”

“16. We, therefore, make the above as a procedure to be followed by

the trial courts whenever an objection is raised regarding the
admissibility of any material or any item of oral evidence.”
(Stress supplied by me)

11. It can be seen that the main point that was required to be

addressed in the above said case of Bipin Panchal was in respect of

question of admissibility of a document, and then while laying down

the procedure that is to be followed, Hon’ble Supreme Court has

stated that the Trial court can make a note of objection when an

objection is raised during evidence recording or oral evidence. That

means, the discretion is given to the Trial Court to take note of such

objection and to record the objected part of the oral evidence. Now

definitely the said discretion will have to be exercised judicially.

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When the above said procedure was suggested or laid down, the

Hon’ble Supreme Court has not made it compulsory that all the

questions those would be put in the cross-examination, should be

recorded by the concerned Court. Hon'ble Supreme Court has also

used words “can make”. If interpretation is to be made that it has

been made compulsory, then the Courts will have no power to

control the process of evidence recording, which is not the intention

of the legislature. The scheme of Indian Evidence Act in respect of

examination of witnesses and the powers of the Court have been

aptly and correctly summarized by Hon’ble Delhi High Court

(M.L.Mehta, J.) in the decision between R. K. Chandolia v. CBI & Ors.,

reported in 2012 SCC Online Del 2047 : (2012) 3 DLT (Cri) 471.

“14. Under the scheme of Evidence Act, Chapter X deals with the
examination of the witnesses. Different kinds of responsibility are cast
on the judge in different provisions of this Chapter while recording
evidence. Then the Courts also have extensive powers for protecting the
witnesses from the questions not lawful in cross examination as set out
in Sections 146 to 153, Evidence Act. Under Section 136, the Judge has
not only to satisfy that the evidence that was to be led was relevant but,
in what manner if proved, would be relevant. It was only if he was
satisfied that the evidence, if proved, would be relevant, that he could
admit the same. If it is his duty to admit all the relevant evidence, it is
no less his duty to exclude all irrelevant evidence. Section 5 of the Act
also declares that "evidence may be given in any suit or proceedings of
the existence or non-existence of every facts in issue and of such other

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facts as hereinafter will be declared to be relevant, and of no others.

From this, it comes out to be that the Judge is empowered to allow only
such evidence to be given as is, in his opinion, relevant and admissible
and in order to ascertain the relevancy of the evidence which a party
proposes to give, he may ask the party, in what manner, if evidence
proved, would be relevant and, he may then decide as to its
admissibility. In fact, the question of relevancy is of great nicety and
sometimes, great difficulty is felt by the Trial Judge in deciding question
of relevancy. Therefore, it is desired that in doubtful cases, he should
admit rather than excluding the evidence.

15. Section 137 gives a statutory right to the adverse party to cross-
examine a witness. Section 138 only lays down the three processes of
examination to which a witness may be subjected. It does not deal with
the admissibility of the evidence. It also provides that the examination
and cross-examination must relate to relevant facts, but the cross-
examination need not be confined to the facts to which the witness
testified in his examination-in-chief. Under this Section, the cross-
examination can go beyond the facts narrated in examination-in- chief,
but all such questions must relate to relevant facts. It is not that under
the right of cross examination, the party will have the right to ask
reckless, irrelevant, random and fishing questions to oppress the
witness. The "relevant facts" in cross examination of course have a
wider meaning than the term when applied to examination-in-chief. For
instance, facts though otherwise irrelevant may involve questions
affecting the credit of a witness, and such questions are permissible in
the cross examination as per Section 146 and 153 but, questions
manifestly irrelevant or not intended to contradict or qualify the
statements in examination-in-chief, or, which do not impeach the credit
of a witness, cannot be allowed in cross examination. It is well-

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established rule of evidence that a party should put to each of a witness

so much of a case as concerns that particular witness.

16. It is experienced that sometimes, cross examination goes

rambling way and assumes unnecessary length and is directed to
harass, humiliate or oppress the witnesses. It is also experienced that
the Courts often either due to timidity or the desire not to become
unpopular or at times, not knowing its responsibilities and powers,
allow the reckless, scandalous and irrelevant cross examinations of
witnesses. In fact, in such situations, the court has the power to control
the cross examination. The court has a duty to ensure that the cross
examination is not made a means of harassment or causing humiliation
to the witness. While allowing latitude in the cross examination, court
has to see that the questions are directed towards the facts which are
deposed in chief, the credibility of the witness, and the facts to which
the witness was not to depose, but, to which the cross examiner thinks,
is able to depose. It is also well-established that a witness cannot be
contradicted on matters not relevant to the issue. He cannot be
interrogated in the irrelevant matters merely for the purpose of
contradicting him by other evidence. If it appears to the Judge that the
question is vexatious and not relevant to any matter, he must disallow
such a question. Even for the purpose of impeaching his credit by
contradicting him, the witness cannot be put to an irrelevant question in
the cross examination. However, if the question is relevant to the issue,
the witness is bound to answer the same and cannot take an excuse of
such a question to be criminating. That being so, it can be said that a
witness is always not compellable to answer all the questions in cross
examination. The court has ample power to disallow such questions,
which are not relevant to the issue or the witness had no opportunity to
know and on which, he is not competent to speak. This is in consonance

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with the well-established norm that a witness must be put that much of a
case as concerns that particular witness.

17. A protracted and irrelevant cross examination not only adds to

the litigation, but wastes public time and creates disrespect of public in
the system. The court is not to act a silent spectator when evidence is
being recorded. Rather, it has the full power to prevent continuing
irrelevancies and repetitions in cross examination and to prevent any
abuse of the right of cross examination in any manner, appropriate to
the circumstances of the case. The court could have such a power to
control the cross examination apart from the Evidence Act as also the
Code of Criminal Procedure. Section 146 though relaxes the ambit of
cross examination and permits the putting of questions relating to the
trustworthiness of the witness, but such questions also must be relevant
for the purpose of impeaching the credit, though not to the issue. Under
the garb of shaking credit, irrelevant or vexatious questions cannot be
allowed, if they do not really impeach the credit of witness or do not
challenge the evidence given in examination-in-chief relating the matter
under enquiry. It is established proposition of law that if the question is
directly relevant i.e. if it relates to the matters, which are points in issue,
the witness is not protected to answer even it amounts to criminating
him but, if it is relevant only tending to impeach the witness's credit, the
discretion lies with the Judge to decide whether witness shall be
compelled to answer it or not. Generally, he will not be allowed to be
contradicted except in the cases under Section 153. In fact, Section 132,
146, 147 and 148 embrace whole range of questions, which can
properly be addressed to witness and these should be read together.

18. Thus, it can be said that the relevancy of evidence is of a two-

fold character; it may be directly relevant in the bearing on,

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elucidating, or disproving, the very merits of the points in issue.

Secondly, it can be relevant in so far as it affects the credit of a witness.
As regard the relevancy relating to a credit of a witness, the court has to
decide the same under Section 148 whether the witness is to be
compelled to answer or not or to be warned that he is not obliged to
answer. The Judge has the option in such a case either to compel or
excuse. The provisions of Section 148-153 are restricted to questions
relating to facts which are relevant only in so far as they affect the
credit of the witness by injuring his character; whereas some of the
additional questions enumerated in Section 146 do not necessarily
suggest any imputation on the witness's character. When we talk of the
relevancy of the questions relating to character, unnecessarily
provocative or merely harassing questions will not be entertained in
this class of questions.

19. As per Section 151 and 152, the questions which are apparently
indecent or scandalous or which appear to be intended to insult or
annoy or are offensive in form, are forbidden. Such questions may be
put either to shake the credit of witness or as relating to the facts in
issue. If they are put merely to shake the credit of the witness, the court
has complete dominion over them and to forbid them even though they
may have some bearing on the questions before the court. But, if they
relate to the facts in issue or are necessary to determine the facts in
issue existed, the court has no jurisdiction to forbid them. The court
cannot forbid indecent or scandalous questions, if they relate to the
facts in issue. It is because what is relevant cannot be scandalous.”

The above summary of the various provisions of the Evidence Act

and settled law, noted by the Delhi High Court is hereby endorsed

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and would make it clear that, the Court has to control and have

power to decide the relevancy and admissibility of any question that

may be put to a witness.

12. Further decision in Inder Sain v. CBI Sector 30-A, Chandigarh, (CRR

No.2251 of 2018 decided by Hon’ble Punjab and Haryana High Court on 06-08-2018)

gives summary of those very provisions of the Evidence Act and the

observations therein are also relevant, and are required to be

endorsed which are as follows ;

“Different types of responsibilities are cast on the judge in different

provisions of this Chapter while recording evidence. The Courts also
have extensive powers for protecting the witnesses from the questions
which are not lawful in cross-examination as provided under Sections
146 to 153 of the Evidence Act. Under Section 136, the Judge is not
only to satisfy that the evidence which was to be led was relevant but, in
what manner if proved, would be relevant. Section 137 of the Evidence
Act gives a statutory right to the adverse party to cross- examine a
witness. Similarly, Section 138 of the Evidence Act lays down the three
processes of examination to which a witness may be subjected. It does
not deal with the admissibility of the evidence. It provides that the
examination and cross- examination must relate to relevant facts, but
the cross-examination need not be confined to the facts to which the
witness testified in his examination-in-chief. Under this Section, the
cross-examination can go beyond the facts narrated in examination-in-
chief, but all such questions must relate to relevant facts. It does not
mean that under the right of cross- examination, the party will have the
right to ask irrelevant questions to oppress the witness. The "relevant

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facts" in cross examination has a wider meaning than the term when
applied to examination-in-chief. For example, facts though otherwise
irrelevant may involve questions affecting the credit of a witness but
only such questions are permissible in the cross- examination as per
provision of Sections 146 and 153 of the Evidence Act. The irrelevant
question or not intended to contradict or qualify the statements in
examination-in-chief, or, which do not impeach the credit of a witness,
the same cannot be allowed in cross-examination. Irrelevant cross-
examination not only adds to the litigation, but wastes public time. The
Court is not to act as a silent spectator when evidence is being
recorded. The Court has full power to prevent continuing irrelevant
questions and repetition in cross-examination and also to prevent any
abuse of right of cross-examination. The Court is having power to
control the cross-examination apart from the Evidence Act as also the
Code of Criminal Procedure. Section 146 of the Evidence Act though
relaxes the ambit of cross-examination and permits the putting of
questions relating to the trustworthiness of the witness, but such
questions must be relevant for the purpose of impeaching the credibility
of the witness.
It has been held in various judgments of Hon'ble the Apex Court as
well as of this Court that trial Judge is the best Judge to decide the
relevancy of questions put by the defence counsel during cross-
examination of a witness.”

Thus, it has been reiterated in Inder Sain’s case above that, the trial

Court is the best judge to decide the relevancy of the questions put

up by the defence counsel during cross- examination of a witness. In

addition to what has been covered in the above decisions One more

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fact that is required to be considered is that, some times

intentionally vague questions are put or they are asked in loud voice

so that the witness would answer it in fear. Then definitely the

control of the cross-examination will have to be in the hands of the

Trial Judge. There may also be misleading questions or the questions

are not understood due to language barrier. It is the duty of the

Court to see that the witness understands the questions and then it

should be left to the witness to answer the same.

13. In, Annubeg Mukimbeg Musalman and another v. Emperor, reported in

1944 SCC OnLine MP 78 : AIR 1944 Nag 320 : 1945 Cri LJ 601, it is observed

that,

“8. The cross-examination of a witness is always a difficult matter.

The counsel thinks out before hand on what point the cross-examination
will be directed, but the cross-examination can never follow a
prearranged plan. The cross-examination has to be mounded
according to the nature of the answers given by the witness and the type
of the witness a cross-examiner has to deal with. It requires great skill
and resourcefulness on the part of counsel. If he is not permitted to
cross-examine freely then the effectiveness of the cross-examination is
marred……….”

14. Decision of this Court in Yeshpal Jashbhai Parikh v/s. Rasiklal

Umedchand Parikh, reported in 1954 SCC OnLine Bom 145 : (1955) 57 Bom LR

282, is also relevant on the point involved in the petition. Note of

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certain earlier decisions right from Privy Council were taken. In

Vassiliades v/s. Vassiliades, reported in [1945] AIR PC 38 it was observed

that ;

“No doubt cross-examination is one of the most important processes for the
elucidation of the facts of a case and all reasonable latitude should be
allowed, but the Judge has always a discretion as to how far it may go or
how long it may continue. A fair and reasonable exercise of his discretion
by the Judge will not generally be questioned”.

15. In Yeshpal's case (Supra) it has been observed that,

“While Courts will not ordinarily interfer with the proper exercise of the
right of cross-examination the Courts have the power and authority to
control the cross-examination of a witness”.

This Court is not agreeing with the submission by learned Advocate

for petitioners that, the Court cannot control the cross-examination

or he has free hand at the time of cross-examining the witness of

the prosecution; but then agree to the submission that the cross-

examination need not be restricted to what the witness has stated in

his examination-in-chief. A balance has to be struck here while

issuing directions to the learned Additional Sessions Judge that he

has to decide the relevancy of the question which he may get

explained from the learned advocate for the accused orally and then

allow him to put the said question to the witness. On any count

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learned Additional Sessions Judge will not be justified in entirely

putting the shutter down while disallowing of the questions and

asking the defence advocate to restrict himself while cross-

examining P.W.18 to the post mortem examination report Exhibit

216, sketch Exhibit 217 and certificate Exhibit 218. It is, therefore,

again clarified that neither the learned advocate for the accused has

unfettered right to put any question to the witness in the cross-

examination but at the same time the learned Additional Sessions

Judge shall also not restrict him in putting questions in the cross to

the above referred documents only. There might be certain

questions which would be beyond those documents and as an expert

they are required to be elucidated from him. No straight jacket

formula can be laid down as to what should be permitted and what

should not be permitted as it depend upon the question that would

be put and the relevancy and admissibility of the same and / or of

the admissibility will have to be decided at that time. Definitely the

learned Additional Sessions Judge is guided by the procedure laid

down in Bipin Panchal’s case (Supra), and it is specifically laid down that,

it may be advantages for the Appellate Court in future. He has to

bear those advantages which have been laid down in para No.15 of

the case, in mind while recording the evidence.

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16. Application for intervention stands allowed and with the above-

said observations the writ petition is disposed of and also with the

direction that, henceforth the learned Additional Sessions Judge

would be guided by the above said decisions in recording the

evidence.

(SMT. VIBHA KANKANWADI)

JUDGE

vjg/-.

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