1967 (9) TMI 146 - HC - Customs

Summary

Issues Involved:
1. Permission to cross-examine under Section 154 of the Evidence Act.
2. Judicial discretion in granting cross-examination.
3. Conditions for considering a witness hostile.
4. Examination of witnesses under legal obligations versus necessity.
5. Application of leading questions under Section 142 of the Evidence Act.

Detailed Analysis:

1. Permission to Cross-Examine under Section 154 of the Evidence Act:

The petitioner sought permission under Section 154 of the Evidence Act to cross-examine his own witness, which was opposed by the respondents. The court noted that the discretion to grant such permission is entirely judicial and must be exercised judiciously. The court emphasized that the primary objective of taking evidence is to discover the truth, and the discretion should not be influenced by whether the cross-examination would favor or disfavor any party.

2. Judicial Discretion in Granting Cross-Examination:

The court highlighted the principles governing the exercise of discretion under Section 154, referring to the judgment in *State v. Subbappa* (1960 Mys LJ 887). The court must consider whether the witness's disposition suggests a reluctance to speak the truth, thereby necessitating cross-examination by the party that called the witness. The court pointed out that an element of surprise, where a witness unexpectedly gives an adverse answer, could be a starting point for considering such permission.

3. Conditions for Considering a Witness Hostile:

The court clarified that it is not necessary to formally declare a witness hostile before granting permission to cross-examine under Section 154. The witness's attitude must indicate a desire not to speak the truth or to mislead the court. The court cited *Sachidanand Prasad v. Emperor* (AIR 1933 Pat 488) to support the view that unexpected adverse statements by a witness could justify cross-examination to test their veracity.

4. Examination of Witnesses under Legal Obligations versus Necessity:

The court distinguished between witnesses examined under legal obligations (e.g., attesting witnesses) and those examined out of necessity. In the present case, the petitioner argued that he was compelled to examine the witness due to the circumstances, even though he anticipated the need to cross-examine him. The court rejected the analogy with attesting witnesses, noting that the necessity in this case was based on the petitioner's opinion rather than a legal requirement.

5. Application of Leading Questions under Section 142 of the Evidence Act:

The court addressed the issue of putting leading questions during examination-in-chief, referencing the Calcutta High Court's decision in *Profulla Kumar v. Emperor* (AIR 1931 Cal 401 (FB)). The court agreed with the full bench decision that Section 142 allows leading questions with the court's permission, even without granting general permission to cross-examine under Section 154. The court emphasized that leading questions could be permitted on particular matters of material importance to aid in discovering the truth.

Conclusion:

The court declined to grant general permission to cross-examine the witness under Section 154 of the Evidence Act. However, it allowed for the possibility of putting leading questions on specific topics of material importance. The examination of the witness would continue with this ruling in mind. The hearing was adjourned for further examination of the witness.