STATE OF GUJARAT Vs. MOHAN HIRA

JUDGEMENT

(1.) This is a reference by the learned Additional Sessions Judge Gondal recommending that the order dated 18-7-59 passed by the First Class Magistrate Gondal in Criminal Case No. 190 of 1959 holding that he would not allow the prosecution to contradict the evidence given by its witness under the proviso to sec. 162 (1) Cri. Procedure Code without declaring him hostile and save in his cross-examination be set aside as it is wrong.

(2.) Sec. 137 of the Evidence Act provides that the examination of a witness by the party who calls him shall be called his examination-in-chief and the examination of a witness by the adverse party shall be called his cross examination. Sec. 142 of the Evidence Act provides Leading questions must not if objected to by the adverse party be asked in a examination in-chief or in a re-examination except with the permission of the Court. Sec. 143 of the Evidence Act provides that leading questions may be asked in cross-examination. Sec. 154 of the Evidence Act provides:- The Court may in its discretion permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. The procedure of examining a witness as to previous statements made by him in writing is found in sec. 145 of the Evidence Act. Sec. 146 of the Evidence Act enumerates the questions which are lawful in cross-examination.

(3.) As provided in sec. 154 of the Evidence Act the Court may in its discretion permit the person who calls a witness to put-any questions to him which might be put in cross-examination by the adverse party. When the Court exercises such a discretion the party who calls a witness may put questions in the nature of cross-examination although the witness is under examination by the party who calls him. But there is nothing in sec. 154. of the Evidence Act to require that be fore the Court exercises its discretion to permit the person who calls a witness to put questions in the nature of cross-examination the witness should be declared as hostile by the party calling him. But although the party calling a witness need not declare the witness to be hostile he should give sufficient reasons to satisfy the Court that it is proper in the circumstances to exercise its discretion and permit the person who calls a witness to put questions to him in the nature of cross-examination. The learned Magistrate was therefore wrong in laying down a requirement which is not found in the Evidence Act. He was therefore wrong in ordering that unless the prosecution declares its witness hostile it would not be permitted to contradict him under the proviso to sec. 16 2(1) Cri. Procedure Code.