Right of witness cross-examination can’t be based on inadmissible speculative documents: HC

The bench until the time this exercise is carried out, the trial court shall not pass any direction for conducting a cross-examination of any witness of the respondent, disposing of the plea.

While hearing the matter, the High Court observed that the procedure adopted by the trial court was contrary to Section 62 of the Evidence Act which states that “primary evidence means the document itself produced for the inspection of the court”.

The court added the trial court order is contrary to the law which mandates that “cross-examination is a vital right of the party where the party is entitled to not only discredit the witness but also demolish the case of the other side on the basis of the documents also”. “It is well-settled law that photocopies are inadmissible in evidence unless they are proved in accordance with Section 63 and 65 of the Evidence Act,” the HC said.

Section 63 entails what constitutes secondary evidence and Section 65 gives the instances where secondary evidence relating to documents may be given.

“Having regard to the fact that no such occasion for proving documents by secondary evidence had arisen at all, the question of directing the petitioner to cross-examine the witnesses of the respondent on the basis of photocopies is absolutely contrary to the procedure known to law.”

The HC further noted in this case after the cross-examination was conducted by the petitioner, the respondent was unable to produce some documents in original; hence the “cross-examination so far as those documents are concerned would become otiose and rendered nugatory”. It said this can’t be the intent of the legislature while granting the “right to cross-examine a witness, to conduct cross-examination on speculative documents, which are yet to be determined as to whether they are admissible or inadmissible in law”.

The petitioner in the HC argued that the procedure indicated in the trial court’s order was unique as even before the original documents have been produced before the Trial Court or the local commissioner, the “Court is expecting the petitioner to conduct cross-examination on those photocopies”. He argued the procedure is contrary to Section 62 of the Evidence Act and that cross-examination can’t take place on the basis of photocopies.

The other side argued that the cross-examination, if any, on the basis of the photocopies is obviously subject to the production of the original documents by the respondent and, therefore, no prejudice would be caused to the petitioner by cross-examining the witness of the respondent.