STATE OF GUJARAT Vs. MOHAN HIRA
LAWS(GJH)-1960-7-19
HIGH COURT OF GUJARAT
Decided on July 08,1960

STATE OF GUJARAT Appellant
VERSUS
MOHAN HIRA Respondents

JUDGEMENT

V.B.RAJU - (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.
(4) Moreover when permission is given under sec. 154 of the Evidence Act the party calling a witness is permitted to put questions which might be put in cross-examination by the adverse party but that does not alter the nature of examination and the party who calls a witness can contradict him only in the manner as provided in sec. 145 of the Evidence Act. Merely because permission is given under sec. 154 of the Evidence Act the nature of the examination of a witness by the party who calls him is not changed from examination-in-chief to cross-examination. It is true that in the proviso to sec. 162 (1) it is provided.

"When any witness is called for the prosecution it such inquiry or trial whose statement has been reduced into writing as aforesaid any part of his statement of duly proved may be used by the accused and with the permission of the Court by the prosecution to contradict such witness in the manner provided by sec. 145 of the Indian Evidence Act 1872 and when any part of such statement is so used any part thereof may also be used in the re-examination of such witness but for the purpose only of explaining any matter referred to in his cross-examination."

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