Hon'ble TATIA, J. - (1.) LEARNED counsel for the respondent sought to cross- examine the own witness DW-3 Shantilal Kalal, which has been objected by learned counsel for the petitioner.
(2.) ACCORDING to learned counsel for the respondent, the respondent produced the witness to prove fact in support of his one of the plea and that was with respect to casting of tender vote by one Seema whose name is entered at S.No. 173 in the marked voter list Ex.D/9 and when the petitioner objected to leading evidence with respect to the tendering of tender vote by Seema and this Court disallowed the question from respondent, the respondent closed his examination-in-chief as he called the witness only to prove this particular fact from the witness DW-3 Shantilal Kalal. However, since the petitioner has been permitted to cross-examine the said witness on the issue of fact pleaded by the petitioner by separate order passed today itself and that was with regard to casting of tender vote at polling station No.73 by Bargat Banu in spite of the objection raised by the respondent then in fact the respondent's witness in cross-examination became the witness of the petitioner and whatever witness has stated in the cross-examination made by the petitioner's counsel with respect to the fact relating to casting of tender vote at polling station No.73 is examination-in-chief for the petitioner and, therefore, the evidence which has come on record for the first time in support of the petitioner's case though from the mouth of the respondent's witness, yet the respondent is entitled to cross-examine atleast to the extent of the evidence given by the witness in cross-examination having no relation with the statement given in the examination-in-chief and relating to the case of the petitioner. Learned counsel for the respondent relied upon the division Bench judgment of this Court delivered in the case of Hardeo Singh vs. State of Rajasthan reported in RLW 1997 107. Learned counsel for the petitioner submitted that if this procedure will be adopted then the respondent will be free to call as many as remaining 52 witnesses and may close his evidence by putting one question to each witness and may create a compelling situation for the petitioner to cross-examine witness of the respondent and than the respondent will seek liberty to cross- examine his own witness and this way the case of the petitioner may be seriously prejudiced as well as sequence of the evidence which can be and which should be in the light of the Order 18 CPC and specifically Rule 3 of the Order 18 CPC will be frustrated. It is also submitted that Section 154 of the Evidence Act cannot be interpreted to apply after closure of the examination- in-chief of the witness from the party calling the witness and Section 154 only provides that Court may in its discretion permits the person who calls a witness to put any question to him which might be put in cross-examination by party, therefore, that type of cross-examination can be during the currency of the examination-in-chief of the party calling the witness. I considered submissions of learned counsel for the parties and perused the facts of the case. It is not in dispute that the deponent did not give evidence with respect to the fact pleaded in the petition in relation to tender vote at polling station No. 73 during his examination-in-chief as no question was put by the respondent to the witness on this issue. However, in cross-examination the deponent (in view of the order passed separately today itself) deposed with respect to the facts relating to the tender vote at polling station No. 73. The Hon'ble Supreme Court in the case of Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat reported in AIR 1964 SC 1563 while interpreting Section 154 and 137 of the Evidence Act held that Court can permit party calling a witness to put question in the nature of cross-examination at the stage of re-examination. The Hon'ble Supreme Court took note of the fact that Section 137 gives only 3 stages in the examination of a witness, namely, examination- in-chief, cross-examination and re-examination. The Hon'ble Supreme Court held that this is a routine sequence in the examination of a witness. This has no relevance to the question when a party calling a witness can be permitted to put to him questions under Section 154. Section 154 which confers a discretionary power on the Court to permit a person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party Section 154 does not in terms, or by necessary implications, confine the exercise of the power by the court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the court to exercise the power when the circumstances demand. The Hon'ble Supreme Court also specifically held that to confine this power to the stage of examination-in-chief is to make it ineffective in practice. The Division Bench of this Court in the case of Hardeo Singh (supra) held that discretion conferred on the Court to allow the party to cross-examine his own witness is unqualified and untrammelled. It is to be exercised whenever the Court from the witness demeanour, temper, attitude, bearing or the tenor and tendency of his answers or from a perusal of his previous inconsistent statement or otherwise thinks that granting such permission is expedient to extract the truth and do justice. The Division Bench of this Court also held that granting such permission does not amount to adjudication by the Court as to the veracity of the witness. The purpose of cross-examination of a witness is not only to discredit but also to elicit admissions of facts which would help to build the case of the cross-examiner.
(3.) IN view of the legal position as discussed above if we look into the facts of the case then it is apparent that in fact the statement of the witness given in the cross-examination in relation to the caste of vote at polling station No. 73 are in relation to the fact pleaded by the petitioner. It is true that the witness was produced by the respondent but since he is a witness and he supposed to tell truth and further more he is a witness for the fact relating to the act done by him in official capacity, therefore, in strict sense, the respondent's witness in peculiar facts, for this evidence cannot be treated to be the witness of the respondent only so as to treat him at par with the respondent himself so as to use his statement as admission of fact against the respondent himself leaving no scope for cross-examination of witness who has deposed for the facts for the first time in cross-examination. IN fact, in peculiar facts and circumstances as are available in the present case, the justice can be done only by permitting the respondents to put the questions which can be put in cross-examination even after cross-examination of respondent's own witness. At this juncture, it may be recapitulated that the Hon'ble Supreme Court in Dahyabhati Chhaganbhai Thakkar's case (supra) clearly held that procedure of examination-in-chief, cross-examination and re-examination as given in routine sequence in the examination of the witness and it has no relevance to the question when a party calling a witness can be permitted to put to him question under Section 154 of the Evidence Act. The Hon'ble Supreme Court also clearly held that the Section 154 does not in terms, or by necessary implication, confine the exercise of the power by the Court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. Therefore, also, in whatever name it may be called like putting questions of the nature of cross-examination in re-examination or re-examination is not very much material, but material is that the questions can be put to the witness by the party calling the witness of the nature of the questions, which may be put in cross-examination and that too also after the closure of the cross-examination by the rivalry party. In view of the above discussion, the objection raised by the petitioner is rejected. The respondent is permitted to put his question to the witness in the nature of cross-examination after closure of the cross-examination of the petitioner.;