In our previous column, we discussed the process of chief examination in civil trials and the process for filing of evidence affidavits. The filing of affidavits in lieu of examination-in-chief in civil trials marked a significant change in the manner in which evidence was recorded and witnesses were examined, and is now the chief distinguishing factor between the trial process in civil and criminal cases.
This column will focus on the stage of cross-examination, which many practitioners (and academics) consider to be the most important stage in any civil trial.
Indian courts, as we discussed in our initial columns, follow the adversarial system for arriving at the closest version of the ‘truth’ in any case (civil or criminal). Each party presents its version of what it believes, which is tested on its merits by the counter-party. The stage of cross-examination is the most direct and salient tool in the counter-party’s arsenal, through which it will seek to pick holes in and ultimately demolish the credibility of the version put forth through the evidence affidavit, pleadings and documents filed by the party.
Indeed, the Supreme Court and various High Courts have consistently held that if a witness is not subjected to cross-examination, the witness’ version of events is taken as undisputed and accepted on that basis. The Supreme Court in Muddasani Venkata Narsaiah v Muddasani Sarojana held that cross-examination is not merely a procedural matter, but one of substance, and the effect of not subjecting a witness to cross-examination is fatal to the party which makes such a decision. The law laid down by the Supreme Court follows the common law principle laid down in Browne v Dunn (1893) by Lord Herschell, where he points out that a witness must be given an opportunity to explain his version of events, which can be proffered by means of cross-examination and which constitutes an essential component of natural justice for the witness.
In cases where the witness is not subjected to cross-examination due to their death after chief-examination, or their non-availability, the Supreme Court in Dr. Sunder v State of Tamil Nadu held that the evidence of such a witness should not be automatically removed from consideration. Instead, the court should assess whether the lack of cross-examination affected the credibility of the witness’ testimony and decide as to how much weight has to be accorded to the evidence of such a witness.
Two provisions of the Bhartiya Sakshya Adhiniyam 2023 (BSA) capture the scope of cross-examination in any trial. Section 143(2) of the BSA lays down that while the scope of the cross-examination must relate to relevant facts, it is not limited only to those facts which the witness has testified to during his examination-in-chief (or, in the context of a civil trial, covered in his evidence affidavit). And Section 149 explains why: questions to a witness are meant to either test his/her veracity, discover his/her position in life and who they are, and to shake their credit (by injuring their character).
Another aspect which warrants careful attention is the discretion of the court to allow certain questions to be asked of the witness, and whether the witness should be compelled to answer them. Sections 152 and 153 of the BSA act as a pre-cursor to the general principles laid down in Section 151. Sections 152 and 153 require an advocate to only ask such questions which are based on reasonable grounds, thus introducing an element of reasonableness to imputations made about the witness’ turn of events, or his/her character. Section 153 carries consequences against the advocate who asks questions without reasonable grounds, adding teeth to the requirement under Section 152.
The court's discretion in Section 151 is reserved for questions which may prima facie not be relevant to the suit. It depends on factors such as (a) whether any truth in the imputation made in the question could affect the credibility of the witness in the court’s eyes; and (b) whether the question in general makes far-fetched and remote imputations that do not have any material bearing on the case. Based on these factors, the court may either compel the witness to answer the question or warn the witness that he/she is not obligated to answer the question. Here, the court retains additional discretion to draw an inference based on the witness’ refusal to answer – if the answer would have been unfavourable.
The court has similar discretion to forbid questions which are indecent and scandalous, but it will mandatorily reject questions which are needlessly offensive and intended only to insult or annoy.
Questions which seek to impeach the credibility of a witness tend to usually focus on reducing the overall creditworthiness of the witness, or show that the witness has been compromised, or that they are deposing contrary to their own previous statements.
A witness can also be questioned on circumstances incidental to a relevant fact, if the court believes that those circumstances would help corroborate the witness’ version of the relevant fact. For instance, a party may ask a witness questions on the circumstances surrounding a particular transaction (sale of property, or the execution of an agreement), which may be allowed by the court since those circumstances may corroborate the evidence of the particular transaction itself, which is the relevant fact.
A witness is also allowed to refresh their memory by accessing writing made by them at the time of the transaction in question. Experts, when questioned, can also access professional treatises, under the second proviso to Section 162(2). The counter-party is allowed to access these documents and may ask questions to the witness on these documents, if they deem necessary.
Cross-examination, as practitioners often point out, is a skill which takes a long time to develop and master. It is a skill which has a telling significance in a civil trial, since it allows a party to sow seeds of doubt in the court’s mind about the veracity of the counterparty’s factual version of events, by demolishing the credibility of their witness through pointed questions.
Tanvi Dubey is an Advocate-on-Record at the Supreme Court of India, with a diverse practice ranging from civil, commercial and constitutional disputes to service matters.
Sumit Chatterjee is an LL.M. candidate at NYU School of Law and was previously a dispute resolution lawyer in Bangalore.
The authors would like to thank Advocates Yash Dubey and Vansh Chauhan for their research assistance with the article.