Court Can't Direct Party To Cross-Examine Witness On Basis Of Photocopies, Speculative Documents: Delhi High Court

The Delhi High Court has set aside an order passed by the trial court which directed a party to a civil suit to cross-examine a witness of the opposite party on the basis of photocopied documents.

Justice Tushar Rao Gedela observed that the procedure directed by the trial court is “alien to law” and the order “cannot withstand a judicial scrutiny.”

“This possibly cannot 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 court said.

The court was hearing a plea moved by defendants in the suit challenging an order of the trial court passed on February 21 directing them to cross-examine plaintiff’s witness before the Local Commissioner on the basis of the photocopies. The original documents were permitted to be filed subsequently.

The counsel appearing for the petitioner submitted that the procedure stated in the impugned order was unique as even before the original documents were produced before the trial court or the Local Commissioner, the trial court directed the cross- examination of the witness to be conducted on the basis of photocopied documents.

Setting aside the trial court order, the court said that only original documents constitute primary evidence and "those photocopies which are otherwise proved by way of secondary evidence may also form substantial evidence which can, not only be proved but also be relied upon by the parties in a lis."

“A perusal of the impugned order brings to fore the fact that the procedure as directed is contrary to Section 62 itself, as also to the law in that regard inasmuch as the 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 court said.

Observing that no occasion to prove the documents by secondary evidence had arisen in the matter, Justice Gedela said that the question of directing the petitioner to cross-examine the respondent’s witnesses on the basis of photocopies was “absolutely contrary to the procedure known to law.”

“Another aspect which has to be considered is that in case after the cross-examination has been conducted by the petitioner, the respondent is unable to produce some documents in original, the cross-examination so far as those documents are concerned would become otiose and rendered nugatory,” the court said.

It directed the trial court to ensure that the originals of the documents relied upon by the respondent are brought on record and proper procedure be followed before such documents are made part of the record on the basis of which petitioner’s cross-examination will commence.

“Till the time the aforesaid exercise is carried out, the learned Trial Court shall not pass any direction for conducting cross-examination of any witness of the respondent,” the court added.

Title: S GURBACHAN SINGH & ORS v. GEETA ISSAR

Citation: 2023 LiveLaw (Del) 327

Click Here To Read Order