Witness Examined U/S 165 Evidence Act Is Required To Be Cross Examined To Elicit Further Truth/Other Relevant Facts: Chhattisgarh High Court

The Chhattisgarh High Court has observed that when a witness is examined/questioned under Section 165 of the Indian Evidence Act in a given case, then he/she is required to be cross-examined to elicit further truth/other relevant facts.

The Bench of Justice Goutam Bhaduri observed thus while allowing a plea filed by a rape accused whose application moved to summon and cross-examine the prosecutrix/victim (who was earlier questioned by Court under Section 165 of Evidence Act) was dismissed by the trial Court. 

It may be noted that Section 165 of the Indian Evidence Act deals with the Judge's power to put questions or order production. The provision authorizes a Judge, in order to discover or to obtain proper proof of relevant facts, to ask any question he pleases, in any form, at any time to any witness, or of the parties, about any fact relevant or irrelevant.

The case in brief

Essentially, it was the argument of the accused person that initially the prosecutrix had supported the case of the prosecution but in the cross-examination, the incident was disowned, and subsequently again, when the court asked the question (invoking its power under section 165 of Evidence Act), she had supported the version of the prosecution.

Therefore, in order to clarify the same, the counsel for the accused argued that the application under Section 311 of the Cr. P.C should have been allowed by the trial court which would in turn lead to a fair opportunity for trial.

On the other hand, the Counsel for the State submitted that the order sheet itself would reflect that fair opportunity was given to the petitioner and it is the discretion of the court to allow or disallow the question when there is power under Section 165 of the Evidence Act and it would amount to filling up the lacuna, therefore the order is well merited.

Court's order

The Court noted that the prosecutrix had, in her examination-in-chief, supported the case of the prosecution, however, in the cross-examination, she had completely disowned the happening of the incident of rape upon her. Further, when questioned by the Court u/s 165 evidence act, she had said that the petitioner/accused had committed wrong with her.

Against this backdrop, the Court, at the outset, stressed that the courts are required to take a participatory role during the trial but they can not lose their balance, and further, the Court opined thus:

"When the courts have exercised such power and when the leave of the court was asked for to cross-examine to eliminate the further truth, having denied, it would result into trial not eclipsed by any ambiguity. The question put forth by the trial Judge will only mutate in favor of the prosecution therefore giving an 8 opportunity to the petitioner to further cross-examination will wipe out any further criticism and rather will restore the promise of fair opportunity. Therefore in the opinion of this Court, the application so moved by petitioner to cross-examine the witness further should have been allowed or otherwise, it would lead to suppression of a fair trial."

Consequently, the order of the trial court was set aside and the application under Section 311 of Cr.P.C. read with Section 165 of the Evidence Act was allowed.

Case title - Besahu Lal Yadav v. State Of Chhattisgarh

Case Citation: 2022 LiveLaw (Chh) 26

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