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    Delhi High Court Rejects Cross-Examination Based on Speculative Documents

    A single-judge bench of Justice Tushar Rao Gedela set aside a trial court order directing a party to cross-examine a witness based on photocopies of a document

    The Delhi High Court recently overturned a trial court order which instructed a party in a civil suit to cross-examine a witness from the opposing side using photocopies of a document. The High Court’s ruling deemed the procedure “alien to law” and stressed the importance of adhering to the proper legal framework.

    The Trial Court’s Controversial Order

    The High Court was hearing a plea filed by defendants in the suit challenging an order of the trial court passed on February 21. The order directed them to cross-examine the plaintiff’s witness before the local commissioner, relying on photocopies of the document in question. The trial court had permitted the filing of the original documents at a later date.

    In its April 12 order, a single-judge bench of Justice Tushar Rao Gedela remarked, “The procedure directed by the learned Trial Court is alien to law and is unsustainable as such. The impugned order cannot withstand judicial scrutiny and is set aside. The learned trial court is directed to ensure that the originals of the documents relied upon by the respondent are brought on record. The proper procedure, thereafter, be followed before the same are made part of the record, on which the cross-examination by the petitioner is to commence”.

    Suspension of Cross-Examination

    Until the proper procedures are followed, the trial court shall not pass any direction for conducting a cross-examination of any witness of the respondent, disposing of the plea.

    The High Court found the trial court’s procedure to be contrary to Section 62 of the Evidence Act, which states that “primary evidence means the document itself produced for the inspection of the court”.

    The court highlighted that the trial court order is contrary to the law which mandates that “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 HC said.

    Section 63 explains what constitutes secondary evidence, while Section 65 provides instances where secondary evidence related to documents may be given.

    The High Court’s Observations

    The High Court noted that since there was no occasion for proving documents by secondary evidence, directing the petitioner to cross-examine witnesses based on photocopies is absolutely contrary to the procedure known to law.

    It further observed that in this case, after the cross-examination was conducted by the petitioner, the respondent was unable to produce some original documents. Consequently, the “cross-examination so far as those documents are concerned would become otiose and rendered nugatory”.

    The court emphasized that this could not 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”.

    Arguments Presented

    The petitioner in the High Court argued that the procedure indicated in the trial court’s order was unique, as even before the original documents were produced before the Trial Court or the local commissioner, the “Court is expecting the petitioner to conduct cross-examination on those photocopies”. The petitioner maintained that this procedure contradicts Section 62 of the Evidence Act and that cross-examination cannot occur based on photocopies.

    In contrast, the other side argued that the cross-examination, if any, based on the photocopies is subject to the production of the original documents by the respondent. They claimed that no prejudice would be caused to the petitioner by cross-examining the witness of the respondent in this manner.

    Implications of the High Court’s Decision

    The Delhi High Court’s decision to set aside the trial court order emphasizes the importance of adhering to established legal procedures and the Evidence Act. The ruling protects the right to cross-examine witnesses based on admissible evidence, ensuring that the integrity of the legal process is maintained.

    This verdict reiterates that cross-examination is a crucial aspect of the legal process, and parties must not be forced to rely on speculative and inadmissible documents. The decision also underscores the significance of proper document production and the need for courts to follow the correct procedure to ensure that the rights of all parties involved are protected.

    In conclusion, the Delhi High Court’s ruling serves as a reminder to the legal community that the right to cross-examine witnesses is an essential component of the justice system. It is crucial to uphold the principles of admissibility and the proper handling of evidence to ensure fair trials and protect the rights of both parties in any legal proceeding.

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