Case Note & Summary
The applicant, accused in NDPS Special Case No.51 of 2011 pending before the Special Judge for NDPS, Greater Mumbai, challenged an order dated 19 June 2012 passed by the Special Judge allowing the prosecution's application for permission to re-examine the first prosecution witness (PW-1) after cross-examination had already commenced. The recording of evidence began on 26 September 2011, and the examination-in-chief of PW-1 was completed on 30 September 2011. Cross-examination commenced thereafter, but after one question, the matter was adjourned to 11 October 2011 and subsequently from time to time. On 7 March 2012, the prosecution filed an application seeking permission to re-examine PW-1. The defence objected on the ground that cross-examination had already started and re-examination in its midst was not permissible. The Special Judge allowed the application. The applicant then approached the High Court under its inherent powers to quash the order. The High Court examined the provisions of Section 137 of the Indian Evidence Act, 1872, which prescribes the order of examination: examination-in-chief, cross-examination, and then re-examination. The court held that re-examination is only permissible after the conclusion of cross-examination, not during its pendency. The impugned order was quashed and set aside, and the application for re-examination was dismissed. The court clarified that the prosecution could seek re-examination after the cross-examination was completed.
Headnote
A) Criminal Procedure - Re-examination during cross-examination - Section 137 Indian Evidence Act, 1872 - The court held that re-examination is only permissible after the conclusion of cross-examination, not during its pendency. The order allowing re-examination in the midst of cross-examination was quashed as it violated the statutory scheme of examination of witnesses. (Paras 5-6)
Issue of Consideration
Whether the Special Judge could permit re-examination of a prosecution witness after cross-examination had commenced but before it was concluded.
Final Decision
The impugned order dated 19 June 2012 passed by the Special Judge is quashed and set aside. The application for re-examination is dismissed. The prosecution may seek re-examination after the cross-examination is completed.
Law Points
- Re-examination cannot be conducted in the midst of cross-examination
- Section 137 of Indian Evidence Act
- 1872 prescribes order of examination
- re-examination is only after cross-examination
- inherent powers under Section 482 CrPC
