Report No. 77

6.5. Control of cross-examination by the trial judge.-

Sometimes questions which are put to the witnesses in cross-examination are unnecessary and uncalled for; on occasions harassing and even slanderous. It is on such occasions that it becomes necessary for the trial judges to control the proceedings. Although it is essential that all. reasonable opportunity be afforded to counsel for parties to prove their case and bring material on record by explaining and cross-examining witnesses which may support the respective cases of parties, the presiding officers have also to ensure that under the cover of that the file is not burdened with wholly irrelevant and unnecessary material.

Experience tells us that many presiding officers, with a view to avoid a piquant situation with an aggressive counsel, adopt the path of least resistance and allow most things to be brought on record which an aggressive counsel desires. The trial judge who is shaky in professional understanding, imperfect in moral resolution or unduly conciliatory in personality, will inevitably be over-powered and overborne by forceful and aggressive trial counsel.

Cases have not been unknown when some judges have revealed psychic inability to stand up abrasive and strong-willed leaders of the bar. The way the witnesses are treated in witness-box while being subjected to cross-examination by the cross-examining counsel was described by Harold Laski after his gruelling cross-examination at the hands of Sir Patrick Hastings in the following words1:-

"He performs his war dance about you like a dervish intoxicated by the sheer ecstasy of his skill in his own performance, ardent in his knowledge that, if you trip for one second, his knife is at your throat He moves between the lines of sarcasm and insult. It is an effort to tear off, piece by piece, the skin which he declares no more than a mask behind which any man of understanding could have grasped the foulness of your purpose. He treats you, not as a human being, but as a surgeon might treat some specimen he is demonstrating to students in a dissecting room."

1.Harold Laski.