Report No. 69
Cross-Examination-who can be Cross-Examined
Sections 139 and 140
78.1. A summons may be issued to a person either for giving oral evidence or for production of documents. Under section 139, a person summoned to produce a document does not become a witness by the mere fact that he produced it, and he cannot be cross-examined unless and until he is called as a witness. With this section may be read provisions in the two procedural Codes1-2 which, in substance, enact that-(i) any person may be summoned to produce a document, without being summoned to give evidence; and (ii) any person, summoned merely to produce a document, shall be deemed to have complied with the summons, if he causes such documents to be produced instead of attending personally to produce the same.3
1. Order 16, rules 6 and 15 of the Code of Civil Procedure, 1908.
2. Section 94(2), Cr. P.C., 1898, and section 91(2) in 1973 Code.
3. Emphasis supplied.
78.2. An omission to produce a document when ordered by a court is an offence under section 175, Indian Penal Code. Omission to attend the court in obedience to a summons is an offence under section 174 of the same Code. If a witness attends the Court, section 174 of the Penal Code does not apply. In a Bombay case1 a witness had been summoned to produce a document. He came to court and stated on oath that he could not produce it. The Judge, disbelieving him, fined him Rs. 85 under section 174, Indian Penal Code. It was, however, held that the section was not applicable, though the witness could have been punished under section 175, Indian Penal Code, or section 480, Code of Criminal Procedure, 1882 (then in force). He could also, if guilty of falsehood, have been prosecuted for giving false evidence in a judicial proceeding.
1. Preen Chand Daulatram (in re:), 1888 ILR 12 Born 63.
78.3. No change needed.- We have no further comments on section 139.
78.4. Under section 140, witnesses to character may be cross-examined and re-examined. It may be noted that the practice in England is not to cross-examine, except under special circumstances, witnesses who are called merely to speak to the character of the accused: but there is no rule which forbids the cross-examination of such witnesses. Presumably, the practice of not cross-examining such witnesses may be due to a desire not to prolong the proceedings by spending an unreasonably long time in collateral inquiries. Section 140 was, apparently, considered necessary by way of abundant caution in order to avoid any argument that there is any prohibition in law against the cross-examination of witnesses to character. No changes are needed in the section.