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Report No. 58

Supreme Court's view on High Courts powers to cross-examine

5.34. The matter came up before the Supreme Court in appeal under Article 136. The following observations of the Supreme Court regarding the determination of disputed questions of facts in writ petitions, may be referred to-

"In our opinion, in a proceeding under Article 226 of the Constitution, the normal rule is to decide disputed questions on the basis of affidavits and that it is within the discretion of the High Court whether to allow a person who has given an affidavit before it to be cross-examined or not.

In exercise of its discretion the High Court has refused permission to cross-examine them. In such a case it would not be appropriate for this court when hearing an appeal by special leave to interfere lightly with the exercise of that discretion. The Court has to find the facts and if it finds that it can do so without cross-examination, it is not compelled to permit cross-examination. We have no reason to think that the High Court could not have ascertained the facts on the affidavits themselves.

In a petition under Article 226, there is undoubtedly ample power in the High Court to order attendance of a deponent in court for being cross-examined. Where it is not possible for the court to arrive at a definite conclusion on account of there being affidavits on either side containing allegations and counter-allegations, it would not only be desirable but, in the interest of justice, the duty also of the court, to summon a deponent for cross-examination in order to arrive at the truth."

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