Report No. 198

Chapter II

Public Trial and Cross Examination of Witnesses in Open Court: Existing Indian Laws

2.1 Introduction: Public trial and cross examination of witnesses: existing Indian laws

The adversary system of trial which has been adopted in India is founded on the basis of two vital principles, firstly, that the burden of proof lies on the prosecution to prove the guilt of the accused and secondly, that the accused is presumed to be innocent until the contrary is proved. These principles provide a level playing field to an accused as against the mighty power of the State and its instrumentalities. In a criminal trial, the prosecution and defence prepare their respective cases and the prosecution has to first lead evidence.

The defence cross-examines the prosecution witnesses to test the veracity of the prosecution case. The accused has the right to silence and need not normally examine witnesses unless he chooses to examine himself or some defence witnesses and this is generally done in cases where he has a special plea or a plea of alibi. The Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973 lay down a comprehensive legal framework for recording the testimony of witnesses in criminal cases. In addition, clause (3) of Art. 20 the Constitution protects the accused against self-incrimination.