Comments: examination the defendant under Order XVIII,



Section 135 deals with the order in which witnesses are to be produced for examination. It is generally done by the law and practice for time being relating to Civil and Criminal Procedure; and in absence of any such law by the direction of the court. It would be the sound exercise discretion of the trial court that the cross-examination of the witnesses, whose examination had already been stated, if possible shall be allowed to be completed before starting cross-examination of the other witnesses. In civil proceeding, Orders and Rules prescribed by the Civil Procedure Code, 1908 are to be followed. Under Order XVIII, Rule 1, it is generally the right of the plaintiff to begin. After examination the defendant under Order XVIII, Rule 2, will examine the witnesses. In criminal proceeding the procedures as laid down by the Code of Criminal Procedure 1973 are to be followed. There are various sections2 in the Criminal Procedure followed for examination of witnesses. If there is no law and practice prescribed for examination of witnesses, the order by which the witnesses ought to be examined are to be determined by the court.

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Procedure for examination of witness:

When the examination of a witness takes place the other witnesses must be kept out of the court room. All witnesses are to be examined one by one. When any objection is raised by either of the parties the court should dispose of the objection instantly with reason in writing.

In civil cases the rule governing production and examination of witnesses depend upon the principle which governs the question. It is privilege of the party who has the right to begin. “The right to begin is obviously an advantage to the party with a strong case for he gets the privilege of making the first impression.”

In criminal trials the prosecution always begins. The prosecutor is required to examine the witnesses in proper order. In case of examination of expert witnesses it ought not to be examined at the early stage of trial.

Non-examination of witness:

The Supreme Court in observe of record to show the efforts were made by prosecution to produce witness, held non-examination of witness on ground that the witness was untraceable to be not justifiable. The Supreme Court took note of another aspect that “one person who was to be examined on the particular date was examined earlier than the date fixed and observed that was unusual conduct by the prosecutor which have been seriously taken note of the trial court and High Court.”

Police while filing charge-sheet enlisted the name of ‘M’ in list of witnesses. ‘M’ was summoned for examination. But same could not be achieved as the said witness was shifted to Hong Kong and not staying in India. It was held that it cannot be said that the witness was deliberatly not examined by the prosecution.