Banwari Lal And Anr.

vs State 1956 CriLJ 841

FACTS

The appellants are brothers namely Banwari Lal and Mahendra Nath who owned a ghee-grading
station under the firm name Ghamandilal Banwarilal situated at Khurja, Uttar Pradesh which was later
shifted to Agra. The complainant is the firm Makhanlal Radheylal which is also a money-lender. The
appellants and the respondent firm had entered into a few agreements for loans availed by the
appellants. The second agreement was propitious to the respondent firm as the accused/appellants
agreed to bear the majority of the liability arising out of the agreement. Nearly one lakh rupees was
availed by the accused by pledging tins of ghee with the respondent firm but were stored in the
accused’s storage facility as according to the agreement. Consequently, the accused had pledged more
and more tins and availed money from the respondent on the agreement that the ghee has to be stored
in the respondent’s storage facility hereafter.

      From the evidence, it can be learned that even on demand by the respondent the accused
evaded redeeming the pledged tins of ghee by repaying the loan amount. On a hot day, it was found
that a few ghee tins stored in the respondent’s storage facility started to ooze out of the containers. On
examination, a few of the tins were found to contain un-pure ghee where only the top layer was pure
ghee and the rest was filled up with cement, sand, and dust and moreover the tins had fake Agmark
labels. When the respondent decided to approach the accused, they learnt that the accused had run
away. Thus, a complaint was filed in the court of the City Magistrate of Agra. On inspections by the
deputy collector, Grading Department of the Government of India, it was established firmly that most
ghee tins were filled with cement and sand. As a result, the accused were convicted by the Additional
Sessions Judge of Agra for cheating, with three years’ rigorous imprisonment and 25,000 rupees fine
for both accused. If the fine was realized 48,000 rupees to be given to the complainant firm. For the
default of the payment of the fine another year was added to their sentence. Dissatisfied with the
judgment, the accused appealed to the Allahabad High Court.

ISSUE

1. Whether the accused had the right to cross-examine the prosecution witness?
2. Whether a witness who was examined under section 252 of the Code of Criminal Procedure
be cross-examined by the accused?
LAWS

THE INDINA PENAL CODE, 1860;

The accused in this were convicted of the offence under section 420. Section 420 deals with cheating
and dishonestly inducing delivery of property. This is an aggravated form of the offence of cheating
under section 415 of the Indian Penal Code. Section 420 provides that whoever cheats and dishonestly
induces such person to deliver any property or to make changes to any part of security or anything
that is sealed, signed capable of being a valuable security is will be punished with imprisonment upto
seven years also liable to pay fine.

THE CODE OF CRIMINAL PROCEDURE, 1973;

Whereby the Magistrate had directed the deputy collector to investigate, the magistrate had exercised
his power under section 202. It deals with inquiry or investigation for further scrutiny of the
complaint which the magistrate had received under section 192 of CrPC. On his discretion, the
Magistrate may either postpone the issue of process against the accused and either inquire into the
case by himself or direct an investigation to be made by a police officer whom he thinks fit. Thus, the
main object of this section is to enable the Magistrate to form an opinion as to whether the process
should be issued or not.

Section 252 was brought up by the bench by Shri Jagadish Sahai who contended that a witness
examined under section 252 cannot be cross-examined. Section 252 provides that in case the accused
pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the
accused and may convict based on his discretion. The requirements of section 252 are mandatory in
nature.

THE INDIAN EVIDENCE ACT, 1872;

Section 33 deals with the relevancy of certain evidence for proving in subsequent proceeding, the
truth of facts therein stated. It provides that evidence given by witness is judicial proceeding (where
oath is administered, cross examination etc.) such evidence and statements taken can be used in
subsequent proceedings and it becomes relevant.

Section 137 states the types of examination. It comprises of;

 examination-in-chief where the witness is called and examined by the same party who called
him
 Cross-examination where the witness is called by the adverse or the opposite party
  Re-examination where the witness is called again by the party who called him after cross
examination is done.

Section 138 lays down the order of examination. According to which examination-in-chief is first and
shall be done on relevant facts only followed by cross-examination and then re-examination. Other
than examination-in-chief which is mandatory, other types of examination may or may not be done.

ANALYSIS

Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it,
the evidence so given is relevant for the purpose of proving, in the subsequent proceeding or even in
the later stage of the same proceeding. It serves as the truth of the facts that has been stated in cases
where;

 The witness is dead

 Witness cannot be found
 Witness is incapable of giving evidence
 Is kept out of the way by the adverse party
 If the witness presence cannot be obtained without any amount or delay of expense which the
court considers unreasonable

The conditions that are laid down in the proviso clause of this provision are that the proceeding was
between the same parties or representatives, that the adverse party in the first proceeding had the right
and was given opportunity to cross-examine and the question were substantially the same in both
proceedings. If the condition is not fulfilled, then the statement cannot be used under section 33. Even
criminal trial or inquiry is deemed to be a proceeding within the meaning of section 33. In
Kulbhushan Sharma v State1, the court held that where witness is incapable of giving his evidence and
section 33 is invoked, it must be proved strictly. It is thus a primary right of the accused that the
witness giving evidence against him must testify before him and the court to observe his demeanour.

Cross-examination as defined under section 137 of the IEA, is the examination of the witness by the
adverse or the opposite party. As said by Wigmore, “Cross-examination is beyond any doing the
greatest legal engine ever invented for the discovery of truth”. The purpose of cross-examination is
twofold. The first is to elicit evidence supporting the cross-examining party’s version of the facts and
second is to discredit the evidence of the witness.

Cross-examination unlike examination-in-chief is not mandatory and can be skipped if the adverse
party so desires or fails to cross-examine the witness. Cross-examination is taken on relevant facts
1
Kulbhushan Sharma V State 1976 CriLJ 1433
which was examined during the examination-in-chief as well as the relevant facts that were not
examined during the examination-in-chief. In Sharadamma V Kenchamma2, The Karnataka High
Court held that the question of cross-examination only arises when witness had tendered the evidence
during the examination-in-chief. Only a witness who was examined-in-chief can be cross-examined.
In Abdul Rahim V Emperor3, it was clearly reiterated that in cross-examination right and opportunities
must co-exist paving way for the cross-examination of the accused who was examined-in-chief.

In this case since section 252 of the CrPC was stated to abrogate the right of cross-examination under
section 138 of the Evidence Act, it is necessary to know the difference between both the legislations.
Indian Evidence Act is exhaustive and provides the right of the parties in matters of evidence whereas
the Criminal Code is a procedural law thus the substantial of question whether a party has right to
cross-examine the witness must be answered from Indian Evidence Act and no the procedural laws.
Moreover, since the accused was examined under section 252 by the Magistrate does not amount to
deprivation of the right to cross-examine such witness by the accused. Thus if section 138 is not
invoked, there is no other special provision in law that provides for the cross-examination by the
accused. In Rex V Daya Shankar4, that had similar facts as this case, the court held that the statement
given by witness when examined under section 252 would be admitted into evidence under section
33.

CONCLUSION

Laws that repeal are to be construed strictly and implications do not play a role in case of repealing
laws. Where the judge contended that section 252 impliedly repealed the right of cross-examination
and since there was no conflict between the said provisions, it shows a blatant error on part of the
judge. Since, there was no express repeal, it was rightly held by the appellate court that the right to
cross-examine a witness who was examined under section 252 was not abridged. And consequently,
the conviction of the accused by the lower court was upheld. Thus section 137 provides that that a
witness shall be examined means not only that he shall be examined in chief but permitted to be cross-
examined and re-examined. Thus, no examination of witness can be said to be complete if the adverse
party is illegally refused to conduct cross-examination of the chief examined witness.

2
Sharadamma V Kenchamma AIR 2000 Kant 17
3
Abdul Rahim V King-Emperor (1946) 48 BOMLR 473
4
Rex V Daya Shankar, AIR 1950 All 167