• Situations where court dissallows re examine of witness in 138 ac

Hi sir i want to know about 138 evidance act that in which situations court diss allow re examine of witness
Asked 7 years ago in Criminal Law
Religion: Hindu

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6 Answers

1) an application for re calling and re examination of the said witness may befiled in the court stating the reason for te examining the said witness.

2) if new issue has arisen on account of the cross examination which has caused ambiguity in the matter in issue which has to be decided by the court. If there are absolutely necessary reasons for re examining the said witness.

Ajay Sethi
Advocate, Mumbai
95223 Answers
7612 Consultations

5.0 on 5.0

SC n case of Mohanlal Shamji Soni v. Union of India and another AIR 1991 SC 1346 has

held that:-

“Section 311 is an almost verbatim reproduction

of Section 540 of the old Code except for the

insertion of the words ‘to be’ before the word

‘essential’ occurring in the old section. This

section is manifestly in two parts. Whereas the

word used in the first part is ‘may’ the word used

in the second part is ‘shall’. In consequence, the

first part which is permissive gives purely

discretionary authority to the Criminal Court and

enables it ‘at any stage of enquiry, trial or other

proceedings’ under the Code to act in one of the

three ways, namely,

(1) to summon any person as a witness, or

(2) to examine any person in attendance,

though not summoned as a witness, or

(3) to recall and re-examine any person already


8. The second part which is mandatory imposes

an obligation on the court —

(1) to summon and examine, or

(2) to recall and re-examine any such person if

his evidence appears to be essential to the just

decision of the case.

9. The very usage of the words such as ‘any

court’, ‘at any stage’, or ‘of any enquiry, trial or

other proceedings’, ‘any person’ and ‘any such

person’ clearly spells out that this section is

expressed in the widest possible terms and do not

limit the discretion of the court in any way.

However, the very width requires a corresponding

caution that the discretionary power should be

invoked as the exigencies of justice require and

exercised judicially with circumspection and

consistently with the provisions of the Code. The

second part of the section does not allow for any

discretion but it binds and compels the court to

take any of the aforementioned two steps if the

fresh evidence to be obtained is essential to the

just decision of the case.”


Ajay Sethi
Advocate, Mumbai
95223 Answers
7612 Consultations

5.0 on 5.0

In Rajendra Prasad v. Narcotic Cell (1999) 6 SCC 110

Lacuna in the prosecution must be understood

as the inherent weakness or a latent wedge in the

matrix of the prosecution case. The advantage of

it should normally go to the accused in the trial of

the case, but an oversight in the management of

the prosecution cannot be treated as irreparable

lacuna. No party in a trial can be foreclosed from

correcting errors. If proper evidence was not

adduced or a relevant material was not brought

on record due to any inadvertence, the court

should be magnanimous in permitting such

mistakes to be rectified. After all, function of the

criminal court is administration of criminal justice

and not to count errors committed by the parties

or to find out and declare who among the parties

performed better.

Ajay Sethi
Advocate, Mumbai
95223 Answers
7612 Consultations

5.0 on 5.0

An order of the court disallowing further evidence can be challenged through a criminal revision. If the court believes that further witnesses are not material to the determination of the controversy or that the complainant or accused, as the case may be, could have examined those witnesses earlier but did not do so then it may dismiss the application.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination.—The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

The court may disallow re-examination if it is felt that the party seeking re-examination is unnecessarily dragging on the proceedings without any valid or authentic reason seeking re-examination, it depends on how the party presents his argument on the petition seeking re-examination.

T Kalaiselvan
Advocate, Vellore
85424 Answers
2239 Consultations

5.0 on 5.0

If the petitioner fails to convince the court the reason or relevant facts that were not extracted during cross examination or if the matter now referred to in the petition are irrelevant to the facts that were put during cross examination and if the court is of the opinion that the petitioner failed to prove sufficient cause to permission seeking re-examination, the petition may be dismissed.

T Kalaiselvan
Advocate, Vellore
85424 Answers
2239 Consultations

5.0 on 5.0

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