Practice related: cross examination deferred: delay tactics
1.In a criminal complaint case , Summoning Orders has been issued and the matter is at Pre-Charge Evidence.
2.Complainant is leading his Pre-Charge Evidence.
3.Complainant has Filed a Photocopy of Polygraph Report in support of his evidence.
4.The Original Copy of the Polygraph Report is Filed in another Court in another Proceeding at a different district court.
5.To proove the Photocopy of the Polygraph Report ; Assistant Director - Polygraph Division - who conducted the Polygraph Test is summoned by the Complainant as witness u/s 91 Cr.p.c.
6.( Witness No. 4 ) - Assistant Director appears in the Court in compliance with the summons and Prooves the Report - by comparing the Photocopy filed on court record with his own records.
7.Pursuant to the said Report been Prooved the Said Document - Prooved - Photocopy of Polygraph Report is Exhibited as EX-CW1/4.
8.It is to be Noted that the above Prooceedings of Summoning the Polygraph Expert and then Prooving and Exhibiting of the Document is done in the Presence of and under the Observation of the Defense/Accused Counsel and in the Presence of the Presiding Officer.
9.The matter is deffered for Cross Examination of the Polygraph Expert as the accused counsel did not conducted the cross examination on the day when the said Polygraph report was Prooved and Exhibited.
10.Further it is to be Noted that a Copy of the Polygraph report was also supplied to the accused counsel along with the copy of the complaint pursuant to Summoning Orders in 2013.
11.On the day fixed for Cross Examination of Polygraph Expert - Examiner in regard to Polygraph report filed , prooved by the Complainant, The Accused Counsel Questions the Validity of Polygraph Report and says that he cannot and shall not conduct Cross Examination of the Polygraph Expert because it is a photocopy.
12.The said delay tactic is opposed by the Complainant that the Said Polygraph report - Photocopy is already prooved and exhibited on the previous dates by the Polygraph Expert by himself comparing the Photocopy with his own records and then recording his Examination - In Chief on Oath that he Prooves the Report and its contents and his signature on it.
13. To save the Date of Hearing getting wasted the Complainant submits that even today the Polygraph Expert has brought his own records and he can again proove and show his own report for the verification - comparison - validation by the accused counsel of the photocopy report placed on record.
14. The complainant further submits that he - accused counsel may kindly do the Cross Examination as it is very difficult to again and again summon Assistant Director - Polygraph Expert and that every time the Complainant has to pay heavy diet money.
15. The Complainant even further mentions that he will in due course also file the Certified Copy of the Original report filed in other District Court by Applying for the same , when in fact the photocopy report already filed before this court is in fact the Photocopy of the Original.
16. The Complaint even submits that the accused can filed proccedings under Section 340 Cr.P.C. if at all at any further stage it can shown that the photocopy of the Polygraph Report filed by the Complainant is in any way different from the Original Copy.
However inspite of the all the above submissions, matter is Deferred and Cross Examination is not conducted and the date is wasted and the complainant ends up paying heavy diet money much to the amusement of the accused / his counsel as for the next 2-3 months the Polygraph Expert is not available for Re - Summoning and now the Framing of Charges will get further delayed.
Can at this stage when the matter is fixed for Cross Examination of the Polygraph Expert by the accused counsel, Can he be allowed to have the Cross Examination deferred on the Whimsical Stand that it is a Photocopy and Not original report ( when in fact the report is already prooved and exhibited on earlier date in the presence of accused counsel ) . Can Adjournment without any costs imposed or curtailing the right of accused counsel to cross examine the Polygraph Expert be done.
Asked in Criminal Law from DELHI, Delhi
1. The matter is really surprising to hear as secondary evidence like photocopy is as good as primary evidence like the original if it is formally proved like in the present case.
2. Since the report is already formally proved and is exhibited there is absolutely no chance upon the defence to defer the cross examination on the pretext of bringing the original.
3. If the photocopy was exhibited without the objection of the defence counsel then later in argument stage the defence counsel can not even challenge its authenticity.
4. File a petition in court to close the evidence if it defers the cross once again and if the magistrate does not close the evidence then file a revisional application in high court. You will get justice.
The polygraph expert need not come at all to face cross examination. Only the person who exhibited the photocopy report shall face cross examination.
photocopy of the report shall be treated as the secondary evidence, according to section 65(c) of evidence act a person can file secondary evidence if he can not produce original evidence for any other reason not arising from his own default or neglect, produce it in reasonable time.
when original is already submitted in other court so you can't produce it in this court so it is not your default (section 65,C) and also there is a chance to produce original but it will take more time(section 65,C). in this condition court has power to accept photocopy in the ends of justice, but court shall seek objection from the opposite side.
when objection is received then court shall pass order in regard of admittance of the document. if court admits it then opposite party can file revision against it otherwise proceed further. In your case it is flaw of the court side. court is to decide its acceptance.
Setion244 Cr.P.C. deals with pre-charge evidence in a complaint case.So documents given u/s Section 244 Cr.P.C do not come under defination of charge-sheet,which comes in picture as per provision of Section 245 Cr.P.C.Documents given in proceedings of 244 Cr.P.C. are part of evidence.As far your second chance is concerned it comes under Section 246 Cr.P.C, in which futher evidence can be submited by complainant side through a new witness, who had been not examined in Pre-Charge evidence.
Section 244, Cr. P.C. the accused has a right to cross-examine the witnesses and in the matter of Section 319, Cr.P.C. when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh. Again, the witnesses would have to be re-heard and then there would be such a right. Merely presenting such witnesses for cross-examination would be of no consequence.
In Harinarayan G. Bajaj v. State of Maharashtra & Ors. (2010) 11 SCC 520, this Court reiterated the legal position stated in Ajoy Kumar Ghose (supra) and held that the right of an accused to cross-examine witnesses produced by the prosecution before framing of a charge against him was a valuable right. It was only through cross-examination that the accused could show to the Court that there was no need for a trial against him and that the denial of the right of cross-examination under Section 244 would amount to denial of an opportunity to the accused to show to the Magistrate that the allegations made against him were groundless and that there was no reason for framing a charge against him
In your case the photocopy is marked previously through Polygraph Expert and comparing the Photocopy filed on court record with his own records. So in this juncture defence counsel can not even challenge its authenticity
1. Court cases are battles faught befor ethe Court,
2. The said trick is very much known for which lawyers avoid submission of photocopies,
3. Had certified copies of the said polygraph report been submitted, this problem could have been avoided,
4. It is before the Court to allow adjournment on the ground place by the accused's lawyer though he was present before the court when the photocopy of the said document was admitted as documents and was treated as an Exibit,
5. The Court seems to have alloed the delay tactic played naturally by the advocate od the accused.