The way of Cross Examination: Sr. Adv. Ram Jethmalani

The way of Cross Examination: Sr. Adv. Ram Jethmalani, SC THE WAY OF CROSS EXAMINATION: SR. ADV. RAM JETHMALANI, SC

Cross-examination is the most intelligent device evolved by the human civilisation during the experience of centuries. In law, cross-examination is the interrogation of a witness called by one's opponent. The main purposes of cross-examination are to evoke favourable facts from the witness, and to charge the credibility of the testifying witness to lessen the weight of unfavourable testimony. Cross-examination frequently produces critical evidence in trials, especially if a witness contradicts previous testimony.

Mr. Ram Jethmalani one of the famous lawyers in India described the art of cross-examination as the most effective weapon for the discovery of truth, provided the objective is not to confound a truthful witness but to extract truth from an unwilling witness. In a court trial the search for truth is the ultimate and idealistic end of all litigated matter and this truth is obtained due to the process of cross examination in the conduct of litigation.

A large number of complaints and cases are filed in civil and criminal courts every day in our country. Mr. Jethmalani says that delay in justice in India is common due to the rapid growing pendency of cases in courts

In both civil and criminal case examination of witnesses plays an important role in the presentation of the evidence in a court of law and admissibility of that evidence is an important aspect which has to be decided by the judges only. Each case is looked upon clearly and it takes a long time to pass the judgment by the court Due to this procedure of examination. 

Need of Cross examination

Cross Examination is one of the inevitable feature of our legal system.  To understand its aspects take an example If a man reports to a court that he has seen A shooting B with a revolver on a particular date, in the evening, and thus killed him. Then how will the court know whether or not to believe the version of the so called eye witness. There are equal chances of the testimony of witness being true or false. A witness may have several reasons to say falsehood or even to say the truth. A witness may give false information due to enmity, greed or to implicate somebody with ulterior motives. So, a witness can be believed only if he/she passes the examination of truth through cross examination. 

ie, the witness has to pass an examination before entering the court. This process is done by giving an opportunity to the opposite party to ask questions which challenges the accuracy of the information given by the witness of the opposite party. Questions about previous statements and conduct before, during and after the incident happened may be asked. If the witness replies satisfactorily then the court may declare them as reliable witness, but if they fail during the cross examination, then their testimony is of no consequence.

Cross examination may differ from case to case and person to person. The age, position, status, expression in court, experience, qualification and expertise etc, are some subjects of cross examination. As the questions change on the spot according to the response of the witness it is dynamic in nature.

Cross Examination in Indian Laws

Right to cross examination flows from the principle of Natural Justice that evidence may not be read against a party until the same has been subjected to cross examination or at least an opportunity is given to cross examine. This right is one of the most powerful instrumentalities provided to lawyers in the conduct of litigation. The most important purpose of this right is to attempt to destroy the credibility of the opponent’s witness.

Chapter X of Evidence Act 1872, deals with examination and cross examination of witnesses before court of law. The relevant sections are section 136 to Section 166 of the evidence Act. Section 137 tells about examination in chief and cross examination of a witnesses. According to this Section 137, the examination of witness by the adverse party shall be called his cross examination. Section 138 provides the Order of Examination, it may be a technical rule but it flows from the essential rules of justice. It says that there must be first an Examination in Chief, then the opposite party cross examines the witness and if the party calling the witness so desires, there may be re-examination.

Basics of Examination of a witness in court:  the examination of a witness who calls him is called as ‘Examination in chief’. After Examination in chief, the examination of the witness by an opposite party is called ‘Cross examination’. The examination of a witness subsequent to Cross examination is called Re-examination. The Re-examination can be made to explain a matter stated in Examination in chief and if some new matter is narrated in Re-examination the adverse party can again cross-examine about new matters.

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Art of Cross Examination

The art of Cross Examination plays an important role in the trial of each and every case whenever the talent and hard work of the lawyer is involved to secure justice for their clients. To learn and perfect the art of cross examination a lawyer must observe others, read trial and deposition trans c r i p ts and by conducting the examination personally. A trial lawyer must adapt well to particular witnesses and different cases.

Cross examination of witness is the duty of every lawyer towards his client. It is the most efficacious test to discover the truth and to detect false statements made by the witnesses. Justice can be defeated if cross examination is not done properly.  Often, however, one needs to spend time with the witness to develop several critical points to counter the impact of the direct examination. Thus the preparation by a lawyer is very important before initiating a Cross-Examination of any witness. The lawyer should clearly bear in mind those points he or she wishes to make with that witness and frame them beforehand. These points should also be discussed with those who are assisting at trial. Patience is the virtue in Cross-Examination and judges must give chance to every party to Cross-Examine the other party’s witness.

A lawyer should use leading questions (Section 141) i.e. “is that correct?” and “isn’t it a fact” etc. at the time of Cross-Examining of the witness because asking leading questions is perhaps the oldest rule of Cross-Examination.. Leading questions are effective because they essentially allow the Cross-Examiner to testify and the witness to ratify. The technique advances one of the important dynamics of the courtroom is control. Asking leading questions allows the Cross-Examiner to be forceful, fearless, knowledgeable and informative.

The lawyer must also keep in mind while framing the questions that the questions asked during the Cross-Examination must be relevant to the issue related in the facts of the case. Indecent & scandalous questions can also be asked by the advocate at the time of Cross-Examination if they relate to the fact in issue. Most importantly questions intended to insult or annoy should be forbidden by the court even though the question may seem to be proper.

The court which has authoritative power to decide the case can recall the witness for the Cross-Examination based on the facts and circumstances of that particular case. A summary procedure does not take away the rights of the parties to Cross-Examine as every party has to be given fair deal in the matter of Cross-Examination. 

Conclusion

Certain points to be considered by the lawyers during cross examination. The need for cross examination is to question the testimony of the witness before the judge, in favour of the client. But the reason why cross examination evolved as the one of the main part of lawsuit was because justice is based on truth. Cross examination helps the court, judges and jury to reach to the truth. The case will be presented to the utmost satisfaction of the judge if the attorney does the cross examination with these principles in mind, and that is how art of cross examination is understood and excellence is attained.

Sir Ram Jethmalani ,the Doyen of Criminology, has been conferred upon with the title of a senior Criminal lawyer by the Honorable Supreme Court of India .Others call him a Legal Eagle, while some others christened him as THE DEVIL'S ADVOCATE.

Along with a lot of Fans,Followers and likers, he also has a large number of people who hate and dislike him and his views, and do criticise him, but that in my sense is ENVY. Un doubtedly,everybody ,even those who oppose and criticise him for his Courtroom wits, air of Superiority or hate him for any other reasons have to admit that he is really the best!

Advocate Ram Jethmalani is a legend and will remain to be in the hearts of every practicising and would be Criminal Lawyer !

#sanjay kumar sinha

MISCONCEPTIONS ABOUT POWER OF ATTORNEY

MISCONCEPTIONS ABOUT POWER OF ATTORNEY

Power of Attorney is a legal document that you sign to authorize someone else to act on your behalf on matters that you specify.  Mostly powers of attorneys are limited in the certain circumstances in which the power of attorney is triggered. The person who is holding a power of attorney is entitled to exercise any of the powers defined as per the document on behalf of the person who created the document.

A Power Of Attorney allows your Attorney to manage your affairs either for a limited period of time or on a continuing basis. It is advisable to designate someone to manage your property and financial matters before you met with any sudden illness or accident.

One of the main misconceptions about General Power Of Attorney is that it ensures legal title to the person in whose favor GPA has been issued.  But the fact is that GPA does not ensure any title transfer or transfer of ownership rights because it is a general authorization to do certain deeds and acts.

There are two kinds of Power of attorney general power of attorney and special power of attorney.  There exist some confusions in the difference between these.

A General power of attorney can be considered as a legal document authorisingauthorizing to act on behalf of another. The principal transfers his authority to someone because he is unable to make the decisions by himself/herself. This type of PoA is not specific in nature and the agent to whom the principal transfers the power would have the authority to make legal, medical, financial and business decisions except real estate. This is irreversible and the principal should agree to approve what is done as per the GPA.

Special power of attorney can be considered as a legal document authorising one person (agent) to act on behalf of another person (principal). The principal transfers his authority to an agent because he is unable to make the decisions by his/herself. This type of PoA is specific to property. It is also irreversible and the principal must agree to whatever done by the SPoA.

Both the General Power of Attorney  and Special Power of Attorney contain the clause of enduring Power Of Attorney depending on the needs and conditions of the principal.

A Power Of Attorney can also be cancelled in case, the agent and all such institutions where the agent acted on behalf of principal should be notified in writing.  Or by writing an expiration date on the POA can automatically leads to cancellation. If there is any suspicion from the agent’s side then it can reported to law agency.

For registering Power of Attorney In cases where the principal is personally present at the sub registrar office then POA is printed on a RS100 stamp paper and notarized. The Power Of Attorney holder is then presented before the sub registrar office along with two witnesses. The Sub registrar keeps the record of POA and the POA gets registered.

In the case if POA holder is residing out of India then the POA holder is required to send an affidavit through the Embassy of India to that country and the agent in India should establish his/her relationship with POA holder with relevant address as well as ID proofs.

In a Landmark judgment  in 2011, the Supreme Court held that the transfer of Immovable properties through GPA was no longer valid. But this rule was misused by GPA holders to execute sale transactions through GPA.  So the Court ordered to make GPA registration mandatory else the transfer will be considered to be invalid. Due to this most of the state governments have charging heavy stamp duty tax on registration of GPA which is equivalent to that of Sale Deeds.

Provisions regarding General Power of Attorney is anticipated through the Power of Attorney Act. The relevant provisions related to the Power of Attorneys in India are contained in Section 3 of the Specific Relief Act, Section 5, 15 A ,40,55 of Transfer of Property Act and Section 82 (1 A), 2,69,70 in Indian Succession Act.

Power of Attorney is an important legal document between the attorney and principal which functions as an important evidence . So, it is relevant to clearly define the scope of powers and responsibilities of an attorney.

New legal words

1.duress

threats, violence, constraints, or other action used to coerce someone into doing something against their will or better judgement.

"confessions extracted under duress"

synonyms:coercion, compulsion, force, pressure, pressurization, intimidation, threats, constraint, enforcement, exaction;

informalarm-twisting

"their confessions were extracted under duress"

LAW

constraint illegally exercised to force someone to perform an act.

ARCHAIC

forcible restraint or imprisonment.

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Duress in American law

DEFINITION of Duress. Duress describes the act of using force, false imprisonment, coercion, threats or psychological pressure to compel someone to act contrary to his or her wishes or interests.

Types of Writs in India

Types of Writs in India

Writs - Provisions in Indian Constitution

The Indian Constitution empowers the Supreme Court to issue writs for enforcement of any of the fundamental rights conferred by Part III of Indian Constitution under Article 32. Thus the power to issue writs is primarily a provision made to make available the Right to Constitutional Remedies to every citizen. The Right to Constitutional Remedies, as we know, is a guarantor of all other fundamental rights available to the people of India.

In addition to the above, the Constitution also provides for the Parliament to confer on the Supreme Court power to issue writs, for purposes other than those mentioned above.

Similary High Courts in India are also empowered to issue writs for the enforcement of any of the rights conferred by Part III and for any other purpose.

Types of Writs

There are five types of Writs - Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo warranto.

1. Habeas Corpus

"Habeas Corpus" is a Latin term which literally means "you may have the body."The writ is issued to produce a person who has been detained , whether in prison or in private custody, before a court and to release him if such detention is found illegal.

2. Mandamus

Mandamus is a Latin word, which means "We Command". Mandamus is an order from the Supreme Court or High Court to a lower court or tribunal or public authority to perform a public or statutory duty. This writ of command is issued by the Supreme Court or High court when any government, court, corporation or any public authority has to do a public duty but fails to do so.

3. Certiorari

Literally, Certiorari means to be certified.The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court, tribunal or quasi judicial authority.

There are several conditions necessary for the issue of writ of certiorari .

There should be court, tribunal or an officer having legal authority to determine the question with a duty to act judicially.Such a court, tribunal or officer must have passed an order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or officer.The order could also be against the principles of natural justice or the order could contain an error of judgment in appreciating the facts of the case.

4. Prohibition

The Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, or quasi judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction to try. After the issue of this writ, proceedings in the lower court etc. come to a stop.

Difference between Prohibition and Certiorari:

While the writ of prohibition is available during the pendency of proceedings, the writ of certiorari can be resorted to only after the order or decision has been announced.Both the writs are issued against legal bodies.

5. The Writ of Quo-Warranto

The word Quo-Warranto literally means "by what warrants?" or "what is your authority"? It is a writ issued with a view to restrain a person from holding a public office to which he is not entitled. The writ requires the concerned person to explain to the Court by what authority he holds the office. If a person has usurped a public office, the Court may direct him not to carry out any activities in the office or may announce the office to be vacant. Thus High Court may issue a writ of quo-warranto if a person holds an office beyond his retirement age.

Conditions for issue of Quo-Warranto

The office must be public and it must be created by a statue or by the constitution itself.The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.There must have been a contravention of the constitution or a statute or statutory instrument, in appointing such person to that office.

Writs in brief

Type of WritMeaning of the wordPurpose of issueHabeas CorpusYou may have the bodyTo release a person who has been detained unlawfully whether in prison or in private custody.MandamusWe CommandTo secure the performance of public duties by lower court, tribunal or public authority.CertiorariTo be certifiedTo quash the order already passed by an inferior court, tribunal or quasi judicial authority.Prohibition-To prohibit an inferior court from continuing the proceedings in a particular case where it has no jurisdiction to try.Quo WarrantoWhat is your authority?To restrain a person from holding a public office which he is not entitled.

Objective Questions on Writs

1. Which of the following writs is said to be a guarantor of personal freedom?

MandamusQuo WarrantoHabaes CorpusCertiorari

2. Which of the following writs can be used against a person believed to be holding a public office he is not entitled to hold?

MandamusQuo WarrantoHabaes CorpusCertiorari

3. The power to issue writs has been envisaged under the provisions of which of the following fundamental rights?

Right to EqualityRight to FreedomRight to Constitutional RemediesRight against Exploitation

4. Which of the following writs can be issued to force a public authority to perform a public or statutory duty.?

MandamusHabeas CorpusCertiorariQuo Warranto

5. Match the names of writs in List I with their meanings in List II.

Type of Writ
List IMeaning of the word
List II1. Habeas CorpusA. We Command2. MandamusB. What is your authority?3. CertiorariC. You may have the body4. Quo WarrantoD. To be certified
1 - B; 2 - D; 3 - A; 4 - C1 - B; 2 - A; 3 - D; 4 - C1 - C; 2 - D; 3 - A; 4 - B1 - C; 2 - A; 3 - D; 4 - B

Answers:

1 - (c); 2 - (b); 3 - (c); 4 - (a); 5 - (d)