State of Kerala vs Rasheed

HELD: The norm in any criminal trial is for the examinationin-chief of witnesses to be carried out first, followed by crossexamination, and re-examination if required, in accordance with Section 138 of the Indian Evidence Act, 1872. Section 231(2) of the Cr.P.C., however, confers a discretion on the Judge to defer the cross-examination of any witness until any other witness or witnesses have been examined, or recall any witness for further cross-examination, in appropriate cases. Judicial discretion has to be exercised in consonance with the statutory framework and context while being aware of reasonably foreseeable consequences. The party seeking deferral under Section 231(2) of the Cr.P.C. must give sufficient reasons to invoke the exercise of discretion by the Judge, and deferral cannot be asserted as a matter of right. [Para 7] [596-A-C]

2. There cannot be a straitjacket formula providing for the grounds on which judicial discretion under Section 231(2) of the Cr.P.C. can be exercised. The exercise of discretion has to take place on a case-to-case basis. The guiding principle for a Judge under Section 231(2) of the Cr.P.C. is to ascertain whether prejudice would be caused to the party seeking deferral, if the application is dismissed. [Para 10] [599-F-G]

3. While deciding an Application under Section 231(2) of the Cr.P.C., a balance must be struck between the rights of the accused, and the prerogative of the prosecution to lead evidence. The following factors must be kept in consideration: possibility of undue influence on witness(es); possibility of threats to witness(es); possibility that non-deferral would enable subsequent witnesses giving evidence on similar facts to tailor their testimony to circumvent the defence strategy; possibility of loss of memory of the witness(es) whose examination-in-chief has been completed; occurrence of delay in the trial, and the non-availability of witnesses, if deferral is allowed, in view of Section 309(1) of the Cr.P.C. These factors are illustrative for guiding the exercise of discretion by a Judge under Section 231(2) of the Cr.P.C. [Para 11] [599-G-H; 600-A-C]

4. The following practice guidelines should be followed by trial courts in the conduct of a criminal trial, as far as possible: (i) a detailed case-calendar must be prepared at the commencement of the trial after framing of charges; (ii) the case-calendar must specify the dates on which the examination-in-chief and crossexamination (if required) of witnesses is to be conducted; (iii) the case-calendar must keep in view the proposed order of production of witnesses by parties, expected time required for examination of witnesses, availability of witnesses at the relevant time, and convenience of both the prosecution as well as the defence, as far as possible; (iv) testimony of witnesses deposing on the same subject-matter must be proximately scheduled; (v) the request for deferral under Section 231(2) of the Cr.P.C. must be preferably made before the preparation of the case-calendar;

(vi) the grant for request of deferral must be premised on sufficient reasons justifying the deferral of cross-examination of each witness, or set of witnesses; (vii) while granting a request for deferral of cross-examination of any witness, the trial courts must specify a proximate date for the cross-examination of that witness, after the examination-in-chief of such witness(es) as has been prayed for; (viii) the case-calendar, prepared in accordance with the above guidelines, must be followed strictly, unless departure from the same becomes absolutely necessary; (ix) in cases where trial courts have granted a request for deferral, necessary steps must be taken to safeguard witnesses from being subjected to undue influence, harassment or intimidation. [Para 12] [600-E-G; 601-A-E]

5. In the present case, a bald assertion was made by the Respondent-Accused No. 2 that his defence would be prejudiced if the cross-examination of CWs 1 to 5 is not deferred until after the examination-in-chief of CWs 2 to 5. The impugned Order is liable to be set aside since the High Court has given no reasons for reversal of the Order of the Additional Sessions Judge, particularly in light of the possibility of undue influence and intimidation of witness(es) since the Respondent-Accused No. 2 and Accused No. 7 are “highly influential political leaders”. The Order passed by the Additional Sessions Judge dismissing the Application filed on behalf of the Respondent-Accused No. 2 stands restored. [Paras 13 and 14] [601-E-G] Gurbaksh Singh Sibbia & Ors. v. State of Punjab (1980) 2 SCC 565 : [1980] 3 SCR 383 ; Lt. Col. S.J. Chaudhary v. State (Delhi Administration), (1984) 1 SCC 722 : [1984] 2 SCR 438 ; Vinod Kumar v. State of Punjab (2015) 3 SCC 220 : [2015] 1 SCR

504 – referred to.

Shamoon Ahmed Sayed & Anr. v. Intelligence Officer, 2009 Cri LJ 1215 : ILR 2008 Karnataka 4378 ; Sisir Debnath v. State of West Bengal & Anr. [C.R.R. No. 2533 of 2017 decided on August 2, 2017 by the High Court of Calcutta (Appellate Side) ; Amit Kumar Shaw & Ors. v. State of West Bengal & Anr. [C.R.R. No. 3846 of 2009 decided on June 23, 2010 by the High Court of Calcutta (Appellate Side) ; Sri Shankar v. State by Hebbagodi Police Station, [Crl. P. No. 8774 of 2017 decided on December 7, 2017 by the High Court of Karnataka at Bengaluru] ; Masiur Rahman Molla @ Mongla & Ors. v. The State of West Bengal & Ors. [C.R.R. No. 2411 of 2016 decided on

August 10, 2016 by the High Court of Calcutta (Appellate Side)] ; Jayakar v. The State, by Frazer Town Police, ILR 1996 KARNATAKA 2783 : 1996 (3) Kar LJ 747 ; R. Selvan v. State [Crl. R.C. (MD) No. 744 of 2016 decided on January 24, 2017 by High Court of Madras, at Madurai] : 2017 (2) Crimes 509 (Mad.); Pradeep Kumar Kolhe v. State of Madhya Pradesh [M.C.R.C. No. 20240 of 2018 decided on July 11, 2018 by the High Court of Madhya Pradesh at

Indore] ; State of Maharashtra v. Raja Ram Appana Mane & Ors. [Criminal Writ Petition No. 578 of 2016 and Criminal Application No. 2485 of 2016 decided on January 23, 2017 by the High Court of Bombay at Aurangabad] ; Md. Sanjoy & Anr. v. The State of West Bengal, 2000 Cri LJ 608 : 2001 (1) RCR (Criminal)

431 ; Lalu Alam v. State of West Bengal [Cr. Revision No. 385 of 1996 decided on 12 June, 2002 by the High Court of Calcutta (Appellate Side)] : 2002 (3) CHN 301 ; Vijay Kumar v. State (Govt. of NCT of Delhi) 2017 Crl.LJ 3875 – referred to.