2018 (10) TMI 1790

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....bathroom of the flat to the ambulance. The unconscious person was later identified to be Satheesan, who was declared dead on being taken to the hospital. CW 1-Narayanan then made a statement that Krishnaprasad had been staying in the flat for two months, and was a companion of the Respondent-Accused No. 2, Rasheed. It was alleged that the flat had been taken on rent by the RespondentAccused No. 2. 2.2. On May 24, 2016, the Police filed a Charge-Sheet under Section 173 of the Cr.P.C. before the Judicial First Class Magistrate Court II, Thrissur against 8 persons, including the Respondent-Accused No. 2, for the alleged commission of offences under Sections 302, 343, 212, 201, 202, 118 and 109 read with Sections 120B and 34 of the Indian Penal Code, 1860. It was alleged that the deceasedSatheesan had disclosed information to his girlfriend, CW 5- Ajitha, regarding the activities which had been taking place inside the rented flat, and about the illicit relationship between the Respondent-Accused No. 2 and Accused No. 3-Saswathy. On learning about this, the Accused persons had allegedly detained Satheesan, tortured him, and killed him with criminal intention. 2.3. Char....

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....d Accused No. 7 are "highly influential political leaders", and the possibility of the threats to witnesses after their examination-in-chief, could not be ruled out. Furthermore, it was observed that CWs 1 to 5 would be deposing on different facts and aspects of the case. The Additional Sessions Judge keeping in view the provisions of Sections 231(2) and 309 of the Cr.P.C. held that deferral of crossexamination is not an ordinary practice in a criminal trial, and dismissed the Application filed on behalf of the RespondentAccused No. 2. 2.6. Aggrieved by the Order dated December 20, 2017 passed by the Additional Sessions Judge, the Respondent-Accused No. 2 filed Criminal Miscellaneous Case No. 171 of 2018 under Section 482 of the Cr.P.C. before the High Court of Kerala. The High Court reversed the Order of the Additional Sessions Judge by a short unreasoned cryptic Order dated January 1, 2018, and allowed Criminal Miscellaneous Case No. 171 of 2018. It was directed that the cross-examination of CWs 1 to 4 be adjourned till after the examination-in-chief of CW 5. 2.7. Aggrieved by the Order dated January 1, 2018 passed by the High Court, the State ....

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.... "242. Evidence for prosecution.-... ...(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution: Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination."   6. Section 242(3) is analogous to Section 251A(7) of the repealed Code of Criminal Procedure, 1898 and is identically worded. Section 251A was inserted vide the Code of Criminal Procedure (Amendment) Act, 1955 (Act No. 26 of 1955) in the erstwhile Code of Criminal Procedure, 1898. The Statement of Objects and Reasons of the Code of Criminal Procedure (Amendment) Act, 1955 suggests inter alia that changes were introduced to simplify the procedure in warrant cases, to ensure speedy disposal of criminal judicial business, to minimise inconvenience caused to witnesses, and to ensure that adjournments are not allowed without the examination of witnesses present in court, except for an unavoidable cause. The Karnataka High Court in Shamoon Ahmed Sayed & Anr. v. Intelligence Offic....

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....ourt of Calcutta (Appellate Side)]. has been made out. However, while it is for the parties to decide the order of production and examination of witnesses in accordance with the statutory scheme, a Judge has the latitude to exercise discretion under Section 231(2) of the Cr.P.C. if sufficient reasons are made out for deviating from the norm. 8. The circumstances in which the High Courts have approved the exercise of discretion to defer cross-examination, so as to avoid prejudice due to disclosure of strategy are: * Where witnesses were related to each other, and were supposed to depose on the same subject-matter and facts; 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. * Where witnesses were supposed to depose about the same set of facts. R. Selvan v. State [Crl.....

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....e proceeded with before examination of the other witnesses in this case, the present petitioner would be highly prejudiced and prosecution will have the opportunity in filling up the lacuna in this case." (Emphasis supplied). The High Court of Karnataka in Shamoon Ahmed Sayed & Anr. v. Intelligence Officer, 2009 Cri LJ 1215 : ILR 2008 Karnataka 4378, had noted that no prejudice be caused since: "...In most of the criminal cases, there may be more than one eye witness and definitely will be more than one mahazar witness. Many cases depend upon the official witness only, who may have to depose about the similar facts. Thus the defence may choose to file application invoking Section 231(2) or under Section 242(3) of Cr.P.C. on the ground of alleged prejudice to be caused in every matter. But the same cannot be allowed by the Court. As aforementioned, the defence of the accused will not be prejudiced at all as the examination-in-chief of the witnesses generally will proceed based on either the statement recorded under Section 161 of Cr.P.C. or based on mahazar, etc." (Emphasis supplied) 9. The Delhi High Court, in Vijay Kumar v. State (Govt. of NCT of Delhi) W.P....

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.... postponed or scheduled for too distant a date. The court shall ensure that the deferred cross-examination is carried out in the then on-going schedule immediately after the witness whose examination ahead of such exercise has been prayed for." 10. 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. 11. 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; * possibilit....