TaxTMI 
TaxTMI 
2018 (10) TMI 1790
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....onscious 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. Charges were framed by the Additional Sessions Judge, Thrissur....
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....tnesses 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 of Kerala has filed the present Special Leave Petition (Crl.) No. 4652 of 2018 before this Court. 3. The legal issue which....
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.... 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 Officer 2009 Cri LJ 1215 : ILR 2008 Karnataka 4378., delivered by Shantanagoudar, J. (as he then was), had observed that Section 231(2) as well as Section 242(3) of the Cr.P.C. must be interpreted in light ....
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....de 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.R.C. (MD) No. 744 of 2016; decided on January 24, 2017 by High Court of Madras, at Madurai] : 2017 (2) Crimes 509 (Mad.). However, the circumstances in which deferral has been refused are: * where the ground for deferral was the mere existence....
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....J 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. (Crl.) No. 1350 of 2017 and Crl. M.A. No. 7450 of 2017; decided on July 3, 2017 by the High Court of Delhi : 2017 Cri LJ 3875., laid down useful directions for the conduct of criminal trials. The directions are commendable, and relevant excerpts are reproduced hereinbelow: "42...(vi). Since the expectation of law is that the tria....
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....31(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; * possibility of loss of memory of the witness(es) whose examinationin-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.. "309. Power to postpone or adjourn proceedings.- (1) In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses....