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SUPREME COURT OF INDIA
ABHAY MANOHAR SAPRE, INDU MALHOTRA, JJ.
State of Kerala – Appellant
Versus
Rasheed – Respondent
CRIMINAL APPEAL NO. 1321 OF 2018 [Arising out of Special Leave Petition (Crl.) No. 4652 of 2018]
Decided On : 30-10-2018
(b) Code of Criminal Procedure, 1973 – Section 231 – Deferral of cross-examination of a witness, until any other witness or witnesses have been examined – Judicial discretion – Should be granted in special circumstances and for sufficient reasons – Circumstances under which deferment can be granted and refused have been pointed out by High Courts – Guiding principle should be to ascertain whether prejudice would be caused to the party seeking deferral, if the application is dismissed – Factors to be considered by trial court laid down. (Para 5, 7, 8, 10, 12)
(1980) 2 SCC 565 – Relied upon
2009 Cri LJ 1215 : ILR 2008 Karnataka 4378; Crl. P. No. 8774 of 2017; C.R.R. No. 2411 of 2016; ILR 1996 KARNATAKA 2783 : 1996 (3) Kar LJ 747; 2017 (2) Crimes 509 (Mad.); M.C.R.C. No. 20240 of 2018; Criminal Writ Petition No. 578 of 2016; C.R.R. No. 3846 of 2009; 2000 Cri LJ 608 : 2001 (1) RCR (Criminal) 431; 2002 (3) CHN 301; 2017 Cri LJ 3875 – Cited with approval
(c) Code of Criminal Procedure, 1973 – Section 231 – Respondent accused making only a bald assertion that he would be prejudiced if deferral is not allowed – High Court allowing the same without giving any reason – Not sustainable. (Para 13)
Facts of the case:
This case calls for interpretation of Sections 231(2) and 309 of the Cr.P.C.
The accused had sought adjournment of cross-examination of CWs 1 to 4 be adjourned till after the examination-in-chief of CW 5. The application was dismissed by the trial court which has been reversed by the High court by a short unreasoned cryptic order.
Finding of the Court:
Section 231 cannot be invoked sans special reasons.
Result: Appeal allowed.
Certainly. Based on the provided legal document, the key points are as follows:
The exercise of judicial discretion to grant or refuse a deferral under section 231 should be exercised only in special circumstances, with sufficient reasons provided by the party seeking the deferral (!) (!) (!) .
The trial court must consider specific factors when deciding on a request for deferral, including the potential prejudice to the party seeking it, undue influence, threats to witnesses, loss of witness memory, and trial delays (!) (!) (!) (!) (!) (!) .
The usual practice in criminal trials is to examine witnesses in the order of examination-in-chief, cross-examination, and re-examination, as per the relevant provisions of the Evidence Act and Criminal Procedure Code (!) (!) (!) .
The discretion under section 231(2) of the Cr.P.C. allows the court to defer cross-examination until other witnesses are examined, but this must be justified with sufficient reasons and is not a matter of right (!) (!) .
The discretion should be exercised sparingly and only in exceptional cases, especially where there is a risk of prejudice, undue influence, threats, or tampering with witnesses (!) (!) (!) (!) .
High courts have emphasized that deferral should not be granted solely based on relationships between witnesses or a general claim of prejudice without specific supporting reasons (!) (!) (!) .
Proper trial management involves preparing a detailed schedule of proceedings, including the order of witness examination, and ensuring that any deferred cross-examination is conducted promptly to prevent undue delay or influence (!) (!) (!) (!) (!) (!) (!) .
When considering a request for deferral, courts should balance the rights of the accused with the prosecution’s interest in a fair and efficient trial, ensuring that safeguards are in place to protect witnesses from undue influence or intimidation (!) (!) (!) .
In the specific case discussed, the court found that the high court's reversal of the trial court’s decision lacked sufficient reasoning, especially given the potential for undue influence due to the influential status of the accused, and therefore, the original order dismissing the deferral request was restored (!) (!) .
Overall, the guidelines stress that the decision to defer cross-examination must be carefully justified, considering the case-specific circumstances, and should aim to uphold the integrity of the trial while safeguarding witnesses (!) (!) (!) (!) .
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JUDGMENT
INDU MALHOTRA, J.
Leave granted.
1. The present Criminal Appeal arises out of Special Leave Petition (Crl.) No. 4652 of 2018 wherein the impugned Order dated January 9, 2018 passed by the High Court of Kerala in Criminal Miscellaneous Case No. 171 of 2018 has been challenged.
2. The relevant facts for deciding the present Criminal Appeal, are briefly set out below:
2.1. A First Information Report under Section 154 of the Code of Criminal Procedure, 1973 (“Cr.P.C.”) was registered at the instance of CW 1-Narayanan. According to the Original Statement provided by him to the Police, Krishnaprasad, who was the occupant of a flat in the building where CW 1-Narayanan was serving as a security guard, had called for an ambulance. Krishnaprasad, along with others, then carried an unconscious person out of the 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 Respondent-Accused 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 deceased-Satheesan 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. CWs 1 to 5 were summoned as Prosecution Witnesses on December 16, 2017.
On the same day, after the examination-in-chief of CW 1-Narayanan was conducted, an Application under Section 231(2) of the Cr.P.C. was filed by the Counsel for the Respondent-Accused No. 2 seeking adjournment of the cross-examination of CW 1-Narayanan, as also of CWs 2 to 5, to a date after the examination-in-chief of CWs 2 to 5 was completed. It was stated in the said Application, that the case of the Respondent-Accused No. 2 would be adversely affected if the Application was not allowed, since the defence strategy adopted by the Respondent-Accused No. 2 would be revealed to the Prosecution.
2.4. The Application under Section 231(2) of the Cr.P.C. was opposed by the Prosecution which filed a Reply, wherein it was stated that CWs 1 to 5 were not deposing with respect to the same subject-matter. It was further stated that the deferral of the cross-examination would adversely affect the Prosecution evidence.
2.5. The Additional Sessions Judge vide Order dated December 20, 2017 dismissed the Application filed on behalf of the Respondent-Accused No. 2.
The Additional Sessions Judge held that Section 231(2) of the Cr.P.C. confers a discretion on the Trial Judge to defer the cross-examination of any witness until any other witness or witnesses have been examined. Section 231(2) of the Cr.P.C. does not confer a right on the accused to seek deferral in a wholesale way on the ground that the defence of the accused would become known to the Prosecution. The deferral of cross-examination, in the present case, would run counter to the general provisions of the Indian Evidence Act, 1872.
The Additional Sessions Judge held that the deferral of cross-examination in this case could give rise to the possibility of loss of memory on the part of the witnesses, who had already been examined-in-chief, which would adversely affect the case of the Prosec
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