2008 Supreme(Kar) 502

2008 (4) KLO 401 AC 365
IN THE HIGH COURT OF KARNATAKA
Mohan Shantanagoudar, J.
Criminal Appeal No. 3055 of 2008
Shamoon Ahmed Syed and Another - Appellants
Vs.
Intelligence Officer Narcotic Control Bureau, Chennai - Respondents
Decided on 14-8-2008

Result: Petition dismissed.

Headnote:CODE OF CRIMINAL PROCEDURE, 1973 - Section 231 (2): [Mohan Shantanagoudar, J] Application sought for deferring the cross-examination of P.W.1 until the Examination-In-Chief of CWs.2 to 5, is recorded -Rejection of prayer - Held, on factrs, PW.1 is an Instelligence Officer of Narcotic Control Bureau, who, on getting the information, went to the spot along with CWs.2 to 5, seized the narcotic drug and drew the mahazar. CWs.2 to 5 were also parties to the Search Team and were very much present at the time of search and seizure. CW.2 was the Head of the Search Team. Thus, there cannot be any dispute that CWs.2 to 5 also will speak to the contents of the same mahazar and seizure process, as deposed by PW.1. Further, CWs.2 to 5 also will have to depose to the contents of the seizure mahazar and the seizure proceedings as contained in the mahazar. They cannot depose beyond the contents of the seizure mahazar. In case if CWs.2 to 5 depose about the facts, which are not found in mahazar, it is open for the defence to cross-examine the prosecution witnesses on such points. Virtually, the defence will be knowing the case of the prosecution at the inception in as much as the police after investigation have laid the charge sheet. The official witnesses will have to depose based on the seizure srecords. Therefore, absolutely no prejudice will be caused to the defence, in case if PW.-1 is cross-examined prior to the recording of examination-in-chief of CWs.2 to 5.

       INDIAN EVIDENCE ACT, 1872 - Section 137: [Mohan Shantana goudar, J] Examination -In-Chief, Cross-Examination, Re-examination - Held, Combined reading of provisions would make it amply clear that as a general rule, the witness shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.- Exception is found under sub-Section (2) of Section 231 and proviso to Section 242(3) of Cr.P.C. which give the discretion to the Court to permit the cross-examination of any witness to be Court to permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined. Such discretion may be exercised by the Court only in an exceptional circumstance, particularly when the Court feels that deferring the matter for cross-examination of witness/witnesses by the adverse party may not result in delaying the proceedings. Further, Though sub-Section (2) of Section 231 and proviso to Section 242(3) of Cr.P.C. give a discretion to the Judge to permit cross-examination of any witness to be deferred until any other witness or witnesses have been examined, the same should not be construed to mean that the accused has right to ask for deferring the cross-examination of witnesses in a wholesale way on the plea that the prosecution may take chance to fill up the lacuna in its case that may be disclosed in the cross-examination of its witnesses. Ordinarily, therefore, it is the requirement of law that each witness shall be first examined-in-chief and shall be then cross-examined before the next witness is called for examination. Impugned order was justified.