The main legal point established in the judgment is that the exercise of discretion under section 231(2) of Cr.PC must be based on sufficient reasons justifying the deferral of cross-examination, and the judge must follow the guidelines laid down by the Hon'ble Supreme Court.

JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard finally with consent of both the sides at admission stage.

2. The petitioner has challenged the order passed below Exh.109 in Sessions Case No. 40/2020 by the learned Additional Sessions Judge, Basmathnagar dated 01.04.2022, thereby, cross-examination of four eye witnesses came to be deferred.

3. Heard Mr Swapnil Rathi, learned counsel for the petitioner and Mr Dhananjay Shinde, learned counsel for respondent Nos. 2 to 6 and Mr P.G. Borade, learned APP for respondent No.1/State.

4. Mr Rathi, learned counsel for the petitioner vehemently submitted that an application moved on behalf of respondent Nos. 2 to 6 (original accused) by taking aid of section 231(2) of Cr.PC, nowhere assigns any reason for deferment of the cross-examination of the eye witnesses. He submitted that it is discretion vested with the Court in view of section 231 (2) of the Cr.PC to defer the cross-examination having regard to the facts of the case. He submitted that in the present case, not a single witness is entered into witness box, when the application on behalf of the accused came to be moved vide Exh.109 under section 231 (2) of the Cr.PC. The application itself is bad in law. Secondly, the application does not disclose any reason for deferment of the cross-examination. He submitted that the learned Additional Sessions Judge has not used his discretionary power having regard to the facts of the case. He has placed his reliance on the decision of the Hon'ble Supreme Court in case of State of Kerala Vs. Rasheed reported in AIR 2019 SC 721. He took me through the relevant paras, more particularly, para Nos. 7, 9, 10 and 12. By taking help of guidelines laid down by the Hon'ble Supreme Court in above referred citation, Mr Rathi, learned counsel for the petitioner vehemently submitted that the impugned order is liable to be quashed and set aside since the original accused have not assigned any reason in their application for said deferment of the cross-examination. He submitted that the learned Judge has presupposed certain facts which are not permissible. The cross-examination can be deferred in view of the provisions under section 231 (2) of the Cr.PC but the discretion must be used judiciously having regard to the facts of the case. He submitted that the learned Additional Sessions Judge has committed an error in allowing that application. It has caused serious prejudice to the rights and interest of the prosecution agency. He, therefore, urged to quash and set aside the order.

5. Per contra, Mr Shinde, learned counsel for respondent Nos. 2 to 6/original accused supported the impugned order. He submitted that though application moved before the learned Additional Sessions Judge is not properly worded, by way of argument, the case of accused was put forth before the learned Additional Sessions Judge by taking into consideration that all the eye witnesses are interested witnesses and they are from the same family, and there was possibility of tutoring. The learned Additional Sessions Judge by considering above said aspects, was pleased to allow that application and deferred the cross-examination of those four witnesses. He submitted that the impugned order is not at all defective in the eye of law. The learned Judge has properly used his discretionary powers under section 231(2) of Cr.PC. There is no defect.

6. Mr Shinde, learned counsel has also placed his reliance on the same decision of the Hon'ble Supreme Court in case of State of Kerala Vs. Rasheed. He also invited my attention to para Nos. 19, 20, 22, 23 and 24. He submitted that request for deferment of the cross-examination was moved on behalf of the accused before any witness is entered into witness box which was the proper stage to submit an application as per the guidelines given by the Hon'ble Supreme Court in para Nos. 24/5 and 24/6. He has also referred decision of the Karnataka High Court in case of Shankar Vs. State of Hebbagodi Police St