IMPORTANT POINT
The discretion to defer cross-examination under Section 231(2) of the Cr.P.C. must be exercised judiciously to prevent potential prejudice to the defense, particularly in cases involving related witnesses.

JUDGMENT/ORDER

1. The applicant is the original accused, who is facing charges in Case No.PW/30/2-22 before the Chief Metropolitan Magistrate, 23rd Esplanade Court, for the offences punishable u/s.354(c), 500, 504, 506 of the IPC.

2. On the trial being commenced, the complainant (PW 1) stepped into the witness box on 18/3/2023, and she was examined-in-chief by the Public Prosecutor. On her examination-in-chief being over, the applicant filed an application u/s.231(2) of Cr.P.C, seeking deferral of her Cross Examination, until examination in chief of other interested witness, is concluded.

The application marked as Exhibit-6, specifically pleaded as under :-

<WXY>"1 It is most respectfully submitted that in the above mentioned matter complainant and other witnesses are relatives to each other, hence they are all interested witnesses in the matter.

2 Since they are all interested witnesses, there is every likelihood of improvement in their statement that would be given before Hon'ble Court, and that would prejudice defense of accused person.

3 Hence, it is most respectfully prayed that Cross Examination of PW 1 may be deferred till Examination in Chief of other interested witnesses are recorded, to meet the ends of justice".</WXY>

3. This application came to be rejected by recording that such a course is not available.

On 25/4/2023, the Court recorded that the cross is declined, and therefore, the matter may proceed without Cross of PW No.1.

It is this order which is challenged in the present application.

4. Heard Mr.Fahad Qureshi along with Suresh Upadhyay who represent the applicant.

The learned counsel would place reliance upon the decision of this Court (Justice A.M. Thipsay) in Dattu Vs. State of Maharashtra in Criminal Writ Petition No.158/2014 {2014 SCC Online Bom, 215}, and he would submit that the discretion vest in a Court under sub-sec. (2) of Sec. 231 and it must be judiciously exercised, but since the impugned order fail to record any reason in rejecting the application, the order cannot be sustained. He would request this Court to follow the course of action adopted in case of Dattu (supra).

The learned APP Ms.Dabholkar would vehemently oppose the application and she would submit that the parties seeking Deferral u/s.231(2) of Cr.P.C must give sufficient reasons to justify the exercise of discretion by the Judge, and in any case, deferral cannot be asserted as a matter of right. She would submit that since no case was made out for exercise of the discretion, the application has been rightly rejected and the impugned order do not warrant any interference.

5. With the able assistance of the respective counsel, I have perused the material placed on record which include the charge-sheet as well as the application.

The charge-sheet charge the applicant of videographing the act of copulation between the complainant and her partner, without their permission and of sharing the same with certain persons, which has resulted in defaming her and outraging her modesty. In the said charge-sheet, several persons are cited as witnesses, the complainant being cited as PW 1 and the other witnesses cited, being the father and their close associates belonging to the same clan.

Since it is the allegation levelled against the applicant that he had shown the video to her own relatives, who are to be examined as witnesses, there is every possibility that if PW 1 is cross-examined, his defence might be revealed, and any lacunae therein, would be filled in by another witness, which is cited by the prosecution who was shown the video clip. The submission advanced is to the effect that if they undergo the examination-inchief and are cross-examined at a later stage, no prejudice would be caused. The provision of Cr.P.C in form of Sec. 231(2) is pressed into service.

6. Since the argument focus on Sec. 231 of Cr.P.C, I deem it expedient to reproduce the same.

<WXY>"231 Evidence for prosecution.

(1) On the date so fixed, the Judge shall proceed to take