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High Court Of Calcutta
P. K. BISWAS
LALU ALAM - Appellant
Versus
STATE OF WEST BENGAL - Respondent
CRI. REV. 385 Of 1995
Decided On : 06/12/2002
CRIMINAL PROCEDURE CODE - SECTION 231(2), 309 - EVIDENCE ACT - SECTION 135, 138 - CROSS-EXAMINATION OF WITNESSES - DEFERMENT - PREJUDICE TO ACCUSED - JUDICIAL DISCRETION - ORDER REJECTING PRAYER FOR DEFERMENT - VALIDITY.
Fact of the Case:
The petitioner, Lalu Alam, was charged along with six others under sections 307/325/148/149 of the Indian Penal Code for allegedly attacking a procession led by Miss Mamata Banerjee during a bandh called by the Congress (I) Party. The petitioner sought to defer the cross-examination of Miss Banerjee, the victim, until the remaining eye witnesses were examined-in-chief, arguing that cross-examining her at that stage would disclose the entire defense and prejudice the accused.
Finding of the Court:
The court held that the trial court did not err in rejecting the petitioner's prayer for deferring the cross-examination of Miss Banerjee. The court noted that section 231(2) of the Cr.P.C. gives the court discretion to permit the cross-examination of any witness to be deferred, but that this discretion should not be exercised in a blanket way on the plea that the prosecution may take a chance of filling up the lacuna in its case. The court also noted that section 138 of the Evidence Act requires that each witness shall be first examined-in-chief and shall be then cross-examined before the next witness is called for examination, and that this practice should be followed unless there is an exigency or compelling reason to do otherwise.
Issues: 1. Whether the trial court erred in rejecting the petitioner's prayer for deferring the cross-examination of Miss Banerjee? 2. Whether the petitioner would be prejudiced if Miss Banerjee was cross-examined before the examination-in-chief of the other witnesses?
Ratio Decidendi: 1. The court held that the trial court did not err in rejecting the petitioner's prayer for deferring the cross-examination of Miss Banerjee because: a. Section 231(2) of the Cr.P.C. gives the court discretion to permit the cross-examination of any witness to be deferred, but this discretion should not be exercised in a blanket way on the plea that the prosecution may take a chance of filling up the lacuna in its case. b. Section 138 of the Evidence Act requires that each witness shall be first examined-in-chief and shall be then cross-examined before the next witness is called for examination, and that this practice should be followed unless there is an exigency or compelling reason to do otherwise. c. The petitioner did not show any cogent ground necessitating interference by the court with the impugned order. 2. The court held that the petitioner would not be prejudiced if Miss Banerjee was cross-examined before the examination-in-chief of the other witnesses because: a. The petitioner had copies of the earlier statements of the prosecution witnesses, recorded under section 161 Cr.P.C., and could use these statements to cross-examine the witnesses and bring out any discrepancies between their evidence in court and their earlier statements. b. The petitioner could also cross-examine Miss Banerjee with reference to her earlier statements and try to bring out any discrepancies between her evidence in court and her earlier statements.
Final Decision: The court dismissed the petitioner's revisional application, holding that the trial court did not err in rejecting the petitioner's prayer for deferring the cross-examination of Miss Banerjee.
( 1 ) THIS is an application under section 401 read with section 482 of the Code of Criminal Procedure, 1973 filed by the petitioner, namely, Lalu Alam seeking to set aside the order dated 6th December, 1994 passed in Sessions Trial No. 7 (5)/1992 by Shri S. Gupta, the learned Additional Sessions Judge, 6th Court, Alipore rejecting the prayer of the petitioner for deferring the cross-examination of P W 1, the victim of this case until the remaining eye witnesses were examined-in-chief.
( 2 ) THE short facts leading to the filing of this revisional application are as follows : the present petitioner along with 6 others were placed on trial in Sessions Trial No. 7 (5)/1992 before the learned Additional Sessions Judge, 6th Court, Alipore, 24 Parganas (S) to answer charges under sections 307/325/148/149 of the Indian Penal Code upon an allegation that on 16th August 1990, there was a call for ?calcutta Bandh? by the Congress (I) Party. In support of the said call for bandh, Miss Mamata Banerjee on that day organized several meetings, picketings and processions.
( 3 ) WHILE one of such processions, in support of bandh was proceeding near the Hazra S. P. Mukherjee Road crossing, the members of the CPI (M) party including the petitioner and others being armed with various weapons attacked the said procession and they assaulted Miss Mamata Banerjee with weapons in their hands and as a result of such attack, Miss Mamata Banerjee sustained severe bleeding injury on her head and other participants were also injured.
( 4 ) INITIALLY, a charge under sections 307/148/149 of the Indian Penal Code was framed against the petitioner and others and subsequently an additional charge under sections 325/149 of IPC was also framed against them.
( 5 ) THE trial of the said case commenced on 2nd November 1992 before the aforesaid learned Additional Sessions Judge and on that date the trial was adjourned for non-appearance of Miss Mamata Banerjee, the victim of this case.
( 6 ) THEREAFTER, on several dates, ranging from 2. 1. 92 to 5. 9. 94, the trial was adjourned due to non-appearance of Miss Mamata Banerjee and on all such occasions, the present petitioner and other accused persons were present in the Court.
( 7 ) ON 6th December 1994, Miss Mamata Banerjee appeared before the Court and she was examined-in-chief by the prosecution, and after examination-in-chief of Miss Mamata Banerjee was over, the prayer was made on behalf of the petitioner before the aforesaid trial Court for deferring her cross-examination until the examination of other witnesses including those who sustained injuries in the self-same incident was complete on the plea that if at that stage Miss. Mamata Banerjee was cross-examined, the entire defence would be disclosed and in that the accused petitioner would be highly prejudiced.
( 8 ) THE learned trial Judge by his order dated 6th December 1994, was pleased to reject the aforesaid prayer for deferring the cross-examination of Miss. Mamata Banerjee, and in doing so the learned trial Judge has acted illegally without considering the question of prejudice that may be suffered by the accused if Miss Mamata Banerjee was cross-examined at that stage, and the reasons assigned for the same cannot at all be treated to be cogent and valid.
( 9 ) BEING aggrieved by and dissatisfied with the aforesaid order of the learned Additional Sessions Judge the petitioner has filed the aforesaid application with the aforesaid prayer as mentioned at the outset alleging that the learned Judge has failed to exercise proper judicial discretion in passing the aforesaid order and the order itself is tainted with illegalities and infirmities as well and as such it should be set aside.
( 10 ) I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the witnesses and the learned counsel appearing for the State.
( 11 ) IT has been submitted on behalf of the petitioner that he has been charg
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