The accused persons should not be forced to cross-examine the witness if the application filed under section 231(2) of the Criminal Procedure Code is allowed, and a criminal court cannot alter or review an order once passed.

ORDER : – The petitioners have preferred this petition under section 482 of the Criminal Procedure Code, 1973, being aggrieved of the impugned order dated 22-2-2022 passed by the learned First Additional Sessions Judge, Narsinghgarh, District-Rajgarh in S.T. No. 339/2021, whereby the right of cross-examination of the prosecution witnesses viz; P.W.1 prosecutrix/complainant, Kusumlata, P.W.2 and P.W.3 Sunil has been closed. The petitioners are facing trial under sections 377, 498-A, 506 (Part-2) of the Indian Penal Code, 1860 and section 4 of Dowry Prohibition Act, 1961.

2. Counsel for the petitioners has submitted that the learned Judge of the trial Court has passed the aforesaid order dated 22-2-2022 thereby reviewing his own order dated 21-12-2021, whereby the application filed by the petitioners under section 231(2) of the Criminal Procedure Code for deferring the cross examination of the prosecution witnesses has already been allowed. Counsel has submitted that the aforesaid application was filed on the ground of the witnesses of complainant side are the family members hence they wanted to cross-examine the witnesses after examination in Chief of five of them is recorded before the Court which was allowed by the trial Court on 21-12-2021, and subsequently, the Examination-in-Chief of four witnesses viz; P.W.1 prosecutrix/complainant, Kusumlata, P.W.2, P.W.3 Sunil and P.W.4 Brijesh were also recorded. However, the 5th witness Deepak has not turned up in the trial Court, initially on the ground that he was corona positive but subsequently, he has not appeared before the trial Court. Counsel has submitted that now as the said 5th witness Deepak is not turning up in the trial Court for his examination in chief, the learned Judge of the trial Court has directed the counsel for the petitioners to cross-examine the witnesses who were present in the Court viz., P.W.1 prosecutrix/complainant, Kusumlata, P.W.2 and P.W.3 Sunil and P.W.4 Brijesh and upon counsel’s refusal, their right to cross-examining the witnesses has been closed. It is submitted that in such circumstances, if the petitioners are forced to cross-examine the witnesses, the very purpose of filing of application under section 231(2) of the Criminal Procedure Code would be frustrated and would be to the utter prejudice to the petitioners.

3. Counsel for the respondent has opposed the prayer. However, it is not denied that the application filed by the petitioners under section 231(2) of the Criminal Procedure Code has already been allowed.

4. Heard the counsel for the parties and perused the record.

5. From the record, it is apparent that the learned Judge of the trial Court has already allowed the application filed by the petitioners under section 231(2) of the Criminal Procedure Code on 21-12-2021 holding that if the statements of the witnesses are recorded separately it might prejudice the defence of the accused persons. However, the impugned order sheet dated 22-2-2022 reveals that on that day only three witnesses were present in the Court and the Court directed the counsel for the petitioners to cross-examine them and it is also directed that he can raise objections available to him while examining the other witness Deepak, who has not turned up. However, counsel appearing for the petitioners has refused to cross-examine the witnesses and thus, the right of the petitioners to cross-examine the witnesses, who were present in the Court on that date i.e. on 22-2-2022 viz; P.W.1 prosecutrix/complainant, Kusumlata, P.W.2 and P.W.3 Sunil has been closed and regarding P.W.4 Brijesh it is directed that arrest warrant be issued against him.

6. So far as section 231 of Criminal Procedure Code is concerned, the same read as under : –

“231. Evidence for prosecution. – (1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution. (2) The Judge may, in his discretion, permit the cross-examination of any witness to b