Back
2022 Supreme(Online)(BOM) 2524
HIGH COURT OF BOMBAY
Shrikant D. Kulkarni, J
Pradip Kundlikrao Kute – Appellant
Versus
State of Maharashtra – Respondent
CRIMINAL WRIT PETITION NO.924 OF 2022
For the Appellants/Petitioners: Swapnil S. Rathi
For the Respondents: P.G. Borade, Dhananjay M. Shinde
The discretionary power to defer cross-examination under Section 231(2) CrPC is not automatic and requires specific, recorded reasons justifying the deviation from day-to-day trials. Such orders must balance accused rights and witness protection, avoiding casual, wholesale deferrals that risk evidence tampering and trial delays.
Headnote:(A) Code of Criminal Procedure, 1973 - Sections 231(2) and 309 - Deferment of cross-examination - Trial Court’s discretion - Guidelines for exercise of judicial discretion - Necessity of recording sufficient reasons for deviating from day-to-day trial - An application for deferment must be supported by specific grounds to prevent potential witness tutoring or intimidation. (Paras 11, 15, 17)
(B) Trial Procedure - Judicial Discretion - While balancing the rights of the accused and the prosecution, trial courts must not grant deferment of cross-examination in a casual or wholesale manner - The failure to specify a proximate date for subsequent examination or to take steps to safeguard witnesses from influence renders the order unsustainable. (Paras 12, 17)
Facts of the case:
The trial court passed an order deferring the cross-examination of four eye witnesses in a criminal case. The application for deferral lacked specific reasons and was opposed on the grounds that the order was passed without proper application of judicial mind, contrary to established legal precedents regarding trial procedures.
Findings of Court:
The court observed that the application for deferment was inherently defective for not stating valid reasons. The trial court erred by not exercising its discretion judiciously, as the deferment was granted mechanically without considering the potential for witness tutoring, thereby violating the mandate of an expeditious trial.
Issues: Whether the trial court correctly exercised its discretion under section 231(2) to defer witness cross-examination and whether the order adhered to the prescribed legal guidelines for such judicial intervention.
Ratio Decidendi: Discretion to defer cross-examination cannot be exercised in a 'straitjacket' manner; it requires a case-specific justification supported by recorded reasons to ensure the integrity of evidence and prevent witness contamination. Failure to record such reasons for deviating from day-to-day trials constitutes a legal error.
Result: Writ petition allowed; impugned order set aside.
| Table of Content |
|---|
| 1. procedural context for writ petition challenging order. (Para 1 , 2 , 3) |
| 2. parties' arguments on section 231(2) crpc deferment. (Para 4 , 5 , 6 , 7) |
| 3. application of legal standards to trial court orders. (Para 8 , 9 , 10 , 14 , 15 , 16 , 17) |
| 4. guidelines for exercising discretion under section 231(2). (Para 11 , 12 , 13) |
| 5. judicial order setting aside flawed trial discretion. (Para 18) |
ORAL 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 abvoesaid 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
