In a judgment of seminal importance, the Supreme Court today laid down guidelines for trial courts to follow in the conduct of a criminal trial..The Court also laid down factors to be considered while deciding an application under Section 231(2) of Code of Criminal Procedure (CrPC) for deferment of cross examination..The decision was rendered by a Bench of Justices AM Sapre and Indu Malhotra in an appeal against a decision of Kerala High Court in a murder case..In the instant case, an application under Section 231(2) of the CrPC was filed by the counsel for the Respondent-Accused seeking adjournment of the cross examination of Charge Witness (CW) 1 Narayanan, as also of CWs 2 to 5, to a date after the examination-in-chief of CWs 2 to 5 was completed. It was stated in the application, that the case of the accused would be adversely affected if the application was not allowed since the defence strategy adopted by the accused would be revealed to the Prosecution..The application was opposed by the Prosecution which filed a Reply, wherein it said that CWs 1 to 5 were not deposing with respect to the same subject matter. It was further stated that the deferral of the cross-examination would adversely affect the Prosecution evidence..The Additional Sessions Judge dismissed the application of the accused holding that Section 231(2) of the CrPC confers a discretion on the Trial Judge to defer the cross-examination of any witness until any other witness or witnesses have been examined. Section 231(2) of the CrPC does not confer a right on the accused to seek deferral in a wholesale way on the ground that the defence of the accused would become known to the Prosecution. The deferral of cross-examination, in the present case, would run counter to the general provisions of the Indian Evidence Act, 1872, the Additional Sessions Judge held..On appeal, the High Court reversed the Order of the Additional Sessions Judge by a short unreasoned, cryptic order and allowed the request for deferment of cross-examination. It was directed that the cross-examination of CWs 1 to 4 be adjourned till after the examination-in-chief of CW 5..Aggrieved by the order passed by the High Court, the State of Kerala approached the Supreme Court..The legal issue which arose for consideration before the Supreme Court was whether the exercise of discretion under Section 231(2) of the CrPC by the Additional Sessions Judge was valid and legally sustainable..The Court noted that a conjoint reading of Sections 135 and 138 of Indian Evidence Act would indicate that the usual practice in any trial, be it civil or criminal, is for the examination-in-chief of a witness to be carried out first, followed by his cross-examination, and then reexamination..Section 231 of the CrPC indicates that the Judge is given the discretion to defer cross-examination of a witness until any other witness or witnesses have been examined..Adverting to the legislative intent and various precedents in this regard, the Court held that the party seeking deferral under Section 231(2) of the CrPC must give sufficient reasons to invoke the exercise of discretion by the Judge, and deferral cannot be asserted as a matter of right..“Several High Courts have held that the discretion under Section 231(2) of the Cr.P.C. should be exercised only in “exceptional circumstances”, or when “a very strong case” has been made out..However, while it is for the parties to decide the order of production and examination of witnesses in accordance with the statutory scheme, a Judge has the latitude to exercise discretion under Section 231(2) if sufficient reasons are made out for deviating from the norm.”.The Court stated that there cannot be a straitjacket formula providing for the grounds to exercise judicial discretion under Section 231(2). The exercise of discretion has to take place on a case-to-case basis..“While deciding an Application under Section 231(2), a balance must be struck between the rights of the accused, and the prerogative of the prosecution to lead evidence”, it held..It then laid the following factors which must be taken into consideration while dealing with a Section 231(2) application..– possibility of undue influence on witness(es);.– possibility of threats to witness(es);.– possibility that nondeferral would enable subsequent witnesses giving evidence on similar facts to tailor their testimony to circumvent the defence strategy;.– possibility of loss of memory of the witness(es) whose examination inchief has been completed;.– occurrence of delay in the trial, and the nonavailability of witnesses, if deferral is allowed, in view of Section 309(1) of the CrPC..The Court in the instant case set aside the High court order on the ground that no reasons for reversal of the Order of the Additional Sessions Judge were given..“The impugned Order is liable to be set aside since the High Court has given no reasons for reversal of the Order of the Additional Sessions Judge, particularly in light of the possibility of undue influence and intimidation of witness(es) since the RespondentAccused No. 2 and Accused No. 7 are “highly influential political leaders”..Importantly, the Court went one step ahead and ruled that the following practice guidelines should be followed by trial courts in the conduct of a criminal trial, as far as possible:.– a detailed casecalendar must be prepared at the commencement of the trial after framing of charges;.– the casecalendar must specify the dates on which the examinationinchief and crossexamination (if required) of witnesses is to be conducted;.– the casecalendar must keep in view the proposed order of production of witnesses by parties, expected time required for examination of witnesses, availability of witnesses at the relevant time, and convenience of both the prosecution as well as the defence, as far as possible;.– testimony of witnesses deposing on the same subjectmatter must be proximately scheduled;.– the request for deferral under Section 231(2) of the Cr.P.C. must be preferably made before the preparation of the casecalendar;.– the grant for request of deferral must be premised on sufficient reasons justifying the deferral of crossexamination of each witness, or set of witnesses;.– while granting a request for deferral of crossexamination of any witness, the trial courts must specify a proximate date for the crossexamination of that witness, after the examinationinchief of such witness(es) as has been prayed for;.– the casecalendar, prepared in accordance with the above guidelines, must be followed strictly, unless departure from the same becomes absolutely necessary;.– in cases where trial courts have granted a request for deferral, necessary steps must be taken to safeguard witnesses from being subjected to undue influence, harassment or intimidation..Read the judgment below..Image of Justice Indu Malhotra taken from here.
In a judgment of seminal importance, the Supreme Court today laid down guidelines for trial courts to follow in the conduct of a criminal trial..The Court also laid down factors to be considered while deciding an application under Section 231(2) of Code of Criminal Procedure (CrPC) for deferment of cross examination..The decision was rendered by a Bench of Justices AM Sapre and Indu Malhotra in an appeal against a decision of Kerala High Court in a murder case..In the instant case, an application under Section 231(2) of the CrPC was filed by the counsel for the Respondent-Accused seeking adjournment of the cross examination of Charge Witness (CW) 1 Narayanan, as also of CWs 2 to 5, to a date after the examination-in-chief of CWs 2 to 5 was completed. It was stated in the application, that the case of the accused would be adversely affected if the application was not allowed since the defence strategy adopted by the accused would be revealed to the Prosecution..The application was opposed by the Prosecution which filed a Reply, wherein it said that CWs 1 to 5 were not deposing with respect to the same subject matter. It was further stated that the deferral of the cross-examination would adversely affect the Prosecution evidence..The Additional Sessions Judge dismissed the application of the accused holding that Section 231(2) of the CrPC confers a discretion on the Trial Judge to defer the cross-examination of any witness until any other witness or witnesses have been examined. Section 231(2) of the CrPC does not confer a right on the accused to seek deferral in a wholesale way on the ground that the defence of the accused would become known to the Prosecution. The deferral of cross-examination, in the present case, would run counter to the general provisions of the Indian Evidence Act, 1872, the Additional Sessions Judge held..On appeal, the High Court reversed the Order of the Additional Sessions Judge by a short unreasoned, cryptic order and allowed the request for deferment of cross-examination. It was directed that the cross-examination of CWs 1 to 4 be adjourned till after the examination-in-chief of CW 5..Aggrieved by the order passed by the High Court, the State of Kerala approached the Supreme Court..The legal issue which arose for consideration before the Supreme Court was whether the exercise of discretion under Section 231(2) of the CrPC by the Additional Sessions Judge was valid and legally sustainable..The Court noted that a conjoint reading of Sections 135 and 138 of Indian Evidence Act would indicate that the usual practice in any trial, be it civil or criminal, is for the examination-in-chief of a witness to be carried out first, followed by his cross-examination, and then reexamination..Section 231 of the CrPC indicates that the Judge is given the discretion to defer cross-examination of a witness until any other witness or witnesses have been examined..Adverting to the legislative intent and various precedents in this regard, the Court held that the party seeking deferral under Section 231(2) of the CrPC must give sufficient reasons to invoke the exercise of discretion by the Judge, and deferral cannot be asserted as a matter of right..“Several High Courts have held that the discretion under Section 231(2) of the Cr.P.C. should be exercised only in “exceptional circumstances”, or when “a very strong case” has been made out..However, while it is for the parties to decide the order of production and examination of witnesses in accordance with the statutory scheme, a Judge has the latitude to exercise discretion under Section 231(2) if sufficient reasons are made out for deviating from the norm.”.The Court stated that there cannot be a straitjacket formula providing for the grounds to exercise judicial discretion under Section 231(2). The exercise of discretion has to take place on a case-to-case basis..“While deciding an Application under Section 231(2), a balance must be struck between the rights of the accused, and the prerogative of the prosecution to lead evidence”, it held..It then laid the following factors which must be taken into consideration while dealing with a Section 231(2) application..– possibility of undue influence on witness(es);.– possibility of threats to witness(es);.– possibility that nondeferral would enable subsequent witnesses giving evidence on similar facts to tailor their testimony to circumvent the defence strategy;.– possibility of loss of memory of the witness(es) whose examination inchief has been completed;.– occurrence of delay in the trial, and the nonavailability of witnesses, if deferral is allowed, in view of Section 309(1) of the CrPC..The Court in the instant case set aside the High court order on the ground that no reasons for reversal of the Order of the Additional Sessions Judge were given..“The impugned Order is liable to be set aside since the High Court has given no reasons for reversal of the Order of the Additional Sessions Judge, particularly in light of the possibility of undue influence and intimidation of witness(es) since the RespondentAccused No. 2 and Accused No. 7 are “highly influential political leaders”..Importantly, the Court went one step ahead and ruled that the following practice guidelines should be followed by trial courts in the conduct of a criminal trial, as far as possible:.– a detailed casecalendar must be prepared at the commencement of the trial after framing of charges;.– the casecalendar must specify the dates on which the examinationinchief and crossexamination (if required) of witnesses is to be conducted;.– the casecalendar must keep in view the proposed order of production of witnesses by parties, expected time required for examination of witnesses, availability of witnesses at the relevant time, and convenience of both the prosecution as well as the defence, as far as possible;.– testimony of witnesses deposing on the same subjectmatter must be proximately scheduled;.– the request for deferral under Section 231(2) of the Cr.P.C. must be preferably made before the preparation of the casecalendar;.– the grant for request of deferral must be premised on sufficient reasons justifying the deferral of crossexamination of each witness, or set of witnesses;.– while granting a request for deferral of crossexamination of any witness, the trial courts must specify a proximate date for the crossexamination of that witness, after the examinationinchief of such witness(es) as has been prayed for;.– the casecalendar, prepared in accordance with the above guidelines, must be followed strictly, unless departure from the same becomes absolutely necessary;.– in cases where trial courts have granted a request for deferral, necessary steps must be taken to safeguard witnesses from being subjected to undue influence, harassment or intimidation..Read the judgment below..Image of Justice Indu Malhotra taken from here.
