REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1321    OF 2018

[Arising out of Special Leave Petition (Crl.) No. 4652 of 2018]

State of Kerala               …Appellant

Versus

Rasheed            …Respondent

J U D G M E N T    

INDU MALHOTRA, J.    

Leave granted.

1. The present Criminal Appeal arises out of Special Leave Petition (Crl.) No.

4652 of 2018 wherein the impugned Order dated January 9, 2018 passed

by the High Court of Kerala in Criminal Miscellaneous Case No. 171 of

2018 has been challenged.

2. The relevant facts for deciding the present Criminal Appeal, are briefly set

out below:

2.1. A  First Information  Report under Section 154 of the  Code of

Criminal Procedure, 1973 (“Cr.P.C.”) was registered at the

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instance of CW 1­Narayanan. According to the Original Statement

provided by him to the Police, Krishnaprasad, who was the

occupant  of  a flat in  the building where CW 1­Narayanan was

serving as a security guard, had called for an ambulance.

Krishnaprasad, along with others, then carried an unconscious

person out  of the  bathroom of the flat to the  ambulance.  The

unconscious person was later identified to be Satheesan, who was

declared dead on being taken to the hospital.  CW 1­Narayanan

then made a statement that Krishnaprasad had been staying in

the flat for two months, and was a companion of the Respondent­

Accused No.  2,  Rasheed. It  was alleged  that the  flat  had been

taken on rent by the Respondent­Accused No. 2.

2.2. On May 24, 2016, the Police filed a Charge­Sheet under Section

173 of the Cr.P.C. before the Judicial First Class Magistrate Court

II, Thrissur against 8 persons, including the Respondent­Accused

No. 2, for the alleged commission of offences under Sections 302,

343, 212, 201, 202, 118 and 109 read with Sections 120B and 34

of the Indian Penal Code, 1860. It was alleged that the deceased­

Satheesan had disclosed information to his girlfriend, CW 5­

Ajitha, regarding the activities which had been taking place inside

the rented flat, and about the illicit relationship between the

Respondent­Accused No. 2 and Accused No. 3­Saswathy. On

learning about this, the Accused persons had allegedly detained

Satheesan, tortured him, and killed him with criminal intention.

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2.3. Charges were framed by the Additional Sessions Judge, Thrissur.

CWs 1 to 5 were summoned as Prosecution Witnesses on

December 16, 2017.

On the same day, after the examination­in­chief of CW 1­

Narayanan was conducted, an Application under Section 231(2) of

the  Cr.P.C. was filed by the Counsel for the Respondent­Accused

No.  2  seeking  adjournment  of the  cross­examination of  CW 1­

Narayanan, as also of CWs 2 to 5, to a date after the examination­

in­chief of CWs 2 to 5 was completed. It was stated in the said

Application, that the case of the Respondent­Accused No. 2 would

be adversely affected if the Application was not allowed, since the

defence strategy adopted by the Respondent­Accused No. 2 would

be revealed to the Prosecution.

2.4. The Application under Section 231(2) of the Cr.P.C. was opposed

by the Prosecution which filed a Reply, wherein it was stated 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.

2.5. The Additional  Sessions Judge  vide  Order  dated December  20,

2017 dismissed the Application filed on behalf of the Respondent­

Accused No. 2.

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The Additional Sessions Judge held that Section 231(2) of the

Cr.P.C. 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 Cr.P.C. 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 cross­examination, in the present

case, would run counter to the general provisions of the Indian

Evidence Act, 1872.

The Additional Sessions Judge held that the deferral of cross­

examination in this case could give rise to the possibility of loss of

memory on the part of the  witnesses, who had already been

examined­in­chief,  which would adversely affect the case of  the

Prosecution.

The Additional  Sessions Judge also observed that  no specific

reason for deferring the cross­examination had been pleaded on

behalf of the  Respondent­Accused  No.  2,  apart from a  general

averment that the defence would be disclosed to the Prosecution.

The Additional Sessions Judge was of the view that the

Respondent­Accused No. 2 and Accused No. 7 are “highly

influential political  leaders”, and the possibility of the threats to

witnesses after their examination­in­chief, could not be ruled out.

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Furthermore, it was observed that CWs 1 to 5 would be deposing

on different facts and aspects of the case.

The Additional Sessions Judge keeping in view the provisions of

Sections 231(2) and 309 of the Cr.P.C. held that deferral of cross­

examination is not an ordinary practice in a criminal trial, and

dismissed the Application filed on behalf of the Respondent­

Accused No. 2.

2.6. Aggrieved by the Order dated December 20, 2017 passed by the

Additional  Sessions Judge, the Respondent­Accused No.  2 filed

Criminal Miscellaneous Case No. 171 of 2018 under Section 482

of the Cr.P.C. before the High Court of Kerala.

The High Court reversed the Order of the Additional Sessions

Judge  by a short unreasoned cryptic  Order dated  January  1,

2018, and allowed Criminal Miscellaneous Case No. 171 of 2018.

It  was directed that the cross­examination of  CWs 1 to 4 be

adjourned till after the examination­in­chief of CW 5.

2.7. Aggrieved by the Order dated January 1, 2018 passed by the High

Court, the  State of  Kerala  has filed the  present  Special Leave

Petition (Crl.) No. 4652 of 2018 before this Court.

3. The  legal  issue which arises for consideration  in the present Criminal

Appeal is whether the exercise of discretion under Section 231(2) of the

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Cr.P.C. by the Additional Sessions Judge was valid and legally

sustainable.

4. The statutory framework governing the order of production and

examination of witnesses is contained inter alia in Sections 135 and 138

of the Indian Evidence Act, 1872. A conjoint reading of Sections 1351 and

1382  would  indicate that the usual practice  in any trial,  be  it  civil  or

criminal, is for the examination­in­chief of a witness to be carried out

first; followed  by  his cross­examination (if so desired  by the adverse

party),  and then re­examination  (if so desired by the party calling the

witness).

5. Section 231 of the Cr.P.C. indicates that the Judge is given the discretion

to defer cross­examination of a witness, until any other witness or

witnesses have been examined.

Section 231 is set out hereinbelow:

“231. Evidence for prosecution.–(1) On the date so fixed, the Judge shall proceed to take all such evidence as maybe produced in support of the prosecution.

(2) The Judge may, in his discretion, permit the cross­examination of any witness to be deferred until any other witness or witnesses

1  “135. Order of production and examination of witnesses.–The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law by the discretion of the Court.”

2  “138.  Order of  examination.–Witnesses  shall  be first examined­in­chief, then  (if the adverse  party so  desires) cross­examined, then  (if the party  calling him so desires) re­ examined.

The examination and cross­examination must relate to relevant facts, but the cross­ examination need not be confined to the facts to which the  witness testified in his examination­in­chief…”

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have been examined  or recall any  witness for further cross­ examination.”

(Emphasis supplied)

The phraseology of Section 231(2)  mirrors Section 242(3)3  of the

Cr.P.C. which provides for a similar discretion to a Magistrate in the trial

of a Warrant Case under Chapter XIX of the Cr.P.C.

6. Section 242(3) is analogous to Section 251A(7) of the repealed Code of

Criminal Procedure, 1898 and is identically worded. Section 251A was

inserted vide the Code of Criminal Procedure (Amendment) Act, 1955 (Act

No. 26 of 1955) in the erstwhile Code of Criminal Procedure, 1898.

The Statement of Objects and Reasons of the Code of Criminal

Procedure (Amendment) Act, 1955 suggests inter alia that changes were

introduced to simplify the procedure in warrant cases, to ensure speedy

disposal of criminal judicial business, to minimise inconvenience caused

to witnesses, and to ensure that adjournments are not allowed without

the examination of witnesses present in court, except for an unavoidable

cause.

The Karnataka High Court in  Shamoon Ahmed Sayed & Anr.  v.

Intelligence Officer4, delivered by Shantanagoudar, J. (as he then was),

3 “242. Evidence for prosecution.–… …(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as

may be produced in support of the prosecution:

Provided that the Magistrate may permit the cross­examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross­examination.”

4 2009 Cri LJ 1215 : ILR 2008 Karnataka 4378. 7

had observed that Section 231(2) as well as Section 242(3) of the Cr.P.C.

must be interpreted in light of the legislative intent behind the enactment

of Section 251A of the Code of Criminal Procedure, 1898.

7. What follows from the discussion is that the norm in any criminal trial is

for the examination­in­chief of witnesses to be carried out first, followed

by cross­examination, and re­examination if required, in accordance with

Section 138 of the Indian Evidence Act, 1872.

Section 231(2)  of the Cr.P.C.,  however,  confers a discretion on the

Judge to defer the cross­examination of any  witness  until any other

witness or  witnesses have been examined, or recall any  witness for

further cross­examination, in appropriate cases. Judicial discretion has

to be exercised in consonance with the statutory framework and context

while  being aware  of reasonably foreseeable  consequences.5  The party

seeking deferral under Section 231(2) of the Cr.P.C. 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

5 A Constitution Bench of this Court in Gurbaksh Singh Sibbia & Ors.  v. State of Punjab, (1980) 2 SCC 565 had elucidated upon the nature and manner of  exercise of judicial discretion in paragraph 21. The relevant extract has been reproduced hereunder:

“…Every kind of judicial      discretion, whatever may be the nature of the matter in regard to which it  is required to be exercised, has to be used with  due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion.”

(Emphasis supplied)

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circumstances”6, or when “a very strong case”7  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) of the

Cr.P.C. if sufficient reasons are made out for deviating from the norm.

8. The circumstances in which the High Courts have approved the exercise

of discretion to defer cross­examination, so as to avoid prejudice due to

disclosure of strategy are:

 Where witnesses were related to each other, and were supposed to

depose on the same subject­matter and facts8;

 Where witnesses were supposed to depose about the same set of

facts9.

However, the circumstances in which deferral has been refused are:

6 Sisir Debnath v. State of West Bengal & Anr. [C.R.R. No. 2533 of 2017; decided on August 2, 2017 by the High Court of Calcutta (Appellate Side)];

Shamoon Ahmed Sayed & Anr.  v.  Intelligence Officer, 2009 Cri LJ 1215 : ILR 2008 Karnataka 4378.

7 Amit Kumar Shaw & Ors. v. State of West Bengal & Anr. [C.R.R. No. 3846 of 2009; decided on June 23, 2010 by the High Court of Calcutta (Appellate Side)].

8 Sri Shankar v.  State by Hebbagodi Police Station, [Crl. P. No. 8774 of 2017; decided on December 7, 2017 by the High Court of Karnataka, at Bengaluru];

Masiur Rahman Molla @ Mongla & Ors. v. The State of West Bengal & Ors. [C.R.R. No. 2411 of 2016; decided on August 10, 2016 by the High Court of Calcutta (Appellate Side)];

Jayakar v. The State, by Frazer Town Police, ILR 1996 KARNATAKA 2783 : 1996 (3) Kar LJ 747.

9 R. Selvan v. State [Crl.R.C. (MD) No. 744 of 2016; decided on January 24, 2017 by High Court of Madras, at Madurai] : 2017 (2) Crimes 509 (Mad.).  

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 where the ground for deferral was the mere existence of a

relationship between the witnesses10;

 where specific reasons were not given in support of the claim that

prejudice would be caused since  the defence strategy would be

disclosed11;

 where no prejudice would have been caused12.

10  Sisir Debnath v. State of West Bengal & Anr. [C.R.R. No. 2533 of 2017; decided on August 2, 2017 by the High Court of Calcutta (Appellate Side)].

11   Pradeep Kumar Kolhe v. State of Madhya Pradesh [M.C.R.C. No. 20240 of 2018; decided on July 11, 2018 by the High Court of Madhya Pradesh, at Indore];

State of Maharashtra v. Raja Ram Appana Mane & Ors.  [Criminal Writ Petition No. 578 of 2016 and Criminal Application No. 2485 of 2016; decided on January 23, 2017 by the High Court of Bombay, at Aurangabad];

Amit Kumar Shaw & Ors. v. State of West Bengal & Anr.  [C.R.R. No. 3846 of 2009; decided on June 23, 2010 by the High Court of Calcutta (Appellate Side)];

Md. Sanjoy & Anr.  v.  The State of West Bengal, 2000 Cri LJ 608 : 2001 (1) RCR (Criminal) 431.

12 The High Court of Calcutta in Lalu Alam v. State of West Bengal [Cr. Revision No. 385 of 1996; decided on June 12, 2002 by the High Court of Calcutta (Appellate Side)] : 2002 (3) CHN 301 had noted:

“…So,  the plea, taken by the petitioner  in this case that  if  Miss.  Bannerjee  is cross­examined before the examination­in­chief of the other named witnesses on the same point, the prosecution will  certainly have an opportunity to fill  up a lacuna, cannot  be accepted as a  general rule  as in  a  criminal trial the accused has an additional advantage inasmuch as the copies of earlier statement of the prosecution witnesses, recorded under Section 161 Cr.P.C. are supplied well in advance so that he can not only know to his advantage what each prosecution witness is expected to tell while in the witness box but has also the advantage of cross­examining each and every witness with reference to their  earlier  statement  made by them during the investigation…In a situation like this,  hardly it  can be accepted that  if the cross­ examination of Ms. Bannerjee is allowed to be proceeded with before examination of the other witnesses in this case, the present petitioner would be highly prejudiced and prosecution will have the opportunity in filling up the lacuna in this case.”

(Emphasis supplied)

The High Court of Karnataka in Shamoon Ahmed Sayed & Anr. v. Intelligence Officer, 2009 Cri LJ 1215 : ILR 2008 Karnataka 4378, had noted that no prejudice be caused since:

“…In  most  of the criminal cases, there may be more than one eye witness and definitely will  be more than one mahazar witness.  Many cases depend upon the official  witness only,  who may have  to  depose about the similar facts.  Thus  the defence may choose to file application invoking Section 231(2) or under Section 242(3) of Cr.P.C. on the ground of alleged prejudice to be caused in every     matter   . But the

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9. The Delhi High Court, in  Vijay Kumar  v.  State (Govt. of NCT of Delhi)13,

laid down useful directions for the conduct of criminal trials. The

directions are commendable, and relevant excerpts are reproduced

hereinbelow:

“42…(vi).  Since  the  expectation of law  is that the trial,  once  it commences, would continue from day­to­day till it is concluded, it is desirable that, keeping in mind the possible time required for recording of evidence (particularly of the prosecution), a detailed schedule  of the  dates  of  hearing  on  which  evidence  would  be recorded is drawn up immediately after charge is framed – this, taking into account not only the calendar of the court but also the atime required by the prosecution to muster and secure the presence of its  witnesses as  well as the convenience of the defence counsel. Once such a schedule has been drawn up, all sides would be duty bound to adhere to it scrupulously.

(vii). While drawing up the schedule of dates for recording of the evidence  for the prosecution,  as indicated above, the presiding judge would take advice from the prosecution as to the order in which it would like to examine its witnesses, clubbing witnesses pertaining to the same facts or events together, for the same set of dates.

(viii). If the defence intends to invoke the jurisdiction of the criminal  court to  exercise  the discretion  for  deferment  of  cross­ examination of particular witness(es) in terms of Section 231(2), or Section 242(3) Cr. PC, it must inform the presiding judge at the stage of setting the schedule so that the order in  which the witnesses are to be called can be appropriately determined, facilitating short deferment for cross­examination (when necessary) so that the recording of evidence continues, from day­ to­day, unhindered avoiding prolonged adjournments as are often seen to be misused to unduly influence or intimidate the witnesses.

same cannot be allowed by the Court. As aforementioned, the defence of the accused will not be prejudiced at all as the examination­in­chief of the witnesses generally will proceed based on either the statement recorded under Section 161 of Cr.P.C. or based on mahazar, etc.”

(Emphasis supplied)

13  W.P. (Crl.) No. 1350 of 2017 and Crl. M.A. No. 7450 of 2017; decided on July 3, 2017  by the High Court of Delhi : 2017 Cri LJ 3875.

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(ix). It is the bounden duty of the presiding judge of the criminal court to take appropriate measures, if the situation so demands, to insulate the  witnesses from undue influence  or intimidatory tactics  or  harassment. If the  court  has  permitted  deferment in terms of Section 231(2), or 242(3) Cr. PC, for cross­examination of a particular witness, it would not mean that such cross examination is to be indefinitely postponed or scheduled for too distant  a date.  The court  shall  ensure  that  the deferred cross­ examination is carried out in the then on­going schedule immediately after the witness whose examination ahead of such exercise has been prayed for.”

10. There cannot be a straitjacket formula  providing for the grounds on

which judicial discretion  under Section  231(2) of the  Cr.P.C. can be

exercised. The exercise of discretion has to take place on a case­to­case

basis.  The  guiding  principle for  a  Judge  under  Section  231(2)  of the

Cr.P.C. is to ascertain whether prejudice would be caused to the party

seeking deferral, if the application is dismissed.

11. While  deciding  an  Application  under  Section  231(2) of the  Cr.P.C., a

balance  must be struck between the rights of the accused, and the

prerogative of the prosecution to lead evidence.

The following factors must be kept in consideration:

 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;

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 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

Cr.P.C.14.

These factors are illustrative for guiding the exercise of discretion by a

Judge under Section 231(2) of the Cr.P.C.

12. The following practice guidelines should be followed by trial courts in the

conduct of a criminal trial, as far as possible:

i. a detailed case­calendar must be prepared at the commencement

of the trial after framing of charges;

ii. the case­calendar must specify the dates on which the

examination­in­chief and cross­examination (if required) of

witnesses is to be conducted;

iii. 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;

14  “309.  Power to postpone or  adjourn proceedings.–(1) In every inquiry  or trial the proceedings shall be continued from day­to­day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded…”

See  also  Vinod Kumar  v.  State  of  Punjab, (2015)  3  SCC 220;  and,  Lt.  Col.  S.J. Chaudhary v. State (Delhi Administration), (1984) 1 SCC 722.

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iv. testimony of witnesses deposing on the same subject­matter must

be proximately scheduled;

v. the request for deferral under Section 231(2) of the Cr.P.C. must

be preferably made before the preparation of the case­calendar;

vi. the grant for request of deferral must be premised on sufficient

reasons justifying the deferral of cross­examination of each

witness, or set of witnesses;

vii. 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;

viii. the case­calendar, prepared in accordance with the above

guidelines,  must be  followed strictly,  unless departure  from the

same becomes absolutely necessary;

ix. 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.

13. In the present case, a bald assertion was made by the Counsel for the

Respondent­Accused No. 2 that the defence of the Respondent­Accused

No. 2 would be prejudiced if the cross­examination of CWs 1 to 5 is not

deferred until after the examination­in­chief of CWs 2 to 5.

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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”.

14. In view of the aforesaid discussion, the present Criminal Appeal is

allowed, and the impugned Order dated January 9, 2018 passed by the

High Court of Kerala in Criminal Miscellaneous Case No. 171 of 2018 is

set aside. The Order dated December 20, 2017 passed by the Additional

Sessions Judge dismissing the Application filed on behalf of the

Respondent­Accused No. 2 stands restored. The observations made

hereinabove  will,  however,  have no  bearing on  the  merits  of the  case

during the course of trial.

Ordered accordingly.

…..……...........................J. (ABHAY MANOHAR SAPRE)

..….……..........................J. (INDU MALHOTRA)

New Delhi October 30, 2018.

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