The Hon’ble Supreme Court, on 30thOctober 2018, in the matter of State of Kerala vs. Rasheed while enunciating the illustrative factors for guiding the exercise of discretion by a Judge under Section 231(2) of the Cr.P.C. elucidated the practice guidelines that should be followed by trial courts in the conduct of a criminal trial, as far as possible.
The Hon’ble Supreme Court observed:
The statutory framework governing the order of production and examination of witnesses is contained inter aliain Sections 135 and 138 of the Indian Evidence Act, 1872. A conjoint reading of Sections 135and 138would 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 (if so desired by the adverse party), and then re-examination (if so desired by the party calling the witness). (Para 4)
Section 231 of the Cr.P.C. indicates that the Judge is given the discretion to defer cross-examination of a witness, until any other witness or witnesses have been examined. The phraseology of Section 231(2) mirrors Section 242(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. (Para 5)
Section 242(3) is analogous to Section 251A(7) of the repealed Code of Criminal Procedure, 1898 and is identically worded.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. (Para 6)
The norm in any criminal trial is for the examination-in-chief of witnesses to be carried out first, followed by cross-examination, and re-examination 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 cross-examination of any witness until any other witness or witnesses have been examined, or recall any witness for further cross- examination, in appropriate cases. Judicial discretion has to be exercised in consonance with the statutory framework and context while being aware of reasonably foreseeable consequences.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. (Para 7)
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 case-to-case 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. (Para 10)
(Para 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 non-deferral 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- in-chief has been completed;
- occurrence of delay in the trial, and the non-availability 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.
(Para 12) The following practice guidelines should be followed by trial courts in the conduct of a criminal trial, as far as possible:
- a detailed case-calendar must be prepared at the commencement of the trial after framing of charges;
- the case-calendar must specify the dates on which the examination- in-chief and cross-examination (if required) of witnesses is to be conducted;
- the case-calendar 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 subject-matter 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 case-calendar;
- the grant for request of deferral must be premised on sufficient reasons justifying the deferral of cross-examination of each witness, or set of witnesses;
- while granting a request for deferral of cross-examination of any witness, the trial courts must specify a proximate date for the cross- examination of that witness, after the examination-in-chief of such witness(es) as has been prayed for;
- the case-calendar, 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.
Copy of Judgement : Judgement_30-Oct-2018