True it is, that prosecution witnesses are expected to testify in their chief examination on the lines of their statements recorded, during investigation, under Sections 161 or 164 Cr.P.C., and any improvement or deviation by them from said statements, may render their depositions unworthy of credence. However, it is the apprehension of improvisation by the prosecution witnesses in their cross examinations to circumvent the defence strategy which is to be taken into consideration by the Court at the time cross examination of a witness or set of witnesses is sought to be deferred and if that apprehension is well founded, it can hamper the prospects of a fair trial, a basic postulate of criminal jurisprudence. The circumstances narrated by the petitioners, in the present case, justified the exercise of discretion by the Court, in terms of sub section 3 of Section 254 BNSS.{Para 24}
25. If the principle of law expounded by Hon‟ble Supreme Court in Rasheed, is carefully glanced over, it is manifest that, as far as possible, a plea for deferral under Section 254(3) BNSS, must preferably be made before the preparation of the case calendar or at the earliest available opportunity,before the defence strategy would become known to the prosecution. A request for deferral must be premised on sufficient reasons and prejudice is the determinating factor, to be borne in mind.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case: CRM(M) No. 352/2025
Ravinder Kumar and others V/s UT of J&K
Coram: HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
1. Petitioners have invoked inherent jurisdiction of this Court, under
Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short,
“BNSS”) read with Article 227 of the Constitution of India, for setting aside
order dated 15.04.2025, passed by learned Principal Sessions Judge, Jammu,
[“the trial court”] in case „UT of J&K v. Parshotam Singh and others‟ under
Sections 120B, 447, 427, 302, 307, 506, 147 and 201 IPC, in terms whereof,
their plea for deferring cross examination of six eye-witnesses, came to be
declined.
2. The case set out by the petitioners is that out of PWs 1, 2, 3, 5, 7 and 8,
the six eye-witnesses cited in the challan, PW2-Balbir Singh is father of
deceased Avtar Singh, PW1-Jagir Singh is cousin of Balbir Singh, PW5-
Tajinder Singh is son of Jagir Singh, PW7-Kamal Kour is wife of Balbir
Singh and PW8-Surinder Singh is brother-in-law of Balbir Singh and they,
being closely related, are eye witnesses to the same set of facts, alleged in the
challan. Examination-in-chief of first prosecution witness, PW1-Jagir Singh
was concluded on 07.04.2025 and on the day following i.e. on 08.04.2025,
they filed application, under Section 254(3) BNSS for deferment of cross examination of the aforesaid witnesses i.e. PWs 1, 2, 3, 5, 7 and 8 until they
are examined in chief.
3. It is contention of the petitioners that when a number of witnesses are
to be examined by the prosecution to prove the same set of facts, the Court,
on prayer made by the defence, is obliged to defer cross examination of said
witnesses until all of them are examined because their cross examination may
disclose the defence strategy and other prosecution witnesses get an
opportunity to fill the lacunae in the prosecution case against the accused.
This course, according to the petitioners, is required to be adopted by the
Court to rule out the possibility of subsequent prosecution witnesses, giving
evidence on similar facts, to tailor their testimony to circumvent the defence
strategy, which shall be prejudicial to the accused and hamper the prospect of
a fair trial. According to the petitioners, the deferment of cross examination of
the aforesaid witnesses, would not cause any prejudice to the prosecution.
4. The plea was opposed by the prosecution, on the other side, primarily,
on the ground that application filed by the petitioners was premature and law
does not permit wholesale deferring of cross examination of prosecution
witnesses, yet to be examined in chief. It was alleged by the prosecution that
petitioners accused were highly influential persons and there was possibility
of undue influence and intimidation to the prosecution witnesses, if their cross
examination was deferred.
5. Learned trial Court relied upon State of Kerala v Rasheed; (2019) 13 SCC 297 and Pardip Kundlikrao Kute v. State of Maharastra; 2002 SCC
Bom. 2294 to dismiss the application primarily on two counts: (i) that the
application was filed by the petitioners after the examination in chief of PW-1
Jagir Singh was completed, whereas it was required to be filed at the outset
when calendar for examination of witnesses was drawn; and (ii) that
apprehension of defence that witnesses will get a chance to improve upon
their testimonies, does not hold good because Court cannot assume and
presume a hypothetical situation in advance.
6. Petitioners have questioned the impugned order, on the predominant
premise that learned trial court has fallen in error of law and failed to
appreciate the controversy in its correct perspective. It is contention of the
petitioners that since examination-in-chief of the only prosecution witness,
PW1-Jagir Singh, recorded so far, was concluded on 07.04.2025 and they
immediately preferred the aforesaid application on the next day i.e.
08.04.2025, before the commencement of cross examination of witnesses, as
such, there was no delay in presentation of the application for deferring cross
of the eye witnesses.
7. According to the petitioners, an application under Section 254(3)
BNSS, for deferring cross examination of any witness, by its very nature, is
preventive and founded on possibilities and apprehensions only and,
therefore, such application seeking deferral of cross examination of witness
on the ground that subsequent witnesses, on same set of facts, may tailor their
testimonies to circumvent the defence strategy disclosed during cross
examination, can be decided on possibilities only and, if two views are possible as to whether defence of the accused is likely to be revealed to his
prejudice, he is entitled to the benefit of cross examination to be deferred. It is
urged that it is the petitioners accused, who will be prejudiced by non deferral
of cross examination of eye witnesses, cited by the prosecution on the same
set of facts and no prejudice will be caused to the prosecution, if the above
course is not adopted.
8. While, Mr. Sakal Bhushan, learned counsel, appearing for the
petitioners has relied upon State of Kerala v. Rasheed (supra), Mohitosh
Biswas and ors. V. State of West Bengal; [CRR No.2298 of 2024 and
Nannebabu Ramdev Gupta v. State of Maharastra; [Criminal
Application No. 394 of 2023] to reiterate the grounds urged in the memo of
petition, Mr. R. K. Kotwal, learned Special PP appearing for the respondent,
has relied upon Rasheed (supra) and Md. Sanjoy and another v. State of
West Bengal; 2000 CRI.L.J. 608 to reiterate and emphasize the grounds, on
the basis of which, application preferred by petitioners came to be dismissed
by the trial Court. Mr. Kotwal is of the view that Section 254(3) BNSS, does
not confer a right on the accused to seek wholesale deferral of witnesses on
the ground that his defence would become known to the prosecution.
9. Having heard learned counsels for the parties, I am of the considered
view that impugned order is legally flawed and premised on wrong
appreciation of law.
10. At the outset, the proximity of PWs 1, 2, 3, 5, 7 and 8, cited as eye
witness in the challan, on the same set of facts, is not in dispute. It is also not
in dispute that examination in chief of PW1-Jagir Singh was concluded on
07.04.2025 and on the very next day i.e. on 08.04.2025, the petitioners
preferred the aforesaid application in terms of Section 254(3) BNSS for
deferring cross examination of said witnesses.
11. Section 254 BNSS, corresponding to Section 231 of Central Cr.P.C.,
for the facility of reference, reads as under:
“Section 254.
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:
Provided that evidence of a witness under this sub section may be
recorded by audio-video electronic means.
(2) The deposition of evidence of any public servant may be taken
through audio-video electronic means.
(3) The Judge may, in his discretion, permit the cross examination
of any witness to be deferred until any other witness or witnesses
have been examined or recall any witness for further
consideration.”
12. Ideally, a witness is first examined in chief, followed by his cross
examination, if desired by the adverse party and then re-examination, if so
desired by the party calling him, as per the statutory framework and norms of
Sections 135 and 138 of Evidence Act 1872, providing the sequence of
production and examination of witnesses. Going by the plain language of
Section 254 BNSS, which deals with Evidence for prosecution, it is evident
that on the day fixed by the Judge for the prosecution evidence, he is obliged
to proceed to take all such evidence, as may be produced in support of the
prosecution. Learned trial Court has rightly underlined the essence of
continuity of evidence under Section 346 BNSS, which provides that in every
enquiry or trial, the proceedings have to proceed on day-to-day basis until all
the witnesses in attendance are examined, unless the Court finds adjournment
of the case beyond the following day to be necessary, for the reasons to be
recorded. Sub Section 3 of Section 254 BNSS is an exception to the said
general rule and sequence of evidence, in terms whereof, the Court is vested
with the jurisdiction to permit cross examination of a witness to be deferred,
until any other witness or witnesses are examined or recalling the witness for
further cross examination.
13. At the foremost, I concur with the opinion of Mr. Kotwal, learned
Special PP that it is a discretion vested in the Court to permit cross
examination of a witness to be deferred until any other witness or witnesses,
are examined or recall any witness for further cross examination and parties
seeking deferral, under Section 254(3) BNSS, must provide sufficient reasons
to invoke discretion of the Court and deferral cannot be asserted as a matter of
right. However, it is trite that judicial discretion has to be exercised judicially
and in consonance with its statutory framework, having regard to foreseeable
consequences.
14. The Apex Court in Rasheed, had an occasion to analyse the import and
legislative intent of Section 231(2) Cr.P.C., corresponding to Section 254(3)
BNNS, and it was clearly ruled that there cannot be a straightjacket formula
providing for the grounds for exercise of judicial discretion and it depends
upon case to case. Pertinently, it was observed that the guiding principle, in
such cases, for a Court is to ascertain whether dismissal of application for
deferral of cross examination would result in prejudice to the parties seeking
deferral and delineated the following factors for consideration:
i. possibility of undue influence on witness(es);
ii. possibility of threats to witness(es);
iii. possibility that non-deferral would enable subsequent
witnesses giving evidence on similar facts to tailor their
testimony to circumvent the defence strategy;
iv. possibility of loss of memory of the witness(es) whose examinationin-chief has been completed; and
v. Occurrence of delay in the trial, and the non-availability of
witnesses, if deferral is allowed, in view of Section 309(1) Cr.P.C.
(Emphasis supplied)
15. Having regard to the aforesaid factors, Supreme Court expounded following guidelines, to be followed by the courts in the conduct of a criminal trial:
“24. The following practice guidelines should be followed by trial
courts in the conduct of a criminal trial, as far as possible:
24.1. A detailed case calendar must be prepared at the commence-
ment of the trial after framing of charges;
24.2. The case-calendar must specify the dates on which
the examination-in-chief and cross-examination (if
required) of witnesses is to be conducted;
24.3. 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;
24.4. Testimony of witnesses deposing on the same subject matter
must be proximately scheduled;
24.5. The request for deferral under Section 231(2) of the Cr.P.C.
must be preferably made before the preparation of the case
calendar;
24.6. 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;
24.7. 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;
24.8. The case -calendar, prepared in accordance with the
above guidelines, must be followed strictly, unless
departure from the same becomes absolutely necessary;
and
24.9. 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, harassme
nt or intimidation.”
(Highlighted to emphasize)
16. Learned trial Court considered the application preferred by the
petitioners in the light of aforesaid guidelines, in particular, guideline 24.5 and rejected the application, on the ground that since the application was preferred by the petitioners after the examination in chief of PW1-Jagir Singh was completed and not, at the very outset, when the calendar for examination of witnesses was drawn, so the application did not meet the first requirement.
17. It needs a specific mention that guidelines provided by Hon‟ble
Supreme Court in Rasheed commenced with the expression “as far as possible” and guideline 24.5 provides that request for deferral must “preferably” be made before the preparation of the case calendar. If paragraph 24 of Rasheed is carefully glanced over and guideline 24.5 is read in conjunction with the opening expression “as far as possible”, I find legal force in the argument of Mr. Sakal, learned counsel for the petitioners that it does not lay down in absolute terms that an application for deferring cross
examination of a witness should necessarily be filed before the preparation of the case calendar. Learned trial Court, by overlooking the aforesaid expressions, has misdirected itself, to conclude that the application fordeferment of prosecution witnesses must be preferred by the accused, at the
outset, when calendar for examination of witnesses was drawn. The logical
requirement is that such an application for deferring cross examination of a
witness or witnesses, on the same set of facts, must be made before the
commencement of the cross examination of a particular witness. In other
words an application for deferment of cross examination of a witness or set of
witnesses must be filed, as early as possible, but, in any case, before the
commencement of cross examination of a witness, otherwise once the defence
strategy is exposed, the object of deferral of cross examination pales into
insignificance. The petitioners, in the present case, preferred the application
for deferral of cross-examination of eye witnesses, to the same set of facts, at
the earliest available opportunity and before the defence strategy would
become known to the prosecution.
18. Mr. Kotwal, learned Special PP for the respondent has argued that trial
Court, in terms of sub section 3 of Section 254 BNSS, is vested with the
discretion to defer cross examination of a witness only and wholesale
deferment of six prosecution witnesses is not permitted in law. He has relied
upon Md. Sanjoy (supra) to support his contention.
19. Guideline 24.6 of Rasheed is a complete answer to the issue raised by
learned Special PP, which provides that deferral of cross examination of a
witness or set of witnesses, shall be justified, provided it is premised on
sufficient reasons. The expression “each witness or set of witnesses” in
guideline 24.6 is sufficient to indicate that Court, under Sub Section 3 of
Section 254 BNSS is vested with the jurisdiction to permit the deferment of
cross examination, not only of a witness but a set of witnesses and it depends
upon case to case justifying the deferral of cross examination. Therefore,
observation of learned trial Court that en masse or wholesale deferment of six
eye witnesses, is not permissible in law, is also not sustainable.
20. Learned trial Court is of the view that Court cannot assume and
presume a hypothetical situation in advance that witness will get a chance to
improve upon their testimonies. Be it noted, that one of the factors, to be kept
in mind by the Courts to justify the deferral of cross examination of a witness
or set of witnesses, underscored by the Apex Court in Rasheed, is
“possibility that non-deferral would enable subsequent witnesses giving
evidence on similar facts to tailor their testimony to circumvent the defence
strategy.” It is evident from the expression “possibility” in para 23(iii) of
10 CRM(M) No. 352/2025
judgment that such an application for deferral of cross examination of a
witness or witnesses, on same set of facts, can be premised on a presumption
or apprehension.
21. Case of the petitioner is that PWs 1, 2, 3, 5 7, and 8, are not only
related but cited as eye witnesses by the prosecution, to the same set of facts
alleged in the challan. In the circumstances, the apprehension of the
petitioners accused that their non-deferral can enable subsequent witnesses,
testifying on similar facts to circumvent the defence strategy, is well founded
and the possibility of the prosecution to tailor their testimony to the prejudice
of the petitioners, cannot be ruled out.
22. In a similar fact situation, Bombay High Court, followed Rasheed, in
Nannebabu Ramdev Gupta (supra) to observe that if the defence is made
open, during cross examination of the complainant, then there is possibility
that lacunae would be filled in by the prosecution through other witnesses
who are close relatives of the complainant. It was held that these
circumstances justified the exercise of discretion of deferring cross
examination of related witnesses and there will be no prejudice to the
prosecution. Relevant excerpt of the judgment reads as:
“11........ it cannot be said that the apprehension expressed by the
applicant is unfounded. If his defence is made open while crossexamining PW 1/complainant, then the lacunae would be filled in
by the prosecution through the other three witnesses who are her
father, mother and a close relative, interested in the version of the
complainant.
12 The circumstances narrated, therefore, would justify the
exercise of discretion in sub-section (2) of Section 231, which is a
tool available to the defence to defer the cross-examination of the
prosecution witnesses until other witnesses are examined, as it
would lead to making the defence open, while the first witness of
the prosecution itself is examined and the contingency which
would specifically fall within one of the consideration as laid down
by Apex Court in State of Kerala Vs. Rasheed (supra), for
exercising the discretion under sub-section (2) of Section 231.
11 CRM(M) No. 352/2025
In any case, no prejudice would be caused to the prosecution if the
cross-examination of PW 1 (complainant) is deferred till the
examination-in-chief of the above mentioned three witnesses is
concluded, so as to avoid the prosecution filling up the lacunae in
its case, as may be disclosed by PW 1 or the subsequent witnesses
related to her.”
23. High Court of Calcutta also relied upon Rasheed in Mohitosh Biswas
(supra), and held that if two views are available that whether defence of the
accused will be disclosed to his prejudice, he would be given the benefit and
cross examination should be deferred. Relevant observation reads as below:
“In the event two views are available as to whether defence of
the accused is disclosed to the prejudice of the accused should be
given the benefit and cross examination should be
deferred.................”
24. True it is, that prosecution witnesses are expected to testify in their chief examination on the lines of their statements recorded, during investigation, under Sections 161 or 164 Cr.P.C., and any improvement or deviation by them from said statements, may render their depositions unworthy of credence. However, it is the apprehension of improvisation by the prosecution witnesses in their cross examinations to circumvent the defence strategy which is to be taken into consideration by the Court at the time cross examination of a witness or set of witnesses is sought to be deferred and if that apprehension is well founded, it can hamper the prospects of a fair trial, a basic postulate of criminal jurisprudence. The circumstances narrated by the petitioners, in the present case, justified the exercise of discretion by the Court, in terms of sub section 3 of Section 254 BNSS.
25. If the principle of law expounded by Hon‟ble Supreme Court in Rasheed, is carefully glanced over, it is manifest that, as far as possible, a plea for deferral under Section 254(3) BNSS, must preferably be made before the preparation of the case calendar or at the earliest available opportunity,before the defence strategy would become known to the prosecution. A request for deferral must be premised on sufficient reasons and prejudice is the determinating factor, to be borne in mind.
26. For the aforesaid reasons, the present petition is allowed and impugned
order is set aside. As a consequence, the application filed by the petitioners
for deferring cross examination of PWs 1, 2, 3, 5, 7 and 8 is allowed and their
cross examination shall remain deferred until all of them are examined in
chief.
(RAJESH SEKHRI)
JUDGE
Jammu:
19.05.2025
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