Section 231(2) of the Code of Criminal Procedure, 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.4 The party seeking deferral Under Section 231(2) of the Code of Criminal Procedure 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 Code of Criminal Procedure should be exercised only in "exceptional circumstances"5, or when "a very strong case"6 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 Code of Criminal Procedure 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 cross-examination, 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 subject-matter and facts7;
• Where witnesses were supposed to depose about the same set of facts8.
However, the circumstances in which deferral has been refused are:
• where the ground for deferral was the mere existence of a relationship between the witnesses9;
• where specific reasons were not given in support of the claim that prejudice would be caused since the defence strategy would be disclosed10;
• where no prejudice would have been caused11.
9. The Delhi High Court, in Vijay Kumar v. State (Govt. of NCT of Delhi)12, 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 day-to-day 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 time 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) Code of Criminal Procedure, 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 cross-examination (when necessary) so that the recording of evidence continues, from day-to-day, unhindered avoiding prolonged adjournments as are often seen to be misused to unduly influence or intimidate the witnesses.
(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) Code of Criminal Procedure, for cross-examination 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 on-going 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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 Code of Criminal Procedure, 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 Code of Criminal Procedure13.
These factors are illustrative for guiding the exercise of discretion by a Judge Under Section 231(2) of the Code of Criminal Procedure.
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 1321 of 2018 (Arising out of Special Leave Petition (Crl.) No. 4652 of 2018)
Decided On: 30.10.2018
State of Kerala Vs. Rasheed
Hon'ble Judges/Coram:
Abhay Manohar Sapre and Indu Malhotra, JJ.
Citation:AIR 2019 SC 721
