STATE OF KERALA versus RASHEED

[2018] 13 S.C.R. 587

STATE OF KERALA

RASHEED

(Criminal Appeal No.1321 of 2018)

OCTOBER 30, 2018

[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]

Code of Criminal Procedure, 1973 – s.231(2) – Applicationby accused seeking adjournment under – Prosecution alleged thataccused persons had detained victim, tortured him and then killedhim with criminal intention – Charges were framed by the trial Courtand prosecution witnesses were summoned – After examination-in-chief of CW-1, an application was filed by the Respondent-accusedno.2 seeking adjournment of the cross-examination of CW-1, andalso of CWs 2 to 5, to date after the examination-in-chief of CWs2 to 5 was complete – Application was dismissed by the Trial Courtwith the observation that no specific reason for deferring thecross-examination was given by the respondent-accused no.2 –Propriety of – Held: Proper – s.231(2) of the Cr.P.C. confers adiscretion on the Judge to defer the cross-examination of anywitness until any other witness or witnesses have been examined,or recall any witness for further cross-examination, in appropriatecases – Judicial discretion has to be exercised in consonance withthe statutory framework and context while being aware ofreasonably foreseeable consequences – The party seeking deferralu/s.231(2) of the Cr.P.C. must give sufficient reasons to invoke theexercise of discretion by the Judge, and deferral cannot be assertedas matter of right – Further, while deciding an applicationu/s.231(2) of the Cr.P.C., balance must be struck between therights of the accused, and the prerogative of the prosecution tolead evidence – The factors like possibility of undue influence onwitness(es); possibility of threats to witness(es) etc. must be kept inconsideration – In instant case, there was possibility of undueinfluence and intimidation of witness(es) since the respondent-accused No.2 and accused No.7 were highly influential politicalleaders – Thus, trial Court was right in dismissing the applicationu/s.231(2) of the Cr.P.C. – Evidence Act, 1872 – ss.135 and 138.

588SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD: 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 withSection 138 of the Indian Evidence Act, 1872. Section 231(2) ofBthe Cr.P.C., however, confers discretion on the Judge to deferthe cross-examination of any witness until any other witness orwitnesses have been examined, or recall any witness for furthercross-examination, in appropriate cases. Judicial discretion hasto be exercised in consonance with the statutory framework andcontext while being aware of reasonably foreseeableCconsequences. The party seeking deferral under Section 231(2)of the Cr.P.C. must give sufficient reasons to invoke the exerciseof discretion by the Judge, and deferral cannot be asserted as amatter of right. [Para 7] [596-A-C]

2. There cannot be straitjacket formula providing for theDgrounds on which judicial discretion under Section 231(2) of theCr.P.C. can be exercised. The exercise of discretion has to takeplace on case-to-case basis. The guiding principle for Judgeunder Section 231(2) of the Cr.P.C. is to ascertain whetherprejudice would be caused to the party seeking deferral, if theEapplication is dismissed. [Para 10] [599-F-G]

3. While deciding an Application under Section 231(2) ofthe Cr.P.C., balance must be struck between the rights of theaccused, and the prerogative of the prosecution to lead evidence.The following factors must be kept in consideration: possibilityFof undue influence on witness(es); possibility of threats towitness(es); possibility that non-deferral would enable subsequentwitnesses giving evidence on similar facts to tailor their testimonyto circumvent the defence strategy; possibility of loss of memoryof the witness(es) whose examination-in-chief has beencompleted; occurrence of delay in the trial, and the non-availabilityGof witnesses, if deferral is allowed, in view of Section 309(1) ofthe Cr.P.C. These factors are illustrative for guiding the exerciseof discretion by Judge under Section 231(2) of the Cr.P.C.[Para 11] [599-G-H; 600-A-C]

4. The following practice guidelines should be followed bytrial courts in the conduct of criminal trial, as far as possible: (i)a detailed case-calendar must be prepared at the commencementof the trial after framing of charges; (ii) the case-calendar mustspecify the dates on which the examination-in-chief and cross-examination (if required) of witnesses is to be conducted; (iii)the case-calendar must keep in view the proposed order ofproduction of witnesses by parties, expected time required forexamination of witnesses, availability of witnesses at the relevanttime, and convenience of both the prosecution as well as thedefence, as far as possible; (iv) testimony of witnesses deposingon the same subject-matter must be proximately scheduled; (v)the request for deferral under Section 231(2) of the Cr.P.C. mustbe preferably made before the preparation of the case-calendar;(vi) the grant for request of deferral must be premised on sufficientreasons justifying the deferral of cross-examination of eachwitness, or set of witnesses; (vii) while granting request fordeferral of cross-examination of any witness, the trial courts mustspecify proximate date for the cross-examination of that witness,after the examination-in-chief of such witness(es) as has beenprayed for; (viii) the case-calendar, prepared in accordance withthe above guidelines, must be followed strictly, unless departurefrom the same becomes absolutely necessary; (ix) in cases wheretrial courts have granted request for deferral, necessary stepsmust be taken to safeguard witnesses from being subjected toundue influence, harassment or intimidation. [Para 12][600-E-G; 601-A-E]

5. In the present case, bald assertion was made by theRespondent-Accused No. 2 that his defence would be prejudicedif the cross-examination of CWs 1 to 5 is not deferred until afterthe examination-in-chief of CWs 2 to 5. The impugned Order isliable to be set aside since the High Court has given no reasonsfor reversal of the Order of the Additional Sessions Judge,particularly in light of the possibility of undue influence andintimidation of witness(es) since the Respondent-Accused No. 2and Accused No. 7 are “highly influential political leaders”. TheOrder passed by the Additional Sessions Judge dismissing theApplication filed on behalf of the Respondent-Accused No. 2stands restored. [Paras 13 and 14] [601-E-G]

Gurbaksh Singh Sibbia & Ors. v. State of Punjab(1980) 2 SCC 565 : [1980] 3 SCR 383 ; Lt. Col.S.J. Chaudhary v. State (Delhi Administration),(1984) 1 SCC 722 : [1984] 2 SCR 438 ; Vinod Kumarv. State of Punjab (2015) 3 SCC 220 : [2015] 1 SCR504 – referred to.

Shamoon Ahmed Sayed & Anr. v. Intelligence Officer,2009 Cri LJ 1215 : ILR 2008 Karnataka 4378 ; SisirDebnath v. State of West Bengal & Anr. [C.R.R.No. 2533 of 2017 decided on August 2, 2017 by theHigh Court of Calcutta (Appellate Side) ; Amit KumarShaw & Ors. v. State of West Bengal & Anr. [C.R.R.No. 3846 of 2009 decided on June 23, 2010 by theHigh Court of Calcutta (Appellate Side) ; Sri Shankarv. State by Hebbagodi Police Station, [Crl. P. No. 8774of 2017 decided on December 7, 2017 by the HighCourt of Karnataka at Bengaluru] ; Masiur RahmanMolla @ Mongla & Ors. v. The State of West Bengal &Ors.[C.R.R. No. 2411 of 2016 decided onAugust 10, 2016 by the High Court of Calcutta(Appellate Side)] ; Jayakar v. The State, by Frazer TownPolice, ILR 1996 KARNATAKA 2783 : 1996 (3) KarLJ 747 ; R. Selvan v. State [Crl. R.C. (MD) No. 744 of2016 decided on January 24, 2017 by High Court ofMadras, at Madurai] : 2017 (2) Crimes 509 (Mad.);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 atIndore] ; State of Maharashtra v. Raja Ram AppanaMane & Ors. [Criminal Writ Petition No. 578 of 2016and Criminal Application No. 2485 of 2016 decidedon January 23, 2017 by the High Court of Bombay atAurangabad] ; Md. Sanjoy & Anr. v. The State of WestBengal, 2000 Cri LJ 608 : 2001 (1) RCR (Criminal)431 ; Lalu Alam v. State of West Bengal [Cr. RevisionNo. 385 of 1996 decided on 12 June, 2002 by theHigh Court of Calcutta (Appellate Side)] : 2002 (3)CHN 301 ; Vijay Kumar v. State (Govt. of NCT of Delhi)2017 Crl.LJ 3875 – referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1321 of 2018.

From the Judgment and Order dated 09.01.2018 of the High Courtof Kerala at Ernakulam in Crl. M.C. No. 171 of 2018.

Nishe Rajen Shonker, Vinu Varghese Kachappilly, Anu K. Joy,CAlim Anvar, Regan S.Bel, Advs. for the Appellant.

Ms. Nidhi, Adv. for the Respondent.

The Judgment of the Court was delivered by

INDU MALHOTRA, J. Leave granted.

1. The present Criminal Appeal arises out of Special LeavePetition (Crl.) No. 4652 of 2018 wherein the impugned Order datedJanuary 9, 2018 passed by the High Court of Kerala in CriminalMiscellaneous 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. First Information Report under Section 154 of the Code ofCriminal Procedure, 1973 (“Cr.P.C.”) was registered at theinstance of CW 1-Narayanan. According to the OriginalStatement provided by him to the Police, Krishnaprasad, whowas the occupant of flat in the building where CW 1-Narayanan was serving as security guard, had called for anambulance. Krishnaprasad, along with others, then carried anunconscious person out of the bathroom of the flat to theambulance. The unconscious person was later identified to beSatheesan, who was declared dead on being taken to thehospital. CW 1-Narayanan then made statement thatKrishnaprasad had been staying in the flat for two months, andwas companion of the Respondent-Accused No. 2, Rasheed.It was alleged that the flat had been taken on rent by theRespondent-Accused No. 2.

A2.2. On May 24, 2016, the Police filed Charge-Sheet underSection 173 of the Cr.P.C. before the Judicial First ClassMagistrate Court II, Thrissur against 8 persons, including theRespondent-Accused No. 2, for the alleged commission ofoffences under Sections 302, 343, 212, 201, 202, 118 and 109read with Sections 120B and 34 of the Indian Penal Code, 1860.BIt was alleged that the deceased-Satheesan had disclosedinformation to his girlfriend, CW 5- Ajitha, regarding theactivities which had been taking place inside the rented flat,and about the illicit relationship between theRespondent-Accused No. 2 and Accused No. 3-Saswathy. OnClearning about this, the Accused persons had allegedly detainedSatheesan, tortured him, and killed him with criminal intention.

2.3 Charges were framed by the Additional Sessions Judge,Thrissur. CWs 1 to 5 were summoned as Prosecution Witnesseson December 16, 2017.

On the same day, after the examination-in-chief of CW 1-Narayanan was conducted, an Application under Section 231(2)of the Cr.P.C. was filed by the Counsel for the Respondent-Accused No. 2 seeking adjournment of the cross-examinationof CW 1-Narayanan, as also of CWs 2 to 5, to date after theEexamination-in-chief of CWs 2 to 5 was completed. It wasstated in the said Application, that the case of the Respondent-Accused No. 2 would be adversely affected if the Applicationwas not allowed, since the defence strategy adopted by theRespondent-Accused No. 2 would be revealed to theProsecution.

2.4. The Application under Section 231(2) of the Cr.P.C. wasopposed by the Prosecution which filed Reply, wherein itwas stated that CWs 1 to 5 were not deposing with respect tothe same subject-matter. It was further stated that the deferralof the cross-examination would adversely affect theGProsecution evidence.

2.5. The Additional Sessions Judge vide Order dated December20, 2017 dismissed the Application filed on behalf of theRespondent-Accused No. 2.

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

Cr.P.C. confers discretion on the Trial Judge to defer thecross-examination of any witness until any other witness orwitnesses have been examined. Section 231(2) of the Cr.P.C.does not confer right on the accused to seek deferral in awholesale way on the ground that the defence of the accusedwould become known to the Prosecution. The deferral ofcross-examination, in the present case, would run counter tothe 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 possibilityof loss of memory on the part of the witnesses, who had alreadybeen examined-in-chief, which would adversely affect the caseof the Prosecution.

The Additional Sessions Judge also observed that no specific

reason for deferring the cross-examination had been pleadedon behalf of the Respondent-Accused No. 2, apart from ageneral averment that the defence would be disclosed to theProsecution.

The Additional Sessions Judge was of the view that the

Respondent-Accused No. 2 and Accused No. 7 are “highlyinfluential political leaders”, and the possibility of the threatsto witnesses after their examination-in-chief, could not be ruledout. Furthermore, it was observed that CWs 1 to 5 would bedeposing 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 ofcross-examination is not an ordinary practice in 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 bythe Additional Sessions Judge, the Respondent-Accused No. 2filed Criminal Miscellaneous Case No. 171 of 2018 underSection 482 of the Cr.P.C. before the High Court of Kerala.

The High Court reversed the Order of the AdditionalSessions Judge by short unreasoned cryptic Order datedJanuary 1, 2018, and allowed Criminal Miscellaneous Case No.171 of 2018. It was directed that the cross-examination of CWs1 to 4 be adjourned till after the examination-in-chiefof CW 5.

2.7. Aggrieved by the Order dated January 1, 2018 passed by theHigh Court, the State of Kerala has filed the present SpecialLeave Petition (Crl.) No. 4652 of 2018 before this Court.

C3. The legal issue which arises for consideration in the presentCriminal Appeal is whether the exercise of discretion under Section 231(2)of the Cr.P.C. by the Additional Sessions Judge was valid and legallysustainable.

4. The statutory framework governing the order of productionDand examination of witnesses is contained inter alia in Sections 135 and138 of the Indian Evidence Act, 1872. conjoint reading of Sections135[1] and 138[2] would indicate that the usual practice in any trial, be it civilor criminal, is for the examination-in-chief of witness to be carried outfirst; followed by his cross-examination (if so desired by the adverseparty), and then re-examination (if so desired by the party calling theEwitness).

5. Section 231 of the Cr.P.C. indicates that the Judge is given thediscretion to defer cross-examination of witness, until any otherwitness or witnesses have been examined.

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

2 “138. Order of examination.–Witnesses shall be first examined-in-chief, then (if theadverse party so desires) cross-examined, then (if the party calling him so desires)Gre-examined.

The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified in hisexamination-in-chief…”

Section 231 is set out hereinbelow:

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

(2) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any otherwitness or witnesses have been examinedor recall anywitness for further cross-examination.”

(Emphasis supplied)

The phraseology of Section 231(2) mirrors Section 242(3)[3] of theCr.P.C. which provides for similar discretion to Magistrate in the trialof Warrant Case under Chapter XIX of the Cr.P.C.

6. Section 242(3) is analogous to Section 251A(7) of the repealedCode of Criminal Procedure, 1898 and is identically worded. Section251A was inserted vide the Code of Criminal Procedure (Amendment)Act, 1955 (Act No. 26 of 1955) in the erstwhile Code of Criminal Pro-cedure, 1898.

The Statement of Objects and Reasons of the Code of CriminalProcedure (Amendment) Act, 1955 suggests inter alia that changeswere introduced to simplify the procedure in warrant cases, to ensurespeedy disposal of criminal judicial business, to minimise inconveniencecaused to witnesses, and to ensure that adjournments are not allowedwithout the examination of witnesses present in court, except for anunavoidable cause.

The Karnataka High Court in Shamoon Ahmed Sayed & Anr. v.Intelligence Officer[4], delivered by Shantanagoudar, J. (as he then was),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 enactmentof Section 251A of the Code of Criminal Procedure, 1898.

3 “242. Evidence for prosecution.–…

…(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as maybe produced in support of the prosecution:

Provided that the Magistrate may permit the cross-examination of any witness to bedeferred until any other witness or witnesses have been examined or recall any witnessfor further cross-examination.”

4 2009 Cri LJ 1215 : ILR 2008 Karnataka 4378.

A7. What follows from the discussion is that the norm in anycriminal trial is for the examination-in-chief of witnesses to be carriedout 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 discretion onBthe Judge to defer the cross-examination of any witness until any otherwitness or witnesses have been examined, or recall any witness forfurther cross-examination, in appropriate cases. Judicial discretion hasto be exercised in consonance with the statutory framework andcontext while being aware of reasonably foreseeable consequences.[5]The party seeking deferral under Section 231(2) of the Cr.P.C. mustCgive sufficient reasons to invoke the exercise of discretion by the Judge,and deferral cannot be asserted as matter of right.

Several High Courts have held that the discretion under Section231(2) of the Cr.P.C. should be exercised only in “exceptionalcircumstances”[6], or when “a very strong case”[7] has been made out.DHowever, while it is for the parties to decide the order of production andexamination of witnesses in accordance with the statutory scheme, aJudge has the latitude to exercise discretion under Section 231(2) of theCr.P.C. if sufficient reasons are made out for deviatingfrom the norm.E8. The circumstances in which the High Courts have approvedthe exercise of discretion to defer cross-examination, so as to avoidprejudice due to disclosure of strategy are:

· Where witnesses were related to each other, and were·supposed to depose on the same subject-matter and facts[8]F

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

Shamoon Ahmed Sayed & Anr. v. Intelligence Officer, 2009 Cri LJ 1215 : ILR2008 Karnataka 4378.

7 Amit Kumar Shaw & Ors. v. State of West Bengal & Anr. [C.R.R. No. 3846 of 2009;Gdecided 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; decidedon 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 (AppellateSide)]; Jayakar v. The State, by Frazer Town Police, ILR 1996 KARNATAKA 2783 : 1996H(3) Kar LJ 747.

Where witnesses were supposed to depose about the same set offacts[9].

However, the circumstances in which deferral has been refused

are:

· where the ground for deferral was the mere existence of arelationship between the witnesses[10];

· where specific reasons were not given in support of the claimthat prejudice would be caused since the defence strategy wouldbe disclosed[11];

· where no prejudice would have been caused[12]

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

10 Sisir Debnath v. State of West Bengal & Anr. [C.R.R. No. 2533 of 2017; decided onAugust 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, 2017by 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. RevisionNo. 385 of 1996; decided on June 12, 2002 by the High Court of Calcutta (AppellateSide)] : 2002 (3) CHN 301 had noted:

“…So, the plea, taken by the petitioner in this case that if Miss. Bannerjeeis cross-examined before the examination-in-chief of the other namedwitnesses on the same point, the prosecution will certainly have anopportunity to fill up lacuna, cannot be accepted as general ruleas in acriminal trial the accused has an additional advantage inasmuch as thecopies of earlier statement of the prosecution witnesses, recorded underSection 161 Cr.P.C. are supplied well in advance so that he can not onlyknow to his advantage what each prosecution witness is expected to tellwhile in the witness box but has also the advantage of cross-examiningeach and every witness with reference to their earlier statement made bythem during the investigation…In situation like this, hardly it can be-accepted that if the crossexamination of Ms. Bannerjee is allowed to beproceeded with before examination of the other witnesses in this case, the

A9. The Delhi High Court, in Vijay Kumar v. State (Govt. of NCTof Delhi)[13],laid down useful directions for the conduct of criminal trials.The directions are commendable, and relevant excerpts are reproducedhereinbelow:

“42…(vi). Since the expectation of law is that the trial, onceBit commences, would continue from day-to-day till it isconcluded, it is desirable that, keeping in mind the possibletime required for recording of evidence (particularly of theprosecution), detailed schedule of the dates of hearing onwhich evidence would be recorded is drawn up immediatelyCafter charge is framed – this, taking into account not only thecalendar of the court but also the atime required by theprosecution to muster and secure the presence of its witnessesas well as the convenience of the defence counsel. Once sucha schedule has been drawn up, all sides would be duty boundto adhere to it scrupulously.D

(vii). While drawing up the schedule of dates for recording ofthe evidence for the prosecution, as indicated above, thepresiding judge would take advice from the prosecution as tothe order in which it would like to examine its witnesses,

present petitioner would be highly prejudiced and prosecution will have theopportunity 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 causedFsince:

“…In most of the criminal cases, there may be more than one eyewitness and definitely will be more than one mahazar witness. Many casesdepend upon the official witness only, who may have to depose about thesimilar facts. Thus the defence may choose to file application invokingSection 231(2) or under Section 242(3) of Cr.P.C. on the ground of allegedprejudice to be caused in every matter. But the same cannot be allowed byGthe Court. As aforementioned, the defence of the accused will not be prejudicedat all as the examination-in-chief of the witnesses generally will proceedbased on either the statement recorded under Section 161 of Cr.P.C. orbased 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,H2017 by the High Court of Delhi : 2017 Cri LJ 3875.

clubbing witnesses pertaining to the same facts or eventstogether, for the same set of dates.

(viii). If the defence intends to invoke the jurisdiction of thecriminal court to exercise the discretion for deferment ofcross-examination of particular witness(es) in terms ofSection 231(2), or Section 242(3) Cr. PC, it must inform thepresiding judge at the stage of setting the schedule so thatthe order in which the witnesses are to be called can beappropriately determined, facilitating short deferment forcross-examination (when necessary) so that the recording ofevidence continues, from day-to-day, unhindered avoidingprolonged adjournments as are often seen to be misused tounduly influence or intimidate the witnesses.

(ix). It is the bounden duty of the presiding judge of the criminalcourt to take appropriate measures, if the situation sodemands, to insulate the witnesses from undue influence orDintimidatory tactics or harassment. If the court has permitteddeferment in terms of Section 231(2), or 242(3) Cr. PC, forcross-examination of particular witness, it would not meanthat such cross examination is to be indefinitely postponed orscheduled for too distant date. The court shall ensure thatEthe deferred cross-examination is carried out in thethen on-going schedule immediately after the witness whoseexamination ahead of such exercise has beenprayed for.”

10. There cannot be straitjacket formula providing for the groundson which judicial discretion under Section 231(2) of the Cr.P.C. can beexercised. The exercise of discretion has to take place on case-to-case basis. The guiding principle for Judge under Section 231(2) of theCr.P.C. is to ascertain whether prejudice would be caused to the partyseeking deferral, if the application is dismissed.

11. While deciding an Application under Section 231(2) of theCr.P.C., balance must be struck between the rights of the accused,and the prerogative of the prosecution to lead evidence.

AThe following factors must be kept in consideration:

· possibility of undue influence on witness(es);

· possibility of threats to witness(es);

B·possibility that non-deferral would enable subsequent witnessesgiving evidence on similar facts to tailor their testimony tocircumvent the defence strategy;

·possibility of loss of memory of the witness(es) whoseexamination-in-chief has been completed;C

·occurrence of delay in the trial, and the non-availability ofwitnesses, if deferral is allowed, in view of Section 309(1) ofthe Cr.P.C.[14].

DThese factors are illustrative for guiding the exercise of discretionby Judge under Section 231(2) of the Cr.P.C.

12. The following practice guidelines should be followed by trialcourts in the conduct of criminal trial, as far as possible:

Ei. detailed case-calendar must be prepared at thecommencement of the trial after framing of charges;

ii. the case-calendar must specify the dates on which theexamination-in-chief and cross-examination (if required) of wit-nesses is to be conducted;F

iii. the case-calendar must keep in view the proposed order ofproduction of witnesses by parties, expected time required forexamination of witnesses, availability of witnesses at therelevant time, and convenience of both the prosecution as wellas the defence, as far as possible;

14 “309. Power to postpone or adjourn proceedings.–(1) In every inquiry or trial theproceedings shall be continued from day-to-day until all the witnesses in attendancehave been examined, unless the Court finds the adjournment of the same beyond thefollowing 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.HChaudhary v. State (Delhi Administration), (1984) 1 SCC 722.

iv. testimony of witnesses deposing on the same subject-mattermust 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 thecase-calendar;

vi. the grant for request of deferral must be premised on sufficientreasons justifying the deferral of cross-examination of eachwitness, or set of witnesses;

vii.while granting request for deferral of cross-examination ofany witness, the trial courts must specify proximate date forthe cross-examination of that witness, after the examination-in-chief of such witness(es) as has been prayed for;

viii. the case-calendar, prepared in accordance with the aboveguidelines, must be followed strictly, unless departure from theDsame becomes absolutely necessary;

ix. in cases where trial courts have granted request for deferral,necessary steps must be taken to safeguard witnesses frombeing subjected to undue influence, harassment or intimidation.

13. In the present case, bald assertion was made by the Counselfor the Respondent-Accused No. 2 that the defence of the Respondent-Accused No. 2 would be prejudiced if the cross-examination of CWs 1to 5 is not deferred until after the examination-in-chief of CWs 2 to 5.

The impugned Order is liable to be set aside since the High Courthas given no reasons for reversal of the Order of the AdditionalSessions Judge, particularly in light of the possibility of undue influenceand intimidation of witness(es) since the Respondent-Accused No. 2and Accused No. 7 are “highly influential political leaders”.

14. In view of the aforesaid discussion, the present CriminalAppeal is allowed, and the impugned Order dated January 9, 2018 passedby the High Court of Kerala in Criminal Miscellaneous Case No. 171 of2018 is set aside. The Order dated December 20, 2017 passed by the

[2018] 13 S.C.R.

AAdditional Sessions Judge dismissing the Application filed on behalf ofthe Respondent-Accused No. 2 stands restored. The observations madehereinabove will, however, have no bearing on the merits of the caseduring the course of trial.

Ordered accordingly.

Ankit Gyan

Appeal allowed.