October 31, 2018
In this recent case, the Two-Judge Bench of the Supreme Court examined the scope and object of Section 231(2) of the Code of Criminal Procedure. Under this statutory provision confers discretion upon the Judge to defer cross-examination of a witness, until any other witness or witnesses have been examined. The Apex Court in the case has also issued practice guidelines to be followed by Trial Courts in conduct of a criminal trial.
Case name: State of Kerala v. Rasheed
Observations made by the Bench
While examining the provisions pertaining to examination of witness, the Supreme Court noted that a co-joint reading of Sections 135 and 138 of the Indian Evidence Act would indicate that the usual practice in any trial, be it civil or criminal, is for the examination-inchief 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).
- That Section 231 of the CrPC indicates that the Judge is given the discretion to defer cross-examination of a witness, until any other witness or witnesses have been examined. That this 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.
- The Apex Court also noted that several High Courts have held that the discretion under Section 231(2) of the Cr.P.C. should be exercised only in “exceptional circumstances” or when “a very strong case” has been made out.
- The Apex Court in the case was of the view that there cannot be a straitjacket formula providing for the grounds on which judicial discretion under Section 231(2) of the CrPC 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 CrPC is to ascertain whether prejudice would be caused to the party seeking deferral, if the application is dismissed.
- The Supreme Court in the case has also enumerated the factors that must in kept in consideration by the Court while deciding an application under Section 231(2) of CrPC. They are as under:
- 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.
The Court in the case has also provided practice guidelines to be followed by Trial Courts in conduct of a criminal trial:
- 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 crossexamination (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.