Calcutta High Court
Lalu Alam vs State Of West Bengal on 12 June, 2002
Equivalent citations: 2003(2)ALT(CRI)2, (2002)2CALLT540(HC), 2002(3)CHN301
JUDGMENT P.K. Biswas, J.
1. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 filed by the petitioner, namely, Lalu Alam seeking to set aside the order dated 6th December, 1994 passed in Sessions Trial No. 7(5)/1992 by Shri S. Gupta, the learned Additional Sessions Judge, 6th Court, Alipore rejecting the prayer of the petitioner for deferring the cross-examination of P W 1, the victim of this case until the remaining eye witnesses were examined-in-chief.
2. The short facts leading to the filing of this revisional application are as follows :
The present petitioner along with 6 others were placed on trial in Sessions Trial No. 7(5)/1992 before the learned Additional Sessions Judge, 6th Court, Alipore, 24 Parganas (S) to answer charges under Sections 307/325/148/149 of the Indian Penal Code upon an allegation that on 16th August 1990, there was a call for "Calcutta Bandh" by the Congress(I) Party. In support of the said call for bandh. Miss Mamata Banerjee on that day organized several meetings, picketings and processions.
3. While one of such processions, in support of bandh was proceeding near the Hazra S.P. Mukherjee Road crossing, the members of the CPI(M) party including the petitioner and others being armed with various weapons attacked the said procession and they assaulted Miss Mamata Banerjee with weapons in their hands and as a result of such attack, Miss Mamata Banerjee sustained severe bleeding injury on her head and other participants were also injured.
4. Initially, a charge under Sections 307/148/149 of the Indian Penal Code was framed against the petitioner and others and subsequently an additional charge under Sections 325/149 of IPC was also framed against them.
5. The trial of the said case commenced on 2nd November 1992 before the aforesaid learned Additional Sessions Judge and on that date the trial was adjourned for non-appearance of Miss Mamata Banerjee, the victim of this case.
6. Thereafter, on several dates, ranging from 2.1.92 to 5.9.94, the trial was adjourned due to non-appearance of Miss Mamata Banerjee and on all such occasions, the present petitioner and other accused persons were present in the Court.
7. On 6th December 1994, Miss Mamata Banerjee appeared before the Court and she was examined-in-chief by the prosecution, and after examination-in-chief of Miss Mamata Banerjee was over, the prayer was made on behalf of the petitioner before the aforesaid trial Court for deferring her cross-examination until the examination of other witnesses including those who sustained injuries in the self-same incident was complete on the plea that if at that stage Miss. Mamata Banerjee was cross-examined, the entire defence would be disclosed and in that the accused petitioner would be highly prejudiced.
8. The learned trial Judge by his order dated 6th December 1994, was pleased to reject the aforesaid prayer for deferring the cross-examination of Miss. Mamata Banerjee, and in doing so the learned trial Judge has acted illegally without considering the question of prejudice that may be suffered by the accused if Miss Mamata Banerjee was cross-examined at that stage, and the reasons assigned for the same cannot at all be treated to be cogent and valid.
9. Being aggrieved by and dissatisfied with the aforesaid order of the learned Additional Sessions Judge the petitioner has filed the aforesaid application with the aforesaid prayer as mentioned at the outset alleging that the learned Judge has failed to exercise proper judicial discretion in passing the aforesaid order and the order itself is tainted with illegalities and infirmities as well and as such it should be set aside.
10. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the witnesses and the learned counsel appearing for the State.
11. It has been submitted on behalf of the petitioner that he has been charged with Sections 307/325/148/149 of the Indian Penal Code before the Court of Additional Sessions Judge, 6th Court, Alipore along with others and in connection with the aforesaid trial the other witnesses namely Biswanath Bhattacharjee, Nripendranath Chakraborty, Mohar Roy, Ranjit Kr. Ghosh, Partha Sarathi Sengupta, Tarapada Banerjee, Dibbendu Biswas, Rathin Saha, Shyamaprasad Roy, Nemai Nag, Umapatilal Roy, Anil Mukherjee, Anup Chatterjee, Siddeswar Mukherjee and Dilip Majumdar will also depose on the same point as is being deposed by Miss Banerjee in this trial and in a situation like this if this accused is not allowed to cross-examine Miss Banerjee after the examination-in-chief of all the above referred witnesses is complete and if this accused is compelled to cross-examine Miss Banerjee before examination-in-chief of such witnesses is completed first, then, the defence will be highly prejudiced, as the prosecution will get opportunity to fill up the lacuna in their case that may be revealed in course of cross-examination of Miss Banerjee. Accordingly, the petitioner has prayed for the direction that the cross-examination of Miss Banerjee should be deferred till the examination-in-chief of all such witnesses is completed first.
12. This prayer has been seriously opposed by the learned counsel appearing for the witnesses and also by the State alleging that there is absolutely no reason for making such an unusual and unreasonable prayer and such prayer was rightly rejected by the learned Court below.
13. It has been contended from the side of the petitioner that in a criminal trial question of prejudice is a very vital and dominant factor and in a criminal trial, the Court is to protect the right of the accused person and to see that no prejudice is caused to the accused person in course of the trial. Referring to the provision of Section 231(2) of Cr. PC it has been contended that true it is that the accused has no right to claim the postponement of cross-examination of the prosecution witnesses until any other witness or witnesses have been examined, but such discretion to defer cross-examination of any witness lies with the Court and it will be exercised in a special case where in the facts and circumstances of a case, it was found necessary to postpone the cross-examination of such witness, until the examination of any other prosecution witness or witnesses is completed first. Here, in this connection, it has been submitted that since all these witnesses named above will depose on the same line as has been deposed by Miss. Banerjee, it is, therefore, necessary and desirable that the cross-examination of Miss. Banerjee should be deferred till the examination-in-chief of those witnesses is over so that the defence may effectively cross-examine Miss Banerjee and the other named witnesses thereafter without leaving any scope to the prosecution in filling up the lacuna as otherwise they will be highly prejudiced.
14. In opposing the aforesaid contention of the petitioner, it has been contended from the side of the witnesses that it is Section 309 of Cr. PC which confers power on the trial Court for granting adjournments in criminal proceedings and as per the aforesaid provision of law when the examination of the witnesses has once begun, the statutory command is that such examination "shall be continued from day to day until all the witnesses in attendance have been examined". The solitary exception to the said stringent rule is, if the Court finds that adjournment "beyond the following day to be necessary" the same can be granted for which a condition is imposed on the Court that reasons for the same should be recorded. So, as per the aforesaid provision of law once cross-examination has begun the accused has no option specially when charge has been framed alleging constructive liability. It has further been contended that the aforesaid act has incorporated in the act itself the anxiety that the proceeding pending before a criminal Court should be made complete without any unreasonable delay.
15. Referring to Section 231 of Cr. PC it has further been contended on behalf of the aforesaid witnesses that it is most expedient that the trial before a Court of session should proceed and be dealt with continuously from inception to its finish as this not only will result in expedition but it will also result in the elimination of manoeuvre and mischief and it is also necessary to realise that the sessions cases must not be tried piecemeal and once the trial commences, the trial Judge except for a very pressing reason which makes an adjournment inevitable, proceed de die in diem until the trial is concluded. It has further been contended on their behalf that keeping the aforesaid position of law in mind the discretion given on the Court should be exercised in the matter of granting adjournments and in this particular case the learned Judge in consideration of the materials available before him has rejected the prayer by exercising its discretion which cannot be interfered with by this Court sitting in revisional forum unless it is shown that there was serious irregularities and illegalities in the order itself.
16. True it is that Section 231(2) gives a discretion to permit the cross-examination of any witnesses to be deferred until any other witness or witnesses have been examined, but that does not mean in any way that the accused has a right to ask for deferring the cross-examination in a blanket way on the plea that otherwise the prosecution may take a chance of filling up the lacuna in its case that may be disclosed in course of cross-examination of such witnesses.
17. Section 135 of the Evidence Act provides that the order in which the witnesses are produced and examined shall be regulated by law and practice for the time being relating to Civil and Criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court. Of course, however, the Court has always the discretion to direct that the witnesses be examined in a particular order if the exigency of circumstances so requires in an appropriate case and in the absence of any exigency or any other compelling reason it should be for the parties to decide in which order it will produce and examine its witnesses.
18. So, as per the provision of Section 138 of the Evidence Act it is the requirement of law that each witness shall be first examined-in-chief and shall be then cross-examined before the next witness is called for examination and this is also the practice which followed in Courts. So, the plea, taken by the petitioner in this case that if Miss. Banerjee is cross-examined before the examination-in-chief of the other named witnesses on the same point, the prosecution will certainly have an opportunity to fill up the lacuna, cannot be accepted as a general rule as in a criminal trial the accused has an additional advantage inasmuch as the copies of earlier statement of the prosecution witnesses, recorded under Section 161 Cr. PC are supplied well in advance so that he can not only knew to his advantage what each prosecution witness is expected to tell while in the witness box but has also the advantage of cross-examining each and every witness with reference to their earlier statements made by them during the investigation and thereby trying to bring out the discrepancies amongst the evidence of the witnesses inter se as given in Court and the discrepancy between the evidence of witness in Court and his earlier statements made by him to the police in course of investigation. In a situation like this hardly it can be accepted that if the cross-examination of Miss Banerjee is allowed to be proceeded with before examination of the other witnesses in this case, the present petitioner will be highly prejudiced and prosecution will have the opportunity in filling up the lacuna in this case.
19. In view of the above position, I find no merit in the petition itself, in allowing the prayer of the petitioner in deferring the cross-examination of Miss Banerjee before the examination-in-chief of the aforesaid witnesses and the petitioner also could not show any other cogent ground necessitating interference by this Court with the impugned order.
20. In view of what has been stated in the foregoing paragraphs and keeping in mind the provisions of Section 231 and 309 of Cr. PC and also taking into consideration the provision of Section 135 and 138 of the Evidence Act, I am rather prompted to hold that there is nothing in particular to interfere with the judicial discretion used by the learned Court below in rejecting the aforesaid prayer of the accused petitioner. That being the position, I find no merit in the aforesaid revisional application as such this should be rejected.
This revisional application is, thus, dismissed.
Let a copy of this judgment be sent down to the Court below with a direction to proceed with this trial with utmost expedition.