Gujarat High Court
Gitesh Ghanshyambhai Raval vs State Of Gujarat on 12 July, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 514 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
GITESH GHANSHYAMBHAI RAVAL
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
PARTY IN PERSON(5000) for the Applicant(s) No. 1
MR.KIRIT R CHAUDHARI(3745) for the Respondent(s) No. 2
MR TRUPESH KATHIRIYA APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 12/07/2024
ORAL JUDGMENT
1. Rule. Learned APP and Mr. Kirit R.Chaudhari, learned advocates waive service of Page 1 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined notice of Rule on behalf of respective respondents. Rule is fixed forthwith.
2. The party-in-person, Gitesh Ghanshyambhai Raval, is before this Court in revisional jurisdiction under section 397 read with section 401 of the Code of Criminal Procedure (for short 'Cr.P.C.') making a prayer to quash and set aside the order dated 28.11.2018 passed by Additional Chief Judicial Magistrate, Kheralu in Criminal Case No.194 of 2017.
3. The petitioner as an accused, party-in- person submitted that he has been charge-sheeted under sections 297, 337 and 338 of the Indian Penal Code and sections 177, 184 and 134 of the Motor Vehicles Act for the alleged accident dated 05.09.2016 at about 19 Hours.
3.1 The petitioner party-in-person stated that the vehicle involved is his Maruti Car bearing No.GJ-27-J-K-2779. He is resident of Page 2 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined Ishanpur, Ahmedabad, and served in a private Engineering Company at Ahmedabad. Party-in-person submits that he has retired in the year 2017 by taking Voluntary Retirement. Party-in-person submitted that he fails to understand as to how he came to be charge-sheeted in the matter, where he had no occasion to go in his Maruti Car at Machhawa to Paldi Road of Taluka Kheralu, District - Mahesana.
3.2 Party-in-person, Mr. Raval, submitted that he himself wanted to cross-examine the witnesses, but considering the interest of the victims and the witnesses, as according to Mr. Raval, he had been wrongly framed in the matter so as to recover the compensation amount by filing an application as Motor Accident Claim Petition under Motor Vehicles Act, since his car is insured, thus had moved Exh.8 before the trial Court.
Page 3 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024
NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined 3.3 Party-in-person, Mr. Raval, submitted that his application Exh.8 was moved under section 242(3) of the Cr.P.C., making a prayer to the Court to allow him to cross-examine the complainant - witness no.1, after the chief- examination of witness nos.4, 5 and 9, noted in the charge-sheet and till then had made a prayer to postpone the stage of cross-examination of witness no.1.
3.4 Mr. Raval, party-in-person, submitted that the learned Judge was required to read his application to consider that his prayer was very specific to defer the cross-examination of the witness, and a very specific prayer was made that the chief-examination of witness nos.4, 5 and 9 be taken and, thereafter the option be granted to him as an accused to cross-examine the complainant.
3.5 Party-in-person, Mr. Raval, has relied Page 4 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined upon the judgment in case of P.Sanjeeva Rao Vs. The State of A.P., rendered by the Hon'ble Supreme Court in Criminal Appeal Nos.874-875 of 2012, arising out of S.L.P. (Crl.) Nos.4286-87 of 2011, to submit that the contention of impugned order being interlocutory order would not be tenable. Party-in-person stated that in the said judgment the revision filed before the High Court came to be dismissed and thereafter the appeal was moved before the Hon'ble Supreme Court, where the matter was before the Court with the appellant's prayer of deferring the cross- examination of Pws 1 and 2, till such time the Trap Laying Officer - P.W.11 was examined by the prosecution, and since the officer had been examined, Pws 1 and 2 need to be recalled for cross-examination.
3.6 Mr. Raval, party-in-person, has also relied on the judgment of Andhra Pradesh High Court in case of Kammara Ephraim Samuel Vs. The Page 5 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined State of Andhra Pradesh, represented by Public Prosecutor, rendered in Criminal Petition No.5759 of 2022, decided on 01.08.2022, to submit that the Andhra Pradesh High Court by referring to the judgment of State of Kerala Vs. Rasheed, reported in (2019) 13 SCC 297, observed that the Trial Court ought to have appreciated the reasons for deferment of cross-examination of the witnesses and further observed that the Trial Court should have granted permission to examine witnesses at one instance.
3.7 The petitioner, party-in-person, has further relied on the judgment of Karnataka High Court, at Bengaluru in case of Sri Shankar S/o. Sri Annegowda Vs. State By Hebbagodi Police Station, rendered in Crl.P. No.8774 of 2017, to draw the attention of the Court to the observation of the Court, wherein the Karnataka High Court has observed that the learned Sessions Judge has failed to consider the factual aspects Page 6 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined of the matter, as to whether these witnesses would speak same factual aspects, so that, opportunity has to be given to cross-examine all the witnesses at once. It was further observed that the provision under section 231 of Cr.P.C. in fact, gives judicial discretion to the Court to pass appropriate orders for granting time to cross-examine some of the witnesses at once after their examination-in-chief.
4. Mr. Trupesh Kathiriya, learned APP, stated that process and stage of cross- examination of the witness is only in accordance to the order and direction of the Presiding Judge; accused cannot ask for any such privilege, and, thus urged to reject the application.
5. Advocate Mr. Kirit R.Chaudhari, learned advocate for the respondent no.2 - complainant submitted that the order dated 28.11.2018 is an interlocutory order, hence, stated that the Page 7 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined revision is not maintainable in the eyes of law. Advocate Mr. Chaudhari stated that party-in- person ought to have gone to the District Court in revisional jurisdiction rather than approaching this Court.
5.1 Referring to the decision of this Court in the case of Brahmchari Satyanarayan Maharaj v. Kantilal L. Dave and Others, reported in 1976 GLR 979, and the decision of the Kerala High Court in the case of Kesavan Sivan Pillai v. Sreedharan Rajamohan and Others, reported in 1978 Cri. L.J. 743, it is submitted by the party-in-person that he has directly approached this Court since such right is granted under Section 397 read with Section 401 of the Cr.P.C. It is submitted that such statutory right is guaranteed under the Cr.P.C. and the aggrieved person should not be compelled to go before the learned Sessions Judge Court. As noted in the decision of Brahmchari Satyanarayan Maharaj (supra), since that would Page 8 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined interfere with the choice of revisional forum in matters which might be of importance to the person in derogation of the inherent right flowing out of the provisions of law whereunder concurrent jurisdiction is conferred on two different Courts, thus the present Revision Application would be maintainable. 5.2 The Division Bench of this Court in Brahmchari Satyanarayan Maharaj v. Kantilal L. Dave and Others (supra), held as under:
"It would appear from the relevant provisions of the New Code relating to revision set out above that: (i) the High Court and Sessions Judge have full concurrent revisional jurisdiction inasmuch as the revisional power of the Sessions Judge is coextensive with that of the High Court and his power to make final orders in revision is not confined now merely to the cases of any complaint wrongly dismissed or any accused person wrongfully discharged as was the case under the Page 9 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined old Code, (ii) if an application for revision has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person is to be entertained by the other of them;
(iii) where an application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon "in relation to such person", is final and no further proceedings by way of revision "at the instance of such person" are to be entertained by the High Court or any other Court; (iv) even in cases where a revision application is transferred by the High Court to the Sessions Judge, no further application for revision is to lie to the High Court or to any other Court at the instance of the person or persona whose applications for revision have been disposed of by the Sessions Judge, and (v) neither the Sessions Judge nor the High Court has the jurisdiction now to exercise revisional powers in relation to any interlocutory order Page 10 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined passed in any appeal, inquiry, trial or other proceeding. The legislative mandate is thus categorical and clear; full concurrent revisional jurisdiction in two different Courts at two different hierarchical levels is conferred but once an application has been made and entertained by one of them, the other shall not entertain any further application by way of revision at the instance of the same person. Besides, when the Sessions Judge is moved, his decision in revision in relation to such person is to be treated as final and no further revision at the instance of such person is to be entertained by the High Court. The net effect, therefore, is that while a person has the chance to move either the High Court or the Sessions Judge in revision and obtain complete relief in either of the two forums, if he makes the choice to go before the Sessions Judge, he cannot thereafter approach the High Court, even if the Sessions Judge rejects the revision application."
Page 11 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024
NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined
6. The order impugned is under section 242(3) of the Cr.P.C. Section 242 Cr.P.C. is reproduced hereinunder to examine whether impugned order would be vulnerable and would not be subject to challenge under the revision jurisdiction.
"Section 242 Evidence for
prosecution.- (1) If the accused
refuses to plead, or does not plead, or claims to be tried or the Magistrate does not convict the accused under Section 241, the Magistrate shall fix a date for the examination of witnesses.
Provided that the Magistrate shall supply in advance to the accused, the statement of witnesses recorded during investigation by the police.
(2) The Magistrate may, on the
application of the prosecution,
issue a summons to any of its
witnesses directing him to attend or to produce any document or other Page 12 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined thing.
(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution Provided that the Magistrate may 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 cross-examination."
7. In the case of Amar Nath Vs. State of Haryana, reported in (1977) 4 SCC 137, the Hon'ble Supreme Court has referred to the concept of 'interlocutory order' qua the revisional jurisdiction of the High Court. In para-5, the Hon'ble Supreme Court has held as under:
"5. The concept of an interlocutory order qua the revisional jurisdiction of the High Court, therefore, was completely foreign to the earlier Code. Subsequently it appears that there had been large Page 13 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined number of arrears and the High Courts were flooded with revisions of all kinds against interim or interlocutory orders which led to enormous delay in the disposal of cases and exploitation of the poor accused by the affluent prosecutors. Some times interlocutory orders caused harassment to the accused by unnecessarily protracting the trials. It was in the background of these facts that the Law Commission dwelt on this aspect of the matter and in the 14th and 41st Reports submitted by the Commission which formed the basis of the 1973 Code the said Commission suggested revolutionary changes to be made in the powers of the High Courts. The recommendations of the Commission were examined carefully by the Government, keeping in view, the following basic' considerations:
(i) an accused person should get a fair trial in accordance with the accepted principles of natural justice;Page 14 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024
NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined
(ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society; and
(iii) 'the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community...."
7.1 In the case of Madhu Limaye Vs. State of Maharashtra, reported in (1977) 4 SCC 551, the Hon'ble Supreme Court referring to the judgment of Amar Nath Vs. State of Haryana (supra), in para-10 and 17 has observed as under:
"10. As pointed out in Amar Nath's case (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally, More often than not, the revisional power of the High Page 15 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined Court was resorted to in relation to inter- locutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing sub-section (2), in section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of section 482, however, it would follow that nothing in the Code, which would include subsection (2) of section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court".
But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is-the harmonious way out ? In our Page 16 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code. the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in section 397(2) Page 17 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of, a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction. then the trial of the accused will be without jurisdiction and even after his acquittal a second trial after proper sanction will not be barred on the doctrine of Autrefois Acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order. does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused Page 18 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined upto the end ? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure, the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with section 482 of the 1973 Code. even assuming. although not accepting, that invoking the revisional power of the High Court is impermissible.
17. Before we conclude we may point out an obvious, almost insurmountable, difficulty in the way of applying literally the test laid down in Kuppuswami Rao's case and in holding that an order of the kind under consideration being not a final order must necessarily be an interlocutory one. If a complaint is dismissed under section 203 or under section 204(4), or the Court holds the proceeding to be void or discharges the accused, a revision Page 19 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined to the High Court at the instance of the complainant or the prosecutor would be competent, otherwise it will make section 398 of the new Code otiose. Does it stand to reason, then, that an accused will have no remedy to move the High Court in revision or invoke its inherent power for the quashing of the criminal proceeding initiated upon a complaint or otherwise and which is fit to be quashed on the face of it ? The legislature left the power to order further inquiry intact in 'section' 398. Is it not, then, in consonance with the sense of justice to leave intact the remedy of the accused to move the High Court for setting aside the order adversely made against him in similar circumstances and to quash the proceeding ? The answer must be given in favour of the just and reasonable view expressed by us above."
7.2 In Amar Nath case (supra), the Hon'ble Supreme Court in Para-6 held as under: Page 20 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024
NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined
6. Let us now proceed to interpret the provisions of s. 397 against the historical background of these facts. Sub- section (2) of s. 397 of the 1973 Code may be extracted thus :
"The powers of revision conferred by Sub- section (1) shall not be exercised in relation to any interlocutory order passed ;in any appeal, inquiry, trial or other proceeding."
The main question which falls for determination in this appeal is as to, the what is the connotation of the term "interlocutory order" as appearing in sub-s. (2) of s. 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal significance and does not present any serious diffident. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Page 21 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide 'the rights and liabilities of the parties concerning a particular aspect. It seems to, us that the term "interlocutory order"
in s. 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights, or the liabilities of the parties. Any order which substantially affects the, right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in section 397 of the, 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing Page 22 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under s. 397 (2) of the 1973 Code.
But orders which are matters of
moment and which affect or
adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be. outside the purview of the revisional jurisdiction of the High Court."
7.3 In the case of State of Gujarat v. Gaurang Mathurbhai Leuva, (1999) 2 GLH 564 , the expression "interlocutory order" was elaborated to lay down the proposition of law in the following terms:-
"The expression "interlocutory order" is not defined in Criminal Procedure Code. In order to judge whether the particular order is interlocutory or otherwise, the court has to, making every Page 23 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined endeavour, find out whether the order in question is interlocutory order. If it is found that the order passed is purely interim or temporary in nature which does not decide or touch the important rights and liabilities of the parties and give a final shape to a particular point at a particular stage during the course of the hearing the same can be termed interlocutory order. If the order substantially affects the rights and liabilities of the parties it would not be an interlocutory order. It may also be stated that intermediate or quasi- final order which determines a particular issue finally at any stage of the hearing will not fall within the ambit of interlocutory order."
7.4 Mr. Raval, party-in-person has referred a judgment of Madhurai Bench of Madras High Court, in case of R. Selvan Vs. State through The Inspector of Police, Vigilance and Anti Corruption, Dindigul, decided on 24.01.2017 in Page 24 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined Cri.RC (MD) No.744 of 2016, [2017 (2) Crimes 509 (Mad.)], to submit that the provision of section 242(3) of Cr.P.C. is a statutory right conferred on the accused and should not be denied or taken away without assigning any valid reason.
8. The order impugned decides the substantial right of the petitioner being an accused to defend the matter. The order would prejudice his right since the proviso to sub- section (3) of section 242 of Cr.P.C. gives an authority to the Magistrate to permit cross- examination of any witness to defer until any other witness or witnesses have been examined. The proviso even permits the Magistrate to exercise the authority to recall any witness for further cross-examination. The accused statutory right is decided by the Magistrate through application under section 242(3) Cr.P.C. The order impugned is not a mere application of adjourning the case, but was with a specific Page 25 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined prayer to be granted in favour of accused to have his option to cross-examine the witness later, after the chief examination of other witnesses. The order is not an interlocutory order to bar a revision.
9. In P.Sanjeeva Rao Vs. The State of A.P. (supra), allowing the appeal and setting aside the order of the trial Court as well as High Court, the Hon'ble Supreme Court directed that the Prosecution Witnesses No.1 and 2 shall be recalled by the Trial Court. Further an opportunity to cross-examine the said witnesses was accorded to the appellant. The appeal was against the order of the High Court in revision jurisdiction, which was preferred against the order of the trial Court, wherein the trial Court noted as under:
"For what ever be the reasons the cross-examination of Pws 1 and 2 has been recorded as "nil".Page 26 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024
NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined There is nothing to show on the record that the petitioner had reserved his right to cross examine the witnesses at a later point of time. The dockets of the Court do not reflect any such intention of the petitioner." 9.1 The Hon'ble Supreme Court while passing the order was conscious of the fact that the order recalling the witnesses was directed nearly after four years after they were examined in chief about an incident nearly seven years old, noting that delay may take a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period, and to the apprehension expressed, that the prosecution may suffer prejudice on account of a belated recall, observed that it may not be wholly without any basis; however, it was opined on a parity of reasoning and to the consequences Page 27 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined of denial of opportunity to cross-examined the witnesses, the Apex Court prefer to err in favour of the appellant by giving an opportunity rather than protecting the prosecution against a possible prejudice at the cost of the appellant. Further, to note that fairness of trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue, considering that a possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.
10. Here, in this case, the present revisionist had moved a formal application to the Court making a prayer that the witnesses no.4, 5 and 9 be examined in chief examination first.
11. Section 242(3) of Cr.P.C. gives all the power to Magistrate to grant such a prayer. The Magistrate can defer the cross-examination until other witness or witnesses have been examined, Page 28 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined and can recall any witness for further examination. Thus, the prayer, which was made by the present revisionist as an accused was in accordance with the provision of law calling upon the Magistrate to invoke the said power.
12. Para-6 of R. Selvan (supra) is reproduced hereunder:
"6. As per Section 309 of Cr.P.C., the proceedings in every trial shall be continued from day-to-day, until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. It is further stated that where a witness is present in Court, but a party or his pleader is not present, who are all his pleader though present in Court is not ready to examine or cross-examine the witnesses, the court may if thinks fit, record the statement of the witnesses and pass such orders as it thinks fit dispensing with the Page 29 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined examination or cross-examination of the witnesses, as the case may be. The proviso to Section 242(3) of Cr.P.C., permits cross- examination of any witnesses to be deferred until any of the witness or witnesses have been examined or recall any witness for further cross- examination. When a specific proviso to sub Section 3 permits to make such an application for deferring the cross-examination of P.W.3 in this case it would be proper to allow the application by deferring the cross-examination of P.W.3, till the completion of chief examination of other witnesses ie., L.Ws.4 and 11 to speak about the demand of bribe on the trap proceedings."
13. Mr. Raval, party-in-person has further placed reliance on the judgment of State of Kerala Vs. Rasheed, reported in (2019) 13 SCC 297, decided by the Hon'ble Supreme Court in Criminal Appeal No.1321 of 2018, in context of the provision of section 231(2) of Cr.P.C., which Page 30 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined is in connection with the trial before a Court of Sessions incorporated in the Cr.P.C. through Chapter 18, to submit that the Apex Court has set the ratio in connection with the trial before the Sessions Court.
13.1 Section 231 of Cr.P.C. is reproduced hereinunder:
"231. 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.
(2) 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 cross-examination."
13.2 The Apex Court in the said judgment has referred to the provision to observe that the Page 31 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined phraseology of section 231(2) mirrors section 242(3) of the Cr.P.C., which provides for a similar discretion to a Magistrate in the trial of a Warrant Case under Chapter XIX of the Cr.P.C.
13.3 Paragraphs no.6 and 7 of State of Kerala Vs. Rasheed (supra) are reproduced hereinunder:
"6. Section 242(3) is analogous to Section 251A(7) of the repealed Code of Criminal Procedure, 1898 and is identically worded. Section 251A was inserted vide the Code of Criminal Procedure (Amendment) Act, 1955 (Act No. 26 of 1955) in the erstwhile Code of Criminal Procedure, 1898.
The Statement of Objects
and Reasons of the Code of
Criminal Procedure (Amendment) Act, 1955 suggests inter alia that changes were introduced to simplify the procedure in warrant cases, to ensure speedy disposal of criminal judicial business, to minimise Page 32 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined inconvenience caused to witnesses, and to ensure that adjournments are not allowed without the examination of witnesses present in court, except for an unavoidable cause.
The Karnataka High Court
in Shamoon Ahmed Sayed & Anr. v.
Intelligence Officer, 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 enactment of Section 251A of the Code of Criminal Procedure, 1898.
7. What follows from the discussion is that 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 with Section 138 of the Indian Evidence Act, 1872.
Section 231(2) of the Cr.P.C.,
however, confers a discretion on
the Judge to defer the cross-
Page 33 of 45
Downloaded on : Sat Jul 20 00:23:48 IST 2024
NEUTRAL CITATION
R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024
undefined
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. 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.
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. 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 Cr.P.C. if sufficient Page 34 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined reasons are made out for deviating from the norm."
13.4 The Apex Court while considering the discretion exercised by the several courts under section 231(2) of the Cr.P.C. has noted that several High Courts were of a opinion that the discretion should be exercised only in "exceptional circumstances", or when "a very strong case" has been made out. To that observation, it was noted that it is for the parties to decide the order of production and examination of witnesses in accordance with the statutory scheme, however, a Judge has the latitude to exercise discretion under section 231(2) of the Cr.P.C. if sufficient reasons are made out for deviating from the norm. 13.5 It has been noted by the Apex Court that the circumstances in which the High Courts have approved the exercise of discretion to defer cross-examination, so as to avoid prejudice due Page 35 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined to disclosure of strategy are: (i) where witnesses were related to each other, and were supposed to depose on the same subject matter and facts; (ii) where witnesses were supposed to depose about the same set of facts. 13.6 The Apex Court in State of Kerala Vs. Rasheed (supra) has noted that there cannot be any straitjacket formula providing for the grounds on which judicial discretion under section 231(2) of the Cr.P.c. 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 Cr.P.C. is to ascertain whether prejudice would be caused to the party seeking deferral, if the application is dismissed. It has been noted that while deciding an application under Section 231(2) of the Cr.P.C., a balance must be struck between the rights of the accused, and the prerogative of the prosecution to lead evidence. The factors which Page 36 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined are directed to be taken into consideration, 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.
13.7 Further noting that these factors are illustrative for guiding the exercise of discretion by a Judge under section 231(2) of the Cr.P.C.Page 37 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024
NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined
14. In the case of Maharastra Small Scale Industries Development Corporation Limited Vs. M. Surda Corporation, decided on 13.07.1983, reported in (1983) 85 Bom LR 474, reference has been made to a judgment of Lalmani Vs. Bijai Ram, reported in AIR 1934 AII 340, in which the universal practice in the Courts in India is noted as the witnesses are called one by one and no witness who is to give evidence should be present when the deposition of a previous witness is being taken, and a breach of this rule may be termed as an abuse of the process of Court and therefore the Court has inherent power to pass an order directing that such witness should not be examined. This judgment is in relation to civil proceeding, where inherent power of Court under section 151 of Civil Procedure Code could be used to prevent the abuse.
15. Section 309 of Cr.P.C. mandates the proceeding of the inquiry and trial on day to day Page 38 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined basis until all witnesses in attendance have been examined, unless the Court finds that the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. Though provisions are made for the procedure of Courts, but it is not found to be adopted by the trial Courts. Courts are directed to have case- calendar prepared for trial. In criminal trials the examination of witnesses are as per the public prosecutor's choice. In that circumstances, the defence would have the right guaranteed under section 231(2) and 242(3) of Cr.P.C. The trial Court has to examine the application from the angle whether the prayer if disallowed would cause prejudice to the accused. Here, in the present matter, the learned trial Court Judge was required to record reasons, as accused had made a specific prayer, by moving application, to invoke the power by exercising the discretion to grant him the statutory rights Page 39 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined conferred under section 242(3) of the Cr.P.C. 15.1 The learned Judge in the impugned order has not specified as to why such prayer of the accused should not be granted, while the learned Judge had rejected the application of the petitioner observing that there is no such provisions under section 242(3) of Cr.P.C., to permit the cross-examination of all the witnesses after the examination-in-chief. It appears that the learned Judge has erred in not understanding the scope and purport of the provision of section 242(3) of Cr.P.C. The discretion can be exercised by the Magistrate to permit the statutory right of the accused, as proviso of sub-section (3) of section 242 of Cr.P.C. permits the cross- examination of any witness to be deferred until any other witness or witnesses have been examined, which could also include deferring the cross-examination of other witnesses, if any prejudice or bias is caused to the accused. Page 40 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024
NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined 15.1.1 The learned Magistrate rejected the application considering that there is no such provision in section 242(3) of Cr.P.C. to defer the cross-examination of all the witnesses to the sequence as proposed by the accused. The judgment of State of Kerala Vs. Rasheed (supra) draws the guideline to the Court to manage the trial to make it an amenable practice before the trial courts which is reproduced herein under:
"12. The following practice guidelines should be followed by trial courts in the conduct of a criminal trial, as far as possible:
i. a detailed case-calendar must be prepared at the commencement of the trial after framing of charges;
ii. the case-calendar must specify the dates on which the examination- in-chief and cross-examination (if required) of witnesses is to be conducted;Page 41 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024
NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined iii. 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;
iv. testimony of witnesses deposing on the same subject-matter must 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 the case-calendar;
vi. 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;
vii. 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 Page 42 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined such witness(es) as has been prayed for;
viii. the case-calendar, prepared
in accordance with the above
guidelines, must be followed
strictly, unless departure from
the same becomes absolutely
necessary;
ix. 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."
15.2 Guideline (vi) of the judgment expresses about the deferment of cross-examination of each witness, or set of witnesses. Proviso to sub- section (3) of section 242 Cr.P.C. employs the words 'witness or witnesses'. In R. Selvan (supra) this has been expressed recognising the specific proviso to sub-section (3) permitting to make an application to defer the cross- Page 43 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024
NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined examination, where in that case the deferral of cross-examination of PW-3 was upheld, and considered as proper to allow the application by deferring the cross-examination of PW-3 till the completion of chief examination of other witnesses Pws 4 and 11.
15.3 In the present matter, the prayer was made by the petitioner to defer the cross- examination of the complainant, to be conducted after the examination-in-chief of witnesses no.4, 5 and 9.
15.4 The cross-examination of the complainant as well as of witnesses no.4, 5 and 9 could have been conducted on the very same day unless deferred by the order of the Court. To the facts, as stated, and the apprehension raised by the party-in-person, the learned Magistrate ought to have allowed his application, and it would have been proper to defer the cross-examination of the complainant. The learned Judge could have Page 44 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024 NEUTRAL CITATION R/CR.RA/514/2019 JUDGMENT DATED: 12/07/2024 undefined deferred the cross-examination of complainant and after examination of Pws 4, 5 and 9, should have given an opportunity to the accused to cross- examine all these witnesses at once.
16. In view of the reasons given hereinabove, the present revision application is allowed. The order impugned dated 28.11.2018 passed by the Additional Chief Judicial Magistrate, Kheralu is quashed and set aside, and the application Exh.8 is allowed.
(GITA GOPI,J) Pankaj Page 45 of 45 Downloaded on : Sat Jul 20 00:23:48 IST 2024