Karnataka High Court
Jayakar vs The State, By Frazer Town Police on 10 July, 1996
Equivalent citations: ILR1996KAR2783, 1996(3)KARLJ747
ORDER K.H.N. Kuranga, J.
1. This petition is listed for admission today. The learned Government Pleader had taken notice for the respondents. Though the name of the State is not shown in the cause-list, the learned Government Pleader who had received the copy of the petition on 1.7.1996 appears for the respondent.
2. Heard both the sides. With the consent of the learned Counsel for the petitioner and the learned High Court Government Pleader, the petition is taken up for final disposal.
3. The petitioner has in this petition prayed for setting aside the order dated 19.6.1996 passed by the learned 4th Additional City Civil and Sessions Judge, Bangalore (CCEH No. 21) in SC No. 307/1992.
4. The Police filed the charge-sheet against the accused for the commission of the offences punishable under Section 307, 302 and 201 IPC. The case was committed to the Court of Sessions and now the case is pending on the file of the 4th Additional City Civil Judge, Mayo Hall, Bangalore (CCCH No. 21). When the case was posted on 19.6.1996 PW.1 who was the injured and CW.1 in the charge-sheet was examined by the prosecution. At that stage, an application under Section 231(2) Cr.P.C. as filed on behalf of the petitioner for deferring the cross-examination of PW.1 until the other witnesses are examined. The learned Public Prosecutor opposed the said application and submitted that the only other eye-witnesses was CW.2 and he was present in the Court. He wanted to examine CW.2 immediately after the cross-examination of PW.1. The learned Sessions Judge after observing that there are no reasons to defer the cross-examination of PW.1 rejected the request of the petitioner-accused. It is this order dated 19.6.1996 that is challenged by the petitioner in this petition.
5. In the application filed by the petitioner-accused under Section 231(2) Cr.P.C. he has stated thus:
"The accused most humbly prays that this Hon'ble Court may be pleased to defer the cross-examination of PW 1 and CW's 2, 3, 4, 5 & 7 till CWs-21 and 31 are examined. The PWs are close relatives and eye witnesses to the incident and if they are cross-examined now there is likelihood of improvement and causing damage to the defence side.
Wherefore it is prayed that this Hon'ble Court be pleased to defer the cross-examination of the above mentioned witness in the interest of justice and equity."
6. Section 231 Cr.P.C. reads thus:
"Section 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."
7. The cross-examination of every witness should follow his examination-in-chief according to Section 138 of the Evidence Act of 1872. It is both irregular and inconvenient to allow all the witnesses to be examined one day and to reserve the cross-examination to a subsequent date. The accused is, therefore, not entitled as of right to postponement of the cross-examination. The Court may, however, grant such a postponement on reasonable grounds as, for instance, where the counsel is unprepared, or where the accused was undefended the first day and put only a few questions and applied the next day for cross-examination by his pleader explaining why he was not engaged before or where the counsel appointed to defend the accused, who had no instructions till then, requested the Court to postpone the cross-examination of the prosecution witnesses till the next day after the examination-in-chief were over.
8. Under Sub-section (2) of Section 231 of the Code of Criminal Procedure the Judge has a discretion to permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined. This discretion to permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined cannot be exercised arbitrarily but this discretion must be exercised by the Court judicially taking into consideration the facts and circumstances of the case and the material on record before it.
9. The reasons given in the application by the petitioner-accused is that the witnesses are close relatives and they are eye-witnesses to the incident and if they are cross-examined now there is likelihood of improvement and causing damage to the defence. The learned Counsel for the petitioner submitted that all the witnesses are staying in one house. In this case the petitioner has made out a case for exercise of the discretion under Section 231(2) Cr.P.C. by the Court. In the circumstances, the learned Sessions Judge ought to have allowed the application filed by the petitioner-accused and ought to have deferred cross-examination of P.W.1 and C.Ws.2, 3, 4, 5 and 7 till the other witnesses viz., C.Ws.21 and 31 are examined. Hence the order passed by the learned Sessions Judge dated 19.6.1996 rejecting the request of the petitioner for deferring the cross-examination of P.W.1 until the other witnesses are examined is liable to be set aside.
10. Accordingly, the petition is allowed. The order dated 19.6.1996 passed by the learned IV Additional City Civil Judge, Mayohall (CCCH-21) dismissing the application filed by the petitioner-accused under Section 231(2) Cr.P.C. is set aside. The application filed by the petitioner is allowed. The learned Sessions Judge is directed to defer the cross-examination of P.W.1 and C.Ws.2, 3, 4, 5 and 7 till C.Ws 21 and 31 are examined and thereafter permit the Counsel for the petitioner to cross-examine the said witnesses.