Telangana High Court
P. Venkata Challa Reddy vs P. Sreeram Reddy And Another. on 28 March, 2022
Author: K. Lakshman
Bench: K. Lakshman
THE HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL REVISION CASE No.209 OF 2021
ORDER:
This revision is filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973, (for short 'the CrPC') to set aside the order dated 02.03.2021 passed in Crl.M.P.No.3694 of 2019 in C.C.No.981 of 2015 by the III Additional Chief Metropolitan Magistrate at Nampally.
2. Heard Sri M.Pavan Kashyap, learned counsel representing Sri M.Kalyana Ramakrishna, learned counsel for the petitioner, Sri Khaja Vizarath Ali, learned Public Prosecutor for the 2nd respondent-State and Sri G.M.Mohiuddin, learned counsel appearing for the 1st respondent. Perused the record.
3. The petitioner herein is the defacto-complainant and the 1st respondent is A.1 in the said Calendar Case. The offences alleged against the 1st respondent/A.1 and other accused are under sections 418, 419,420, 463, 468 and 471 read with 34 of IPC. The allegations against them are that they have created forged documents in order to have wrongful gain and cause wrongful loss to the defacto-complainant and they have projected the false documents as if they are genuine.
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4. During the pendency of the said Calendar Case, the 1st petitioner herein/A.1 had filed a petition under Section 242(3) vide Crl.M.P.No.3694 of 2019 in C.C.No.981 of 2015 seeking permission to defer the cross-examination of L.Ws. 1 and 2 till examination in chief of LWs.3, 6 and 7 on the following grounds:-
i. The Investigating Officer has cited the petitioner herein as L.W.1, his wife as L.W.2 paternal cousin as L.W.3 and L.W.6 is son of L.W.3. L.W.7 is also a relative of the petitioner herein/defacto-complainant and also to the 1st respondent herein/A.1. They are material witnesses.
ii. As per the prosecution, the L.Ws.1 to 3 and 7 are close family members and they speak same set of facts. iii. Cross-examination of L.W.1/P.W.1 and L.W.2 not only alert the L.W.3, 6 and 7, the material witnesses, who also cause grave prejudice to the defence of the 1st respondent herein/A.1.
5. The same was resisted by the prosecution by way of filing counter on the following grounds:-
i. The present case is based on documentary evidence and the witnesses who are examined are List 3 Witnesses and they not only relatives to the defacto- complainant but also the petitioner herein/A.1. ii. The defacto-complainant and the 1st respondent/A.1 are own brothers.
iii. The procedure of the trial Court need not be conducted as per the proviso of Section 242(2) of Cr.P.C. based on the ground that the List Witnesses are relatives. Even in trial of Section 302 of IPC, the relatives will be cited as List Witnesses in most of the cases but the provision does not arise though it is a sessions case. iv. It is a warrant case and is tried by the Magistrate, need not have to be deferred as per wish of the 1st respondent herein/A.1. But as a normal course, the witnesses have to be cross-examined immediately after the completion of chief examination one after the other as there is no special circumstance arises in this case.
6. The Court below allowed the said petition on the following grounds:-
i. The arguments of the learned defence counsel found considerable force as the witnesses L.Ws.1 and 2 are found related to L.Ws.3, 6 and 7.4
ii. The objection raised by the learned Public Prosecutor do not have sufficient weight to discard the plea of the petitioner therein.
iii. Above all, for the purpose of their fair trial and proper adjudication over the facts in dispute, it is necessary to permit the 1st respondent herein/A.1 to complete cross-examination of all witnesses i.e. L.ws.1, 2, 3, 6 and 7.
7. The defacto-complainant challenged the said order by seeking leave of this Court on the following grounds:-
i. The order impugned herein is not a reasoned order and there is no clear observation with regard to the finding given by the Court below.
ii. The Court below did not consider the procedure to be followed and the scope and ambit of Sections 231 (2), 242(3) and 309(1) of Cr.P.C.
iii. The matter deals with the opinion of Expert and various other circumstances which can neither be challenged nor altered even if the witnesses speak, that will not defence much less cause any prejudice. Therefore, according to the learned counsel for the petitioner herein/defacto-complainant, the Court 5 below erroneously allowed the said application filed by the 1st respondent herin/A.1.
8. On the other hand, learned counsel appearing for the 1st respondent herein/A.1 and learned Public Prosecutor, on instructions, would submit that the Court below considering the various aspects including the documentary evidence and also nature of the allegations leveled against the 1st petitioner/A.1, scope and ambit of Section 242(3) of Cr.P.C. has allowed the said application and therefore, there is no error in it.
9. In view of the above said rival submissions, it is relevant to refer Section 231 and 242 of Cr.P.C.
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.
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. (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 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: 6
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.
It is also relevant to note that the Apex Court in State of Kerala Vs. Rasheed1, had an occasion to deal with Sections 231(2), 242(3) and 309(1) of Cr.P.C. and laid down certain principles to be followed while exercising discretion under Section 231(2) of Cr.P.C.
and also the guidelines to be followed by the trial Court in conduct of a criminal trial as far as possible. The Apex Court held that the phraseology of Section 231 (2) of Cr.P.C. mirrors Section 242(3) of Cr.P.C. of which provides for a similar discretion to a Magistrate in the trial of a warrant case under Chapter XIX of the Cr.P.C. In paragraphs Nos.19, 20, 22 and 24 which are relevant are extracted below:-
19. Several High Courts have held that the discretion under Section 231(2) CrPC should be exercised only in "exceptional circumstances" [Sisir Debnath v. State of W.B., 2017 SCC OnLine Cal 21442; Shamoon Ahmed Sayed v. Intelligence Officer, 2008 SCC OnLine Kar 371 : 2009 Cri LJ 1215 : ILR 2008 KAR 4378] , or when "a very strong case" [Amit Kumar Shaw v. State of W.B., 2010 SCC OnLine Cal 2632] 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) CrPC if sufficient reasons are made out for deviating from the norm.
20. The circumstances in which the High Courts have approved the exercise of discretion to defer cross-examination, so as to avoid prejudice due 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; 1 (2019) 13 SCC 297 7
(ii) where witnesses were supposed to depose about the same set of facts;
However, the circumstances in which deferral has been refused are:
(i) where the ground for deferral was the mere existence of a relationship between the witnesses;
(ii) where specific reasons were not given in support of the claim that prejudice would be caused since the defence strategy would be disclosed
(iii) where no prejudice would have been caused
21. The Delhi High Court, in Vijay Kumar v. State (NCT of Delhi) [Vijay Kumar v. State (NCT of Delhi)-2017 SCC OnLine Del 9012 : 2017 Cri LJ 3875] , laid down useful directions for the conduct of criminal trials. The directions are commendable, and relevant excerpts are reproduced hereinbelow : (SCC OnLine Del para 42) "42. ... (vi) Since the expectation of law is that the trial, once it commences, would continue from day to day till it is concluded, it is desirable that, keeping in mind the possible time required for recording of evidence (particularly of the prosecution), a detailed schedule of the dates of hearing on which evidence would be recorded is drawn up immediately after charge is framed -- this, taking into account not only the calendar of the court but also the time required by the prosecution to muster and secure the presence of its witnesses as well as the convenience of the defence counsel. Once such a schedule has been drawn up, all sides would be duty- bound to adhere to it scrupulously.
(vii) While drawing up the schedule of dates for recording of the evidence for the prosecution, as indicated above, the presiding Judge would take advice from the prosecution as to the order in which it would like to examine its witnesses, clubbing witnesses pertaining to the same facts or events together, for the same set of dates.
(viii) If the defence intends to invoke the jurisdiction of the criminal court to exercise the discretion for deferment of cross-examination of particular witness(es) in terms of Section 231(2), or Section 242(3) CrPC, it must inform the presiding Judge at the stage of setting the schedule so that the order in which the witnesses are to be called can be appropriately determined, facilitating short deferment for cross-examination (when necessary) so that the recording of evidence continues, from day to day, unhindered avoiding prolonged 8 adjournments as are often seen to be misused to unduly influence or intimidate the witnesses.
(ix) It is the bounden duty of the presiding Judge of the criminal court to take appropriate measures, if the situation so demands, to insulate the witnesses from undue influence or intimidatory tactics or harassment. If the court has permitted deferment in terms of Section 231(2), or 242(3) CrPC, for cross-examination of a particular witness, it would not mean that such cross-examination is to be indefinitely postponed or scheduled for too distant a date. The court shall ensure that the deferred cross-examination is carried out in the then ongoing schedule immediately after the witness whose examination ahead of such exercise has been prayed for."
22. There cannot be a straitjacket formula providing for the grounds on which judicial discretion under Section 231(2) 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) CrPC is to ascertain whether prejudice would be caused to the party seeking deferral, if the application is dismissed.
24. The following practice guidelines should be followed by trial courts in the conduct of a criminal trial, as far as possible:
24.1. A detailed case-calendar must be prepared at the commencement the trial after framing of charges:
24.2. The case- calendar must specify the dates on which the examination-in-chief and cross-examination (if required) of witnesses is to be conducted;
24.3. 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;
24.4. Testimony of witnesses deposing on the same subject-matter must be proximately scheduled.
24.5. The request for deferral under Section 231(2) CrPC must be preferably made before the preparation of the cse-calendar.
24.6. The grant for request of deferral must be premied on sufficient reasons justifying the deferral of cross-examinato of each witness, or set of witnesses.9
24.7. 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.
24.8. The case-calendar, prepared in accordance with the above guidelines, must be followed strictly, unless departure from the same becomes absolutely necessary.
24.9. 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 r intimidation.
10. Though the prosecution and the 1st respondent herein/ defacto-complainant has raised several grounds in support of their contentions, the Court below not recorded any reasons in the impugned order. There is no clarity in the impugned order and it is not on consideration of the scope and ambit of Section 231(2), 242 (3) of IPC, there is no discussion with regard to the nature of allegations and the relation among the List Witnesses and also prejudice to be caused to the parties. As held by the Apex Court, there cannot be a 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 Cr.P.C. is to ascertain whether prejudice would be caused to the party seeking deferral, if the application is dismissed. The said principles are not considered by the Court below in the impugned order.
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11. It is relevant to note that the accused may not assist the learned Magistrate, while submitting their arguments. It is for the Magistrate to do some exercise, pick up the principles laid down by the Apex Court and this Court and also to do some research and pass orders in accordance with law by giving reasons.
12. As stated above, the impugned order is not a reasoned order and it is not on consideration of scope and ambit of Sections 231(2) and 242(3) of Cr.P.C. There is no consideration of the principle laid down by the Apex Court in the above said judgments of the Apex Court. Any order without reasons is an order without application of mind. Therefore, the impugned order dated 02.03.2021 is liable to be set aside.
13. In view of the above discussion, the Criminal Revision Case is allowed and the impugned order, dated 02.03.2021 passed in Crl.M.P.No.3694 of 2019 in C.C.No.981 of 2015 by the III Additional Chief Metropolitan Magistrate at Nampally, is set aside and the matter is remanded back to the Court below with a direction to consider the Crl.M.P.No.3694 of 2019 afresh, more particularly keeping in view of the above said principle and guidelines laid down by the Apex Court and also the scope and ambit of Sections 231(2), 242(3) of Cr.P.C. Since the Calendar Case (C.C.No.981 of 2015) is of the year 2015, the learned Magistrate is 11 directed to dispose of the said case in accordance with law, as expeditiously as possible.
As a sequel, the miscellaneous Petitions, pending if any, shall stand closed.
___________________ K. LAKSHMAN, J Date:28.03.2022 vvr