Calcutta High Court (Appellete Side)
Amit Kumar Shaw & Ors vs State Of West Bengal & Anr. ... Opposite ... on 23 June, 2010
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
.6.2010 C.R.R. 3846 of 2009 Amit Kumar Shaw & Ors. ... Petitioners
-Vs-
State of West Bengal & Anr. ... Opposite Parties For the Petitioners : Mr. Joymalya Bagchi, Mr. Sourav Chatterjee, Ms. Subhasree Mukherjee Patel.
For the State : Mr. Joy Sengupta.
For the O.P. No. 2 : Mr. Arijeet Pyne.
Heard Mr. Joymalya Bagchi duly assisted by Ms. Subhasree Mukherjee Patel for the petitioners as well as Mr. Joy Sengupta for the State and Mr. Arijeet Pyne for the complainant.
The present petitioners have been facing their trial before the learned Additional Sessions Judge, Sealdah, South 24-Parganas of a charge under Section 498A/304B/34 of the Indian Panel Code.
In course of such trial immediately after the examination-in-chief of P.W. 1 was ended, an application under Section 231(2) of the Code of Criminal Procedure was moved and a prayer was made that the cross-examination of P.W. 1 as well as the cross-examination of P.Ws. 2, 3 and 4 be deferred till the examination-in-chief of those three witnesses were completed. The learned Trial Judge rejected such application, hence this Criminal Revisional Application.
The petitioners moved their application in the court below invoking Section 231(2) of the Code of Criminal Procedure. The said Provision is read as follows :
Section 231. Evidence for prosecution.
(1) ................................................... (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.2
A plain reading of the aforesaid Provision makes it abundantly clear that it is the discretion of the Court to defer cross-examination of any witness until any other witness or witnesses have been examined and the accused has no right to ask for wholesale deferring of cross-examination of witnesses or some of the witnesses. However, it cannot be said that the accused has no right to approach the Court seeking exercise of such discretion in their favour in appropriate cases.
In my opinion, in order to justify their claim, the defence has to make out a case indicating that if the cross-examination of any particular witness is not deferred, there are chances of prejudice. However, in the case at hand, the defence has not been able to make out any case as to how they are apprehending prejudice if the cross-examination of the prosecution witnesses are done before the examination-in-chief of the other witness is over.
The Provision of Section 138 of the Evidence Act provides the order of examination of witness. According to the said Provision, witness will be first examined-in-chief, then cross-examination and then re-examination. Therefore, when statute provides the order of examination of witnesses, to deviate from such statutory mandate a very strong case has to be made out by the defence. Merely on the ground that the change in order of examination of witnesses would not prejudice the prosecution is not sufficient.
Now, having regards to the facts and circumstances of the case, and more particularly when the accuseds have failed to justify their case, the learned Trial Court below very rightly rejected their application.
This criminal revisional application has no merit and accordingly stands dismissed.
Office is directed to communicate this order to the learned Court below and the learned Court below is directed to conclude the trial as expeditiously as 3 possible preferably within a period of one year from the date of communication of this order. The learned Trial Court is directed to proceed with the trial strictly in terms of Section 309 of the Code of Criminal Procedure.
Criminal Section is directed to supply urgent xerox certified copy of this order to the parties, if applied for, as early possible.
( Ashim Kumar Roy, J. ) AKD