Chattisgarh High Court
Gurjinder Pal Singh vs State Of Chhattisgarh on 20 March, 2024
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
Neutral Citation
2024:CGHC:10232
Page 1 of 7
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 2369 of 2023
Reserved on 21-02-2024
Passed on 20-03-2024
Gurjinder Pal Singh S/o Parmjeet Singh Plaha Aged About 51
Years Present Address, E-1, National Highway Colony,
Vivekanand Nagar, Pensionbada, Raipur - 492001.
---- Petitioner
Versus
1. State of Chhattisgarh through - Secretary, Home Department,
Mantralaya Atal Nagar, Nava Raipur (C.G.)
2. The Director General of Police Office of Director General Of
Police Near Mantralaya, Sector 19 Neay Raipur (C.G.)
3. Superintendent of Police Anti Corruption Bureau / Economic
Offences Wing (Acb/eow), Chhattisgarh, Raipur
4. Station House Officer Police Station, ACB/EOW, Chhattisgarh,
Raipur
---- Respondents
For Petitioner : Mr. Himanshu Pandey, Advocate
For State : Mr. Satish Gupta, Govt. Advocate.
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Hon'ble Shri Justice Narendra Kumar Vyas CAV ORDER
1. The petitioner has filed the instant Criminal Miscellaneous Petition under Section 482 of the Code of Criminal Procedure, 1973, assailing the order dated 29-9-2023 (Annexure P/1) passed by the learned First Additional Sessions Judge (Atrocities) Raipur by which the application filed by the petitioner under Section 231(2) of Cr.P.C., read with Section 136 of Indian Evidence Act for giving an opportunity to cross examine all the prosecution witnesses together, has been rejected. Neutral Citation 2024:CGHC:10232 Page 2 of 7
2. The brief facts reflected from the record are that on the basis of complaint made by the Anti Corruption Bureau, FIR bearing No 22/2021 for commission of offence under Sections 13 (1) B, 13(2), 12 of the Prevention of Corruption Act, 1988 and Sections 201, 467, 471 read with Section 120-B of IPC has been registered. After usual investigation, ACB has submitted final charge-sheet which is now registered as Special Case No. 1 of 2022.
3. The record of the case would demonstrate that some of the prosecution witnesses have already started examining by the prosecution as per the trial programme given by the Special Judge (PC Act). On 1-9-2023 the petitioner moved an application under Sections 242(3) and 231(2) of CPC and Section 136 of the Indian Evidence Act seeking deferment of cross examination of the witnesses relating to same facts until all the said witnesses are examined by the prosecution, mainly contending that from bare perusal of list of the witnesses proposed to be examined by the prosecution annexed along with the final report under Section 173(2) of Cr.P.C, it is evident that there are number of prosecution witnesses in the proposed list who are related to the same facts and proceedings which the prosecution intent to examine on 29-09-2023 and 30-9-2023. This enlisted witnesses are summoned to depose on the said date.
4. Learned counsel for the petitioner would submit that the petitioner has moved an application for deferment of cross- examination of the witnesses mainly contending that High Court of Chahttisgarh in ABC (description of prosecutrix submitted Neutral Citation 2024:CGHC:10232 Page 3 of 7 in closed envelop) vs. Nimish Agrawal and others decided on 22-11-2021 in CRR No 249 of 2021, has passed the order keeping in view the gravity and nature of the offence, the right of the defence of the accused, is adversely affected, deferred the cross examination of the prosecutrix till the examination-in-chief of her father is completed which has been rejected by the said court and this Court has dismissed the criminal revision by affirming the procedure adopted by the trial court. As such, the petitioner has also prayed for deferment of cross examination of the witnesses summoned on 29-9-2023 and 30-9-2023 till the time the examination-in-chief of the witnesses related to same facts as mentioned in para 3 of the application filed before the trial Court, are not recorded.
5. Learned trial Court vide its impugned order dated 29-9-2023 has rejected the said application by holding that by the said application the petitioner intends to defer cross examination of 14 witnesses and no justifiable reason has been assigned and accordingly it has rejected the same. Thereafter, PW/1 Rajesh Kumar Sharma was cross examined and cross examination of other witness PW/2 Amar Das Aahire could not be completed. As such, the matter was adjourned to 30-9-2023.
6. Learned counsel for the petitioner would submit that the order dated 29.09.2023 is illegal and against the provisions of Code of Criminal Procedure. As such, he would pray for quashing of the order dated 29-9-2023 (Annexure P/1). To substantiate his submission, he has referred to the judgment of State of Kerala vs. Rasheed, reported in (2019) 13 SCC 297. Neutral Citation 2024:CGHC:10232 Page 4 of 7
7. On the other hand, learned State counsel opposing the aforesaid submission would submit that since no justifiable reason has been assigned for deferment of cross examination of the witnesses, as such, learned trial court has rightly rejected the application filed by the petitioner and there is no illegality or irregularity which warrants interference by this Court.
8. I have heard learned counsel for the parties and perused the document annexed with the present petition.
9. To understand the issue raised in this petition, it is expedient for this court to extract the provisions of Sections 231 (2) and 242 of Cr.P.C which read as under.
"231 (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.
(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 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".
10. Hon'ble the Supreme Court in State of Kerala vs. Rasheed has approved the circumstances in which High Courts have approved the exercise of discretion to defer cross-examination so as to avoid prejudice due to disclosure of strategy. Hon'ble Neutral Citation 2024:CGHC:10232 Page 5 of 7 the Supreme Court has held in para 20 which reads as under.
"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;
(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".
11. After considering the scheme of Section 231 (2) of Cr.P.C., it has been held by the Hon'ble Supreme Court that there cannot be a straitjacket formula providing for the grounds on which judicial discretion under Section 231 (2) of Cr.P.C can be exercised. The exercise of discretion has to take place at case to case basis and the Hon'ble Supreme Court has held that the guiding principle for a Judge under Section 231(2) of the Cr.P.C., for deferment of the cross-examination of the witnesses is to ascertain whether prejudice would be caused to the party seeking deferral if the application is dismissed.
12. Hon'ble the Supreme Court in State of Kerala vs Rasheed, has held in paras 23 to 26 as under.
"23. While deciding an application under Section 231(2) CrPC, a balance must be struck between the rights of the accused, and the prerogative of the prosecution to lead evidence. The following factors must be kept in consideration:
Neutral Citation 2024:CGHC:10232 Page 6 of 7
(i) possibility of undue influence on witness(es);
(ii) possibility of threats to witness(es);
(iii) possibility that non-deferral would enable subsequent witnesses giving evidence on similar facts to tailor their testimony to circumvent the defence strategy;
(iv) possibility of loss of memory of the witness(es) whose examination-in-chief has been completed;
(v) occurrence of delay in the trial, and the non-
availability of witnesses, if deferral is allowed, in view of Section 309(1) CrPC.
These factors are illustrative for guiding the exercise of discretion by a Judge under Section 231(2) CrPC.
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 of 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 case-calendar.
24.6. 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. 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 or intimidation.
25. In the present case, a bald assertion was made by the counsel for the respondent-Accused 2 that the Neutral Citation 2024:CGHC:10232 Page 7 of 7 defence of the respondent-Accused 2 would be prejudiced if the cross-examination of CWs 1 to 5 is not deferred until after the examination-in-chief of CWs 2 to
5.
26. The impugned order is liable to be set aside since the High Court has given no reasons for reversal of the order of the Additional Sessions Judge, particularly in light of the possibility of undue influence and intimidation of witness(es) since the respondent-Accused 2 and Accused 7 are "highly influential political leaders".
13. In the present case also very bald statement has been made by the petitioner that his defence will be open whereas no justifiable reason has been assigned for deferment and the petitioner will be prejudiced if deferment of all the enlisted witnesses is not granted, has not been explained by the petitioner. In absence of any justifiable reason assigned by the petitioner for deferment, the learned trial court has not committed any material illegality or irregularity warranting interference by this court.
14. Accordingly, the instant criminal miscellaneous petition being devoid of merit is liable to be and is hereby dismissed.
15. Pending interlocutory applications, if any, stand disposed of.
Sd/-
(Narendra Kumar Vyas) Judge Raju