Madhya Pradesh High Court
Kamal Sharma vs The State Of Madhya Pradesh on 11 September, 2017
-1- CRR NO.1015/17
11.09.2017:
Shri Asif Ahmad Khan, learned counsel
for the petitioner.
Shri Bhuvan Deshmukh, learned GA for
the State.
Heard.
O R D E R
1. Petitioner has challenged the order dated 27.07.2017 passed in Special Sessions Trial No.59/14 by IInd ASJ, Neemuch whereby learned Court has dismissed the application of the petitioner under section 231(2) of the Cr.P.C for recording examination in chief of all the witnesses on the same day.
2. Facts in brief are that special sessions trial No.59/14 under section 354(d), 500 IPC and 11(1-4), 12 of the Protection of Children from Sexual Offences Act is pending before the trial Court. On commencement of the trial dated 27.07.2017 petitioner preferred an application under section 231(2) of the -2- CRR NO.1015/17 Cr.P.C praying for deferring the cross examination of the witnesses Chetna Mehta @ Monu, Pradeep Mehta, Maya Mehta, Rajmal Mehta and Sanjay Mehta until the examination in chief is not recorded before the trial Court as given witnesses belong to the same family and their examination in chief and cross examination could not be completed on the same day. If their examination is not deferred the defence of the petitioner will get opened and it will cause serious prejudice to the case of the petitioner.
3. Learned trial Court dismissed the application observing that it is not practically possible to record examination in chief and cross examination of all the witnesses in one day.
4. Petitioner has come before this Court on the ground that complainant and other witnesses named above belong to same family. Their statements are related to -3- CRR NO.1015/17 each other, therefore, their deposition would be similar to the evidence of the complainant and every likelihood is their with these witnesses taking inkling of the cross examination of one witness to another and thereby damage the defence of the petitioner to some extent. If their cross examination is not deferred then the case of the petitioner will be prejudiced and he will suffer irreparable loss and injury and his interest will affect adversely. All the witnesses are resident of Neemuch city, therefore, no inconvenience would cause to them. The petitioner is not causing any delay in the matter. The trial Court did not pass any speaking order and the same is erroneous in both facts and on law and deserves to be set aside.
5. Learned Public Prosecutor has opposed the prayer and has supported the order of the trial Court stating that it is not practically possible to record -4- CRR NO.1015/17 examination and cross examination of all the prosecution witnesses in a single day, therefore, trial Court has rightly rejected the application.
6. I have considered rival contentions of the parties and have gone through the record.
7. Learned counsel for the petitioner could not point out as to how the prejudice would cause if the prosecution witnesses are examined in the ordinary course of procedure. It appears that the sole grievance of the petitioner is that all the witnesses are family members and one of them is an advocate but this cannot be made a ground for deferring their cross examination until examination-in-chief of all the witnesses is recorded.
8. To defer cross examination is the discretion of the Court. The accused is not entitled as a right to postpone the cross examination of the witnesses. The accused has no right to ask for -5- CRR NO.1015/17 deferring cross examination of all the witnesses till the examination in chief of all the witnesses is completed on the plea that otherwise prosecution may take the chance of filling up lacunas in its case that may be disclosed in the cross examination of its witnesses.
9. In most of the criminal cases there will be more than one eye witness who may have deposed about the similar facts. The plea cannot be accepted that the defence of accused will be prejudiced in all cases as the examination in chief of the witnesses generally based on either the statement recorded under section 161 Cr.P.C or based on some documents prepared or seized during investigation. More over, such contention, if accepted, may defeat the object of Legislature. The Legislative intent cannot be defeated by misinterpreting law. If cross examination of a witness is deferred till the examination in chief of all the -6- CRR NO.1015/17 witnesses is over the same will cause delay in disposal of the matter and will also cause inconvenience to the witnesses to the great extent. They have to be called several times or at lest for second time unnecessarily.
10. In the present case also though the witnesses are family members but they are directly related to the incident. Their statements under section 161 have already been recorded by the Police. If they deviate from their earlier statements in their attempt to improve their version to co-relate or embellish their statements, they can very well be cross examined on the same issue and the discrepancy, improvement or contradiction occurred in such attempt may be brought on record and no need to say that the defence will get benefit of the same.
11. In the present petition, petitioner himself has admitted that it will not be possible to record examination in chief -7- CRR NO.1015/17 or cross examination of all the witnesses in a single day, therefore, the apprehension of the petitioner of tutoring the witnesses will always remain there, therefore, on this ground also his plea cannot be accepted or allowed.
12. In view of the aforesaid discussion, I do not find that the trial court has committed any error or illegality in disallowing the application of the petitioner. No ground for entertaining the petition is made out, therefore, the present petition deserves to be and is hereby dismissed.
(VIRENDER SINGH) JUDGE hk/