Defering Cross Examination - S.231 Cr.P.C.

(2005)1C.Cr.L.R. (Cal) 694 (CALCUTTA HIGH COURT) J PRAVENDU NARAYAN SINHA.

(Decided on April 6, 2005)

Bela Bhattacharya versus The State of West Bengal and another (C.R.R. No.765 of 2004)

Criminal Procedure Code, 1973 Section 232(2) & 309 – Deferring cross examination of witnesses – Discretion of the Judge – To be allowed on sufficient reasons – Defence has no right to claim deferring cross-examination of Prosecution witnesses – Defence allowed to defer cross-exam. till another witness is examined – order for wholesale deferring cross-examination is set-aside.

Indian evidence Act, 1872 – Section 138 – After examination of prosecution witness – Cross-examination shall follow immediately.

HELD: It is settled principle of law that it is the choice of prosecution or the Public Prosecutor that to whom or which witness the Public Prosecutor or the prosecution will examine as witness and in which order. The accused or defence has no right at all to interfere in the manner of examination of witness as well as order. The accused or defence has no right at all to interfere in the manner of examination of witness as well as order of examination of witness or other person whom the prosecution may examine as a witness. Question of application of provisions of Sec.231(2) does not arise at all unless the prosecution starts examination of its witnesses. Mere asking to defer cross examination can not be a ground for allowing an application u/Sec.231(2) of the Cr.P.C. ( Para 13)

There is no right to the accused to reserve cross-examination generally, or according to procedure examination and cross examination of witnesses are a continuous process. Sub-Section(2) of Sec.231 vests with the Judge a discretion to permit for sufficient reason, either i) cross-examination of witness to be deferred until any other witness or witnesses have been examined, or (ii) recall any prosecution witness for further cross examination. The defence has no right to claim postponement or deferring cross-examination of witnesses until any other witness or witnesses have been examined, but the discretion to discretion to defer lies with the Court. (Para 15)

In construing the true sense of the words of Section 231(2) of Cr.P.C. the words 'permit the cross-examination of any witness to be deferred' does not indicate that the legislature and the Parliament had ever intention to permit deferring of wholesale cross-examination of prosecution witnesses. The accused has no right for deferring cross-examination of prosecution witnesses in a wholesale way on the plea that otherwise the prosecution may take the chance of filling up the lacuna in its case that may be disclosed during cross-examination. ( Para 21)