2018 (10) TMI 1790 - SC - Indian Laws

Whether the exercise of discretion under Section 231(2) of the Cr.P.C. by the Additional Sessions Judge was valid and legally sustainable? HELD THAT - The statutory framework governing the order of production and examination of witnesses is contained inter alia in Sections 135 and 138 of the Indian Evidence Act 1872. A conjoint reading of Sections 135 and 138 would indicate that the usual practice in any trial be it civil or criminal is for the examination-in-chief of a witness to be carried out first; followed by his cross-examination (if so desired by the adverse party) and then re-examination (if so desired by the party calling the witness) - Section 231 of the Cr.P.C. indicates that the Judge is given the discretion to defer cross-examination of a witness until any other witness or witnesses have been examined. What follows from the discussion is that the norm in any criminal trial is for the examination-in-chief of witnesses to be carried out first followed by cross-examination and re-examination if required in accordance with Section 138 of the Indian Evidence Act 1872. Section 231(2) of the Cr.P.C. however confers a discretion on the Judge to defer the cross-examination of any witness until any other witness or witnesses have been examined or recall any witness for further cross examination in appropriate cases - Judicial discretion has to be exercised in consonance with the statutory framework and context while being aware of reasonably foreseeable consequences. The party seeking deferral under Section 231(2) of the Cr.P.C. must give sufficient reasons to invoke the exercise of discretion by the Judge and deferral cannot be asserted as a matter of right. Several High Courts have held that the discretion under Section 231(2) of the Cr.P.C. should be exercised only in exceptional circumstances . 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 the Cr.P.C. is to ascertain whether prejudice would be caused to the party seeking deferral if the application is dismissed. In the present case a bald assertion was made by the Counsel for the Respondent-Accused No. 2 that the defence of the Respondent-Accused No. 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 - 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 No. 2 and Accused No. 7 are highly influential political leaders - Appeal allowed.

Summary

Issues Involved:
1. Validity and legal sustainability of the exercise of discretion under Section 231(2) of the Cr.P.C. by the Additional Sessions Judge.
2. The propriety of the High Court's order reversing the Additional Sessions Judge's decision.

Issue-wise Detailed Analysis:

1. Validity and Legal Sustainability of the Exercise of Discretion under Section 231(2) of the Cr.P.C. by the Additional Sessions Judge:

The core issue in this appeal was whether the Additional Sessions Judge's exercise of discretion under Section 231(2) of the Cr.P.C. was valid and legally sustainable. Section 231(2) of the Cr.P.C. grants the Judge discretion to defer the cross-examination of a witness until other witnesses have been examined or to recall any witness for further cross-examination. This discretion must be exercised with due care and caution, considering the statutory framework and the reasonably foreseeable consequences.

The Additional Sessions Judge dismissed the application for deferral of cross-examination filed by the Respondent-Accused No. 2, reasoning that Section 231(2) does not confer a right to seek deferral wholesale on the ground that the defense strategy would be revealed to the prosecution. The Judge emphasized that deferral could lead to the loss of memory of witnesses and potential threats to witnesses, given the influential status of the accused. The Judge also noted that CWs 1 to 5 would be deposing on different facts and aspects of the case, making the deferral unnecessary.

The Supreme Court upheld the Additional Sessions Judge's decision, emphasizing that judicial discretion under Section 231(2) must be exercised in consonance with the statutory framework and context. The party seeking deferral must provide sufficient reasons, and deferral cannot be asserted as a matter of right. The judgment cited various High Court decisions, illustrating that discretion should be exercised only in "exceptional circumstances" or when a "very strong case" is made out. The Court highlighted factors such as the possibility of undue influence, threats to witnesses, loss of memory, and delay in the trial as guiding principles for exercising discretion under Section 231(2).

2. Propriety of the High Court's Order Reversing the Additional Sessions Judge's Decision:

The High Court of Kerala reversed the Additional Sessions Judge's decision through a short, unreasoned order, directing the adjournment of cross-examination until after the examination-in-chief of CW 5. The Supreme Court found this reversal improper, noting that the High Court provided no reasons for overturning the Additional Sessions Judge's well-reasoned order. The Supreme Court emphasized that the High Court's decision failed to consider the possibility of undue influence and intimidation of witnesses, given the influential status of the accused.

The Supreme Court underscored that judicial discretion must be exercised with due care, considering the context and foreseeable consequences. The Court reiterated that a balance must be struck between the rights of the accused and the prosecution's prerogative to lead evidence. The Supreme Court set aside the High Court's order and restored the Additional Sessions Judge's decision, emphasizing that the observations made would not affect the merits of the case during the trial.

Conclusion:

The Supreme Court allowed the Criminal Appeal, setting aside the High Court's order and restoring the Additional Sessions Judge's decision. The Court provided detailed guidelines for the exercise of discretion under Section 231(2) of the Cr.P.C., emphasizing the need for a balanced approach considering the rights of the accused and the prosecution's prerogative. The judgment highlighted the importance of providing sufficient reasons for deferral and the necessity of safeguarding witnesses from undue influence and intimidation.