Andhra Pradesh High Court - Amravati

Madugu Jhon Kennady Rajkumar vs The State Of Andhra Pradesh on 7 September, 2022

THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY

          Criminal Revision Case No.686 of 2022

COMMON ORDER:

     This Criminal Revision Case has been filed against

the order dated 14.07.2022 in Crl.M.P. No.691 of 2022 in

C.C. No.170 of 2018 on the file of the Special Judge for

trial of SPE and ACB Cases, Rajamahendravaram.


     2.      A charge sheet has been filed as against the

petitioner for the offences punishable under Sections 7,

13 (2) read with 13 (1) (d) of the Prevention of Corruption

Act, 1988.    By way of its its Order dated 24.02.2022 in

Criminal Petition No.95 of 2022 filed by the petitioner,

this Court disposed of the said Criminal Petition

directing the Special Judge to complete trial within a

period of four months.    Thereafter, the petitioner filed a

petition in Crl.M.P.No.691 of 2022 in the said C.C.

seeking adjournment stating that examination of all the

witnesses including the Investigating Officer, in-chief is

necessary for cross-examining all the witnesses at once
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by the defence counsel, since the evidence in nature of

all witnesses are co-existence with each other and

connecting right from trap to the evidence of the

Investigating Officer, and in the circumstances, contents

of cross-examination of P.W.1 would be known to the

other witnesses and that the petitioner would be ready

for cross-examination of all the witnesses at once, so

that he would get a fair chance of cross-examination for

the purpose of impeaching the demeanour of the

witnesses.    Vide the impugned order dated 14.07.2022,

the learned Special Judge dismissed the Crl.M.P. on the

ground that in view of the directions given by this court,

at the instance of the petitioner, witness was present on

receipt of summons and as the witnesses' evidence

would be lengthy, summons to one witness only was

issued intially and for rest of the witnesses, schedule can

be issued.

     3.      Learned counsel for the petitioner contended

that it is desirable that all the witnesses have to be

examined in-chief and thereafter the petitioner intends to
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cross-examine them.        It is further submitted that the

petitioner is ready to proceed, in case if the Hon'ble

Court gives a schedule in respect of examination of

P.W.1 to the Investigating Officer at a stretch. He relied

on a judgment of the Delhi High court dated 03.07.2017

in WP (Crl.) No.1350 of 2017 in Vijaya Kumar v. State

(Govt. of NCT of Delhi).

      4.    On the contrary, a counter affidavit has been

filed on behalf of respondent, opposing the petition. It is

contended that the revision is not maintainable for the

reason that the petitioner intended to cross-examine all

the witnesses after their chief-examination, which is

contrary to the procedure contemplated under the CrPC.

He further submitted that trial has commenced and

P.W.1 was examined on 26.07.2022 and 27.07.2022, but

the petitioner/accused officer has not availed

opportunity to cross-examine the witness, and therefore

the Special Judge reported cross-examination of P.W.1

as 'nil'. Again, the case was posted to 29.07.2022 and

on that day, P.Ws.2 and 3 were examined and cross-

examination of P.Ws.2 and 3 was reported as Nil.

Thereafter, the case was posted on 17.08.2022. On that

day, P.W.4 was examined and as far as cross-

examination is concerned, it is reported as 'nil'. The

petitioner/accused officer failed to cross-examine all the

witnesses and thereafter, the matter is posted to

25.08.2022.

5. Heard and perused the record.

6. In the subject C.C., so far, P.Ws.1 to 4 were

examined in-chief by the Court below. In respect of all

the witnesses, petitioner/ accused officer did not choose

to cross-examine them for the reasons best known to

him. Learned counsel for the petitioner/accused officer

relied on a judgment dealing with the provisions under

Sections 231 (2) and 242 (3) CrPC, but surprisingly, filed

the petition before the Special Judge under Section 309

CrPC for adjournment of the case.

7. In the decision relied on by the learned

counsel for the petitioner in Vijaya Kumar v. State (Govt.

of NCT of Delhi) case (supra), it has been held thus:

"42. Against the above backdrop, in the opinion of this court, the exercise of judicial discretion by a criminal court in terms of Section 231(2), or Section 242(3) Cr. PC, may be properly exercised by bearing in mind the following principles :-

(i). The objective of a fair trial is to reach out to the truth so that justice can be administered; a fair trial must not only be not unduly hurried or hasty but also not be allowed to suffer unnecessary delay, the concept of due process of law inherent in fair trial procedure demanding observance not merely of the form but of its principles in substance;

(ii). It is the mandate of law that every criminal trial or "inquiry" is held and continued "from day-to-day" until all the witnesses in attendance have been examined - adjournment or postponement of the proceedings beyond the following day being only by way of an exception and for adequate reasons;

(iii). Ordinarily, the prerogative to decide the order in which witnesses are to be examined at the criminal trial is to be left to the prosecution; to ensure that there is fair play and the story of the prosecution unfolds sequentially and coherently, it may be regulated by the court in its judicial discretion;

(iv). Though it must generally be ensured that adducing of evidence by a particular witness is concluded in one go - giving evidence here means

deposition under chief examination, followed by cross- examination and re- examination (if allowed) - if there are sound reasons supporting a prayer made to such effect, the trial judge may, in exercise of the judicial discretion in terms of Section 231(2), or Section 242 (3) Cr.P.C., permit the cross-examination of the particular witness to be deferred till another witness of the same fact or event has been examined.

(v). The deferment of cross-examination under Section 231(2), or Section 242(3), Cr.P.C. cannot be claimed as matter of right, it being a matter of "discretion" vesting in the judge presiding over the criminal trial. In order to persuade the presiding judge to use the discretion under Section 231 (2), or Section 242(3), Cr.P.C., the defence must show sound reasons in support of the prayer, it being not available just for the asking, if so required by the presiding judge, by sharing material, may be in confidence, supporting the plea of possible prejudice if the discretion were not to be favourably granted.

(vi). Since the expectation of law is that the trial, once it commences, would continue from day-to-day till it is concluded, it is desirable that, keeping in mind the possible time required for recording of evidence (particularly of the prosecution), a detailed schedule of the dates of hearing on which evidence

would be recorded is drawn up immediately after charge is framed - this, taking into account not only the calendar of the court but also the time required by the prosecution to muster and secure the presence of its witnesses as well as the convenience of the defence counsel. Once such a schedule has been drawn up, all sides would be duty bound to adhere to it scrupulously.

(vii). While drawing up the schedule of dates for recording of the evidence for the prosecution, as indicated above, the presiding judge would take advice from the prosecution as to the order in which it would like to examine its witnesses, clubbing witnesses pertaining to the same facts or events together, for the same set of dates.

(viii). If the defence intends to invoke the jurisdiction of the criminal court to exercise the discretion for deferment of cross-examination of particular witness(es) in terms of Section 231(2), or Section 242(3) Cr. PC, it must inform the presiding judge at the stage of setting the schedule so that the order in which the witnesses are to be called can be appropriately determined, facilitating short deferment for cross-examination (when necessary) so that the recording of evidence continues, from day- to-day, unhindered avoiding prolonged adjournments as are often seen to be misused to unduly influence

or intimidate the witnesses.

(ix). It is the bounden duty of the presiding judge of the criminal court to take appropriate measures, if the situation so demands, to insulate the witnesses from undue influence or intimidatory tactics or harassment. If the court has permitted deferment in terms of Section 231(2), or 242(3) Cr.P.C., for cross-

examination of a particular witness, it would not mean that such cross- examination is to be indefinitely postponed or scheduled for too distant a date. The court shall ensure that the deferred cross-examination is carried out in the then on-going schedule immediately after the witness whose examination ahead of such exercise has been prayed for.

(x). If there are more than two witnesses pertaining to the same fact or event, it is not necessary that the court would use its discretion to have all of them examined-

in - chief first and thereafter call the mone by one for the irrespective cross-examinations. It would suffice, given the facts and circumstances of theparticular case, if the request is granted vis-à-vis two of such multiple witnesses.

(xi). While exercising the discretion in favour of deferment in terms of Sections 231(2), or 242(3) Cr. PC, the court will bear in mind not only the reasons

set out by the prosecution in opposing such a request but also the material, if any, submitted in support, as indeed the fact that the witness(es) whose prior examination is being asked for (before the cross-examination of another witness), may not be readily available,being one whose presence cannot be secured without inordinate delay, considerations of the kind last mentioned possibly being good reason to decline the request.

(xii). The discretion to allow deferment of cross- examination in terms of Sections 231(2), or 242(3), Cr. PC can always be re-visited or recalled by the presiding judge as the trial proceeds, particularly if its misuse or abuse is brought to the notice of the court."

8. Under the above provisions Sections 231 (2)

and 242 (3) CrPC, discretion is given to the Court of

Session or the Court of Magistrate, as the case may be. It

has to be seen whether the discretion has been exercised

in proper way or not. Admittedly, in the present case,

P.Ws.1 to 4 were examined and the cross-examination by

petitioner/ accused officer has been reported 'nil'. This

Court perused the record and comes to the conclusion

that there is absolutely neither any misuse nor abuse

done in the process. The order passed by the learned

Special Judge is in accordance with law.

9. However, in the facts and circumstances of