Bombay High Court
Gajanan Madhavrao Renge vs The State Of Maharashtra on 28 January, 2025
2025:BHC-AUG:2244
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-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 19 OF 2025
Gajanan S/o. Madhavrao Renge,
Age : 50 years, Occu. : Agriculture,
R/o. Itlapur (Deshmukh),
Taluka and District Parbhani. ... Applicant
Versus
The State of Maharashtra,
(Through Daithana Police Station,
Taluka and District Parbhani ... Respondent
.....
Mr. Prashant P. Giri, Advocate for Applicant.
Mr. N. D. Batule, APP for Respondent - State.
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 24 JANUARY 2025
PRONOUNCED ON : 28 JANUARY 2025
JUDGMENT :
1. Present revisionist, an under trial, takes exception to
order dated 22.11.2024 passed by learned Additional Sessions
Judge, Parbhani on Exh.48 in Sessions Case No. 20 of 2023, rejecting
prayers to exercise powers under section 231(2) of Cr.P.C., i.e. to
defer cross-examination of witness.
2. Learned counsel would submit that, present revisionist is
facing trial for commission of offence under sections 302, 324, 323,
504 and 506 read with 34 of Indian Penal Code, at the hands of
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learned Additional Sessions Judge, Parbhani. It is pointed out that,
prosecution opened its case and PW1 informant is already made to
step into witness box. Cross examination though conducted, it has
not been concluded yet. He would submit that, along with PW1,
according to prosecution, his grandfather, namely, Madhav Renge
was also present at the scene of occurrence and he is also a star
witness of prosecution, but, is yet to be examined. That, no
suggestions whatsoever have yet been put to the PW1. Both PW1 and
his grandfather are crucial witnesses for both, prosecution as well as
defence. That, accused does not want to open his defence at this stage
i.e. till all prosecution's star witnesses are examined and according to
learned counsel, accused has right to do so. That, if he completes
cross and gives suggestions, then subsequent witnesses who are yet
to be examined, will know about probable defence of accused and as
such, they are likely to tailor their evidence and thereby frustrate
defence of accused.
3. Learned counsel pointed to section 231(2) of Cr.P.C. and
according to him, said provision particularly contemplates such
situation, whereby defence can request deferral of cross of witnesses
and to conduct cross later on and an accused can withhold his
probable defence till then. According to learned counsel, legislature
has specifically provided for such situation and trial court can
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postpone cross, more particularly in the interest of fair trial, and as
such application below Exh.48 was tendered praying for deferral of
cross till other witnesses are examined by prosecution. However,
according to him, learned trial Judge failed to consider and
appreciate the very purport and intent of above provision and
without assigning sound reasons rejected the application.
4. Learned counsel further pointed out that, there is no
dispute that prosecution has right to decide the course of
examination of witnesses and even there is discretion bestowed with
trial Judge to permit deferral or not. However, learned counsel
emphasized that in view of above provision and in view of the law to
this extent expounded by the Hon'ble Apex Court in the case of State
of Kerala v. Rasheed reported in (2019) 13 SCC 279, above quoted
provision has been duly acknowledged. Learned counsel invited
attention of the court to para 20 wherein circumstances
necessitating deferral are enumerated by the Hon'ble Apex Court and
according to him, such two circumstances amongst it, i.e. when
witnesses are related to each other and are supposed to depose on
same subject matter and secondly when they are about to depose on
same set of facts are identical in his case too, and therefore above
provision deserves to be invoked.
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5. He further pointed out that, even guidelines have been
laid down by the Hon'ble Apex Court in the very same judgment.
Resultantly, it is his submission that, when statute itself provides for
such exigency, learned trial court was expected to exercise its
discretion judiciously. Here, it has not so happened and learned trial
Judge has straightway turned down the application Exh.48. That,
deferral of cross is in the very interest of defence. He pointed out
that, accused cannot be made to open his defence, as there is every
possibility of subsequent witnesses, who are in pipeline and who are
yet to be examined by prosecution getting alert and tailoring their
answers in cross-examination to defeat the probable defence thereby
jeopardizing the rights of accused.
6. Learned counsel also took this court through the
judgment of Hon'ble Gujrat High Court in the case of Gitesh
Ghanshyambhai Raval v. State of Gujarat and Anr . in Criminal
Revision Application No. 514 of 2019 as well as ruling of Hon'ble
Apex court in the case of P. Sanjeeva Rao v. State of Andhra Pradesh
reported in (2012) 7 SCC 56.
7. While answering the above revision, learned APP at the
threshold objected to the very maintainability of revision as,
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according to him, such powers can only be exercised in a writ
jurisdiction and not under revisional jurisdiction. Secondly, he
submitted that, defence has no right to seek deferral and that it is
entire prerogative of prosecution as to which witness should be
examined when and in what chronology. He also invited attention of
this court to the judgment of this court in Criminal Writ Petition
No.677 of 2018 in the case of The State of Maharashtra v. Murlidhar
Mansaram Sapkale and Ors., whereby according to him, similar
prayers were turned down by this court. For such reasons, he
opposes present revision.
8. Heard both sides at length. What seems to be pinching the
revisionist, is refusal by learned trial court to defer cross of
prosecution witnesses. Thrust of argument of learned counsel is
section 231(2) of Cr.P.C. For proper comprehension, the provision is
reproduced as under :-
"231(1) xxxxx.
(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."
9. Admittedly, learned Additional Sessions Judge, Parbhani
is conducting Sessions Case No. 20 of 2023 and prosecution has
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already opened its evidence. Here, case set up by revisionist is that,
prosecution in support of its case has examined informant, alleged
injured witness. That, examination-in-chief is over. Now, if such
witness and other witness proposed to be examined on same point
are made to depose, accused can set up his defence to both such
witness at one and the same time. Hence, accused wants grandfather
of PW1, who was said to be present at the scene of occurrence, also to
be made to step into witness box. So that, both these witness can be
cross examined wherein accused would set up his defence. With such
intentions, revisionist accused has tendered application Exh.48 with
following prayers :-
"Therefore, the applicants humbly pray that, this application
may kindly be allowed and further cross-examination of the
"first informant" may kindly be deferred until the prosecution
examines the witness Madhav Limbaji Renge and obliged."
10. Above quoted provision which is now sought to be
invoked, undisputedly permits accused to tender application praying
for deferral of cross examination of prosecution witnesses. The very
legislative intent of this provision is to provide fair trial and accused
cannot be compelled to open his defence and rather he can reserve
the same till proposed prosecution witnesses are examined. The
underlying idea is, as stated above, fair trial and fair opportunity. It
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is equally acceptable that when defence of accused is known to the
prosecution witnesses, there is every likelihood of witness tailoring
their evidence to frustrate and defeat the probable defence of
accused. To avert such situation, above section has been
incorporated.
However, law is also fairly settled that, chronology of
examination of prosecution witnesses is in the exclusive domain and
province of prosecution. Trial court also has undoubted discretion
whether to invoke section 231(2) Cr.P.C. or not, but, again such
discretion is expected to be exercised judiciously.
11. The ruling of Hon'ble Apex Court in the case of State of
Kerala (Supra), which is an instructive judgment, has elucidated the
principles and guidelines to be followed by trial courts when above
provision has been invoked. The two circumstances projected by
learned defence counsel which are said to be available in his case, in
trial court do find place in the above judgment as possible
circumstances which are required to be considered by learned trial
judge while allowing or rejecting exercise of powers under section
231 Cr.P.C.. However, what is of significance and is also pertinent to
note is, here, papers show that after examination-in-chief of PW1
Rameshwar was conducted and completed by prosecution on
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05.04.2024 itself, on oral request of counsel for accused, cross-
examination was deferred till 14.10.2024 i.e. after almost 10 days,
and thereafter on 22.11.2024, learned counsel for accused
commenced cross-examination from para 13 onwards till para 29
and thereafter, application Exhibit 48 has been pressed into service
at around 5.15 p.m. on 22.11.2024. Thus, what is emerging is that,
already cross-examination of PW1 had commenced and progressed
extensively for 17 paragraphs.
12. Thereafter, Exhibit 48 for deferral of cross of PW1 has
been moved. This situation is definitely not contemplated in above
provision. Now, having cross-examined informant at length, it is now
not open for accused to abandon further cross and put up prayers to
the trial court to summon other witnesses. Had the cross of PW1 not
commenced at all, situation would have been different. On carefully
going through the wordings incorporated in section 231(2) Cr.P.C.,
deferral of subsequent witnesses in pipeline could at the most be
postponed by the learned trial Judge by exercising its discretion.
Above quoted provision does not contemplate deferral of cross of a
witness, who is already in the process of cross-examination at the
hands of defence.
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13. The provision "any witness", in the considered opinion of
this Court, only provides for subsequent witnesses, which are yet to
be examined and not the one who is facing cross in witness box. Here,
as stated above, cross of PW1 is not yet concluded. Once an accused
chooses to proceed to cross examine a particular witness, in view of
scheme of trial, as provided under section 309 of Cr.P.C., it is
bounden duty of cross examiner to first conclude the cross
examination of a witness already under examination. Resultantly, no
fault can be found in the order of rejection of Exh.48 by the learned
trial Judge.
14. Consequently, the above arguments advanced before this
court that, discretion has not been exercised judiciously and is
against settled principles, has no force. The learned counsel for
revisionist is misconstruing the provisions laid down in clause (2) to
mean that, cross of even an witness in the witness box can be paused
and then prosecution be directed to summon subsequent witnesses
which are yet to be examined. Such preposition is not in line with the
scheme and layout of Chapter X the Indian Evidence Act which
provides for order/chronology examination of witnesses. In fact,
Section 309 of Cr.P.C. contemplates day to day trial.
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15. In the light of above discussion, unless accused completes
cross of PW1, it is not open for such accused to invoke Section 231(2)
and pray for deferral of cross of PW1. Taking the above discussion
into consideration, there is no infirmity or illegality on the part of
learned trial Judge in refusing to defer. Hence, following order is
passed:
ORDER
The revision application stands rejected.
(ABHAY S. WAGHWASE, J.)
Tandale
