Karnataka High Court
Narasimha Murthy vs State Of Karnataka on 21 January, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
-1-
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CRL.P No. 636 of 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO.636 OF 2025 (482(Cr.PC) / 528(BNSS)
BETWEEN:
NARASIMHA MURTHY,
S/O LATE NARASIMHAIAH,
AGED ABOUT 38 YEARS,
R/AT C/O LAKSHAMMA HOUSE,
1ST MAIN, 7TH CROSS,
VIJAYANANDA NAGARA,
NANDINI LAYOUT,
BANGALORE - 560 096
...PETITIONER
(BY SRI. LAKSHMIKANTH K., ADVOCATE)
AND:
STATE OF KARNATAKA
BY NANDINI LAYOUT POLICE STATION
BANGALORE
RE. BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING.
BANGALORE01
Digitally ...RESPONDENT
signed by
LEELAVATHI (BY SMT. RASHMI JADHAV, ADDL. SPP)
SR
Location:
High Court THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
of Karnataka
CR.PC (FILED U/S 528 BNSS) PRAYING TO SET ASIDE THE ORDER
DATED 13.08.2024 IN SPL.C.NO.230/2024 ON THE APPLICATION
FILED BY THE PETITIONER UNDER SEC.231(2) OF CR.PC AND
ORDER TO ALLOW THE APPLICATION FILED UNDER SECTION
231(2) OF CR.PC AND PERMIT THE PETITIONER TO CROSS
EXAMINATION OF CW.1 TO 4.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
-2-
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CRL.P No. 636 of 2025
ORAL ORDER
This petition by the accused in Spl.C.C.No.230/2024 is
directed against the impugned order dated 13.08.2024 whereby the
application filed by the petitioner - accused under Section 231(2) of
Cr.P.C. was rejected by the Trial Court.
2. Heard learned counsel for the petitioner and learned
counsel for the respondent and perused the material on record.
3. A perusal of the material on record will indicate that the
respondent having instituted the aforesaid proceedings against the
petitioner - accused for the offence punishable under Sections
354A and 506 IPC as well as under Section 8 of the Protection of
children from sexual offences Act, 2012 (for short, 'POCSO Act,
2012'), the matter was posted for evidence, at which time, the
complainant was examined as CW1 and matter was posted for her
cross-examination by the petitioner - accused. At that stage,
petitioner - accused filed the instant application seeking
postponement / deferment of cross-examination of CW1 until
completion of examination-in-chief of CW2 to CW4 on the ground
that in the event petitioner cross-examines CW1 before remaining
CW2 to CW4 adduce their examination-in-chief, there is every
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likelihood that the various admissions, discrepancies,
contradictions and inconsistencies elicited and emerging in the
cross-examination of CW1 would be nullified by CW2 to CW4 who
would fill up the said lacunae and make improvements in their
examination-in-chief, which would not only cause prejudice to the
petitioner but also be detrimental to the defence of the petitioner
and as such, it was necessary that all the witnesses CW1 to CW4
be directed to complete their examination-in-chief in the first
instance before cross-examination of CW1.
4. The said application having been opposed by the
respondent - prosecution, the Trial Court proceeded to pass the
impugned order rejecting the application on the main ground that
the proceedings arose under the provisions of the POCSO Act,
aggrieved by which, the petitioner is before this Court by way of the
present petition.
5. Learned counsel for the petitioner submits that if
examination-in-chief of CW2 to CW4 is also completed by the
prosecution, petitioner would cross-examine all the witnesses i.e.,
CW1 to CW4 as per the terms and conditions to be imposed by the
Trial Court and without seeking any adjournment under any
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circumstance whatsoever. It is further submitted that in the
judgment of the Co-ordinate Bench of this Court in the case of
Jayakar Vs. The State, by Frazer Town Police, Bangalore City -
ILR 1996 KAR 2783 it is held that in order to enable the petitioner
- accused to substantiate his defence in a given case, it is open for
the Trial Court to exercise its powers under Section 231(2) of
Cr.P.C. and defer cross-examination till recording of examination-
in-chief of CW2 to CW4. Under these circumstances, it is
submitted that the impugned order deserves to be set aside and
application deserves to be allowed.
6. Per contra, learned Addl. SPP for the respondent
submits that there is no merit in the petition and that the same is
liable to be dismissed.
7. In Jayakar's case supra, the Co-ordinate Bench of this
Court held as under:
"5. In the application filed by the petitioner-
accused under Section 231(2) Cr. P.C. he has stated thus:
"The accused most humbly prays that this Hon'ble Court
may be pleased to defer the cross-examination of PW 1 and
CW's 2, 3, 4, 5 & 7 till CWs-21 and 31 are examined. The
PWs are close relatives and eye witnesses to the incident
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and if they are cross-examined now there is likelihood of
improvement and causing damage to the defence side.
Wherefore it is prayed that this Hon'ble Court be pleased
to defer the cross-examination of the above mentioned
witness in the interest of justice and equity."
6. Section 231 Cr. P.C. reads thus:
"Section 231. Evidence for prosecution:--
1) On the date so fixed, the Judge shall proceed
to take all such evidence as may be produced in
support of the prosecution.
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."
7. The cross-examination of every witness should follow
his examination-in-chief according to Section 138 of the
Evidence Act of 1872. It is both irregular and inconvenient to
allow all the witnesses to be examined one day and to
reserve the cross-examination to a subsequent date. The
accused is, therefore, not entitled as of right to
postponement of the cross-examination. The Court may,
however, grant such a postponement on reasonable grounds
as, for instance, where the counsel is unprepared, or where
the accused was undefended the first day and put only a few
questions and applied the next day for cross-examination by
his pleader explaining why he was not engaged before or
where the counsel appointed to defend the accused, who
had no instructions till then, requested the Court to postpone
the cross-examination of the prosecution witnesses till the
next day after the examination-in-chief were over.
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8. Under sub-section (2) of Section 231 of the Code of
Criminal Procedure the Judge has a discretion to permit the
cross-examination of any witness to be deferred until any
other witness or witnesses have been examined. This
discretion to permit the cross-examination of any witness to
be deferred until any other witness or witnesses have been
examined cannot be exercised arbitrarily but this discretion
must be exercised by the Court judicially taking into
consideration the facts and circumstances of the case and
the material on record before it.
9. The reasons given in the application by the petitioner-
accused is that the witnesses are close relatives and they
are eye-witnesses to the incident and if they are cross-
examined now there is likelihood of improvement and
causing damage to the defence. The learned Counsel for the
petitioner submitted that all the witnesses are staying in one
house. In this case the petitioner has made out a case for
exercise of the discretion under Section 231(2) Cr. P.C. by
the Court. In the circumstances, the learned Sessions Judge
ought to have allowed the application filed by the petitioner-
accused and ought to have deferred cross-examination of
P.W. 1 and C.Ws. 2, 3, 4, 5 and 7 till the other witnesses viz.,
C.Ws. 21 and 31 are examined. Hence the order passed by
the learned Sessions Judge dated 19.6.1996 rejecting the
request of the petitioner for deferring the cross-examination
of P.W. 1 until the other witnesses are examined is liable to
be set aside.
10. Accordingly, the petition is allowed. The order dated
19.6.1996 passed by the learned IV Additional City Civil
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Judge, Mayohall (CCCH-21) dismissing the application filed
by the petitioner-accused under Section 231(2) Cr. P.C. is
set aside. The application filed by the petitioner is allowed.
The learned Sessions Judge is directed to defer the cross-
examination of P.W. 1 and C.Ws. 2, 3, 4, 5 and 7 till C.Ws.
21 and 31 are examined and thereafter permit the Counsel
for the petitioner to cross-examine the said witnesses."
8. As held by this Court in Jayakar's supra, in a given set
of facts and circumstances, it is always open for the Court to
exercise its discretion and direct deferment of cross-examination of
CW1 till completion of examination-in-chief of other witnesses. In
the instant case, a perusal of the impugned order will indicate that
the main ground on which the Trial Court chose to reject the
application of the petitioner is by coming to the conclusion that
POCSO Act is a special enactment and as such, in view of
timelines prescribed under the POCSO Act, deferment of cross-
examination of CW1 would defeat the very purpose of the said
enactment. In this context, it is relevant to note that learned
counsel for the petitioner has already submitted that if examination-
in-chief of CW2 to CW4 is completed before petitioner cross-
examines all of them, petitioner would co-operate with the Trial
Court for cross-examination of four witnesses and will not seek any
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adjournment under any circumstance whatsoever. In addition
thereto, it is relevant to state that proceedings under the POCSO
Act would necessarily be governed by the provisions of Cr.P.C. as
is clear from Section 33 (9) of POCSO Act, which reads as under:
"Subject to the provisions of this Act, a Special Court
shall, for the purpose of the trial of any offence under this Act,
have all the powers of a Court of Session and shall try such
offence as if it were a Court of Session, and as far as may be,
in accordance with the procedure specified in the Code of
Criminal Procedure, 1973 (2 of 1974) for trial before a Court of
Session."
9. The submission made by both sides that examination-
in-chief of CW1 and CW2 has been completed as on today is
placed on record.
10. It is needless to state that a combined reading of
Section 33(9) of POCSO Act and Section 231(2) of Cr.P.C. makes
it clear that in the instant case, the Trial Court fell in error in
rejecting the request of the petitioner for deferment of cross-
examination of CW1 till completion of examination-in-chief of all
four witnesses / CW1 to CW4 and as such, the impugned order
deserves to be set aside and allow the application filed by the
petitioner by issuing certain directions.
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11. In the result, I pass the following:
ORDER
(i) The petition is hereby allowed.
(ii) The order dated 13.08.2024 passed in
Spl.C.C.No.230/2024 by the FTSC - 1, Addl. City Civil &
Sessions Judge, Bengaluru, is hereby quashed.
(iii) Application filed by the petitioner under Section
231(2) Cr.P.C. is hereby allowed.
(iv) The Trial Court is directed to complete
examination-in-chief of CW3 and CW4 and record the
evidence of CW1 to CW4 within a period of one month from
the date of receipt of a copy of this order.
(v) In the event due to non-appearance of CW3 and
CW4 in relation to whom the Trial Court has already issued
NBW, their evidence is not recorded and the Sessions Court
is not able to record their evidence, the Trial Court shall
discharge CW3 and CW4 and petitioner shall cross-examine
CW1 and CW2 on a date to be fixed by the Trial Court.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
