Bharat Rai vs Ganpat Adivasi
2021 Latest Caselaw 8368 MP

The High Court of Madhya Pradesh M Cr.C No. 53740 of 2021 (Bharat Rai Vs. Ganpat Adivasi)

Jabalpur, Dated : 07/12/2021

Shri Kabeer Paul, learned counsel for the petitioner.

Shri Jitendra Shrivastava, learned Panel Lawyer for the State.

This petition under section 482 of Cr.P.C has been filed

assailing order dated 30/09/2021, whereby an application moved on

behalf of petitioner under section 231(2) of Cr.P.C seeking

postponement of the cross-examination of all the witnesses of the

prosecution on the ground that if witnesses are to be cross-examined

before completion of the examination of all other material witnesses

that will amount to disclose defence of the accused and will prejudice

the case of the defence, has been rejected by learned First Additional

Sessions Judge, Jatara, District Tikamgarh on two grounds. Firstly, in

the first place First Additional Sessions Judge did not find pleading to

be trustworthy and secondly recording a finding that in a sessions

case, evidence of all witnesses on the same date cannot be examined

due to the paucity of time.

Shri Kabeer Paul submits that he is placing reliance on the

judgment of the Supreme Court in the case of State of Kerala Vs.

Rasheed (2019)13 SCC 297 wherein the Supreme Court has

discussed circumstances to be considered while deciding an

application under section 231(2) Cr.P.C in para 20, which reads as

under:-

"20. The circumstances in which the High Courts have approved the exercise of discretion to defer cross-examination, so as to avoid prejudice due to disclosure of strategy are:

(i) where witnesses were related to each other, and were supposed to depose on the same subject-matter and facts;

(ii) where witnesses were supposed to depose about the same set of facts."

It is submitted that the Supreme Court has held that while

deciding the application under section 231(2) of Cr.P.C, a balance

must be struck between the rights of the accused, and the

prerogative of the prosecution to lead evidence. Certain factors have

been asked to be kept into consideration. Learned counsel for the

petitioner submits that one of these factors he places reliance on is

the possibility that non-deferral would enable subsequent witnesess

giving evidence on similar facts to tailor their testimony to

circumvent the defence strategy.

Learned Panel Lawyer opposes the aforesaid submissions.

After hearing learned counsel for the parties, it is evident that

for exercise of discretion to consider the possibility of giving tailor

made testimony, it is necessary that court should take into

consideration as to witnesses were related to each other and were

supposed to depose on the same subject matter and facts or not.

In fact in the case of Vijay Kumar Vs. State (NCT of Delhi)

2017 SCC Online Del 9012, the Delhi High Court considered

another facet of aspect of exercise of discretion as envisaged in

section 231(2) Cr.P.C and that is possibility of the time gap resulting

therefrom being abused to win over the witnesses does exist.

It is also true that it is always open to the defence to carry out

effective cross examination of a witnesses to bring on record its own

version either to discredit version of the witnesses or to show the

facts in different light.

It is also true as has been held in the case of Shamoon Ahmed

Sayed & anr Vs. Intelligence Officer Narcotic Control Bureau,

Chennai 2009 Cri.L.J 1215 (Karnataka) deferment cannot be

claimed as a matter of right. That the right of cross examination

available to the defendants is a very effective weapon for unearthing

the falsity. It is further observed that deferring the matter for cross

examination of the witness/witnesses by the adverse parties may not

result in delaying the proceedings and it is both irregular and

inconvenient to allow all the witnesses to be examined-in-chief at one

stretch and to reserve the cross-examination of all witnesses to a

subsequent date. It is further held that though there is a discretion to

the Judge under sub-section (2) of Section 231 to permit cross

examination of any witnesses to be deferred until any other witness

or witnesses have been examined, the same should not be construed

to mean that the accused has right to ask for deferring the cross-

examination of witnesses in a wholesale way on the plea that the

prosecution may take chance to fill up the lacuna in its case that may

disclose in the cross examination of its witnesses.

Similar view has been taken by the Supreme Court in the case

of S.J Chaudhary Vs. State of (Delhi Administration), 1984 1

SCC 722 and when tested on touch stone of these judgments of the

Supreme Court and various High Courts and looking to the fact that

judgment in the case of Shamoon Ahmed Sayed (supra) and Vijay

Kumar (supra) have since been approved by the Supreme Court in

the case of State of Kerala Vs. Rasheed (supra), I do not find any

illegality or irregularity in the impugned order, which has been

passed in exercise of the discretion by learned First Additional

Sessions Judge, Jatara District Tikamgarh, calling for any interfere,

thus this petition fails and is dismissed.

(Vivek Agarwal) Judge

Digitally tarun/ signed by TARUN KUMAR SALUNKE Date: 2021.12.09 09:45:44 +05'30'