STATE OF KERALA versus RASHEED

Citation: [2018] 13 S.C.R. 587 · Decided: 30-10-2018 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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STATE OF KERALA
v.
RASHEED
(Criminal Appeal No.1321 of 2018)
OCTOBER 30, 2018
[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]
Code of Criminal Procedure, 1973 – s.231(2) – Application
by accused seeking adjournment under – Prosecution alleged that
accused persons had detained victim, tortured him and then killed
him with criminal intention – Charges were framed by the trial Court
and prosecution witnesses were summoned – After examination-in-
chief of CW-1, an application was filed by the Respondent-accused
no.2 seeking adjournment of the cross-examination of CW-1, and
also of CWs 2 to 5, to a date after the examination-in-chief of CWs
2 to 5 was complete – Application was dismissed by the Trial Court
with the observation that no specific reason for deferring the
cross-examination was given by the respondent-accused no.2 –
Propriety of – Held: Proper – s.231(2) of the Cr.P.C. 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
u/s.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 – Further, while deciding an application
u/s.231(2) of the Cr.P.C., a balance must be struck between the
rights of the accused, and the prerogative of the prosecution to
lead evidence – The factors like possibility of undue influence on
witness(es); possibility of threats to witness(es) etc. must be kept in
consideration – In instant case, there was a possibility of undue
influence and intimidation of witness(es) since the respondent-
accused No.2 and accused No.7 were highly influential political
leaders – Thus, trial Court was right in dismissing the application
u/s.231(2) of the Cr.P.C. – Evidence Act, 1872 – ss.135 and 138.
[2018] 13 S.C.R. 587
587
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SUPREME COURT REPORTS
[2018] 13 S.C.R.
Allowing the appeal, the Court
HELD: 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.  [Para 7] [596-A-C]
2.  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. [Para 10] [599-F-G]
3.  While deciding an Application under Section 231(2) of
the Cr.P.C., a balance must be struck between the rights of the
accused, and the prerogative of the prosecution to lead evidence.
The following factors must be kept in consideration: possibility
of undue influence on witness(es); possibility of threats to
witness(es); possibility that non-deferral would enable subsequent
witnesses giving evidence on similar facts to tailor their testimony
to circumvent the defence strategy; possibility of loss of memory
of the witness(es) whose examination-in-chief has been
completed; occurrence of delay in the trial, and the non-availability
of witnesses, if deferral is allowed, in view of Section 309(1) of
the Cr.P.C. These factors are illustrative for guiding the exercise
of discretion by a Judge under Section 231(2) of the Cr.P.C.
[Para 11] [599-G-H; 600-A-C]
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4.  The following practice guidelines should be followed by
trial courts in the conduct of a criminal trial, as far as

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