Holding

Section 231(2) Cr.P.C. permits deferral of cross‑examination only when the party seeking it furnishes specific, sufficient reasons; a bare claim of prejudice is insufficient and the trial court’s dismissal was proper.

Summary

The State of Kerala prosecuted eight accused, including Rasheed, for the murder of Satheesan. During trial, the defence counsel for accused No.2 sought to defer the cross‑examination of five prosecution witnesses under Section 231(2) of the Cr.P.C., arguing that it would reveal its strategy. The trial court dismissed the application, noting lack of specific reasons and the risk of undue influence as the accused were influential political leaders. The High Court reversed that order without reasons, allowing the deferral. On appeal, the Supreme Court held that Section 231(2) confers discretionary power that must be exercised only on sufficient, specific grounds and cannot be claimed as a matter of right. It reinstated the trial court’s dismissal, emphasizing the need to balance the accused’s rights with the prosecution’s right to lead evidence and to protect witnesses from intimidation. Consequently, the appeal was allowed and the High Court order set aside.

Issues considered

The scope and proper exercise of judicial discretion under Section 231(2) of the Code of Criminal Procedure, 1973.
Whether a mere allegation of prejudice due to disclosure of defence strategy suffices to justify deferral of cross‑examination.
Whether the risk of undue influence or intimidation of witnesses warrants denial of the deferral request.

Legislation cited

Code of Criminal Procedure, 1973s. 231(2), s. 309(1)
Indian Evidence Act, 1872s. 135, s. 138

Subjects

Section 231(2) CrPCcross‑examination deferraljudicial discretionwitness protectioncriminal trial procedureevidence lawpolitical influencecase calendar

Judgment

[2018] 13 S.C.R. 587 587

STATE OF KERALA A
v.
RASHEED
(Criminal Appeal No.1321 of 2018)
OCTOBER 30, 2018 B
[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
C
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 D
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,
E
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 F
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
G
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.
H
587
588 SUPREME COURT REPORTS [2018] 13 S.C.R.

A 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
B 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
C 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
D 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
E 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
F 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
G 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]

H
STATE OF KERALA v. RASHEED 589

4. The following practice guidelines should be followed by A
trial courts in the conduct of a criminal trial, as far as possible: (i)
a detailed case-calendar must be prepared at the commencement
of the trial after framing of charges; (ii) the case-calendar must
specify the dates on which the examination-in-chief and cross-
examination (if required) of witnesses is to be conducted; (iii)
B
the case-calendar must keep in view the proposed order of
production of witnesses by parties, expected time required for
examination of witnesses, availability of witnesses at the relevant
time, and convenience of both the prosecution as well as the
defence, as far as possible; (iv) testimony of witnesses deposing
on the same subject-matter must be proximately scheduled; (v) C
the request for deferral under Section 231(2) of the Cr.P.C. must
be preferably made before the preparation of the case-calendar;
(vi) the grant for request of deferral must be premised on sufficient
reasons justifying the deferral of cross-examination of each
witness, or set of witnesses; (vii) while granting a request for
D
deferral of cross-examination of any witness, the trial courts must
specify a proximate date for the cross-examination of that witness,
after the examination-in-chief of such witness(es) as has been
prayed for; (viii) the case-calendar, prepared in accordance with
the above guidelines, must be followed strictly, unless departure
from the same becomes absolutely necessary; (ix) in cases where E
trial courts have granted a request for deferral, necessary steps
must be taken to safeguard witnesses from being subjected to
undue influence, harassment or intimidation. [Para 12]
[600-E-G; 601-A-E]
5. In the present case, a bald assertion was made by the F
Respondent-Accused No. 2 that his defence would be prejudiced
if the cross-examination of CWs 1 to 5 is not deferred until after
the examination-in-chief of CWs 2 to 5. The impugned Order is
liable to be set aside since the High Court has given no reasons
for reversal of the Order of the Additional Sessions Judge,
particularly in light of the possibility of undue influence and G
intimidation of witness(es) since the Respondent-Accused No. 2
and Accused No. 7 are “highly influential political leaders”. The
Order passed by the Additional Sessions Judge dismissing the
Application filed on behalf of the Respondent-Accused No. 2
stands restored. [Paras 13 and 14] [601-E-G] H
590 SUPREME COURT REPORTS [2018] 13 S.C.R.

A Gurbaksh Singh Sibbia & Ors. v. State of Punjab
(1980) 2 SCC 565 : [1980] 3 SCR 383 ; Lt. Col.
S.J. Chaudhary v. State (Delhi Administration),
(1984) 1 SCC 722 : [1984] 2 SCR 438 ; Vinod Kumar
v. State of Punjab (2015) 3 SCC 220 : [2015] 1 SCR
504 – referred to.
B
Shamoon Ahmed Sayed & Anr. v. Intelligence Officer,
2009 Cri LJ 1215 : ILR 2008 Karnataka 4378 ; Sisir
Debnath v. State of West Bengal & Anr. [C.R.R.
No. 2533 of 2017 decided on August 2, 2017 by the
High Court of Calcutta (Appellate Side) ; Amit Kumar
C Shaw & Ors. v. State of West Bengal & Anr. [C.R.R.
No. 3846 of 2009 decided on June 23, 2010 by the
High Court of Calcutta (Appellate Side) ; Sri Shankar
v. State by Hebbagodi Police Station, [Crl. P. No. 8774
of 2017 decided on December 7, 2017 by the High
D Court of Karnataka at Bengaluru] ; Masiur Rahman
Molla @ Mongla & Ors. v. The State of West Bengal &
Ors. [C.R.R. No. 2411 of 2016 decided on
August 10, 2016 by the High Court of Calcutta
(Appellate Side)] ; Jayakar v. The State, by Frazer Town
Police, ILR 1996 KARNATAKA 2783 : 1996 (3) Kar
E LJ 747 ; R. Selvan v. State [Crl. R.C. (MD) No. 744 of
2016 decided on January 24, 2017 by High Court of
Madras, at Madurai] : 2017 (2) Crimes 509 (Mad.);
Pradeep Kumar Kolhe v. State of Madhya Pradesh
[M.C.R.C. No. 20240 of 2018 decided on July 11,
F 2018 by the High Court of Madhya Pradesh at
Indore] ; State of Maharashtra v. Raja Ram Appana
Mane & Ors. [Criminal Writ Petition No. 578 of 2016
and Criminal Application No. 2485 of 2016 decided
on January 23, 2017 by the High Court of Bombay at
Aurangabad] ; Md. Sanjoy & Anr. v. The State of West
G Bengal, 2000 Cri LJ 608 : 2001 (1) RCR (Criminal)
431 ; Lalu Alam v. State of West Bengal [Cr. Revision
No. 385 of 1996 decided on 12 June, 2002 by the
High Court of Calcutta (Appellate Side)] : 2002 (3)
CHN 301 ; Vijay Kumar v. State (Govt. of NCT of Delhi)
H 2017 Crl.LJ 3875 – referred to.
STATE OF KERALA v. RASHEED 591

Case Law Reference A
[1980] 3 SCR 383 referred to Para 7
[2015] 1 SCR 504 referred to Para 11
[1984] 2 SCR 438 referred to Para 11
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal B
No. 1321 of 2018.
From the Judgment and Order dated 09.01.2018 of the High Court
of Kerala at Ernakulam in Crl. M.C. No. 171 of 2018.
Nishe Rajen Shonker, Vinu Varghese Kachappilly, Anu K. Joy,
C
Alim Anvar, Regan S.Bel, Advs. for the Appellant.
Ms. Nidhi, Adv. for the Respondent.
The Judgment of the Court was delivered by
INDU MALHOTRA, J. Leave granted.
D
1. The present Criminal Appeal arises out of Special Leave
Petition (Crl.) No. 4652 of 2018 wherein the impugned Order dated
January 9, 2018 passed by the High Court of Kerala in Criminal
Miscellaneous Case No. 171 of 2018 has been challenged.
2. The relevant facts for deciding the present Criminal Appeal, E
are briefly set out below:
2.1. A First Information Report under Section 154 of the Code of
Criminal Procedure, 1973 (“Cr.P.C.”) was registered at the
instance of CW 1-Narayanan. According to the Original
Statement provided by him to the Police, Krishnaprasad, who F
was the occupant of a flat in the building where CW 1-
Narayanan was serving as a security guard, had called for an
ambulance. Krishnaprasad, along with others, then carried an
unconscious person out of the bathroom of the flat to the
ambulance. The unconscious person was later identified to be
Satheesan, who was declared dead on being taken to the G
hospital. CW 1-Narayanan then made a statement that
Krishnaprasad had been staying in the flat for two months, and
was a companion of the Respondent-Accused No. 2, Rasheed.
It was alleged that the flat had been taken on rent by the
Respondent-Accused No. 2.
H
592 SUPREME COURT REPORTS [2018] 13 S.C.R.

A 2.2. On May 24, 2016, the Police filed a Charge-Sheet under
Section 173 of the Cr.P.C. before the Judicial First Class
Magistrate Court II, Thrissur against 8 persons, including the
Respondent-Accused No. 2, for the alleged commission of
offences under Sections 302, 343, 212, 201, 202, 118 and 109
read with Sections 120B and 34 of the Indian Penal Code, 1860.
B
It was alleged that the deceased-Satheesan had disclosed
information to his girlfriend, CW 5- Ajitha, regarding the
activities which had been taking place inside the rented flat,
and about the illicit relationship between the
Respondent-Accused No. 2 and Accused No. 3-Saswathy. On
C learning about this, the Accused persons had allegedly detained
Satheesan, tortured him, and killed him with criminal intention.
2.3 Charges were framed by the Additional Sessions Judge,
Thrissur. CWs 1 to 5 were summoned as Prosecution Witnesses
on December 16, 2017.
D On the same day, after the examination-in-chief of CW 1-
Narayanan was conducted, an Application under Section 231(2)
of the Cr.P.C. was filed by the Counsel for the Respondent-
Accused No. 2 seeking adjournment of the cross-examination
of CW 1-Narayanan, as also of CWs 2 to 5, to a date after the
E examination-in-chief of CWs 2 to 5 was completed. It was
stated in the said Application, that the case of the Respondent-
Accused No. 2 would be adversely affected if the Application
was not allowed, since the defence strategy adopted by the
Respondent-Accused No. 2 would be revealed to the
Prosecution.
F
2.4. The Application under Section 231(2) of the Cr.P.C. was
opposed by the Prosecution which filed a Reply, wherein it
was stated that CWs 1 to 5 were not deposing with respect to
the same subject-matter. It was further stated that the deferral
of the cross-examination would adversely affect the
G Prosecution evidence.
2.5. The Additional Sessions Judge vide Order dated December
20, 2017 dismissed the Application filed on behalf of the
Respondent-Accused No. 2.

H
STATE OF KERALA v. RASHEED 593
[INDU MALHOTRA, J.]

The Additional Sessions Judge held that Section 231(2) of the A
Cr.P.C. confers a discretion on the Trial Judge to defer the
cross-examination of any witness until any other witness or
witnesses have been examined. Section 231(2) of the Cr.P.C.
does not confer a right on the accused to seek deferral in a
wholesale way on the ground that the defence of the accused
B
would become known to the Prosecution. The deferral of
cross-examination, in the present case, would run counter to
the general provisions of the Indian Evidence Act, 1872.
The Additional Sessions Judge held that the deferral of
cross-examination in this case could give rise to the possibility
of loss of memory on the part of the witnesses, who had already C
been examined-in-chief, which would adversely affect the case
of the Prosecution.
The Additional Sessions Judge also observed that no specific
reason for deferring the cross-examination had been pleaded
on behalf of the Respondent-Accused No. 2, apart from a D
general averment that the defence would be disclosed to the
Prosecution.
The Additional Sessions Judge was of the view that the
Respondent-Accused No. 2 and Accused No. 7 are “highly
influential political leaders”, and the possibility of the threats E
to witnesses after their examination-in-chief, could not be ruled
out. Furthermore, it was observed that CWs 1 to 5 would be
deposing on different facts and aspects of the case.
The Additional Sessions Judge keeping in view the provisions
of Sections 231(2) and 309 of the Cr.P.C. held that deferral of F
cross-examination is not an ordinary practice in a criminal trial,
and dismissed the Application filed on behalf of the Respondent-
Accused No. 2.
2.6. Aggrieved by the Order dated December 20, 2017 passed by
the Additional Sessions Judge, the Respondent-Accused No. 2 G
filed Criminal Miscellaneous Case No. 171 of 2018 under
Section 482 of the Cr.P.C. before the High Court of Kerala.

H
594 SUPREME COURT REPORTS [2018] 13 S.C.R.

A The High Court reversed the Order of the Additional
Sessions Judge by a short unreasoned cryptic Order dated
January 1, 2018, and allowed Criminal Miscellaneous Case No.
171 of 2018. It was directed that the cross-examination of CWs
1 to 4 be adjourned till after the examination-in-chief
of CW 5.
B
2.7. Aggrieved by the Order dated January 1, 2018 passed by the
High Court, the State of Kerala has filed the present Special
Leave Petition (Crl.) No. 4652 of 2018 before this Court.

C 3. The legal issue which arises for consideration in the present
Criminal Appeal is whether the exercise of discretion under Section 231(2)
of the Cr.P.C. by the Additional Sessions Judge was valid and legally
sustainable.

4. The statutory framework governing the order of production
D and examination of witnesses is contained inter alia in Sections 135 and
138 of the Indian Evidence Act, 1872. A conjoint reading of Sections
1351 and 1382 would indicate that the usual practice in any trial, be it civil
or criminal, is for the examination-in-chief of a witness to be carried out
first; followed by his cross-examination (if so desired by the adverse
party), and then re-examination (if so desired by the party calling the
E
witness).

5. Section 231 of the Cr.P.C. indicates that the Judge is given the
discretion to defer cross-examination of a witness, until any other
witness or witnesses have been examined.
F
1
“135. Order of production and examination of witnesses.–The order in which witnesses
are produced and examined shall be regulated by the law and practice for the time being
relating to civil and criminal procedure respectively, and, in the absence of any such law
by the discretion of the Court.”
2
“138. Order of examination.–Witnesses shall be first examined-in-chief, then (if the
adverse party so desires) cross-examined, then (if the party calling him so desires)
G re-examined.
The examination and cross-examination must relate to relevant facts, but the cross-
examination need not be confined to the facts to which the witness testified in his
examination-in-chief…”

H
STATE OF KERALA v. RASHEED 595
[INDU MALHOTRA, J.]

Section 231 is set out hereinbelow: A
“231. Evidence for prosecution.–(1) On the date so fixed, the
Judge shall proceed to take all such evidence as maybe
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 B
witness or witnesses have been examined or recall any
witness for further cross-examination.”
(Emphasis supplied)
The phraseology of Section 231(2) mirrors Section 242(3)3 of the C
Cr.P.C. which provides for a similar discretion to a Magistrate in the trial
of a Warrant Case under Chapter XIX of the Cr.P.C.
6. Section 242(3) is analogous to Section 251A(7) of the repealed
Code of Criminal Procedure, 1898 and is identically worded. Section
251A was inserted vide the Code of Criminal Procedure (Amendment) D
Act, 1955 (Act No. 26 of 1955) in the erstwhile Code of Criminal Pro-
cedure, 1898.
The Statement of Objects and Reasons of the Code of Criminal
Procedure (Amendment) Act, 1955 suggests inter alia that changes
were introduced to simplify the procedure in warrant cases, to ensure
E
speedy disposal of criminal judicial business, to minimise inconvenience
caused to witnesses, and to ensure that adjournments are not allowed
without the examination of witnesses present in court, except for an
unavoidable cause.
The Karnataka High Court in Shamoon Ahmed Sayed & Anr. v.
F
Intelligence Officer4, delivered by Shantanagoudar, J. (as he then was),
had observed that Section 231(2) as well as Section 242(3) of the Cr.P.C.
must be interpreted in light of the legislative intent behind the enactment
of Section 251A of the Code of Criminal Procedure, 1898.
3
“242. Evidence for prosecution.–…
G
…(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may
be produced in support of the prosecution:
Provided that the Magistrate may 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.”
4
2009 Cri LJ 1215 : ILR 2008 Karnataka 4378.
H
596 SUPREME COURT REPORTS [2018] 13 S.C.R.

A 7. What follows from the discussion is that 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
B 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.5
The party seeking deferral under Section 231(2) of the Cr.P.C. must
C give sufficient reasons to invoke the exercise of discretion by the Judge,
and deferral cannot be asserted as a matter of right.
Several High Courts have held that the discretion under Section
231(2) of the Cr.P.C. should be exercised only in “exceptional
circumstances”6, or when “a very strong case”7 has been made out.
D However, while it is for the parties to decide the order of production and
examination of witnesses in accordance with the statutory scheme, a
Judge has the latitude to exercise discretion under Section 231(2) of the
Cr.P.C. if sufficient reasons are made out for deviating
from the norm.
E 8. 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:
· W here witnesses were related to each other, and were
supposed to depose on the same subject-matter and facts 8 ·
F
6
Sisir Debnath v. State of West Bengal & Anr. [C.R.R. No. 2533 of 2017; decided on
August 2, 2017 by the High Court of Calcutta (Appellate Side)];
Shamoon Ahmed Sayed & Anr. v. Intelligence Officer, 2009 Cri LJ 1215 : ILR
2008 Karnataka 4378.
7
Amit Kumar Shaw & Ors. v. State of West Bengal & Anr. [C.R.R. No. 3846 of 2009;
G decided on June 23, 2010 by the High Court of Calcutta (Appellate Side)].
8
Sri Shankar v. State by Hebbagodi Police Station, [Crl. P. No. 8774 of 2017; decided
on December 7, 2017 by the High Court of Karnataka, at Bengaluru];
Masiur Rahman Molla @ Mongla & Ors. v. The State of West Bengal & Ors. [C.R.R.
No. 2411 of 2016; decided on August 10, 2016 by the High Court of Calcutta (Appellate
Side)];
Jayakar v. The State, by Frazer Town Police, ILR 1996 KARNATAKA 2783 : 1996
H (3) Kar LJ 747.
STATE OF KERALA v. RASHEED 597
[INDU MALHOTRA, J.]

Where witnesses were supposed to depose about the same set of A
facts9 .
However, the circumstances in which deferral has been refused
are:
· where the ground for deferral was the mere existence of a
relationship between the witnesses10; B

· where specific reasons were not given in support of the claim
that prejudice would be caused since the defence strategy would
be disclosed11;
· where no prejudice would have been caused12 C
9
R. Selvan v. State [Crl.R.C. (MD) No. 744 of 2016; decided on January 24, 2017 by
High Court of Madras, at Madurai] : 2017 (2) Crimes 509 (Mad.).
10
Sisir Debnath v. State of West Bengal & Anr. [C.R.R. No. 2533 of 2017; decided on
August 2, 2017 by the High Court of Calcutta (Appellate Side)].
11
Pradeep Kumar Kolhe v. State of Madhya Pradesh [M.C.R.C. No. 20240 of 2018; D
decided on July 11, 2018 by the High Court of Madhya Pradesh, at Indore];
State of Maharashtra v. Raja Ram Appana Mane & Ors. [Criminal Writ Petition No.
578 of 2016 and Criminal Application No. 2485 of 2016; decided on January 23, 2017
by the High Court of Bombay, at Aurangabad];
Amit Kumar Shaw & Ors. v. State of West Bengal & Anr. [C.R.R. No. 3846 of 2009;
decided on June 23, 2010 by the High Court of Calcutta (Appellate Side)];
E
Md. Sanjoy & Anr. v. The State of West Bengal, 2000 Cri LJ 608 : 2001 (1) RCR
(Criminal) 431.
12
The High Court of Calcutta in Lalu Alam v. State of West Bengal [Cr. Revision
No. 385 of 1996; decided on June 12, 2002 by the High Court of Calcutta (Appellate
Side)] : 2002 (3) CHN 301 had noted:
“…So, the plea, taken by the petitioner in this case that if Miss. Bannerjee F
is cross-examined before the examination-in-chief of the other named
witnesses on the same point, the prosecution will certainly have an
opportunity to fill up a lacuna, cannot be accepted as a general rule as in a
criminal trial the accused has an additional advantage inasmuch as the
copies of earlier statement of the prosecution witnesses, recorded under
Section 161 Cr.P.C. are supplied well in advance so that he can not only
know to his advantage what each prosecution witness is expected to tell G
while in the witness box but has also the advantage of cross-examining
each and every witness with reference to their earlier statement made by
them during the investigation…In a situation like this, hardly it can be
accepted that if the cross-examination of Ms. Bannerjee is allowed to be
proceeded with before examination of the other witnesses in this case, the

H
598 SUPREME COURT REPORTS [2018] 13 S.C.R.

A 9. The Delhi High Court, in Vijay Kumar v. State (Govt. of NCT
of Delhi)13,laid down useful directions for the conduct of criminal trials.
The directions are commendable, and relevant excerpts are reproduced
hereinbelow:

“42…(vi). Since the expectation of law is that the trial, once
B 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
C after charge is framed – this, taking into account not only the
calendar of the court but also the atime 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.
D
(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,
E
present petitioner would be highly prejudiced and prosecution will have the
opportunity in filling up the lacuna in this case.”
(Emphasis supplied)
The High Court of Karnataka in Shamoon Ahmed Sayed & Anr. v. Intelligence Officer,
2009 Cri LJ 1215 : ILR 2008 Karnataka 4378, had noted that no prejudice be caused
F since:
“…In most of the criminal cases, there may be more than one eye
witness and definitely will be more than one mahazar witness. Many cases
depend upon the official witness only, who may have to depose about the
similar facts. Thus the defence may choose to file application invoking
Section 231(2) or under Section 242(3) of Cr.P.C. on the ground of alleged
prejudice to be caused in every matter. But the same cannot be allowed by
G the Court. As aforementioned, the defence of the accused will not be prejudiced
at all as the examination-in-chief of the witnesses generally will proceed
based on either the statement recorded under Section 161 of Cr.P.C. or
based on mahazar, etc.”
(Emphasis supplied)
13
W.P. (Crl.) No. 1350 of 2017 and Crl. M.A. No. 7450 of 2017; decided on July 3,
H 2017 by the High Court of Delhi : 2017 Cri LJ 3875.
STATE OF KERALA v. RASHEED 599
[INDU MALHOTRA, J.]

clubbing witnesses pertaining to the same facts or events A
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 B
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 C
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 D
intimidatory tactics or harassment. If the court has permitted
deferment in terms of Section 231(2), or 242(3) Cr. PC, 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 E
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.”

10. There cannot be a straitjacket formula providing for the grounds F
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.
G
11. 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.

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600 SUPREME COURT REPORTS [2018] 13 S.C.R.

A The following factors must be kept in consideration:

· possibility of undue influence on witness(es);

· possibility of threats to witness(es);

B · 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;
C
· 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.14.

D These factors are illustrative for guiding the exercise of discretion
by a Judge under Section 231(2) of the Cr.P.C.

12. The following practice guidelines should be followed by trial
courts in the conduct of a criminal trial, as far as possible:

E i. a detailed case-calendar must be prepared at the
commencement of the trial after framing of charges;

ii. the case-calendar must specify the dates on which the
examination-in-chief and cross-examination (if required) of wit-
nesses is to be conducted;
F
iii. the case-calendar must keep in view the proposed order of
production of witnesses by parties, expected time required for
examination of witnesses, availability of witnesses at the
relevant time, and convenience of both the prosecution as well
as the defence, as far as possible;
G
14
“309. Power to postpone or adjourn proceedings.–(1) In every inquiry or trial the
proceedings shall be continued from day-to-day until all the witnesses in attendance
have been examined, unless the Court finds the adjournment of the same beyond the
following day to be necessary for reasons to be recorded…”
See also Vinod Kumar v. State of Punjab, (2015) 3 SCC 220; and, Lt. Col. S.J.
H Chaudhary v. State (Delhi Administration), (1984) 1 SCC 722.
STATE OF KERALA v. RASHEED 601
[INDU MALHOTRA, J.]

iv. testimony of witnesses deposing on the same subject-matter A
must be proximately scheduled;

v. the request for deferral under Section 231(2) of the Cr.P.C.
must be preferably made before the preparation of the
case-calendar;
B
vi. the grant for request of deferral must be premised on sufficient
reasons justifying the deferral of cross-examination of each
witness, or set of witnesses;

vii.while granting a request for deferral of cross-examination of
C
any witness, the trial courts must specify a proximate date for
the cross-examination of that witness, after the examination-
in-chief of such witness(es) as has been prayed for;

viii. the case-calendar, prepared in accordance with the above
guidelines, must be followed strictly, unless departure from the D
same becomes absolutely necessary;

ix. in cases where trial courts have granted a request for deferral,
necessary steps must be taken to safeguard witnesses from
being subjected to undue influence, harassment or intimidation.
E
13. In the present case, a bald assertion was made by the Counsel
for the Respondent-Accused No. 2 that the defence of the Respondent-
Accused No. 2 would be prejudiced if the cross-examination of CWs 1
to 5 is not deferred until after the examination-in-chief of CWs 2 to 5.
F
The impugned Order is liable to be set aside since the High Court
has given no reasons for reversal of the Order of the Additional
Sessions Judge, particularly in light of the possibility of undue influence
and intimidation of witness(es) since the Respondent-Accused No. 2
and Accused No. 7 are “highly influential political leaders”.
G
14. In view of the aforesaid discussion, the present Criminal
Appeal is allowed, and the impugned Order dated January 9, 2018 passed
by the High Court of Kerala in Criminal Miscellaneous Case No. 171 of
2018 is set aside. The Order dated December 20, 2017 passed by the

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602 SUPREME COURT REPORTS [2018] 13 S.C.R.

A Additional Sessions Judge dismissing the Application filed on behalf of
the Respondent-Accused No. 2 stands restored. The observations made
hereinabove will, however, have no bearing on the merits of the case
during the course of trial.

Ordered accordingly.
B

Ankit Gyan Appeal allowed.

C

D

E

F

G

H