SC Issues Directions On Examination Of Witnesses In Criminal Trial

 ‘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 Supreme Court, on Tuesday, listed out ‘practical guidelines’ to be followed by trial courts in the conduct of a criminal trial, ‘as far as possible’.

While setting aside a Kerala High court order, the bench comprising of Justice Abhay Manohar Sapre and Justice Indu Malhotra observed that while deciding an Application to defer cross examination 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 bench was considering an application against a Kerala High court order that had set aside a trial court order which had refused to defer cross examination of some witnesses. Allowing the accused’s petition, the High court had directed that the cross-examination of some witnesses be adjourned till after the examination­in­ chief of a particular witness.

On state’s appeal, the apex court bench observed that High Court gave no reasons for reversal of the Trial court Order refusing to defer cross examination and that the order was too cryptic.

The bench said that following factors must be considered, while deciding an Application under Section 231(2) of the Cr.P.C

• 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.

Referring to some High court judgments, the bench said 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.”

Practical Guidelines

The Court has listed out ‘practical guidelines’ to be followed by trial courts in the conduct of a criminal trial, as far as possible.

• A detailed case-calendar must be prepared at the commencement of the trial after framing of charges;
• the case-calendar must specify the dates on which the examination in chief and cross-examination (if required) of witnesses is to be conducted
• 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
• Testimony of witnesses deposing on the same subject-matter 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;
• 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;
• While granting a request for deferral of cross-examinations 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;
• The case calendar, prepared in accordance with the above guidelines, must be followed strictly, unless departure from the same becomes absolutely necessary
• 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.