Research › Search › Judgment

Calcutta High Court · body

2003 DIGILAW 326 (CAL)

Bapi Bhuiya @ Raju v. State of W. B.

2003-07-08

DEBIPRASAD SENGUPTA

body2003
JUDGMENT Debiprasad Sengupta, J. 1. In the present application the petitioner has challenged an order dated 13.5.2003 passed by the learned Judge, 2nd Bench, Fast Track Court at Calcutta in Sessions Case No. 27 of 2002 thereby rejecting the prayer of the petitioner under section 231 (2) of the Code of Criminal Procedure. 2. In course of trial of the aforesaid Sessions Case after examination-in-chief of P.W. 1, P.W.2 and P.W. 3 a petition was filed on behalf of the defence praying that the cross-examination of the said witnesses may be deferred till the examination-in-chief of all other witnesses is over. It is the contention of the learned Advocate of the petitioner that the said three witnesses are mother, wife and elder brother of the victim and they are the alleged eye-witnesses. The defence will be highly prejudiced if they are not allowed to cross-examine the said witnesses after completion of examination-in-chief of other witnesses. It is the further contention of the learned Advocate of the petitioner that if the prayer of the petitioner is not allowed there will be much opportunity for the prosecution to fill up the lacuna in its case as may be disclosed in course of cross-examination of the witnesses. 3. In support of his contention the learned Advocate of the petitioner relies upon a judgment of Karnataka High Court reported in 1997 (1) Crimes 237 (Jayakar vs. State of Karnataka). In the said judgment it was held by the learned Single Judge of the said court that the accused is not entitled as a matter of right to postponement of cross-examination witnesses unless he had on reasonable grounds a case for exercise of discretion in his favour. In the said judgment it was held by the learned Judge as follows: "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 subsequent date. The accused is, therefore, not entitled as of right to postponement of the cross-examination. It is both irregular and inconvenient to allow all the witnesses to be examined one day and to reserve the cross-examination to 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." 4. I have heard the learned Advocates of the respective parties. Under section-138 of the Evidence Act whenever a witness is examined by the party calling him, the adverse party gets an opportunity to cross-examine him. Hence the cross-examination of a witness under section 232(2) Cr. P. C. should have followed immediately after the witness has been examined-in-chief by the prosecution. Sub-section (2) vests a discretion in the court to permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined. There is no right to reserve the cross-examination. Examination-in-chief and cross-examination are continuous process. The accused has no right to postponement of cross-examination of a prosecution witness until any other witness or witnesses have been examined. But the discretion to defer cross-examination lies with the Court and it is to be exercised in special cases. In the application under section 232 (2) Cr. P. C. it is no where stated that the said three witnesses are the only eye-witnesses to the incident and how the defence will be prejudiced if the cross-examination of those witnesses are deferred. 5. In such circumstances it cannot be said that any good case has been made out by the petitioner for which this Court should interfere with the impugned order passed by the learned Trial Judge. The application accordingly fails and the same is dismissed. 6. The learned Trial Judge is directed to proceed with the trial and conclude the same without any unnecessary delay. Appeal dismissed.