Shamoon Ahmed Sayed and Another vs Intelligence Officer

Mohan Shantanagoudar, J.

1 By the impugned order, the Court below has dismissed the application filed by the petitioners u/s 231(2) of Code of Criminal Procedure (for short hereinafter referred to as "Cr.P.C"). By filing the said application, the petitioners had prayed for deferring the cross-examination of PW. 1, until the examination-in-chiefofCWs.2 to 5, is recorded.

Petitioners herein are accused Nos. 1 and 4, facing trial in Spl. Case. 152/2004 in the Court of Special Judge for NDPS, Bangalore City, for the offences punishable under Sections 8(c) and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The investigation records disclose that the officials of Narcotic Control Bureau allegedly seized 8 kgs. of heroin, from the premises bearing No. 17/4, Laljinagar, Lakkasandra, Bangalore, under the mahazar dated 30.12.2003. On commencement of the trial, the complainant examined the official witness by name Sri H. Shivakumar, Intelligence Officer of Narcotic Control Bureau, Chennai as PW. 1, who, on getting the information, went to the spot along with Superintendent of NCB, Chennai, and other officials of the Department. The officials, including PW. 1, seized narcotic drug and drawn the mahazar. On completion of the examination-in-chief of PW. 1, the petitioners filed the application u/s 231(2) of Cr.P.C. for deferring the cross-examination of PW. 1, till the recording the examination-in-chief of the Seizing Officers CW. 2 Gunabalan, CW.3 Murugan, CW. 4 Sendil Murugan and CW. 5 Shankar Kumar, to avoid prejudice being caused to the defence of the accused. According to the petitioners, serious prejudice will be caused if PW. 1 is cross-examined prior to the recording of examination-in-chief of CWs.2 to 5, to the defence of the accused, inasmuch as CWs. 2 to 5, may overcome any material in their examination-in-chief brought against the Narcotic Control Bureau in the cross-examination of PW. 1. In other words, the petitioners pray for permission to cross-examine CWs. 1 to 5 at one stretch. As aforementioned, the said application came to be dismissed by the Trial Court and this petition is filed questioning the same. However, during the course of this petition, it is contended on their behalf before this Court that at least recording of examination-in-chief of CW. 2-S. Gunabalan is very much necessary prior to the cross-examination of PW. 1 as CW. 2 is the Superintendent of Narcotic Control Bureau and Head of the Search Team, which conducted search and seizure of the narcotic drug.

It is argued by Sri Hasmath Pasha, learned Counsel appearing on behalf of the petitioners that CWs. 2 to 5 are the officials who also speak to the contents of the seizure mahazar and the proceedings relating to seizure and therefore the evidence to be deposed by CWs. 2 to 5 would be similar to the evidence of PW. 1; therefore there is every likelihood of these official witnesses, taking inkling of the cross-examination of one witness to another and thereby damage their defence to a great extent.

The submissions made on behalf of the petitioners are opposed by Sri Urval N. Ramanand, learned Counsel appearing on behalf of the respondent-Bureau, who inter alia contended that this petition is filed only for delaying the matter, inasmuch as, if the official witnesses are examined in piecemeal, the same will result in delay; that if their evidence is recorded in examination-in-chief at one stretch and thereafter if they are to be called for cross-examination later at one stretch, such officials may be transferred elsewhere or they may retire by then, consequently, there will be further delay in the trial. He further points out that no prejudice will be caused to the defence if the cross-examination of each of the witnesses is recorded immediately after the examination-in-chief is over, inasmuch as the witnesses, more particularly, in such matters, the official witnesses will stick on to the contents of the mahazar in their deposition; they cannot depose outside the contents of the mahazar; that in case if the witnesses speak outside the contents of the mahazar, it is always open for the defence to cross-examine the witnesses on such points.

PW. 1 is Intelligence Officer of Narcotic Control Bureau, who, on getting the information, went to the spot along with CWs. 2 to 5, seized the narcotic drug and drew the mahazar. CWs. 2 to 5 were also parties to the Search Team and were very much present at the time of search and seizure. CW. 2 was the Head of the Search Team. Thus, there cannot be any dispute that CWs. 2 to 5 also will speak to the contents of the same mahazar and seizure process, as deposed by PW. 1. But this Court is at a loss to understand as to how prejudice will be caused to the defence, if the cross-examination of P W. 1 is recorded immediately after recording his examination-in-chief. CWs.2 to 5 also will have to depose to the contents of the seizure mahazar and the seizure proceedings as contained in the mahazar. They cannot depose beyond the contents of the seizure mahazar. In case if CWs.2 to 5 depose about the facts, which are not found in mahazar, it is open for the defence to cross-examine the prosecution witnesses on such points. Virtually, the defence will be knowing the case of the prosecution at the inception inasmuch as the police after investigation have laid the charge sheet. The official witnesses will have to depose based on the seizure records. Therefore, this Court is of the considered view that absolutely no prejudice will be caused to the defence, in case if PW. 1 is cross-examined prior to the recording of examination-in-chief of CWs. 2 to 5. The same is the view taken by High Court of Calcutta in the case of Motilal Chakrawarty Vs. The King, and in the case of Lalu Alam v. State of West Bengal 2003 (1) Crimes 625.

At this stage, it is relevant to note the provisions of Sections 137 and 138 of the Indian Evidence Act and Sections 231 and 242(3) of Cr.P.C, which read thus:-

Examination-in-chief:- The examination of a witness by the party who calls him shall be called his examination-in-chief.

Cross-examination:- The examination of a witness by the adverse party shall be called his cross-examination.

Re-examination:-The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

138.Order of examinations:- Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) 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 on his examination-in-chief.

Direction of re-examination:- The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

Section 231 of Cr.P.C.:-Evidence for prosecution:- (1) On the date so fixed, the Judge shall proceed to take all such evidence as may be 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 witness or witnesses have been examined or recall any witness for further cross-examination.

Section 242(3) of Cr.P.C.: On the date so fixed, the Magisrate shall proceed to take all such evidence as may be produced in support of the prosecution.

Combined reading of aforesaid provisions would make it amply clear that as a general rule, the witness shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. Exception is found under Sub-section (2) of Section 231 and proviso to Section 242(3) of Cr.P.C. which give the discretion to the Court to permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined.

Section 231 of Cr.P.C. pertains to the trial before the Court of Sessions and whereas Section 242 of Cr.P.C. pertains to trial of warrant case before the Magistrate Courts. Section 231 of Cr.P.C. is synonymous to Section 242(3) of Cr.P.C.

Such discretion may be exercised by the Court only in an exceptional circumstance, particularly when the Court feels that deferring the matter for cross-examination of witness/witnesses by the adverse party may not result in delaying the proceedings. 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 the witnesses to a subsequent date. Though Sub-section (2) of Section 231 and proviso to Section 242(3) of Cr.P.C. give a discretion to the Judge to permit cross-examination of any witness 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 be disclosed in the cross-examination of its witnesses. Since, the burden is on the prosecution to prove its case, ordinarily it should be for the prosecution to decide, the manner and in what order it will lead it''s evidence before the Court. Ordinarily, therefore, it is the requirement of law that each witness shall be first examined-in-chief and shall be then cross-examined before the next witness is called for examination.

The plea taken by the Petitioners is that if each witness is examined and cross-examined before the next witness is produced, then there will be much opportunity for the prosecution to fill up the lacuna in its case as maybe disclosed in the cross-examination of any witnesses. The said contention cannot be accepted, inasmuch as, the same is opposed to the general rule contained in Sections 137 and 138 of the Indian Evidence Act. As aforementioned, in the criminal trial, the prosecution witnesses in their examination-in-chief will stick on to the statements recorded u/s 161 of Cr.P.C. and the mahazar witnesses will stick on to the facts contained in the mahazar. If the witnesses of the prosecution deviate from such process, then, the same will be brought to the notice of the Court by the defence by cross-examining of such witnesses. Cross-examination is a very effective weapon for unearthing the falsity, if any, of the evidence of any witness and all through efficient cross-examination has generally proved to be unfailingly effective. As the accused would be knowing in advance as to what would be the evidence of a particular witness in examination-in-chief, through the statements recorded u/s 161 of Cr.P.C. or other material on record, such as mahazar, etc. he will be Cross-examining each and every witness with reference to earlier statements made by such witness as well as by other witnesses during the investigation. Thereby the defence would be trying to bring out discrepancies among the evidence of the witnesses inter se as given in the Court and also discrepancies between the evidence of a witness in Court and his earlier statement made to the police. With this back ground, the provision of Sub-section (2) of Section 231 and Section 242(3) of Cr.P.C. have to be viewed.

As has been held by this Court in the case of Jayakar Vs. The State, , the Court may, while exercising discretion vested in it under Sub-section (2) of Section 231 of Cr.P.C, grant such postponement of cross-examination on exceptional grounds, as, for instance, where the counsel is unprepared or where the accused was undefended the first day and put only few questions and prayed for adjournment to the next day for cross-examination by his pleader explaining why he did not engage the advocate before, or, where the counsel appointed to defend the accused, who had no instructions till then requests the Court to postpone the cross-examination of the prosecution witness till the next day after the examination-in-chief is over. For example, if a Sessions case or Warrant case is posted on a particular day for recording of the evidence of witnesses and if witnesses are present before the Court on that day, their evidence will have to be recorded without fail. But, because of certain acceptable and reasonable grounds, if the advocate for the accused is unable to cross- examine the witnesses on that day, then the Court may instead of wasting valuable judicial time, record the examination-in-chief of the witnesses present in the Court and defer the matter for cross-examination to the next day. Such an exceptional procedure may help the speedy disposal of the case and will save the precious time of Court. While deferring the matter for cross-examination of a particular witness to the next day, the court should form an opinion that such process will not delay the disposal of the matter.

Sections 231 and 242(3) of Cr.P.C as found in Code of Criminal Procedure, 1973 are analogous to Sub-section (7) of Section 251A of Code of Criminal Procedure, 1898. Section 251A has been inserted in the Code of 1898 by the Amendment Act of 26 of 1955. For the purpose of this case, Sub-section (7) of Section 251A as it then existed is relevant:-

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 part 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.

The objects for amending Code of Criminal Procedure, 1898, by Act No. 26 of 1955 are as under:

The Code of Criminal Procedure was enacted in 1898 and though from time to time slight changes have been made in it, it has remained practically unaltered during the last 55 years. The aim of a sound Criminal Procedure is two-fold: (a) to provide adequate facilities to every accused person for defending himself in a proper manner, and (b) at the same time, to ensure speedy disposal of all criminal judicial business, so that innocent persons should not suffer from protracted proceedings and the real offenders should be punished as early as possible after proper trial. Experience has now shown that the present Criminal Procedure Code does not encourage speedy disposal and that it leaves many loopholes to guilty persons to postpone the evil day as much as possible. This is a very undesirable state of affairs and there is a growing public demand for simplification of Procedure, so that the proceedings may be brought to a speedy end. The Bill is designed to meet that demand....

...To make the people feel that the courts are their courts, and that they should Co-operate fully with the administration of justice. Sessions Judges are now being authorised, whenever they think fit and expedient, to hold trials at any place within their jurisdiction. The intention is that if it can be managed, a Sessions trial should be held as near the place of occurrence as possible, thereby causing the minimum inconvenience to the witnesses. The same rule would apply to magisterial trials. To stop the prevailing evil of perjury and to make the witnesses realise that it is a very anti-social act on the part of anyone to mislead a court of justice by deliberately giving false evidence, the courts are being authorised to try a witness summarily for the offence of perjury and call upon him to show cause why he should not he held guilty of this serious offence.

The procedure in warrant cases is being simplified so that the prosecution witness should not normally be cross-examined more than once, nor be liable to be called upon a second time unless the Magistrate thinks that there is real necessity for his further cross-examination. Adjournments are not to be allowed except for an unavoidable cause, and so far as possible, no adjournment is to be allowed without the examination of the witnesses then present in court. One of the frequent causes of repeated adjournments is the non-attendance of witnesses. There is a general impression that non-compliance with a summons of the court is not a serious matter, and unless a warrant is issued for any particular witness, he runs no peril. This false impression is sought to be removed by empowering the Court in suitable cases to punish people who disobey court summons without just cause.

(emphasis supplied)

From the aforesaid objects, it is clear that apart from simplification of the procedure, the legislature intends that the criminal proceedings may be brought to a speedy end; it wants that the inconvenience caused to the witnesses should be minimized; that the prosecution witness should not normally be cross-examined more than once nor be liable to be called upon second time unless the Judge thinks that there is real necessity for his further cross-examination; adjournments not to be allowed except for any unavoidable cause and as far as possible, no adjournment is to be allowed without the examination of the witnesses, then present in the Court. The makers of law have found that one of the frequent causes of repeated adjournments is non-attendance of the witnesses. To overcome these exigencies the Code of Criminal Procedure, 1898 was amended by Act No. 26 of l955.

It is clear that, Sub-section (7) of Section 251A (as it then existed) is similar to Section 242(3) and Section 231(2) of Code of Criminal Procedure, 1973 i.e., Section 242(3) and Section 231(2) of Code of Criminal Procedure, 1973 have replaced old Section 251A(7) of Code of Criminal Procedure, 1898. Thus, the said provisions have to be interpreted in consonance with the object of the legislature, with which Section 251 was enacted.

12 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 witnesses only, who may have to depose about the similar facts. Thus, the defence may choose to file application invoking Section 231(2) or u/s 243(3) of Cr.P.C. on the ground of alleged prejudice to be caused in every matter. But the same cannot be allowed by the Court. As aforementioned, the defence of accused will not be prejudiced at all as the examination-in-chief of the witnesses generally will proceed based on either the statement recorded u/s 161 of Cr.P.C. or based on mahazars, etc. More over, such contention, if accepted, may defeat the object of legislature. Legislative intent cannot be defeated by misinterpreting law. If the cross-examination of a witness is to be deferred till the examination-in-chief of all the witnesses is over, the same will not only delay the disposal of the matter, but also cause inconvenience to the witnesses to a great extent. The witnesses will have to be called several times or at least for second time unnecessarily after the lapse of two months or three months as the case may be, since that much of time will be definitely consumed generally for recording the examination-in-chief of the witnesses in criminal cases.

Learned advocate for the petitioners, by relying upon the judgment of the Apex Court in the case of State of Karnataka Vs. Annegowda, , submits that the cross-examination of the witnesses may be deferred until any other witness/witnesses have been examined-in-chief. In the said judgment, the Apex Court has merely observed that the proviso to Section 242(3) of Cr.P.C. permits cross-examination of any witnesses to be deferred until any other witness/witnesses have been examined or recall any witness for further cross-examination. The Apex Court does not observe anything further. It has only reiterated the proviso to Section 242(3) of Cr.P.C. which is analogous to Section 231(2) of Cr.P.C.

14 Having regard to the Scheme of Code of Criminal Procedure and Evidence Act more particularly the object for enacting Section 231(2) and proviso to 242(3) of Cr.P.C. (which replaced old Section 251A of Cr.P.C.) and the procedure normally followed by the Courts in our country, this Court is of the considered opinion that Sub-section (2) of Section 231 of Cr.P.C. and proviso to Section 242(3) of Cr.P.C. may be invoked only with a view to have the speedy trial and not otherwise.

15 For the aforementioned reasons, this Court does not find any ground to interfere with the conclusion reached by the Court below. Petition is accordingly dismissed.