Section 231 of the Code of Criminal Procedure: Judicial Discretion, Fair-Trial Norms and Appellate Ramifications

Section 231 of the Code of Criminal Procedure: Judicial Discretion, Fair-Trial Norms and Appellate Ramifications

1. Introduction

Section 231 of the Code of Criminal Procedure, 1973 (“CrPC”) occupies a pivotal position in the architecture of sessions trials in India. By prescribing the manner and sequencing of prosecution evidence and conferring a narrowly-tailored discretion upon the trial judge to defer or recall witnesses for cross-examination, the provision seeks to balance four sometimes competing imperatives: prosecutorial efficacy, the accused’s right to a fair and speedy trial, the integrity of testimonial evidence, and systemic efficiency. Recent Supreme Court jurisprudence—notably State of Kerala v. Rasheed (2019) 13 SCC 297—has foregrounded Section 231(2) as a bulwark against dilatory tactics. Simultaneously, appellate decisions such as Ajay Kumar Ghoshal v. State of Bihar (2017) 12 SCC 699 reveal that non-compliance with Section 231 may trigger calls for de novo trials, albeit under stringent criteria. This article critically analyses Section 231’s text, legislative history, doctrinal evolution, and practical ramifications, integrating leading authorities and statutory cross-references.

2. Legislative Scheme and Textual Context

Section 231 is situated in Chapter XVIII CrPC, governing the trial of offences by Courts of Session. Its two-fold structure is reproduced in extenso for clarity:

(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.

Read conjointly with Sections 232–235 (verdict and sentencing stages) and Sections 309 & 311 (adjournment and recall), Section 231 operationalises the constitutional guarantee of a fair trial (Article 21) while promoting expedition, reflected in the 1955 Statement of Objects and Reasons behind its textual predecessor, Section 251-A(7) of the 1898 Code.[1]

3. Evolution of Judicial Interpretation

3.1 Early High Court Decisions

Pre-1973 case-law—including Jayakar v. State 1996 SCC OnLine Kar 357 and Shamoon Ahmed Sayed v. Intelligence Officer 2008 SCC OnLine Kar 371—treated Section 231(2) discretion as exceptional, to be granted only on “reasonable grounds”, such as lack of legal representation or the danger of witness tutoring. These courts insisted on recorded reasons and cautioned against routine adjournments that undermine Section 138 of the Evidence Act (order of examinations).[2]

3.2 The Supreme Court’s Restatement in State of Kerala v. Rasheed

In Rasheed the Supreme Court set aside a High Court order that had mechanically deferred cross-examination of prosecution witnesses at the behest of the accused.[3] Key holdings include:

  • The “norm” remains immediate cross-examination following examination-in-chief under Section 138 Evidence Act.
  • Deferral under Section 231(2) is discretionary, fact-specific and requires “sufficient reasons”.
  • Judicial discretion must be exercised with awareness of foreseeable consequences, including prejudice to the prosecution and systemic delay.

The Court enumerated illustrative factors: vulnerability of witnesses to intimidation, complexity of expert evidence, or overlap of testimonies. Importantly, the judgment mirrors the earlier jurisprudence of the Karnataka High Court while conferring pan-India precedential authority.

3.3 Cross-Examination and Compromise: Yogendra Yadav v. State of Jharkhand

In Yogendra Yadav (2014) 9 SCC 653, the appellants sought recall of witnesses under Section 231(2)/311 to prove a post-charge-sheet compromise. The Supreme Court affirmed the trial judge’s refusal insofar as non-compoundable charges subsisted. The decision underscores that Section 231 cannot be leveraged to re-litigate or re-engineer factual narratives absent legal permissibility for compounding.[4]

4. Section 231 Non-Compliance and Appellate Retrial Jurisprudence

Procedural infractions relating to evidence reception may furnish grounds for appellate intervention under Section 386(b) CrPC. However, Ajay Kumar Ghoshal emphatically held that a retrial is warranted only where lapses occasion a “failure of justice”.[5] The Supreme Court criticised the High Court for remitting the matter for re-trial without demonstrating prejudice arising out of procedural lapses—including any alleged misuse of Section 231 discretion. The ruling thereby elevates Section 231 compliance from a mere procedural ideal to a substantive safeguard whose breach, though serious, is not per se fatal unless prejudice is shown.

5. Analytical Issues in the Application of Section 231

5.1 Interface with Section 309 (Adjournments)

Although Section 309 empowers the court to postpone proceedings “for reasons to be recorded”, its interplay with Section 231 is delicate. Unwarranted adjournments after examination-in-chief effectively defer cross-examination, thus invoking Section 231(2). Courts must hence justify such postponement within the 231(2) framework.

5.2 Section 311 Recall versus 231(2) Deferral

While Section 231(2) contemplates prospective deferral, Section 311 provides for recall “at any stage”. Reliance on Section 311 post-deferral should not become a device to circumvent the stringent threshold set in Rasheed. Trial courts should articulate why Section 311’s broader language is engaged where earlier 231(2) discretion was (rightly or wrongly) declined.

5.3 Comparative Insight: Section 242(3) in Warrant Trials

Section 242(3), governing warrant cases before Magistrates, is textually identical to Section 231(2). High Court authorities interpreting 242(3)—for instance, Ansad Badruddin v. State of U.P. (2024) Allahabad HC—are therefore persuasive for sessions trials, highlighting the indeterminacy of a “strait-jacket formula” while insisting on recorded reasons.[6]

5.4 Technology-Mediated Testimony and Section 231

Post-State of Maharashtra v. Dr Praful B. Desai (2003) 4 SCC 601, evidence may be recorded via video-conferencing under Section 273 CrPC. Where such electronic testimony is adopted, the judge must still comply with Section 231 sequencing and afford contemporaneous or appropriately deferred cross-examination, thereby safeguarding the accused’s confrontation rights in virtual space.

6. Policy Considerations and Reform Proposals

  • Codification of Illustrative Guidelines. Given divergent High Court practices, an amendment or a Supreme Court practice direction enumerating indicative criteria (analogous to guidelines on bail) could foster uniformity.
  • Time-Limits for Deferred Cross-Examination. Statutory or judicially-mandated outer-limits (e.g., 15 days) would curb dilatory tactics without fettering judicial discretion.[7]
  • Victim and Witness Protection. Section 231(2) deferral may be justified to shield vulnerable witnesses from harassment. Integrating Section Witness Protection Scheme, 2018 considerations into 231 determinations would promote substantive justice.

7. Conclusion

Section 231 CrPC represents a microcosm of criminal-procedure tensions: speed versus fairness, discretion versus rule, and trial-level efficiency versus appellate oversight. Supreme Court pronouncements—Rasheed clarifying the ambit of judicial discretion, and Ajay Kumar Ghoshal cautioning against reflexive retrials—have significantly recalibrated the doctrinal landscape. For practitioners, meticulous adherence to Section 231’s sequencing and reason-recording requirements is indispensable, both to safeguard trial integrity and to insulate convictions from collateral attack. For policymakers, targeted reforms could render the provision more predictable without sacrificing its functional flexibility.

Footnotes

  1. Statement of Objects and Reasons, Code of Criminal Procedure (Amendment) Act 1955; see also State of Kerala v. Rasheed (2019) 13 SCC 297 ¶15.
  2. Jayakar v. State 1996 SCC OnLine Kar 357; Shamoon Ahmed Sayed v. Intelligence Officer 2008 SCC OnLine Kar 371.
  3. State of Kerala v. Rasheed (2019) 13 SCC 297 ¶¶18-23.
  4. Yogendra Yadav v. State of Jharkhand (2014) 9 SCC 653.
  5. Ajay Kumar Ghoshal v. State of Bihar (2017) 12 SCC 699 ¶¶22-25.
  6. Ansad Badruddin v. State of U.P. 2024 SCC OnLine All — citing Rasheed.
  7. Compare Criminal Procedure (Scotland) Act 1995 § 147 (14-day limit for defense cross-examination), suggesting feasibility of statutory ceilings.