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Masiur Rahman Molla v. State Of W.B.
Factual and Procedural Background
The petitioners challenged the order dated 26 May 2016 passed by the Additional Sessions Judge, Fast Track Court No. VIII, Alipore in Sessions Trial No. 3(7) of 2015. The impugned order refused to defer the cross-examination of P.W.1 until completion of examination-in-chief of C.S.W.3 to C.S.W.8. The petitioners sought deferral under Section 231(2) of the Code of Criminal Procedure. The revisional court heard counsel for both sides and considered whether the trial court's refusal should be set aside or modified. The revisional court disposed of the application and directed urgent certified copies if applied for.
Legal Issues Presented
- Whether the cross-examination of P.W.1 should be deferred under Section 231(2) CrPC until completion of examination-in-chief of C.S.W.3 to C.S.W.8.
- Whether deferral is necessary in respect of C.S.W.5, who was contended by the State not to be an eyewitness.
Arguments of the Parties
Petitioners' Arguments
- P.W.1 and C.S.W.3 to C.S.W.8 are close relatives and are eyewitnesses to the incident.
- If cross-examination of P.W.1 and of C.S.W.3 to C.S.W.8 is not deferred until completion of their examination-in-chief, the defence of the accused will be disclosed; thus deferral is required under Section 231(2) CrPC.
State's Arguments
- C.S.W.5 is not an eyewitness to the incident.
- The petitioners (accused) will not be prejudiced if cross-examination of C.S.W.5 is not deferred until completion of examination-in-chief of C.S.W.3 to C.S.W.8.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court noted that the trial judge refused to defer cross-examination of C.S.W.3 to C.S.W.8 solely because the witnesses were related. The trial judge did not take into account that, except for C.S.W.5, these witnesses were eyewitnesses to the incident. The revisional court found a possibility of prejudice to the petitioners if cross-examination of C.S.W.3, C.S.W.4, C.S.W.6, C.S.W.7 and C.S.W.8 was not deferred until completion of their examination-in-chief. The court concluded there was no need to defer cross-examination of C.S.W.5. On that basis the revisional court set aside and modified the trial court's order to provide for deferral as to the specified eyewitnesses. The court also authorised the petitioners to file applications under Section 231(2) CrPC after completion of examination-in-chief of each of those witnesses, to be considered by the trial judge in light of the court's observations.
Holding and Implications
DISPOSED OF — The revisional application is disposed of with modification.
Holding (core ruling): The order dated 26 May 2016 is modified so that the cross-examination of P.W.1 is deferred under Section 231(2) of the Code of Criminal Procedure until completion of examination-in-chief of C.S.W.3, C.S.W.4, C.S.W.6, C.S.W.7 and C.S.W.8. There is no need to defer cross-examination of C.S.W.5.
Implications: The direct effect is to protect the petitioners from potential prejudice by deferring P.W.1's cross-examination until the specified eyewitnesses complete their examination-in-chief. The petitioners may file further applications under Section 231(2) after each witness's examination-in-chief, which the trial judge must consider per the revisional court's observations. The opinion does not announce any broader precedent beyond the decision in this matter.
R.K. Bag, J.:— The petitioners have challenged the order dated May 26, 2016 passed by learned Additional Sessions Judge, Fast Track Court no. VIII, Alipore in Sessions Trial no. 3(7) of 2015, by which learned Additional Sessions Judge refused to defer cross-examination of P.W.1 till completion of examination-in-chief of C.S.W. 3 to 8.
2. Ms. Sayanti Santra, learned counsel appearing on behalf of the petitioners submits that P.W.1 and C.S.W. 3 to 8 are close relatives and they are eyewitnesses to the incident and as such defence of the accused persons will be disclosed if the cross-examination of P.W.1 and cross-examination of C.S.W. 3 to 8 is not deferred till completion of examination-in-chief of C.S.W. 3 to 8 as per provision laid down in Section 231(2) of the Code of Criminal Procedure.
3. Mr. Ayan Basu, learned counsel representing the State submits that C.S.W. 5 is not eyewitness to the incident and as such the petitioners being the accused persons will not be prejudiced if the cross-examination of C.S.W 5 is not deferred till completion of examination-in-chief of C.S.W. 3 to 8.
4. Having heard learned counsel representing both parties and on consideration of the impugned order under challenge in the revision, I find that learned Judge of the trial court has refused to defer cross-examination of C.S.W. 3 to 8 merely on the ground that all the witnesses are related with each other. Learned Judge of the trial court has not taken into consideration the fact that all these witnesses are eyewitnesses to the incident except C.S.W. 5. Since there is possibility of causing prejudice to the petitioners if the cross-examination of C.S.W.3, C.S.W.4, C.S.W.6, C.S.W.7 and C.S.W.8 is not deferred till completion of examination-in-chief of all these witnesses, I am inclined to set aside the order passed by learned Judge of the trial court. It is relevant to point out that there is no need of deferring cross-examination of C.S.W.5 as contended by learned counsel for the petitioners.
5. In view of my above findings, the order dated May 26, 2016 passed by learned Additional Sessions Judge, Fast Track Court no. VIII, Alipore in S.T. no. 3(7) of 2015 is modified to the extent that the cross-examination of P.W.1 is deferred under Section 231(2) of the Code of Criminal Procedure till completion of examination-in-chief of C.S.W.3, C.S.W.4, C.S.W.6, C.S.W.7 and C.S.W.8. The petitioners are at liberty to file application under Section 231(2) of the Code of Criminal Procedure after completion of examination-in-chief of each of the witnesses, namely, C.S.W.3, C.S.W.4, C.S.W.6, C.S.W.7 and C.S.W.8 and learned Judge of the trial court will consider the said application of the petitioners on the basis of the observation made by me in the body of the order.
6. With the above direction, revisional application is disposed of.
7. Urgent photostat certified copies of this order, if applied for, be given to the learned counsel for the parties upon compliance of all necessary formalities.
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