INDU MALHOTRA,J. - (1.) Leave granted. The present Criminal Appeal arises out of Special Leave Petition (Crl.) No. 4652 of 2018 wherein the impugned Order dated January 9, 2018 passed by the High Court of Kerala in Criminal Miscellaneous Case No. 171 of 2018 has been challenged.
(2.) The relevant facts for deciding the present Criminal Appeal, are briefly set out below: 2.1. A First Information Report under Section 154 of the Code of Criminal Procedure, 1973 ("Cr.P.C.") was registered at the instance of CW 1-Narayanan. According to the Original Statement provided by him to the Police, Krishnaprasad, who was the occupant of a flat in the building where CW 1-Narayanan was serving as a security guard, had called for an ambulance. Krishnaprasad, along with others, then carried an unconscious person out of the bathroom of the flat to the ambulance. The unconscious person was later identified to be Satheesan, who was declared dead on being taken to the hospital. CW 1-Narayanan then made a statement that Krishnaprasad had been staying in the flat for two months, and was a companion of the Respondent-Accused No. 2, Rasheed. It was alleged that the flat had been taken on rent by the Respondent- Accused No. 2. 2.2. On May 24, 2016, the Police filed a Charge-Sheet under Section 173 of the Cr.P.C. before the Judicial First Class Magistrate Court II, Thrissur against 8 persons, including the Respondent-Accused No. 2, for the alleged commission of offences under Sections 302, 343, 212, 201, 202, 118 and 109 read with Sections 120B and 34 of the Indian Penal Code, 1860. It was alleged that the deceased- Satheesan had disclosed information to his girlfriend, CW 5- Ajitha, regarding the activities which had been taking place inside the rented flat, and about the illicit relationship between the Respondent-Accused No. 2 and Accused No. 3-Saswathy. On learning about this, the Accused persons had allegedly detained Satheesan, tortured him, and killed him with criminal intention. 2.3. Charges were framed by the Additional Sessions Judge, Thrissur. CWs 1 to 5 were summoned as Prosecution Witnesses on December 16, 2017. On the same day, after the examination-in-chief of CW 1- Narayanan was conducted, an Application under Section 231(2) of the Cr.P.C. was filed by the Counsel for the Respondent-Accused No. 2 seeking adjournment of the cross-examination of CW 1- Narayanan, as also of CWs 2 to 5, to a date after the examination- in-chief of CWs 2 to 5 was completed. It was stated in the said Application, that the case of the Respondent-Accused No. 2 would be adversely affected if the Application was not allowed, since the defence strategy adopted by the Respondent-Accused No. 2 would be revealed to the Prosecution. 2.4. The Application under Section 231(2) of the Cr.P.C. was opposed by the Prosecution which filed a Reply, wherein it was stated that CWs 1 to 5 were not deposing with respect to the same subject-matter. It was further stated that the deferral of the cross-examination would adversely affect the Prosecution evidence. 2.5. The Additional Sessions Judge vide Order dated December 20, 2017 dismissed the Application filed on behalf of the Respondent- Accused No. 2. The Additional Sessions Judge held that Section 231(2) of the Cr.P.C. confers a discretion on the Trial Judge to defer the cross- examination of any witness until any other witness or witnesses have been examined. Section 231(2) of the Cr.P.C. does not confer a right on the accused to seek deferral in a wholesale way on the ground that the defence of the accused would become known to the Prosecution. The deferral of cross-examination, in the present case, would run counter to the general provisions of the Indian Evidence Act, 1872. The Additional Sessions Judge held that the deferral of cross- examination in this case could give rise to the possibility of loss of memory on the part of the witnesses, who had already been examined-in-chief, which would adversely affect the case of the Prosecution. The Additional Sessions Judge also observed that no specific reason for deferring the cross-examination had been pleaded on behalf of the Respondent-Accused No. 2, apart from a general averment that the defence would be disclosed to the Prosecution. The Additional Sessions Judge was of the view that the Respondent-Accused No. 2 and Accused No. 7 are "highly influential political leaders", and the possibility of the threats to witnesses after their examination-in-chief, could not be ruled out. Furthermore, it was observed that CWs 1 to 5 would be deposing on different facts and aspects of the case. The Additional Sessions Judge keeping in view the provisions of Sections 231(2) and 309 of the Cr.P.C. held that deferral of cross- examination is not an ordinary practice in a criminal trial, and dismissed the Application filed on behalf of the Respondent- Accused No. 2. 2.6. Aggrieved by the Order dated December 20, 2017 passed by the Additional Sessions Judge, the Respondent-Accused No. 2 filed Criminal Miscellaneous Case No. 171 of 2018 under Section 482 of the Cr.P.C. before the High Court of Kerala. The High Court reversed the Order of the Additional Sessions Judge by a short unreasoned cryptic Order dated January 1, 2018, and allowed Criminal Miscellaneous Case No. 171 of 2018. It was directed that the cross-examination of CWs 1 to 4 be adjourned till after the examination-in-chief of CW 5. 2.7. Aggrieved by the Order dated January 1, 2018 passed by the High Court, the State of Kerala has filed the present Special Leave Petition (Crl.) No. 4652 of 2018 before this Court.
(3.) The legal issue which arises for consideration in the present Criminal Appeal is whether the exercise of discretion under Section 231(2) of the Cr.P.C. by the Additional Sessions Judge was valid and legally sustainable.;