- (1.) This revisional application under Section 401 of Cr.P.C. is directed against order dated 16.2.04 passed by the learned Additional Sessions Judge, 5th Court, Alipore in Sessions Trial No. 2(10) 2001 thereby allowing the prayer of the accused opposite parties (O.P.) under Section 231(2) of Cr.P.C. and deferring the cross examination of P.W. 2 till the examination in chief of charge-sheet witness Nos. 10, 11, 13, 15 and another Siddhartha Mukherjee are completed.
(2.) Mr. Biplab Mitra, learned senior Advocate appearing for the petitioner submitted that the petitioner is the de facto complainant and on the Dasis of complaint/FIR lodged by her Regent Park Police Station Case No. 196 of 1998 under Sections 498A/302/34 of the Indian Penal Code (in short I.P.C.) was started against the accused O.Ps. 2 to 8. After completing investigation the police submitted charge-sheet under Sections 498A/302/34 of I.P.C. and in the charge-sheet 18 witnesses have been cited by the Investigating Officer (I.O.) After commitment of the said case to the Court of Sessions, it was transferred to the Court of the learned Additional Sessions Judge, 5th Court, Alipore. RW.1 was examined and cross examined, and thereafter P.W.2 namely Belarani Mukherjee, the de facto complainant was exammed-in-chief by the prosecution. At that stage, the accused O.Ps. filed an application under Section 231(2) of Cr.P.C. praying for deferring cross examination of P.W.2 till some of the witnesses, namely, Sunil Kanti Bhattacharya, Smt. Sonali Bhattacharya, Subrata Bhattacharya, Nirmal Bhattacharya and Siddhartha Mukherjee are examined in chief. It was alleged that all the said witnesses belong to the same family and, therefore, the cross examination of P.W.2 should be deferred till the examination in chief of the aforesaid 5 witnesses are completed, and they want to cross examine P.W.2 and these witnesses one after another. The learned Judge by the impugned order dated 16.2.04 allowed the prayer of accused O.Ps. in spite of objection raised by the learned Public Prosecutor in charge of the case.
(3.) Mr. Mitra contended that the learned Judge could not follow the true spirit of provisions of Section 231(2) of Cr.P.C. Plain reading of Sections 230 and 231 of Cr.P.C. would indicate that, it is the discretion of the prosecution to examine witnesses according to their choice and examination in chief and cross examination are to be continued simultaneously without any break. Under Section 231(2) of Cr.P.C., the learned Judge has discretion to defer cross examination of any witness but, the learned Judge has no discretion to defer cross examination till whole set of witnesses are examined in chief. Generally in such matter the High Court should not interfere but, if the learned Trial Judge exercises his discretion illegally without following provisions of law the High Court must interfere into the order of the learned Judge. The learned Judge also did not consider the provisions of Section 145 of the Evidence Act. The order of the learned Judge being not in accordance with law should be set aside and the learned Judge may be directed to proceed with the trial and to complete the cross examination of P.W.2 and to proceed with the trial in the order the prosecution produces its witnesses. In support of his contention Mr. Mitra cited the decision in Md. Sanjay v. State of West Bengal, 2000 C Cr LR (Cal) 53.;