- (1.) This is a revisional application under Section 482, Cr. P.C. against the order dated 5-4-99 passed by the Additional Dist. and Sessions Judge, 8th Court, Alipore, 24-Paraganas (South) in trial number 2(9)/1997 by which the learned Additional Sessions Judge rejected the prayer of the accused persons who are the petitioners herein to defer the cross-examination of the eye witnesses till all such witnesses are first examined-in-chief. It is submitted on behalf of the petitioners that the petitioners have been charged under Sections 148/149/323/354/302, I.P.C. before the learned Additional Sessions Judge and that the eye witnesses to the alleged occurrence are P.Ws. 3, 4, 5 and 6 and P.Ws. 13, 14, 15 and 16. It is submitted that if the prosecution examine the eye witnesses in two batches intervened by some other witnesses and if the defence is not allowed to cross-examine the eye witnesses after the examination-in-chief of all such witnesses is completed first, in that event the defence will be prejudiced as the prosecution will get opportunity to fill up the lacuna in their case that may be revealed in the cross-examination of the witnesses if such witnesses are required to be cross-examined immediately after their respective examinations-in-chief. Accordingly the petitioners pray for a direction that the cross-examination of all the eye witnesses should be deferred till the examination-in-chief of all such witnesses are completed first. The learned Additional Public Prosecutor on the other hand submits that there is absolutely no reason for the accused persons to make such an unusual and unreasonable prayer and such prayer was rightly rejected by the learned Court-below.
(2.) In this connection we may look to the provisions of Section 231, Cr. P.C. which is reproduced below : "231. (1) On the date 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." It is true that sub-section (2) of Section 231, Cr. P.C. gives a discretion to the Judge to permit cross-examination of any witness to be deferred until any other witness or witnesses have been examined. But that does not mean that the accused has a right to ask for deferring the cross-examination in a wholesale way on the plea that otherwise the prosecution may take the chance of filling up the lacuna in its case that may be disclosed in course of cross-examination of its witnesses. It is needless to mention that ordinarily it is for the prosecution to decide for itself as to in which order it will examine its witnesses for proving its case. Since it is the burden of the prosecution to prove its case ordinarily it should be for the prosecution to decide in which manner and in what order it will produce its evidence before the Court subject to the control of the substantive and procedural laws. Section 105 of the Evidence Act provides that the order in which the witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court. There is no doubt that if the exigency of the circumstances so requires in an appropriate case the Court has always the discretion to direct that the witnesses be examined in a particular order, but in the absence of any exigency or compelling reason it should be for the party to decide in which order it will produce and examine its witnesses. Section 138 of the Evidence Act also provides inter alia that the witnesses shall be first examined-in-chief and then if the adverse party so desires cross-examined and then, if the party calling him so desires re-examined. Ordinarily therefore it is the requirement of the law that each witness shall be first examined-in-chief and shall be then cross-examined before the next witness is called for examination and this is also the practice which is followed in the Courts. The plea taken on behalf of the petitioners is that if each witness is examined and cross-examinated before the next witness is produced, in that event there will be much opportunity for the prosecution to fill up the lacuna in its case as may be disclosed in course of cross-examination of any witness, through the lips of the subsequent witnesses and therefore the defence should be given the opportunity to defer the cross-examination of all eye witnesses till they are examined-in-chief first. As I have mentioned this is never the practice. Cross-examination is a very effective weapon for unearthing the falsity, if any, of the evidence of any witness and all through in the history of judicial procedure this mechanism of discovering truth through efficient cross-examination has generally proved to be unfailingly effective. In a criminal trial the accused has an additional advantage inasmuch as copies of the earlier statements of the prosecution witnesses recorded under Section 161, Cr. P.C. are supplied to the accused well in advance so that he can not only know to his advantage what each prosecution witness is expected to tell while in the witness box but has also the advantage of cross-examining each and every witness with reference to the earlier statements made by such witness as well as by other witnesses during investigation and of thereby trying to bring out discrepancies amongst the evidence of the witnesses inter se as given in Court and also discrepancies between the evidence of a witness in Court and the earlier statement he made to the police. The prayer for wholesale deferring of cross-examination of the prosecution witnesses till all of them are first examined-in-chief is thus not only against the age-old practice as well as the general provision of the Evidence Act regarding the manner of examination of witness but is also not reasonable in the present context. That being so it cannot be said that any good case has been made out by the petitioners for this Court to interfere with the impugned order passed by the learned Court below in the exercise of its judicial discretion in the matter.
(3.) This revisional application is accordingly dismissed and the learned Court-below is directed to proceed with the trial in accordance with law. Petition dismissed.;