Trial court can defer cross-examination of more than one witness: Jammu and Kashmir High Court

The Jammu & Kashmir and Ladakh High Court recently observed that trial courts have the discretion to defer the cross-examination of a set of witnesses who may disclose same set of facts [Ravinder Kumar and others V/s UT of J&K].Justice Rajesh Sekhri relied upon the Supreme Court judgment in State of Kerala v Rasheed to hold that a trial court can defer cross-examination of more than one eye witness in a case."The expression “each witness or set of witnesses” in guideline 24.6 is sufficient to indicate that Court, under Sub Section 3 of Section 254 BNSS is vested with the jurisdiction to permit the deferment of cross examination, not only of a witness but a set of witnesses and it depends upon case to case justifying the deferral of cross examination. Therefore, observation of learned trial Court that en masse or wholesale deferment of six eye witnesses, is not permissible in law, is also not sustainable," the single-judge said..The Court was hearing a petition moved by accused in a murder case for deferment of cross-examination of six eye-witnesses who were family members of the deceased. The trial court had earlier turned down the request. It was argued that since these witnesses are expected to testify about same set of facts, their cross examination may disclose the defence strategy and other prosecution witnesses will get an opportunity to fill the lacunae in the prosecution case..The single-judge disagreed with the trial court view that the application by the accused must have been moved when the calendar for examination of witnesses was drawn."It needs a specific mention that guidelines provided by Hon‟ble Supreme Court in Rasheed commenced with the expression “as far as possible” and guideline 24.5 provides that request for deferral must “preferably” be made before the preparation of the case calendar," the Court said.It added that such an application for deferring cross examination of a witness or witnesses on the same set of facts must be made before the commencement of the cross examination of a particular witness"In other words an application for deferment of cross examination of a witness or set of witnesses must be filed, as early as possible, but, in any case, before the commencement of cross examination of a witness, otherwise once the defence strategy is exposed, the object of deferral of cross examination pales into insignificance," the Court observed. .In the present case, the Court found that the defence had moved the application at the earliest available opportunity and before the defence strategy could become known to the prosecution."Case of the petitioner is that PWs 1, 2, 3, 5 7, and 8, are not only related but cited as eye witnesses by the prosecution, to the same set of facts alleged in the challan. In the circumstances, the apprehension of the petitioners accused that their non-deferral can enable subsequent witnesses, testifying on similar facts to circumvent the defence strategy, is well founded and the possibility of the prosecution to tailor their testimony to the prejudice of the petitioners, cannot be ruled out," it said..Accordingly, the Court allowed the petition..Advocates Sakal Bhushan and Rahul Sharma appeared for the petitioners.Special Public Prosecutor RK Kotwal represented the State.[Read Order]