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S.231(2) is a tool available to the defense to defer the cross examination of the prosecution witnesses until other witnesses are examined, this is for the reason that many a times the defense of an accused cannot be opened at the initial stage which may allow the other prosecution witnesses to be prepared for the same: HIGH COURT OF MADHYA PRADESH AT INDORE

The Miscellaneous Criminal Case stands allowed by HIGH COURT OF MADHYA PRADESH AT INDORE in the case of RAVI V. THE STATE OF MADHYA PRADESH through HON’BLE JUSTICE SUBODH ABHYANKAR

FACTS OF THE CASE
The petitioners have preferred this petition under Section 482 of the Cr.P.C., 1973, being aggrieved of the impugned order dated 22.2.2022 passed by the learned First Additional Sessions Judge, Narsinghgarh, District-Rajgarh in S.T.No. 339/2021, whereby the right of cross-examination of the prosecution witnesses viz; P.w./1 prosecutrix /complainant, Kusumlata, P.w./2 and P.w./3 Sunil has been closed. The petitioners are facing trial under Sections 377, 498-A, 506 (Part-2) of the Indian Penal Code,1860 and Section 4 of Dowry Prohibition Act, 1961. Counsel for the petitioners has submitted that the learned Judge of the trial court has passed the aforesaid order dated 22.2.2022 thereby reviewing his own order dated 21.12.2021, whereby the application filed by the petitioners under Section 231(2) of the Cr.P.C. for deferring the cross examination of the prosecution witnesses has already been allowed. Counsel has submitted that the aforesaid application was filed on the ground of the witnesses of complainant side are the family members hence they wanted to cross-examine the witnesses after examination in Chief of five of them is recorded before the court which was allowed by the trial court on 21.12.2021, and subsequently, the Examination-in-Chief of four witnesses viz; P.w./1 prosecutrix/complainant, Kusumlata, P.w./2, P.w./3 Sunil and P.w./4 Brijesh were also recorded. However, the 5th witness Deepak has not turned up in the trial court, initially on the ground that he was corona positive but subsequently, he has not appeared before the trial court. Counsel has submitted that now as the said 5th witness Deepak is not turning up in the trial court for his examination in chief, the learned Judge of the trial court has directed the counsel for the petitioners to cross-examine the witnesses who were present in the court viz., P.w./1 prosecutrix/ complainant, Kusumlata, P.w./2 and P.w./3 Sunil and P.w./4 Brijesh and upon counsel’s refusal, their right to cross examining the witnesses has been closed. It is submitted that in such circumstances, if the petitioners are forced to cross-examine the witnesses, the very purpose of filing of application under Section 231(2) of the Cr.P.C. would be frustrated and would be to the utter prejudice to the petitioners.

JUDGEMENT
It is apparent that the learned Judge of the trial court has already allowed the application filed by the petitioners under Section 231(2) of the Cr.P.C. on 21.12.2021 holding that if the statements of the witnesses are recorded separately it might prejudice the defense of the accused persons. However, the impugned order sheet dated 22.2.2022 reveals that on that day only three witnesses were present in the court and the court directed the counsel for the petitioners to cross-examine them and it is also directed that he can raise objections available to him while examining the other witness Deepak, who has not turned up. However, counsel appearing for the petitioners has refused to cross-examine the witnesses and thus, the right of the petitioners to cross-examine the witnesses, who were present in the court on that date i.e., on 22.2.2022 viz; P.w./1 prosecutrix/complainant, Kusumlata, P.w./2 and P.w./3 Sunil has been closed and regarding P.w./4 Brijesh it is directed that arrest warrant be issued against him. In the considered opinion of this court the very purpose of s.231(2) of Cr.P.C. would be frustrated if the application filed under Section 231(2) of the Cr.P.C. is allowed but the accused persons are still forced to cross-examine the witness. On the other hand, in the absence of any power to review under Cr.P.C., a criminal court, once passes an order, cannot alter or review the same. In view of the aforesaid facts and circumstances of the case, the impugned order dated 22.2.2022 being bad in law, cannot be countenanced and is liable to be set aside. Resultantly, impugned order dated 22.2.2022 is hereby set aside and the learned Judge of the trial court is directed to record the examination in chief of the remaining witness Deepak and thereafter to allow the petitioners to cross-examine the witness in accordance with law.
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JUDGEMENT REVIEWED BY SHREYA NIDHI

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