S.254(3) BNSS | Deferral Of Cross-Examination Must Be Sought Before Defence Strategy Is Exposed, Delay Undermines Purpose: J&K High Court

Shedding light on the Legislative intent behind the provision of allowing the deferment of Cross-examination of a prosecution witness under the Bharatiya Nagarik Suraksha Sanhita (BNSS), the High Court of Jammu & Kashmir and Ladakh has held that an application for deferment of cross-examination of a witness or a set of witnesses must be filed as early as possible but in any case, before the commencement of cross-examination, for once the defence strategy is exposed, the object of such deferral pales into insignificance.“The logical requirement is 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”, Justice Rajesh Sekhri reasoned. Justice Sekhri made this observation while allowing a petition filed by Ravinder Kumar and others seeking to set aside an order of the Principal Sessions Judge, Jammu, which had rejected their plea for deferment of cross-examination of six key eye-witnesses in a murder case.Background:The petition arose in the backdrop of a trial pertaining to the murder of one Avtar Singh. The prosecution had cited six eye-witnesses all of whom were closely related to the deceased. The petitioners, accused of offences under Sections 120B, 447, 427, 302, 307, 506, 147, and 201 of the IPC, moved an application under Section 254(3) BNSS the day after the examination-in-chief of PW1 was completed, seeking deferral of the cross-examination of all six related witnesses until their examination-in-chief was concluded.They contended that allowing cross-examination before the others were examined would expose their defence strategy, thereby allowing subsequent witnesses to tailor their depositions, thus prejudicing the defence. The prosecution opposed the application, arguing it was premature and suggesting the petitioners, being influential, might intimidate witnesses if cross-examination was delayed.The trial court dismissed the application on two primary grounds that it was filed after PW1's examination-in-chief concluded and not at the outset when the witness calendar was prepared. Secondly, it observed that the defence's apprehension about tailored testimonies was hypothetical and not a legally valid basis.High Court's Observations:Justice Sekhri unequivocally held that the trial court's view was flawed both in law and reasoning. He emphasized that Section 254(3) BNSS analogous to Section 231(2) Cr.P.C. provides discretion to defer cross-examination, which must be exercised judicially and not arbitrarily.Significantly, he referenced State of Kerala v Rasheed (2019) to underscore that while a plea for deferral should preferably be made before the calendar is fixed, the real touchstone is whether it is made before the commencement of the cross-examination. The petitioners had done just that their application was filed a day after the examination-in-chief and before cross-examination began, the bench pointed. The Court opined, “The logical requirement is that such an application 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 emphasized that judicial discretion should be exercised considering the potential consequences on the fairness of the trial, not just on procedural rigidity. It noted that all six prosecution witnesses were close relatives of the deceased and were testifying to the same set of facts. Therefore, the defence's apprehension that exposure of their strategy during cross-examination of one witness could allow subsequent witnesses to tailor their statements was not only reasonable but legally sound, the court underscored. “.. 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”,the court remarked. Commenting extensively on the Supreme Court's decision in Rasheed's Case which lays down detailed guidelines for exercise of discretion under Section 231(2) CrPC Justice Sekhri emphasised that the decision to defer cross-examination should be based on a realistic assessment of whether such deferral is necessary to prevent prejudice to the defence. The High Court also observed that the guidelines in Rasheed begin with the phrase “as far as possible” and use the word “preferably”—clearly...

S.254(3) BNSS | Deferral Of Cross-Examination Must Be Sought Before Defence Strategy Is Exposed, Delay Undermines Purpose: J&K High Court

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