J&K High Court Allows Deferral Of Cross Examination | Prejudice To Accused Must Be Avoided | Judicial Discretion Must Consider Foreseeable Consequences
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Rajesh Sekhri has allowed a petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, setting aside the order of the Principal Sessions Judge, Jammu, which declined a plea to defer the cross-examination of multiple prosecution witnesses. The High Court directed that the cross-examination of six eye-witnesses be deferred until their examination-in-chief is completed. The court found that non-deferral could prejudice the accused, observing that where multiple witnesses testify to the same set of facts, deferral is justified to prevent potential tailoring of testimonies.
The petition was filed invoking the inherent jurisdiction of the High Court under Section 528 of the BNSS, 2023 read with Article 227 of the Constitution of India. The petitioners sought to set aside the trial court's order dated 15.04.2025 in a pending criminal matter involving offences under Sections 120B, 447, 427, 302, 307, 506, 147, and 201 of the Indian Penal Code. The application was directed at the order declining their plea to defer cross-examination of six witnesses: PWs 1, 2, 3, 5, 7, and 8.
These witnesses were closely related: PW2 Balbir Singh is the father of deceased Avtar Singh, PW1 Jagir Singh is Balbir Singh's cousin, PW5 Tajinder Singh is Jagir Singh's son, PW7 Kamal Kour is Balbir Singh's wife, and PW8 Surinder Singh is Balbir Singh's brother-in-law. The petitioners contended that all six were witnesses to the same set of facts and requested that their cross-examination be deferred until after their respective examination-in-chief.
The petitioners had moved the application under Section 254(3) BNSS on 08.04.2025, a day after the conclusion of the examination-in-chief of PW1 Jagir Singh. They argued that deferring cross-examination was essential to prevent disclosure of defence strategies, which could otherwise allow subsequent witnesses to tailor their testimony. They maintained that such a course would not prejudice the prosecution.
The prosecution opposed the plea, arguing that the application was premature and contrary to established legal procedure, which does not permit wholesale deferment of witness cross-examinations. The prosecution further alleged that the petitioners were influential individuals capable of exerting undue influence or intimidation on witnesses if cross-examinations were postponed.
The trial court, while rejecting the application, relied on the judgments of State of Kerala v. Rasheed, (2019) 13 SCC 297, and Pardip Kundlikrao Kute v. State of Maharashtra, 2002 SCC Bom. 2294. It held that the application was belated as it was not filed at the time when the calendar of witness examination was framed. It also held that the fear of prosecution witnesses tailoring testimony based on disclosed defence strategies was speculative and hypothetical.
In the High Court, the petitioners challenged the trial court’s findings on both counts, contending that the application was made at the earliest opportunity—before cross-examination commenced—and that the apprehension of tailored testimony was a legitimate concern warranting preventive action under Section 254(3) BNSS.
The petitioners cited several decisions in support of their arguments, including State of Kerala v. Rasheed, Mohitosh Biswas v. State of West Bengal (CRR No.2298 of 2024), and Nannebabu Ramdev Gupta v. State of Maharashtra (Criminal Application No. 394 of 2023).
On the other hand, the respondent relied on Rasheed and Md. Sanjoy v. State of West Bengal, 2000 CRI.L.J. 608, asserting that Section 254(3) does not create an entitlement to defer cross-examination but confers discretion on the court, which must be exercised judiciously.
The High Court stated: "Having heard learned counsels for the parties, I am of the considered view that impugned order is legally flawed and premised on wrong appreciation of law."
It noted that the proximity among the witnesses and the identical facts to which they were to testify were undisputed. The court held: "Examination in chief of PW1-Jagir Singh was concluded on 07.04.2025 and on the very next day i.e. on 08.04.2025, the petitioners preferred the aforesaid application..."
On the interpretation of Section 254(3), the court observed: "Sub Section 3 of Section 254 BNSS is an exception to the said general rule and sequence of evidence, in terms whereof, the Court is vested with the jurisdiction to permit cross examination of a witness to be deferred..."
The court concurred with the prosecution’s assertion that the power under Section 254(3) is discretionary but added: "It is trite that judicial discretion has to be exercised judicially and in consonance with its statutory framework, having regard to foreseeable consequences."
Quoting the Supreme Court's decision in Rasheed, the court observed: "The guiding principle, in such cases, for a Court is to ascertain whether dismissal of application for deferral of cross examination would result in prejudice to the parties seeking deferral..."
It then referred to the five factors listed in Rasheed, including: "possibility that non-deferral would enable subsequent witnesses giving evidence on similar facts to tailor their testimony to circumvent the defence strategy."
The trial court’s reliance on the guideline that the application should preferably be filed at the time of preparation of the case calendar was rejected. The High Court stated: "Guideline 24.5 provides that request for deferral must 'preferably' be made before the preparation of the case calendar... it does not lay down in absolute terms that an application... should necessarily be filed before the preparation of the case calendar."
The court added: "Such an application for deferring cross examination... must be made before the commencement of the cross examination... otherwise once the defence strategy is exposed, the object of deferral... pales into insignificance."
On the issue of whether deferment can apply to multiple witnesses, the court stated: "The expression 'each witness or set of witnesses' in guideline 24.6 is sufficient to indicate that Court... is vested with the jurisdiction to permit the deferment of cross examination, not only of a witness but a set of witnesses..."
It rejected the trial court’s view that the apprehension of tailored testimonies was hypothetical, stating: "It is evident from the expression 'possibility'... that such an application... can be premised on a presumption or apprehension."
Citing similar decisions by the Bombay and Calcutta High Courts, the court added: "In any case, no prejudice would be caused to the prosecution if the cross-examination... is deferred... so as to avoid the prosecution filling up the lacunae..."
The court issued the following directions:
"The present petition is allowed and impugned order is set aside. As a consequence, the application filed by the petitioners for deferring cross examination of PWs 1, 2, 3, 5, 7 and 8 is allowed and their cross examination shall remain deferred until all of them are examined in chief."
Advocates Representing the Parties:
For the Petitioners: Mr. Sakal Bhushan, Advocate; Mr. Rahul Sharma, Advocate
For the Respondents: Mr. R. K. Kotwal, Special Public Prosecutor
Case Title: Ravinder Kumar and others v. UT of J&K
Case Number: CRM(M) No. 352/2025
Bench: Justice Rajesh Sekhri
[Read/Download order]
