22.07.2026 Sl. No. DL 15 Court No. 29 Asraf, A.R.(Ct.) In the High Court at Calcutta Criminal Revisional Jurisdiction Appellate Side Case No. CRR 971 of 2026 In Re : An application under Sections 438 and 442 read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 corresponding to Sections 397 and 401 of the Code of Criminal Procedure, 1973. -AND- In the matter of : RAJU ROY @ RAJU RAY ……Petitioner For the Petitioner : Mr. Ayan Bhattacharjee, Sr. Advocate Mr. Shounak Mondal …Advocates For the State : Mr. Imran Siddiqui …Advocate 1. Affidavit of service filed by the petitioner in Court today is taken on record. 2. Private opposite party is not represented. 3. In this application, the petitioner has assailed the order dated 1st December, 2025 by which the Court below has rejected the petitioner’s prayer for cross-examining PW 3 prior to cross-examination of PW(s) 1, 2 and 4. 4. The petitioner herein on August 4, 2022 filed an application under Section 231(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) before the learned Trial Judge thereby, inter alia, seeking deferment of the cross-examination of the chargesheeted witness nos.1 to 8 until conclusion of examination-in-chief of said witnesses Page 2 on the ground stated in the said application. Learned Trial Court after consideration of the aforesaid petition and also considering the submissions made on behalf of both the parties, by an order dated July 27, 2023 was pleased to reject the same. 5. Being aggrieved by and dissatisfied with the said order dated July 27, 2023, the petitioner herein preferred a revisional application before this High Court being CRR 3330 of 2023 and this High Court by an order dated September 14, 2023 was pleased to dispose of the same with the following observation :- “I have considered the submissions of Mr. Bhattacharjee, learned advocate for the petitioner and Ld. Public Prosecutor and, on an assessment of the submissions advanced by both the parties, I direct that P.W. 1,2,5 and 7, are closely related to the deceased and, as such, they would fall within the ambit of Section 231(2) of the Cr.P.C. Ld. Trial Court, accordingly, would allow the examination-in-chief and defer their cross- examination. Their cross-examination would be held, after the examination-in-chief of P.W.s 1, 2,5 and 7 are completed. So far as the other witnesses are concerned, the P.W.3, 4, 6 and 8, who have been cited by the prosecution, they would participate in the trial as normal witnesses, wherein after examination-in-chief, cross-examination would be conducted by the defence.” Page 3 6. In compliance of the order dated September 14, 2023 passed in CRR 3330 of 2023, the Trial Judge has recorded examination-in-chief of PW(s) 1, 2, 3 and 4 who are CSW(s) 1, 2, 5 and 7 respectively and thereafter deferred the cross- examination. 7. On December 01, 2025, the petitioner preferred an application before the Trial Judge thereby praying for cross- examination of PW 3 being the child witness before commencement of cross-examination of any other prosecution witness since PW 3 being a child witness is susceptible to tutoring as the PW 3 has been residing at the same household with the PW(s) 1, 2 and 4. Therefore, the petitioner prayed that in case of cross-examination of other witnesses prior to PW 3, there would be every chance of disclosure of petitioner’s defence and the PW 3 would accordingly be tutored by the prosecution witnesses, namely, PW(s) 1, 2 and 4. However, learned Trial Court by the impugned order rejected the petitioner’s prayer with the observation that the law contemplated in Chapter XVIII of the Cr.P.C. indicates that after examination of prosecution witnesses, i.e., after the examination-in-chief is concluded, cross-examination of those witnesses will follow and thereby in compliance with the order of the High Court since the examination-in-chief of PW(s) 1 to 4 have already been conducted, the cross-examination should also be conducted in the said chronology. Page 4 8. Being aggrieved by the aforesaid order, learned counsel for the petitioner submits that the order is ex facie illegal, arbitrary and suffers from patent non-application of mind. He has completely misdirected himself in law as well as on facts while rejecting the prayer of the petitioner. Though learned Trial Court observed that arrangement of examination of witnesses is exclusively the preference and prerogative of the prosecution but did not appreciate that once the examination-in-chief of the witnesses stood completed and their cross-examination has expressly been deferred, the stage of the trial has already transitioned into the phase of cross-examination wherein the Court retains inherent discretion to regulate the sequence of cross- examination in order to secure the ends of justice. The Trial Court erroneously observed that prior to commencement of the witnesses, no such submission was made on behalf of the accused to cross-examine PW 3 earlier. In fact, the petitioner has categorically mentioned in his application about the possibility of tutoring the witness, namely, PW 3 and also the chance of disclosing the defence of the accused before cross-examination of the adult witnesses. The Court below failed to consider that the discretion under Section 135 of the Indian Evidence Act, 1872 is intended to advance justice and not to thwart it. The refusal to exercise such discretion, despite existence of compelling reasons, amounts to abdication of jurisdiction vested in the learned Trial Judge. Therefore, if the impugned order is allowed to Page 5 stand, it would result in serious miscarriage of justice and it would also cause irreparable prejudice to the petitioner. 9. Learned counsel appearing on behalf of the State leaves the prayer made by the petitioner to the discretion of the Court. 10. Having heard the learned counsel appearing on behalf of both the parties and also on perusal of order passed by this High Court in CRR 3330 of 2023, it appears that this Court was of clear view that CSW(s) 1, 2, 5 and 7 are closely related to the deceased, therefore they come within the ambit of Section 231(2) of the Cr.P.C. and, accordingly, this Court allowed examination-in-chief of the said witnesses first and to defer their cross-examination. It is nowhere stated in the said order that the cross-examination of the said witnesses will also have to be conducted in the same sequence. 11. In the instant case, the petitioner has made out a case that admittedly the PW 3 is a child witness who resides with PW(s) 1 and 2 and, therefore, the possibility of tutoring of testimony cannot be ruled out and they have reason to apprehend that the defence strategy might be disclosed if the adult witnesses are examined first. Therefore, I find that the order impugned suffers from perversity and is not sustainable in the eye of law. 12. In view of above, the instant revisional application is allowed. The impugned order dated December 01, 2025 is hereby set aside. The Court below is directed to permit the petitioner/accused person to cross-examine PW 3 first and Page 6 thereafter to cross-examine PW(s) 1, 2 and 4 in order of sequence. 13. Accordingly, CRR 971 of 2026 stands disposed of. 14. All parties shall act on the basis of server copy of this order duly downloaded from the official website of this Court. 15. Urgent photostat certified copies of this order, if applied for, be given to the parties upon compliance of all necessary formalities. ( Dr. Ajoy Kumar Mukherjee, J. )