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by sayum
04 August 2026 1:39 PM
“Trial Must Progress, Cross-Examination May Await”: Calcutta High Court refused to expunge the examination-in-chief of a key prosecution witness who was unavailable for cross-examination due to being untraceable. Justice Bibhas Ranjan De dismissed the revision application challenging the Trial Court’s decision to continue examining other witnesses while keeping the opportunity open to cross-examine the victim (PW16) if he is located. The Court clarified that procedural flexibility is within the Court’s discretion and emphasized that trial must progress even if one critical witness goes temporarily missing.
The petitioner, Sk. Sahir Mohammad, is one of the accused in a Sessions trial (No. 426 of 2023) involving serious charges including Sections 365, 364A, 307, 395, 397, and 120B of the IPC. The victim (PW16) had already been examined-in-chief when he became untraceable, halting further cross-examination. The Trial Court, while acknowledging the victim’s absence, decided to proceed with the examination of other prosecution witnesses, keeping the cross-examination of PW16 open for a later date if and when he is found.
The impugned order dated August 19, 2024, read:
“PW16 is missing for the time being and his whereabouts is not available. However, the trial has to progress and so, the case is required to be proceeded with... keeping the door open for cross examination of PW16 as and when he is traced out and made available.”
The primary contention raised by the petitioner was that the Trial Court erred in allowing other witnesses to be examined before the cross-examination of PW16, thereby prejudicing the accused’s right to a fair trial. The petitioner urged the Court to expunge PW16’s evidence altogether.
However, Justice De refused to accept this argument. Referring to the Indian Evidence Act, 1872, and procedural law, he held: “The order in which witnesses are to be produced is generally regulated by law, but where it is silent, the matter shall be determined by the Court in the exercise of its discretion.”
The Court further observed:
“Examination-in-chief of PW16 cannot be expunged in absence of any codified law. The evidentiary value of PW16 who was not produced for cross-examination can be a subject matter of final hearing.”
In response to the reliance on precedents such as Selvamani v. State, Shailendra Kumar v. State of Bihar, and Chakina Khatun v. State of West Bengal, the Court noted that while those cases caution against indefinite delay in cross-examination, they do not support automatic expungement of recorded testimony.
“In the case at hand, it is not disputed that PW16 is not traceable in spite of repeated efforts. Therefore, next witnesses can be examined after deferring the cross-examination of PW16, as long as it is within Court’s discretion and does not infringe on the rights of the accused.”
The Court emphasized the balance between procedural fairness and practical progress of a criminal trial. It underscored that the Trial Judge had already taken action by issuing a bailable warrant for the appearance of PW16 and scheduling the examination of CSW No. 15.
“No infirmity is found in the order impugned in this revision application. The trial of the case should be proceeded with by examining other witnesses and court can allow the prosecution to produce PW16 for cross-examination subject to satisfying the reason for delay.”
Dismissing the revision application, the Court concluded: “As sequel, the revision application being no. CRR 3736 of 2024 stands dismissed.”
This judgment reaffirms the principle that criminal trials must not stagnate due to the temporary absence of a witness. The Calcutta High Court’s refusal to expunge the un-cross-examined testimony of the victim reflects judicial prudence and procedural realism. By leaving the door open for future cross-examination, the Court struck a balance between the accused’s right to a fair trial and the public interest in timely justice.
Date of Decision: May 22, 2025
