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Synopsis

The Supreme Court on October 18, 2024, observed that the complicity of a person sought to be arrayed as an accused can be done with or without cross-examining the complainant and other prosecution witnesses. Court clarified that there is no mandatory requirement to decide an application under Section 319 CrPC before cross-examining other witnesses.

A bench of Justices Vikram Nath and Prasanna B Varale also noted that the complainant has no such mandatory right to insist that an application be decided in such a manner.

"The role of the complainant in a trial does not permit it to act as a public prosecutor on behalf of the State. The complainant and its counsel have a limited role in a sessions trial in a State case," the bench said.

The apex court allowed an appeal filed by one Asim Akhtar against the Calcutta High Court's order of August 11, 2022.

The High Court had set aside acquittal of the appellant by the trial court on September 31, 2020 in a case related to the kidnapping of a woman for the purpose of marriage and causing grievous injuries to her.

The trial court had acquitted the accused as the complainant and her parents failed to appear repeatedly for cross examination insisting that their application to summon the parents of the accused under Section 319 of CrPC be decided first.

The trial court had recorded all the facts, the contentions and also the conduct of the parties during the trial and ultimately proceeded to close the evidence of the prosecution. It had urther went on to decide the application under Section 319 CrPC and held that the evidence recorded so far was not admissible as the witnesses had failed to present themselves for cross-examination as such there was no justification for summoning the parents of the accused-appellant on the basis of inadmissible evidence. 

On appeal by the complainant, the High Court had relied upon Hardeep Singh Vs State of Punjab & Ors (2014) which states the power under section 319 CrPC can be exercised at the stage of completion of examination-in-chief and the court does not need to wait till the said evidence is closed.

"The said view of the Constitution Bench has been taken as a mandate by the High Court that application under Section 319 CrPC must be necessarily decided even if the cross-examination has not been conducted, only on the basis of Examination-in-Chief," the Supreme Court noted. 

Relying upon the same, the High Court has set aside the order of the acquittal and remanded the matter to the trial court with the direction to first decide the application under Section 319 CrPC and thereafter proceed with the sessions trial expeditiously, it pointed out. 

Examining the matter, the apex court said that the judgment in the case of Hardeep Singh does not provide that it is mandatory to decide the application under section 319 CrPC before conducting cross-examination and only on the basis of examination-in-chief. It merely clarifies that even examination-in-chief is part of evidence and record and thus can be relied upon to decide an application under Section 319 CrPC, the bench clarified. 

"The judgment does not take away the discretion of the trial court to wait for the cross examination to take place before deciding the application under Section 319 CrPC. It merely provides that consideration of such an application should not be a mini trial. It is for the trial court to decide whether the application should be decided without waiting for the cross examination to take place or to wait for it. The same would depend upon the satisfaction of the trial court on the basis of the material placed on record," the bench said.

In the present case, the bench found that the trial court had tried its best to ensure that the prosecution witnesses present themselves for cross-examination and thereafter it would decide the application under Section 319 CrPC. The prosecution witnesses repeatedly continued to either absent themselves or file adjournment applications and only insisted for deciding the application under section 319 CrPC first and only thereafter the trial could proceed, the bench highlighted. 

"The High Court failed to take into consideration all these aspects. Why the prosecution witnesses were shying from facing the cross-examination is not understood. Their only insistence was that the parents of the accused should be summoned and dragged into the trial and to somehow or the other keep the trial pending," the bench said.

The bench thus held that the trial court was correct in proceeding under Section 232 CrPC and accordingly acquitting the appellant accused, treating it to be a case of no evidence. It further said the trial court was also correct in rejecting the application under Section 319 CrPC for want of admissible evidence on part of the prosecution.

Case Title: Asim Akhtar Vs The State of West Bengal & Anr