ASIM AKHTARversusTHE STATE OF WEST BENGAL & ANR.

                  [2024] 10 S.C.R. 911 : 2024 INSC 794

                               Asim Akhtar
                                    v.
                     The State of West Bengal & Anr.
                      (Criminal Appeal No. 4247 of 2024)
                                  18 October 2024
             [Vikram Nath* and Prasanna B. Varale, JJ.]

                              Issue for Consideration
       Whether there is a mandate to decide the application u/s. 319
       CrPC before cross-examination of other witnesses.

                                     Headnotes†
       Code of Criminal Procedure, 1973 – s.319 – During the
       trial, the examination-in-chief of the victim (respondent
       no.2)-PW-1, her mother (PW-2) and her father (PW-3)
       was recorded – Respondent no.2 filed an application
       u/s.319 CrPC for summoning the father and mother of
       the accused-appellant – Thereafter, the above three
       prosecuting witnesses did not appear before the trial Court for
       cross-examination and insisted for deciding application
       u/s.319 CrPC first – Trial Court acquitted accused u/s.232
       CrPC and rejected application u/s.319 CrPC for the want
       of admissible evidence – However, the High Court in the
       impugned judgment relied upon the case of Hardeep Singh
       vs. State of Punjab & Ors and directed that the trial Court to
       first decide the application u/s.319 CrPC – Propriety:
       Held: The judgment in the case of Hardeep Singh does not
       provide that it is mandatory to decide the application u/s.319
       Cr.P.C. 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 u/s.319 CrPC – 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
       u/s.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

* Author
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       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 complicity of any person sought to
       be arrayed as an accused can be decided with or without conducting
       cross-examination of the complainant and other prosecution
       witnesses, and there is no mandate to decide the application
       u/s.319 CrPC before cross-examination of other witnesses – In
       the instant case, the Trial Court having tried its best to ensure that
       the prosecution witnesses nos.1, 2 and 3 present themselves for
       cross-examination and thereafter it would decide the application
       u/s.319 CrPC, the prosecution witnesses repeatedly continued
       to either absent themselves or file adjournment applications and
       only insisted for deciding the application u/s.319 CrPC first and
       only thereafter the trial could proceed – The complainant has
       no such mandatory right to insist that an application be decided
       in such a manner – Therefore, the Trial Court was correct
       in proceeding u/s.232 CrPC and accordingly acquitting the
       appellant-accused, treating it to be a case of no evidence – The
       Trial court was also correct in rejecting the application u/s. 319
       CrPC for want of admissible evidence on part of the prosecution –
       Therefore, the impugned order of the High Court is set aside and
       that of Trial Court restored. [Paras 14, 15, 17, 18, 19]

                                Case Law Cited
       Hardeep Singh vs. State of Punjab & Ors. [2014] 2 SCR 1 : (2014)
       3 SCC 92 – followed.

                                   List of Acts
       Code of Criminal Procedure, 1973; Penal Code, 1860; Arms
       Act, 1950.

                                List of Keywords
       Section 319 of Code of Criminal Procedure, 1973; Examination-
       in-chief; Cross-Examination.

                               Case Arising From
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       4247 of 2024
       From the Judgment and Order dated 11.08.2022 of the High Court at
       Calcutta in CRA No. 222 of 2020
[2024] 10 S.C.R.                                                       913

             Asim Akhtar v. The State of West Bengal & Anr.


                         Appearances for Parties
      Sarad Kumar Singhania, Mrs. Rashmi Singhania, Advs. for the
      Appellant.
      Ms. Madhumita Bhattacharjee, Adv. for the Respondents.
                Judgment / Order of the Supreme Court
                                Judgment
      Vikram Nath, J.
1.    Leave granted.
2.    By means of this appeal, the accused has assailed the correctness
      of the judgment and order dated 11.08.2022 passed by the Calcutta
      High Court in CRA No.222/2020 whereby the High Court allowed
      the appeal filed by the complainant (respondent no.2) and after
      setting aside the acquittal recorded by the Trial Court on 31.09.2020,
      remanded the case to proceed in a manner whereby the Trial Court
      would first decide the application under Section 319 of the Code of
      Criminal Procedure, 19731 and thereafter proceed to decide the trial.
      Brief facts relating to the present case are:
3.    That the First Information Report2 was lodged by respondent no.2
      alleging that the appellant had tried to kidnap him which was
      registered under sections 366/323/506(II) of the Indian Penal Code,
      18603 with section 25(1)(B)(a) of the Arms Act, 1950 as FIR No. 125
      on 11.10.2017. After investigation, a charge-sheet was submitted on
      08.02.2019 under the aforesaid sections.
4.    During the trial the Examination-in-Chief of the victim (respondent
      no.2) PW1, her mother Sabiya Rahaman (PW 2) and her father Aslam
      Shaikh (PW 3) were recorded. However, their cross-examination
      was deferred on an application made by the accused-appellant. The
      Examination-in-Chief was conducted on 29.02.2020. On 07.03.2020
      an application under section 319 CrPC was filed by respondent no.2
      for further summoning the father and mother of the accused-appellant.
      Thereafter it appears that the above three prosecution witnesses did


1    CrPC
2    FIR
3    IPC
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       not appear before the Trial Court for their cross-examination despite
       having received the summons. On 14.09.2020 again an adjournment
       was sought on behalf of PWs 1, 2 and 3 whereupon the Trial Court
       recorded that despite the specific repeated orders, the prosecution
       witnesses are not coming forward for cross-examination and that the
       witnesses as such are wilfully disobeying the orders of the Court. The
       Trial Court directed that the cross-examination of the witnesses is
       fixed for the next date and orders would be passed on the application
       under section 319 CrPC after the examination of all the witnesses
       are over. The order dated 14.09.2020 is reproduced hereunder:
            “Today is fixed for cross-examination of PW 1, PW2 and
            PW 3. Sole accused Asim Akhtar is present by filing hazira.
            SR of summons are received after service. On behalf of
            the defacto complainant a petition has been filed praying
            for disposal of the application under section 319 CrPC
            with affidavit. Copy is seen by the PP in charge.
            On behalf of the PW 1 PW 2 and PW 3 a petition has been
            filed for an adjournment with xerox copy of prescription
            Copy is also seen by the PP in charge.
            Perused the petition. Heard both sides.
            Admittedly, the petition has been filed by the de facto
            complainant with an affidavit. The affidavit is sworn at
            Sealdah Court on 14.09.2020 before the Notary Public
            Sarbani Mitra but the said witness failed to appear before
            the court. That factum goes to show that the said witness
            wilfully disobeyed the order of court. The application under
            section 319 CrPC is heard in presence of both sides.
            The order will be passed after the examination of all the
            witnesses are over.
            Tomorrow for examination and cross examination of all
            the witnesses and order to respect the application under
            section 319 CrPC.”
5.     On 15.09.2020 again the witnesses remained absent and filed an
       application for adjournment. They also moved an application seeking
       four weeks’ time to bring appropriate orders from the High Court
       regarding no adverse orders being passed in case of non-appearance
       of parties owing to the Covid-19 pandemic. Yet another application
[2024] 10 S.C.R.                                                         915

            Asim Akhtar v. The State of West Bengal & Anr.


     was filed for giving a direction to the concerned authority to issue
     urgent certified copy of the order passed by the High Court.
6.   The Trial Court recorded in detail the past conduct of the PWs 1,
     2 and 3 that despite the service of summons, they had not been
     appearing for cross-examination. It was also recorded that PW 1 –
     the complainant had come to the Court with a sworn affidavit in her
     application under section 319 CrPC but did not care to attend the
     trial proceedings and present herself for cross-examination.
7.   The Trial Court further proceeded to record that although the
     complainant wants the trial to proceed but is not coming forward for
     being cross-examined and has only filed an application to the effect
     that the application under section 319 CrPC may be heard and
     decided before the cross-examination. Even the Public Prosecutor had
     opposed the application filed by the de facto complainant for hearing
     of the 319 CrPC application. He also stated that other witnesses are
     coming and returning because of the repeated absence of PWs 1,2
     and 3. The Trial Court thus fixed 29.09.2020 for cross-examination
     and also recorded its displeasure and inclination to execute the
     bailable warrants of arrest against the witnesses. It directed the Public
     Prosecutor to ensure presence of the witnesses and also directed the
     Investigating Officer to remain present with the witnesses.
8.   Again on 21.09.2020 the sole accused – appellant was present. An
     application was filed by the complainant-respondent no.2 stating that
     aggrieved by the orders dated 14.09.2020 and 15.09.2020 she had
     preferred CRR No.1357/2020 and CRAN No.1/2020 which is likely
     to be taken up on 23.09.2020, as such the matter be adjourned for
     two more weeks. Respondent no.2 further filed an application for
     offences under Section 354 and 354B of the IPC which required to
     be added along with existing sections. Once again PWs 1 and 3 were
     present but the counsel for the complainant again insisted that they
     are ready to face the cross-examination, however, the application
     under section 319 CrPC may be disposed of first.
9.   The Trial Court recorded their stand that they would not face
     cross-examination until the application under Section 319 CrPC is
     decided. The counsel for the accused-appellant was ready to cross-
     examine but could not proceed as the prosecution witnesses did not
     agree and continued to insist that the application under section 319
     CrPC be decided first.
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10. The Trial Court 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. The Trial Court further 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. Accordingly, the same was
    rejected. The Trial Court further proceeded to hold that it was a case
    of no evidence under Section 232 CrPC and thereby acquitted the
    accused-appellant.
11. Aggrieved by the same, respondent no.2 preferred an appeal before
    the High Court which has since been allowed by the impugned
    judgment and order, giving rise to the present appeal.
12. We have heard learned counsel for the appellant and for the
    respondent no.1 -State of West Bengal. Despite service of
    notice, no one has put in appearance on behalf of respondent
    no.2-Complainant.
13. The High Court in paragraph 15 of the impugned judgment relied
    upon a paragraph of the Constitution Bench judgment in the case
    of Hardeep Singh vs. State of Punjab & Ors.4 wherein it was held
    that “….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 tested in cross-examination,
    for it is the satisfaction of the court, which can be gathered from
    the reasons recorded by the court, in respect of complicity of some
    other person(s) not facing the trial in the offence.”
       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. Relying upon
       the same, the High Court has set aside the order of the acquittal
       passed by the Trial Court and has 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.


4   [2014] 2 SCR 1 : (2014) 3 SCC 92
[2024] 10 S.C.R.                                                        917

             Asim Akhtar v. The State of West Bengal & Anr.


14. The judgment in the case of Hardeep Singh (supra) 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.
15. 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.
16. The five-Judges Bench in Hardeep Singh (supra) concluded the
    following:
          “89. We have given our thoughtful consideration to the
          diverse views expressed in the aforementioned cases.
          Once examination-in chief is conducted, the statement
          becomes part of the record. It is evidence as per law and
          in the true sense, for at best, it may be rebuttable. An
          evidence being rebutted or controverted becomes a matter
          of consideration, relevance and belief, which is the stage
          of 5 Page 56 judgment by the court. Yet it is evidence and
          it is material on the basis whereof the court can come to a
          prima facie opinion as to complicity of some other person
          who may be connected with the offence.
          90. As held in Mohd. Shafi (Supra) and Harbhajan Singh
          (Supra), all that is required for the exercise of the power
          under Section 319 Cr.P.C. is that, it must appear to the
          court that some other person also who is not facing the
          trial, may also have been involved in the offence. The
          pre-requisite for the exercise of this power is similar to
          the prima facie view which the magistrate must come
          to in order to take cognizance of the offence. Therefore,
          no straight-jacket formula can and should be laid with
          respect to conditions precedent for arriving at such an
          opinion and, if the Magistrate/Court is convinced even on
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          the basis of evidence appearing in Examination-in-Chief,
          it can exercise the power under Section 319 Cr.P.C. and
          can proceed against such other person(s). It is essential
          to note that the Section also uses the words ‘such person
          could be tried’ instead of should be tried. Hence, what
          is required is not to have a mini-trial at this stage by
          having examination and cross-examination and thereafter
          rendering a decision on the overt act of such person sought
          to be added. In fact, it is this mini-trial that would affect the
          right of the person sought to be arraigned as an accused
          rather than not having any cross-examination at all, for in
          light of sub-section 4 of Section 319 Cr.P.C., the person
          would be entitled to a fresh trial where he would have all
          the rights including the right to cross examine prosecution
          witnesses and examine defence witnesses and advance his
          arguments upon the same. Therefore, even on the basis
          of Examination-in-Chief, the Court or the Magistrate can
          proceed against a person as long as the court is satisfied
          that the evidence appearing against such person is such
          that it prima facie necessitates bringing such person to
          face trial. In fact, Examination-in-Chief untested by Cross
          Examination, undoubtedly in itself, is an evidence.”
17. Therefore, the complicity of any person sought to be arrayed as an
    accused can be decided with or without conducting cross-examination
    of the complainant and other prosecution witnesses, and there is no
    mandate to decide the application under section 319 CrPC before
    cross-examination of other witnesses.
18. In the present case, we find that the Trial Court having tried its best
    to ensure that the prosecution witnesses nos.1, 2 and 3 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
    complainant has no such mandatory right to insist that an application
    be decided in such a manner. Even the Public Prosecutor had not
    supported the complainant’s counsel in filing of the application under
    section 319 CrPC. The role of the complainant in a trial does not
    permit it to act as a Public Prosecutor on behalf of the State. The
[2024] 10 S.C.R.                                                        919

               Asim Akhtar v. The State of West Bengal & Anr.


     complainant and its counsel have a limited role in a sessions trial in a
     State case. 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.
19. In view of the facts and circumstances of the case, we are of the view
    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. The Trial court was also correct in rejecting the
    application under section 319 CrPC for want of admissible evidence
    on part of the prosecution.
20. For all the reasons recorded above, the appeal is allowed, the
    impugned order of the High Court is set aside and that of the Trial
    Court is restored.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Ankit Gyan