2024 INSC 794

Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2024
(@ Special Leave to Petition (Crl.) No.12292 OF 2022)

ASIM AKHTAR …APPELLANT(S)

VERSUS
THE STATE OF WEST
BENGAL & ANR. …RESPONDENT(S)

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
Signature Not Verified manner whereby the Trial Court would first
Digitally signed by

decide the application under Section 319 of the

SONIA BHASIN
Date: 2024.10.18
16:52:52 IST
Reason:

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 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

1
CrPC
2
FIR
3
IPC

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 mother of the accused-appellant. Thereafter it
appears that the above three prosecution
witnesses did 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

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 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.

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 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 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

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 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

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 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.
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.

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 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

4
(2014) 3 SCC 92

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 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.
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

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 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

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 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 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

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 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

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 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 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.

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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.

………………………………..……J
(VIKRAM NATH)

………………………………..……J
(PRASANNA B. VARALE)

NEW DELHI
OCTOBER 18, 2024

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