LexASIM AKHTAR versus THE STATE OF WEST BENGAL & ANR.
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[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 912 [2024] 10 S.C.R. Digital Supreme Court Reports 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
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