S. 319 CrPC | No Mandate To Decide Application To Summon Additional Accuded Before Cross-Examination Of Other Witnesses : Supreme Court

The Supreme Court on Friday (Oct. 18) observed that there's no bar for the trial court to decide an application seeking the summoning of an additional accused under Section 319 Cr.P.C. even after the cross-examination of the prosecution witness.

“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.”, the bench comprising Justices Vikram Nath and Prasanna B. Varale said.

Setting aside the High Court's decision which had observed that the trial court ought to have decided Section 319 Cr.P.C. application after the completion of the examination-in-chief and should not have waited for the competition of the cross-examination, the court observed that it is not mandatory for the trial court to decide Section 319 Cr.P.C. application after the completion of the prosecution witness's examination in chief and can exercise its discretion to decide the application even after completion cross-examination.

In this case, the complainant insisted the trial court to decide his Section 319 application before the completion of the prosecution witness's cross-examination. Despite repeated efforts by the trial court to call prosecution witnesses for their cross-examination, they did not appea before the Court and sought adjournments on each date.

Based on the material placed on record, the trial court rejected the complainant's Section 319 application on the failure of the prosecution witnesses to appear before the Court as the Trial Court wanted to wait for the cross-examination to take place before deciding the application under Section 319 Cr.P.C.

The High Court, however, set aside the trial court's decision and referred to the Constitution Bench judgment of Hardeep Singh vs. State of Punjab & Ors. (2014) to hold that application under section 319 CrPC must be necessarily decided even if the cross-examination has not been conducted, only based on the Examination-in-Chief.

Disapproving the High Court's reasoning, the judgment authored by Justice Vikram Nath clarified that Hardeep Singh's case didn't take away the trial court's right to decide at what point in time the application needs to be decided.

“The judgment (Hardeep Singh's case) 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 court observed.

“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 complainant and its counsel have a limited role in a sessions trial in a State case.”, the Court observed.

“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.”, the court held.

Accordingly, the appeal was allowed.

Appearances:

For Petitioner(s) Mr. Sarad Kumar Singhania, AOR Mrs. Rashmi Singhania, Adv.

For Respondent(s) Ms. Madhumita Bhattacharjee, AOR

Case Title: ASIM AKHTAR VERSUS THE STATE OF WEST BENGAL & ANR., Crl.A. No. 004247 / 2024

Citation : 2024 LiveLaw (SC) 814

Click here to read/download the order