Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(SC) 949

SUPREME COURT OF INDIA
VIKRAM NATH, PRASANNA B. VARALE, JJ.
Asim Akhtar – Appellant
VERSUS
The State of West Bengal & Anr. – Respondents
Criminal Appeal No. 4247 of 2024 (@ Special Leave to Petition (Crl.) No. 12292 of 2022)
Decided On : 18-10-2024

Advocates appeared:
For the Petitioner(s): Mr. Sarad Kumar Singhania, AOR Ms. Rashmi Singhania, Adv. Mr. Yash Singhania, Adv.
For the Respondent(s): Ms. Madhumita Bhattacharjee, AOR

IMPORTANT POINTS
(1) Complicity of any person sought to be arrayed as accused can be decided with or without conducting cross-examination of complainant and other prosecution witnesses.
(2) Role of complainant in a trial does not permit it to act as a Public Prosecutor on behalf of State – Complainant and its Counsel have a limited role in a sessions trial in a State case.

Headnote:
Criminal Procedure Code, 1973 – Section 319 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 358] – Summoning of additional accused – FIR lodged under Sections 366/323/506(II) of IPC with Section 25(1)(B)(a) of Arms Act, 1959 – Complicity of any person sought to be arrayed as accused can be decided with or without conducting cross-examination of complainant and other prosecution witnesses – There is no mandate to decide application under Section 319 of Cr.P.C. before cross-examination of other witnesses – Complainant has no such mandatory right to insist that application be decided in such a manner – Role of complainant in a trial does not permit it to act as a Public Prosecutor on behalf of State – Complainant and its Counsel have a limited role in a sessions trial in a State case – Trial Court was correct in proceeding under Section 232 Cr.P.C. and accordingly acquitting appellant-accused, treating it to be a case of no evidence – Trial Court was also correct in rejecting application under Section 319 Cr.P.C. for want of admissible evidence on part of prosecution – Impugned order of High Court set aside and that of Trial Court restored. (Paras 17, 18, 19 and 20)
Facts of the case:
By means of this appeal, accused has assailed correctness of judgment and order dated 11.08.2022 passed by Calcutta High Court in CRA No.222/2020 whereby High Court allowed appeal filed by complainant (respondent no.2) and after setting aside acquittal recorded by Trial Court on 31.09.2020, remanded case to proceed in a manner whereby Trial Court would first decide application under Section 319 of Code of Criminal Procedure, 1973 and thereafter proceed to decide trial.
Findings of Court:
High Court failed to take into consideration all these aspects. Why prosecution witnesses were shying from facing cross-examination is not understood. Their only insistence was that parents of accused should be summoned and dragged into trial and to somehow or other keep trial pending.
Result : Appeal allowed.

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 [CrPC] and thereafter proceed to decide the trial.

3. That the First Information Report² [FIR] 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 [IPC] 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 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 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 wit

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