In a crucial ruling on October 18, 2024, the Supreme Court of India set aside a decision by the Calcutta High Court and restored the acquittal of Asim Akhtar, who was accused of attempted kidnapping. The court clarified that complainants cannot demand the summoning of new accused under Section 319 of the Code of Criminal Procedure (CrPC) before the completion of cross-examination of key witnesses, especially when those witnesses repeatedly fail to appear for cross-examination. The judgment was delivered by Justice Vikram Nath and Justice Prasanna B. Varale in Criminal Appeal No. 12292 of 2022.
Background of the Case:
The case originated from an FIR (No. 125/2017) lodged by the complainant (Respondent No. 2), alleging that the appellant, Asim Akhtar, attempted to kidnap her. The complaint also included charges under Sections 366, 323, and 506(II) of the Indian Penal Code (IPC) and Section 25(1)(B)(a) of the Arms Act, 1950. Following the investigation, a charge sheet was filed against Asim Akhtar, and the trial commenced in 2020. During the trial, the complainant and her parents, the key prosecution witnesses (PWs 1, 2, and 3), gave their Examination-in-Chief but consistently failed to appear for cross-examination despite multiple summonses.
In the midst of the trial, the complainant filed an application under Section 319 CrPC, seeking to summon the appellant’s parents as co-accused in the case. However, the trial court deferred the application until after the completion of cross-examinations, given that the witnesses were deliberately avoiding court appearances. The court noted that the witnesses’ refusal to appear hindered the trial proceedings.
When the trial court rejected the application under Section 319 CrPC and acquitted the accused due to lack of admissible evidence, the complainant appealed to the Calcutta High Court, which reversed the acquittal and directed the trial court to first decide on the Section 319 application before proceeding with the trial.
Legal Issues Involved:
1. Order of Application Under Section 319 CrPC: Whether an application under Section 319 CrPC for summoning additional accused can be decided before the completion of cross-examination of key prosecution witnesses.
2. Rights of the Complainant in a Criminal Trial: To what extent can a complainant control the direction of a trial, especially in light of procedural delays caused by witnesses failing to appear for cross-examination.
3. Use of Section 232 CrPC for Acquittal: The validity of acquittal under Section 232 CrPC when the prosecution fails to present admissible evidence due to non-compliance of its own witnesses.
Decision of the Court:
The Supreme Court overturned the High Court’s ruling, restoring the trial court’s decision to reject the application under Section 319 CrPC and to acquit the accused, Asim Akhtar. The court emphasized that while Section 319 CrPC allows summoning new accused based on Examination-in-Chief, it does not mandate deciding the application before cross-examination. The court pointed out that the prosecution witnesses’ repeated absence from court frustrated the trial proceedings, and their refusal to be cross-examined raised concerns about the integrity of the trial.
Key Observations:
1. Role of Cross-Examination: The court noted that while an application under Section 319 CrPC can be decided based on the Examination-in-Chief, the trial court retains discretion on whether to wait for cross-examination before making a determination. The Supreme Court clarified:
“There is no mandate to decide the application under section 319 CrPC before cross-examination of other witnesses”.
2. Prosecution’s Obligation to Proceed: The court took a stern view of the prosecution witnesses’ repeated failure to attend court for cross-examination, observing that their actions amounted to deliberate delay. Justice Nath observed:
“The complainant has no such mandatory right to insist that an application [under Section 319] be decided in such a manner. The role of the complainant in a trial does not permit it to act as a Public Prosecutor on behalf of the State”.
3. Protection Against Trial Delays: The court criticized the conduct of the complainant, who continuously postponed cross-examination while attempting to introduce new accused into the trial. The bench remarked that the complainant’s actions appeared to be an attempt to prolong the trial indefinitely, noting that:
“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”.
4. No Justification for Summoning New Accused: In rejecting the application under Section 319 CrPC, the court agreed with the trial court’s conclusion that there was no admissible evidence against the parents of the accused, since the key witnesses refused to face cross-examination.
The appellant, Asim Akhtar, was represented by Senior Counsel, while the State of West Bengal appeared through its legal representatives. Despite being served notice, no one appeared on behalf of the complainant (Respondent No. 2) in the Supreme Court proceedings.
