This article has been written by Nandan Rathi, a 5th year law student at Hidayatullah National Law University.
IN THE HON’BLE SUPREME COURT OF INDIA
ASIM AKHTAR (Petitioner)
VS
STATE OF WEST BENGAL (Respondent)
CITATION- 2024 Livelaw (SC) 814/ SLP (Crl.) No.12292 OF 2022
DATE OF JUDGMENT- 18th October 2024
QUORUM- Vikram Nath, J. and Prasanna B Varale, J.
INTRODUCTION-
The recent ruling by the honourable Supreme Court in Asim Akhtar vs the State of Bengal is an important ruling where the court has addressed the scope of section 319 of the Code of Criminal Procedure (CrPC). Section 319 of CrPC “relates to the power of a court to proceed against other persons appearing to be guilty of an offense. This section empowers the court to add an accused person to a case if they seem involved in the offense being tried”[1]. After serving notice the court can summon, detain, or arrest such a person. Suppose the collected or recorded evidence discloses that ‘anyone other than the accused’ has committed the same offense. In that case, the court can call such other person and join him in such proceeding for the said offense. Section 319 thus gives extraordinary power to the courts. It is exercised at the discretion of the judge. It is based on the doctrine “judex damantur cum nocens absolvitor” which means Judges condemn when the guilty is acquitted.
Under the new criminal laws, section 319 of CrPC is now incorporated under section 358 of Bhartiya Nagarik Suraksha Sanhita (BNSS), 2023. However, since the new act does not apply retrospectively, the present judgment court relied upon CrPC only.
The present case of Asim Akhtar vs the State of West Bengal addresses the issue of whether the court can summon additional accused solely based on examination-in-chief evidence without cross-evidence. Here is the comprehensive breakdown of the judgment-
FACTS OF THE CASE And PROCEDURAL HISTORY-
Asim Akhtar was accused of attempted kidnapping and assault under several IPC sections and the Arms Act. The First Information Report2 was lodged by respondent no.2 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 under the relevant sections.
After the initial examination-in-chief of key prosecution witnesses, these witnesses repeatedly failed to attend cross-examination hearings resulting in an acquittal for Akhtar due to “no evidence” under Section 232 CrPC. Subsequently, the complainant appealed, requesting the inclusion of additional accused based on the examination-in-chief under Section 319 CrPC, which the High Court initially upheld. The summoned parties failed to come to court because of COVID-19 and sought 4 weeks. Yet another application was filed before the concerned authority to issue an urgent certified copy of the order passed by the High Court.
CORE ISSUE OF THE CASE-
The main question was-
Whether the High Court’s directive to decide on additional accused based solely on examination-in-chief, without waiting for cross-examination, was legally appropriate.
ARGUMENTS FOR PETITIONER-
The petitioner referred to the case of Hardeep Singh. The judgment in Hardeep Singh does not provide that it is mandatory to decide the ‘application under section 319 CrPC’ before conducting a cross-examination and only based on the examination-in-chief. It merely clarifies that even the examination-in-chief is part of
Evidence and records thus can be relied upon to decide an ‘application under section 319 CrPC’. The High Court referenced Hardeep Singh v. State of Punjab, interpreting it as a mandate for the trial court to decide on Section 319 applications based only on examination-in-chief.
ARGUMENTS OF THE RESPONDENT-
The respondent argues that despite repeated reminders the witnesses remained absent and filed for adjournment, thus prolonging the matter. The Trial Court recorded in detail the past conduct of PWs 1, 2, and 3 and 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 an affidavit in her application under section 319 CrPC but did not care to attend the trial proceedings and present herself for cross-examination. 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.
COURT’S REASONING-
In the present case, the Trial Court tried its best to ensure that the prosecution witnesses nos.1, 2, and 3 presented themselves for cross-examination and afterward 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 determining the application under section 319 CrPC first and only afterward the trial could proceed. The complainant has no such mandatory right to insist that an application be decided in such a manner. The Public Prosecutor did not support the complainant’s counsel in applying section 319 CrPC. The complainant’s role 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 somehow or the other keep the case pending.
The judgment does not take away the discretion of the Trial Court to wait for the cross-examination to occur 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 or to wait for it. The same would depend upon the satisfaction of the Trial Court based on the material placed on record. The precondition for implementing this power is similar to the prima facie view in which the ‘magistrate must come to take cognizance of the offense’. Therefore, no straight-jacket formula can and should be laid for conditions precedent for arriving at such an opinion.
“It is important to understand that the Section also uses the words ‘such person could be tried instead of should be tried’. Therefore, what is required is not to have a mini-trial at this stage by having examination and cross-examination and later interpreting a decision on the overt act of such person sought to be added. 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 defense witnesses and advance his arguments upon the same.
Therefore, even based on the Examination-in-Chief, the Court or the Magistrate can proceed against a person as 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. Examination-in-Chief untested by Cross Examination, undoubtedly in itself, is evidence”[2].
PRECEDENT ANALYSIS-
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 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 offense”[3]. 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 based on the Examination-in-Chief. Relying upon the same, the High Court has ‘set aside the order of the acquittal passed by the Trial Court’. The matter is remanded to the Trial Court with the direction to first decide the application under section 319 CrPC and proceed with the sessions trial expeditiously.
The five-judge bench in Hardeep Singh Concluded-
“Once the examination-in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, it may be rebuttable. Evidence being rebutted or controverted becomes a matter of consideration, relevance, and belief. Yet it is evidence and material based on the court that can come to a prima facie opinion as to the characteristics of some other person who may be connected with the offense”[4].
JUDGEMENT-
Aggrieved by the trial court’s decision, respondent no 2 filed an appeal before the High Court which has since been allowed by the impugned judgment and order, giving rise to the present appeal. Therefore, the collaboration of any person sought to be arranged as an accused can be decided with or without conducting a cross-examination of the complainant and other prosecution witnesses, and there is no mandate to adopt the application under section 319 CrPC before cross-examination of other witnesses.
The judges ordered that the Trial Court was correct in proceeding under section 232 CrPC and accordingly acquitting the appellant-accused, treating it as 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 the part of the prosecution. “The appeal is allowed; the impugned order of the High Court is set aside and that of the Trial Court is restored”.
JUDGMENT ANALYSIS And Its IMPLICATIONS-
The Supreme Court clarified that while Hardeep Singh allows courts to summon additional accused based on examination-in-chief, it does not mandate ignoring cross-examination. The Court emphasized that a Section 319 CrPC application should not devolve into a “mini-trial.” Courts have the discretion to defer the decision until cross-examination if it aids in forming a clearer view of the involvement of additional parties. Consequently, the Supreme Court reinstated Akhtar’s acquittal and set aside the High Court’s direction, underscoring the discretionary power of trial courts to balance fairness with procedural efficiency in such applications.
This judgment provides valuable clarity on the function of Section 319 CrPC, emphasizing that a court’s discretionary authority is preserved even when an examination-in-chief offers prima facie evidence. By stressing that Section 319 should not create a “mini-trial” stage, the ruling aims to prevent undue procedural delays while ensuring a fair trial process, particularly when the accused’s acquittal relies on the full admissibility of evidence.
In the Criminal Justice System, fairness and equity are important factors during the trial. Section 319 embodies the principle that in the interest of justice, it is important to not only prosecute the known offenders but also those who became suspects as the trial goes on. “Section 319 of CrPC addresses the complexities that arise when the truth unfolds incrementally, compelling the court to adapt and expand its purview. Section 319 embodies the fundamental principle that the search for truth should not be hindered by procedural limitations”[5]. The application of the section requires the critical assessment of the evidence and rights of the accused and society’s interests.
Essentials of Section 319 –
- Additional Accused Persons
- Availability of sufficient evidence during the trial
- The opportunity of heard to be given to a newly accused person
- Separate trial if necessary
- Protection of Rights and Safeguards
- Discretion of Court and to prevent injustice
CONCLUSION-
This decision reaffirms judicial discretion in handling Section 319 applications and underlines that the quality and completeness of evidence, not just procedural formalities, should guide decisions involving additional accused. This case will likely influence future applications of Section 319, especially in maintaining the balance between procedural rigor and expedient justice in criminal trials.
[1] Sharma, L.P. (2023). Unveiling the Dynamics of Section 319 of the Code of Criminal Procedure. [online] Bar and Bench – Indian Legal news. Available at: https://www.barandbench.com/law-firms/view-point/unveiling-the-dynamics-of-section-319-of-the-code-of-criminal-procedure.
[2] Bench, B. (2021). Supreme Court explains scope and ambit of powers of court under Section 319 CrPC [Read Judgment]. [online] Bar and Bench – Indian Legal news. Available at: https://www.barandbench.com/news/litigation/supreme-court-explains-scope-and-ambit-of-powers-of-court-under-section-319-crpc-read-judgment
[3] latestlaws.com. (2024). Purushottam Karad And Ors vs Mohini Naraindas Kamwani And Ors. [online] Available at: https://latestlaws.com/judgements/bombay-high-court/2015/october/2015-latest-caselaw-436-bom
[4] Agrawal, A. (2024). Hardeep Singh v State of Punjab, (2014) 3 SCC 92. [online] LawBhoomi. Available at: https://lawbhoomi.com/hardeep-singh-v-state-of-punjab-2014-3-scc-92/
[5] Supra Note 1
