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 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]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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