She gave evidence, then vanished. The court still acquitted him.

The Complainant Who Wouldn’t Be Cross-Examined

Asim Akhtar was charged with kidnapping, voluntarily causing hurt, criminal intimidation, and an arms offence. The complainant—a woman—and her parents gave their examination-in-chief. Then they stopped coming to court. They filed adjournment after adjournment. They insisted that the Trial Court first decide their application to summon Akhtar’s parents as additional accused under Section 319 of the Code of Criminal Procedure, 1973. The Trial Court, a Sessions Court in West Bengal, tried repeatedly to get the witnesses to appear for cross-examination. They refused. Eventually, the Trial Court closed prosecution evidence, rejected the Section 319 application for want of admissible evidence, and acquitted Akhtar under Section 232 CrPC. The Calcutta High Court reversed that acquittal, relying on Hardeep Singh v. State of Punjab (2014) 3 SCC 92. The Supreme Court of India, in Asim Akhtar v. The State of West Bengal & Anr. (2024 INSC 794), restored the acquittal. The stakes were simple: a man’s liberty, a trial that had stalled for years, and a procedural question about when a court must decide a Section 319 application.

What the Trial Court Actually Did

The FIR was registered on October 11, 2017, under Sections 366, 323, and 506(II) of the Indian Penal Code, 1860, read with Section 25(1)(B)(a) of the Arms Act, 1959. The charge-sheet was filed on February 8, 2019. The case went to trial before the Sessions Court. The complainant (respondent no.2) and her parents (PW-1, PW-2, and PW-3) gave their examination-in-chief. Then the trouble began.

The witnesses repeatedly failed to appear for cross-examination. They filed adjournment applications. They insisted that the court first decide their application under Section 319 CrPC to summon the accused’s parents as additional accused. The Trial Court tried multiple times to get them to appear. They did not. On September 29, 2020, the Trial Court closed prosecution evidence, rejected the Section 319 application on the ground that examination-in-chief untested by cross-examination was not admissible evidence, and acquitted Akhtar under Section 232 CrPC for want of evidence.

The High Court’s Reversal

The complainant appealed to the Calcutta High Court in CRA No.222/2020. On August 11, 2022, the High Court allowed the appeal, set aside the acquittal, and remanded the case. The High Court directed the Trial Court to first decide the Section 319 application and then proceed with the trial. The High Court relied on Hardeep Singh v. State of Punjab (2014) 3 SCC 92, holding that Section 319 must be decided on the basis of examination-in-chief alone, without waiting for cross-examination.

The Supreme Court’s Correction

The Supreme Court of India, in a judgment authored by Justice Vikram Nath and concurred in by Justice Prasanna B. Varale, allowed Akhtar’s appeal. The Court held that the High Court had misread Hardeep Singh. The Supreme Court clarified that Hardeep Singh does not mandate that a Section 319 application must be decided before cross-examination and only on the basis of examination-in-chief. It merely clarifies that examination-in-chief is part of the evidence and can be relied upon for the purpose of Section 319. The Trial Court retains discretion to decide whether to dispose of the Section 319 application before or after cross-examination, depending on the material on record.

THE PLAY: A Trial Court is not bound to decide a Section 319 application before cross-examination. It has discretion to decide the timing based on the material on record. Hardeep Singh does not take away that discretion.

The Supreme Court also held that where prosecution witnesses repeatedly refuse to appear for cross-examination despite summons and only insist on ancillary applications being decided first, the Trial Court is justified in closing prosecution evidence and acquitting the accused under Section 232 CrPC for want of admissible evidence. Examination-in-chief untested by cross-examination is not admissible evidence for the purpose of conviction.

The Complainant’s Limited Role

The Court also made an important observation about the role of the complainant in a sessions trial. The complainant in a State case has a limited role and cannot insist on a particular sequence of proceedings or act as a Public Prosecutor on behalf of the State. The Court noted that even the Public Prosecutor had not supported the complainant’s counsel in filing the Section 319 application, suggesting that the prosecution itself did not consider it meritorious.

Why This Matters in Practice

This judgment is a significant check on the misuse of Section 319 CrPC by complainants to delay trials. It reaffirms that the Trial Court has discretion over the timing of deciding a Section 319 application. It also clarifies that witnesses cannot hold the trial hostage by refusing to appear for cross-examination until their ancillary applications are decided. The judgment restores the Trial Court’s acquittal, which means Akhtar is no longer facing trial.

For advocates, this judgment is a powerful tool to resist Section 319 applications that are filed solely to delay cross-examination. It can be cited to argue that the Trial Court should not be compelled to decide a Section 319 application before cross-examination if the material on record does not warrant it. For CFOs and founders, this judgment is a reminder that procedural delays can be challenged, and that a court will not allow a complainant to dictate the pace of a trial.

The bottom line: A Trial Court has discretion to decide the timing of a Section 319 application, and witnesses cannot avoid cross-examination by insisting on ancillary applications being decided first.