Complainant can't insist on deciding plea to summon other accused before cross examination: SC [Read Judgment]

NEW DELHI: The Supreme Court has said the complainant in a criminal case has no such mandatory right to insist that an application be decided in such a manner

Complainant Has No Right to Insist on Summoning Others Before Cross-Examination, Says SC

The complainant also can't insist that he would not subject himself to cross examination until his application for summoning other persons are decided by the trial court.

A bench of Justices Vikram Nath and Prasanna B Varale said, "The role of the complainant 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".

In a judgment on Friday, the bench also said 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 under Section 319 CrPC before cross examination of other witnesses.

Trial Court’s Discretion Key in Deciding Applications Under Section 319 CrPC

Section 319 of the CrPC allows the trial court to summon a person as an accused at any stage of the trial.

Deciding an appeal filed by lone accused Asim Akhtar, the court set aside the Calcutta High Court's judgment which had reversed acquittal of the appellant in a case related to kidnapping for the purpose of marriage since the complainant had declined to appear for cross examination until her plea for summoning parents of the accused was decided.

The court upheld the order of acquittal and dismissal of application under Section 319 CrPC by the trial court.

Having relied upon the Constitution bench decision in Hardeep Singh Vs State of Punjab & Ors (2014), the High Court has remanded the matter to the trial court with the direction to first decide the application under Section 319 CrPC and thereafter proceed with the sessions trial expeditiously.

"The 2014 judgment does not take away the discretion of the trial court to wait for the cross examination to take place before deciding the application under Section 319 CrPC. It merely provides that consideration of such an application should not be a mini trial," the bench explained.

The bench said 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, which would depend upon the satisfaction of the trial court on the basis of the material placed on record.

The top court found the High Court failed to take into consideration the complainant had repeatedly declined to appear for the cross examination and kept on filing application for summoning parents of the accused in the case.

"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 to somehow or the other keep the trial pending," the bench said.
 [Read Judgment]