Suraj Revanna v. State of Karnataka

ORDER

The application u/s.319 of Cr.P.C. filed by prosecution is allowed.

The proposed accused is arraigned as an accused to face the trial.

I.O. is directed to furnish one set charge sheet papers to the proposed accused. The office is directed to furnish one set of attested copy of depositions of all the witnesses already examined to the proposed accused.

To frame the charge against proposed accused by "

The order of the concerned Court is only a reproduction of what the evidence is, but its analysis as to why the petitioner has to be brought back and charges to be framed against him is absent.

¶10The petitioner is not drawn as an accused at the time of filing of the charge sheet. Section 319 Cr.P.C., though permits drawing of an accused back into the web of proceedings on an application based on cogent reasons, it is not a frolicsome act. It requires evidence that is more than what is noticed at the time of filing of the charge sheet. Therefore, it is necessary to notice the statutory provision i.e., Section 319 of the Cr.P.C., and its interpretation by the Apex Court in plethora of judgments.

10.1. Interpreting Section 319 of the Cr.P.C., the Apex Court in SHANKAR v. STATE OF UTTAR PRADESH1, has held as follows: ".... .... ....

¶11Issue: The only question arising in the present appeal is whether the power under Section 319 Cr. P.C. has been properly exercised in light of the facts of the present case and evidence on record.

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¶12Analysis: We have heard Ld. counsel for appellants, Ms. Preetika Dwivedi and Ld. counsel for the Respondent State Mr. Ankit Goel.

¶13At the outset, we may note that the four accused who were charge-sheeted, have passed away. As against them, the trail has abated. The learned counsel for the Respondent State has argued that even if the trial has abated against existing accused, there is no bar in summoning the appellants and starting the trial afresh1. This position of law is well-settled and the learned counsel for the appellant has also not disputed the same.

¶14In this background, we will examine the legality of the summoning order under Section 319 Cr. P.C. on its own footing. Section 319 of the Cr. P.C. is as follows:

"319. Power to proceed against other persons appearing to be guilty of offence

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) ….

(3) ….

(4) …."

¶15Having taken note of the provision, we will note the principles laid down by a Constitution Bench of this Court in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, for criminal courts to follow while exercising power under Section 319 Cr. P.C.:

"94. In Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094, a four-Judge Bench of this Court was concerned with the meaning of the word "appear". The Court held that the appropriate meaning of the word "appears" is "seems". It imports a lesser degree of probability than proof. In Ram Singh v. Ram Niwas, (2009) 14 SCC 25, a two-Judge Bench of this

Court was again required to examine the importance of the word "appear" as appearing in the section. The Court held that for the fulfilment of the condition that it appears to the court that a person had committed an offence, the court must satisfy itself about the existence of an exceptional circumstance enabling it to exercise an extraordinary jurisdiction. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to conviction of the persons sought to be added as the accused in the case.

¶95At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter…

¶105Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

¶106Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC….."

¶16The degree of satisfaction required to exercise power under Section 319 Cr. P.C. is well settled after the above-referred decision. The evidence before the trial court should be such that if it goes unrebutted, then it should result in the conviction of the person who is sought to be summoned. As is

evident from the above-referred decision, the degree of satisfaction that is required to exercise power under Section 319 Cr. P.C. is much stricter, considering that it is a discretionary and an extra-ordinary power. Only when the evidence is strong and reliable, can the power be exercised. It requires much stronger evidence than mere probability of his complicity.

¶17In this background, we will examine the evidence on record which prompted the trial court to exercise the power under Section 319 Cr. P.C. PW-1, who is the mother of the deceased, is the only witness who has named the appellants.

17.1 In the first information statement, she has taken the name of the appellants as having played a role in the commission of the crime owing to the past enmity between the two families. The relevant portion of this statement is as follows:

"I am quite sure that my son Vijay Singh has been jointly murdered by Bachha Singh s/o Mohan Singh, Shankar s/o Bacha Singh, Vishal s/o Bacha Singh-residents of Raha and Sanjay s/o Munna Singh, Kallu Singh s/o Munna Singh-residents of Jalala, Police Station Ghatampur. We have an old existing enmity with these people."

17.2 However, in her Section 161 statement, she has stated that the appellants were not involved and that she named them without collecting full information. Two other witness, Rajau Sengar and Karan Singh, in their Section 161 statements have also stated that the appellants had no role whatsoever in the commission of the crime. Relevant portion of PW-1's statement under Section 161 Cr. P.C., is as follows:—

"…I had lent Rs. 8000 to Mahendra Singh long ago after selling Lahi. Vijay Singh had asked Mahendra Singh many times to repay the borrowed money but he did not give it back. Coming under the guise of this assurance, Vijay Singh left on Mahendra's motorcycle. Sanjay Singh and Kallu Singh sons of Munna Singh and Bacha Singh s/o Mohan Singh were also standing at some distance outside the house. They also lured my son Vijay Singh and accompanied Vijay Singh and

Mahendra Singh and all four of them killed my son Vijay Singh and threw the dead body in the field near the tubewell of Mahendra Pratap Singh Bhadoria. The names of Shankar Singh and Vishal Singhs sons of Bachha Singh, which I have written in the FIR, have been written by me falsely without collecting full information. My son Vijay Singh was murdered by Mahendra Singh s/o Chandrapal Singh Sachan of village Laukaha, Bacha Singh s/o Mohan Singh of village Raha and Sanjay Singh and Kallu Singh s/o Munna Singh of village Jalala. Shankar and Vishal sons of Bacha Singh were not involved in my son's murder." (emphasis supplied)

17.3 Even in the chargesheet, which was filed after investigation, the name of the appellants has not been mentioned as accused.

17.4 It is only in her deposition before the trial court that PW-1 has once again named the appellants. However, she has also stated that she has named them only on the basis of suspicion. The relevant portion of her deposition before the Trial Court is as follows:

"In my report, I made Bachha Singh, Shankar, Vishal, Kallu Singh and Mahendra Sachan accused. I had an old enmity with these people."

In her cross-examination, PW-1 stated as follows:—

"There were two-three outstation cases and two-three local cases from the village were pending against my son Vijay Singh, which are closed now. The said cases were closed/concluded during the lifetime of Vijay Singh. My old enmity with accused Bacha Singh has been going on for the last 11 years and on the basis of suspicion, I had written the names of Shankar and Vishal in the FIR."

¶18It is evident from the above that the appellants were named in the first information statement, however, in the statement under Section 161 Cr. P.C., PW-1 clarified that the names of appellants were written in the FIR falsely and without full information. She has also stated that the appellants were

not involved in the murder of her son. Even in the charge sheet, the names of the appellants were not mentioned as accused. It is only in her deposition before the Trial Court the names of the accused resurfaces again.

¶19None of the other witnesses, being PW's-2, 3, 4, 5 and 6 have deposed anything about the appellants.

¶20On 31.07.2017, i.e. almost a year after the deposition of PW-1, the prosecution chose to file an application under Section 319 Cr. P.C. to the following effect:—

"It is most respectfully submitted that in the above mentioned case, the first informant Mrs. Sheela Singh had written the names of Shankar Singh and Vishal Singh in the First Information Report and the names of Shankar Singh and Vishal Singh have also been mentioned by her in her examination in chief also. For this reason, it is necessary to summon Shankar Singh and Vishal Singh for trial in the said case.

Therefore, the Hon'ble court is requested to kindly pass an order thereby summoning accused Shankar Singh and Vishal Singh sons of Bachha Singh for trial in the said case. Yours faithfully, Sd/- illegible 31.7.2017"

¶21At the first place, PW-1 has named the appellants in the FIR despite not being an eyewitness to the offence. In her statement under Section 161, she sought to clarify the position by recording that her family had a long-standing enmity with appellants' family. She also stated that the names of the appellants were mentioned and written by her "falsely without collecting full information." She categorically stated that the appellants are not involved in the murder of her son.

¶22When we contrast this statement with her deposition given five years later, we do not see a drastic change in the stand of PW-1. Even in her chief examination, she had stated that she had an old enmity with the family of the accused. However, in her cross examination, she clarified that as the enmity with the appellants family was going on for the last

eleven years, names of the appellants were mentioned in the FIR on the basis of suspicion. Therefore, the change of circumstance which the prosecution seeks to contend on the basis of PW-1's deposition does not satisfy the requirement of Section 319 at all.

¶23Having considered the matter in detail, we are of the opinion that PW-1, not being an eye-witness, her deposition is not sufficient enough to invoke the extra-ordinary jurisdiction under Section 319 to summon the appellants.

¶24There are no other witnesses who have deposed against the appellants. There is no documentary evidence that the prosecution had collected against the appellants. There is absolutely no role that is attributed to the appellants. We are of the opinion that the deposition of PW-1 is also in line and consistent with her statement under Section 161. When these factors are looked in a holistic manner, it would be clear that the higher degree of satisfaction that is required for exercising power under Section 319 Cr. P.C. is not met in the present case.

¶25For the reasons stated above we are of the opinion that the Trial Court committed a serious error in allowing the application under Section 319 and issuing summons to the appellants. The High Court should have exercised its jurisdiction under Section 482 and quashed the order. The High Court having failed to quash the order of summons dated 24.08.2017, we are inclined to allow these appeals and set-aside the order passed by the Trial Court dated 24.08.2017 and the also the judgment of the High Court dated 04.04.2023 dismissing the petition under Section 482.

¶26For the reasons stated above, the present appeals are allowed, and the impugned order dated 04.04.2023 passed by the High Court of Judicature at Allahabad in Application under Section 482 No. 30221 of 2017 and the order dated

24.08.2017 passed by the Additional District and Sessions Judge, Court No. 5, Kanpur Dehat, in S.T. No. 434 of 2011 in Application Paper No. 83Kha under Section 319 Cr. P.C. are hereby set aside."

10.2. The Apex Court in the case of SHIV BARAN v. STATE OF UTTAR PRADESH2, has held as follows: "…. …. ….

¶5Here only, it would be pertinent to extract the relevant provision of CrPC:

"319 Power to proceed against other persons appearing to be guilty of offence - (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1) then—

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."

(Emphasis supplied)

¶6A perusal of the said section would reveal it to be an enabling provision, empowering the Court to proceed against any person, even if not cited as an accused, based on the evidence collected during the inquiry or trial, revealing the complicity of such a person to be arrayed as

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an accused. The object is to ensure that no guilty person should be allowed to escape the process of law, which is based on the doctrine of judex damnatur cum nocens absolviture (Judge is condemned when guilty is acquitted). The provision casts duty upon the Court to ensure that the real culprit does not get away unpunished, for the same to be part of a fair trial. However, the power under the said Section has to be invoked only upon the satisfaction of cogent material brought on record, necessitating such impleadment. The power to be exercised, needless to add, is to be with utmost caution and not in a casual, callous or cavalier manner - for the same is only to advance the cause of justice and not be a tool to harass the individual or result into an abuse of the process of law.

¶7The question whether the word 'evidence' used in Section 319(1) CrPC means only evidence tested by cross-examination or the statements made in the examination-in-chief would be sufficient for exercising the power under this Section, has been answered by the Constitution Bench of this Court in Hardeep Singh v. State of Punjab8 in the following manner:

"89. … Once examination-in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence.

¶90As held in Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007 SC 1899] and Harbhajan Singh, [(2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135], all that is required for the exercise of the power under Section 319 CrPC is that, it must appear to the court that some other person also who is not facing the trial, may also have

been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the Magistrate must come to in order to take cognizance of the offence. Therefore, no straitjacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s). It is essential to note that the section also uses the words "such person could be tried" instead of should be tried. Hence, what is required is not to have a mini-trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, 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 CrPC, 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 defence witnesses and advance his arguments upon the same. Therefore, even on the basis of 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. In fact, examination-in-chief untested by cross-examination, undoubtedly in itself, is an evidence. …

¶92Thus, in view of the above, we hold 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 on 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 offence. …

117.4. Considering the fact that under Section 319 CrPC a person against whom material is disclosed is only summoned to face the trial and in such

an event under Section 319(4) CrPC the proceeding against such person is to commence from the stage of taking of cognizance, the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination." (Emphasis supplied)

¶8This Court in Labhuji Amratji Thakor v. State of Gujarat9 reiterated the test of satisfaction laid down in Hardeep Singh (supra) to be the one that is more than a prima facie case required at the time of framing of charges, but less than the satisfaction that would warrant conviction:

"9. Answering Issue (iv) as noticed above in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86], in paras 105 and 106 of the judgment, the following was laid down by the Constitution Bench:

"105…

¶106Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused." (Emphasis supplied)

¶9This Court, in Ramesh Chandra Srivastava v. State of U.P.10 reiterated that the power under Section 319 CrPC should only be exercised when strong and cogent evidence is presented against a person and the test to be applied is one that is more than a prima facie case, as applied at the time of framing of charges.

¶10The Court, under this Section, can also proceed against a person who, though named in FIR, is not implicated by the Investigating Officer in the chargesheet, provided the statutory mandates are fulfilled. In S. Mohammed Ispahani v. Yogendra Chandak11, it was observed:

"35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused." (Emphasis supplied)

[See also Hardeep Singh (supra); and Labhuji Amratji Thakor (supra)]

¶11Most recently, this Court in Omi v. State of M.P.12, summarized the principles that need to be kept in mind for the summoning of additional accused:

"19. The principles of law as regards Section 319CrPC may be summarised as under:

19.1. On a careful reading of Section 319CrPC as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceedings on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added to face the trial.

19.2. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence.

19.3. The power of the court under Section 319 CrPC is not controlled or governed by naming or not naming of the person concerned in the FIR. Nor the same is dependent upon submission of the charge-sheet by the police against the person concerned. As regards the contention that the phrase "any person not being the accused" occurred in Section 319 excludes from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court are included in the said expression.

19.4. It would not be proper for the trial court to reject the application for addition of new accused by considering records of the investigating officer. When the evidence of complainant is found to be worthy of acceptance then the satisfaction of the investigating officer hardly matters. If satisfaction of investigating

officer is to be treated as determinative then the purpose of Section 319 would be frustrated."

(Emphasis supplied)

¶12We may emphasize that this Court in S. Mohammed Ispahani (supra) has already observed that the 'evidence' led before the Court has to be considered, and statements recorded under 161 CrPC could only be treated as corroborative material and not as independent evidence.

¶13In Brijendra Singh v. State of Rajasthan13, this Court observed that 'evidence' recorded during the trial was nothing more than the statements which were already there under Section 161 CrPC; the Trial Court ought to have looked into the evidence collected during the investigation which suggested otherwise and to see whether much stronger evidence than the mere possibility of complicity of accused person has come on record.

OUR VIEW

¶14The foregoing discussion would reveal the following statutory requisites for summoning any person not being the accused:

(a) such person has committed an offence; (b) his complicity is revealed from the evidence collected during inquiry or trial; and (c) for such offence, he can be tried together with the accused already facing trial.

¶15The principles that the Trial Court ought to follow while exercising power under this Section are:

(a) This provision is a facet of that area of law which gives protection to victims and society at large, ensuring that the perpetrators of crime should not escape the force of law;

(b) It is the duty cast upon the Court not to let the guilty get away unpunished;

(c) The Trial Court has broad but not unbridled power as this power can be exercised only on the basis of evidence adduced before it and not any other material collected during investigation;

(d) The Trial Court is not powerless to summon a person who is not named in the FIR or Chargesheet; they can be impleaded if the evidence adduced inculpates him;

(e) This power is not to be exercised in a regular or cavalier manner, but only when strong or cogent evidence is available than the mere probability of complicity;

(f) The degree of satisfaction required is much stricter than the prima facie case, which is needed at the time of framing of charge(s);

(g) The Court should not conduct a mini-trial at this stage as the expression used is 'such person could be tried' and not 'should be tried'."

10.3. Again, the Apex Court in the case of NEERAJ KUMAR v. STATE OF UTTAR PRADESH3 summarizes the entire law on Section 319 of the Cr.P.C. and holds as follows: "…. …. ….

¶4We have heard the learned counsel for the parties and perused the material on record. The sole issue that arises for our consideration is whether the Courts below, in the attending facts and circumstances, were justified in dismissing the application for summoning the respondents as additional accused?

¶5Section 319 CrPC contemplates that:

"(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. …"

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¶6The law governing the summoning of an additional accused under Section 319 CrPC is now well settled. The provision is an enabling one, empowering the Court, during the course of an inquiry or trial, to proceed against any person not already arraigned as an accused, if, from the evidence adduced before it, such person appears to have committed an offence. Its object is to ensure that no guilty person escapes the process of law, thereby giving effect to the maxim judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted). It casts a duty upon the Court to ensure that the real offender does not go unpunished, for only then can the concept of fair and complete trial be realised.

¶7It is longer res integra that the power conferred under this Section is extraordinary and discretionary in nature, intended to be exercised sparingly and with due circumspection. While invoking it, the Court must be satisfied that the evidence appearing against the person sought to be summoned is such that it prima facie necessitates bringing such person to face trial. The degree of satisfaction required is higher than that warranted at the stage of framing of charge, yet short of the satisfaction necessary to record a conviction. Such satisfaction must rest on cogent and credible material brought on record during the trial, and not based on conjectures or speculations. In this regard, reference to a few judicial pronouncements of this Court would be apposite.

7.1. The Constitution Bench of this Court in Hardeep Singh v. State of Punjab [(2014) 3 SCC 92] extensively discussed the power conferred under Section 319 CrPC. Relevant part is extracted hereunder:

"90. … all that is required for the exercise of the power under Section 319 CrPC is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the Magistrate must come to in order to take cognizance of the offence. Therefore, no straitjacket formula can and should be laid with

respect to conditions precedent for arriving at such an opinion and, if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s). It is essential to note that the section also uses the words "such person could be tried" instead of should be tried. Hence, what is required is not to have a mini-trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, 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 CrPC, 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 defence witnesses and advance his arguments upon the same. Therefore, even on the basis of 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. In fact, examination-in-chief untested by cross-examination, undoubtedly in itself, is an evidence. xxx

¶106Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. … xxx

¶110In Lal Suraj [Lal Suraj v. State of Jharkhand, (2009) 2 SCC 696 : (2009) 1 SCC (Cri) 844],

a two-Judge Bench held that there is no dispute with the legal proposition that even if a person had not been chargesheeted, he may come within the purview of the description of such a person as contained in Section 319 CrPC. A similar view had been taken in Lok Ram [Lok Ram v. Nihal Singh, (2006) SCC 192 : (2006) 3 SCC (Cri) 532 : AIR 2006 SC 1892], wherein it was held that a person, though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added to face the trial. xxx

117.6. A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 CrPC provided from the evidence it appears that such person can be tried along with the accused already facing trial…"

(emphasis supplied)

7.2. In S. Mohammed Ispahani v. Yogendra Chandak [(2017) 16 SCC 226], it reiterated that under this Section the Court possesses the power to summon the persons not named in the chargesheet to face trial, if the evidence on record so warrants. It further clarified that a statement recorded under Section 161 CrPC, though not an independent piece of evidence, sufficient in itself to invoke the power under this Section may, nevertheless, be relied upon for corroborative purposes when supported by evidence emerging during trial. It was observed as under:

"34. … No doubt, at one place the Constitution Bench observed in Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] that the word "evidence" has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. In para 105 of the judgment, however, it is observed that "only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner". This sentence gives an impression that only that evidence which has been led before the Court is to be seen and not the

evidence which was collected at the stage of inquiry. However there is contradiction between the two observations as the Court also clarified that the "evidence", on the basis of which an accused is to be summoned to face the trial in an ongoing case, has to be the material that is brought before the Court during trial. The material/evidence collected by the investigating officer at the stage of inquiry can only be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 CrPC.

¶35It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the chargesheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the chargesheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the chargesheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused."

(emphasis supplied)

7.3. In Omi v. State of M.P. [(2025) 2 SCC 621], a coordinate bench of this Court laid the following principles of law with regard to Section 319 CrPC:

"19. The principles of law as regards Section 319 CrPC may be summarised as under:

19.1. On a careful reading of Section 319 CrPC as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not

being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceedings on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added to face the trial.

19.2. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the chargesheet or the case diary, because such materials contained in the chargesheet or the case diary do not constitute evidence.

19.3. The power of the court under Section 319 CrPC is not controlled or governed by naming or not naming of the person concerned in the FIR. Nor the same is dependent upon submission of the chargesheet by the police against the person concerned. As regards the contention that the phrase "any person not being the accused" occurred in Section 319 excludes from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the chargesheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court are included in the said expression.

19.4. It would not be proper for the trial court to reject the application for addition of new accused by considering records of the investigating officer. When the evidence of complainant is found to be worthy of acceptance then the satisfaction of the investigating officer

hardly matters. If satisfaction of investigating officer is to be treated as determinative then the purpose of Section 319 would be frustrated."

(emphasis supplied)

7.4. Recently, this Court, through one of us (Sanjay Karol, J.), in Shiv Baran v. State of U.P. [2025 SCC OnLine SC 1457] summarised the principles that the Court ought to keep in mind while considering an application under this Section. It was observed: "15. The principles that the Trial Court ought to follow while exercising power under this Section are:

(a) This provision is a facet of that area of law which gives protection to victims and society at large, ensuring that the perpetrators of crime should not escape the force of law;

(b) It is the duty cast upon the Court not to let the guilty get away unpunished;

(c) The Trial Court has broad but not unbridled power as this power can be exercised only on the basis of evidence adduced before it and not any other material collected during investigation;

(d) The Trial Court is not powerless to summon a person who is not named in the FIR or Chargesheet; they can be impleaded if the evidence adduced inculpates him;

(e) This power is not to be exercised in a regular or cavalier manner, but only when strong or cogent evidence is available than the mere probability of complicity;

(f) The degree of satisfaction required is much stricter than the prima facie case, which is needed at the time of framing of charge(s);

(g) The Court should not conduct a mini-trial at this stage as the expression used is 'such person could be tried' and not 'should be tried'.

(emphasis supplied)

…. …. ….

¶11[…] From reading the above, it is evident that a quarrel took place between her parents. During this altercation, her father, Rahul Yadav, obtained a country made pistol from her uncle Sattan @Vineet (Respondent No. 3 herein) and, on the provocation of her grandmother Rajo @Rajwati (Respondent No. 2 herein) and her aunt's husband Gabbar (Respondent No. 4 herein), fired at her mother/deceased. The High Court, however, in the impugned judgment, concluded that PW-2 was not an eyewitness to the actual firing and relied on her cross-examination wherein she stated - "I had heard the sound of firing. From sound of firing I came to know that, that two times firing was made. I had seen empty cartridge on ground.". to hold that she had reached the scene of occurrence only after hearing the gunshots. In our considered view, the High Court's approach is erroneous. Drawing such an inference amounts to conducting a mini-trial at the stage of summoning, which is impermissible. At the stage of deciding the application under Section 319 CrPC, the Court is not required to test the credibility or weigh the probative value of the evidence as would be done at the end of the trial for determining the conviction or otherwise of the accused. What the Court has to consider at this stage is whether the material on record reasonably indicates involvement of the proposed accused so as to exercise the extraordinary power. Therefore, the reliance placed by the Courts below on PW-2's cross-examination to discredit her testimony was misplaced.

¶12The respondents have further contended that PW-2 did not initially name the respondents in her statement recorded during the investigation and that, being a minor, she may have been influenced or tutored to implicate the respondents, as she was residing with the appellant's family following the incident. However, we are not persuaded to accept this contention, as

even in her statement recorded under Section 161, had categorically named the respondents as those who instigated the commission of the said crime. She stated: …. …. ….

While a statement recorded under Section 161 CrPC is not substantive evidence in itself, it may be used to corroborate the evidence recorded by the Court to invoke the power under Section 319 CrPC, as held in S. Mohammed Ispahani (supra). Therefore, conjointly reading PW-2's deposition along with her Section 161 statement, we find that a specific and overt act has been assigned to the respondents. Whether she actually witnessed the firing or arrived immediately thereafter, and the extent to which her statement inspires confidence, are matters that are to be determined at the stage of trial, upon full appreciation of the evidence. The testimony of a child witness shall be weighed by the Court concerned in view of the principles in laid in State of Rajasthan v. Chatra [(2025) SCC 613] and State of M.P. v. Balveer Singh [(2025) 8 SCC 545].

¶13Lastly, the prosecution has also placed reliance upon the statements of the deceased recorded during the investigation under Section 161 CrPC to seek the summoning of the respondents. However, the respondents have contended that such statements cannot be relied upon as, firstly, they were neither recorded in the presence of a Magistrate nor accompanied by any contemporaneous medical certification regarding the mental fitness of the deceased to give such statements; and secondly, both statements are inconsistent inter se, since the first one does not name the respondents whereas the second does.

…. …. ….

¶17Consequent to the above discussion, we find that the material on record, i.e. the depositions of PW-1 and PW-2, along with the statements of the deceased recorded during the investigation, prima facie suggests the complicity of the respondents in the commission of the said offence. There, thus, exists sufficient ground to exercise the power under Section 319 CrPC and summon them to face trial in Sessions Trial No. 1151 of 2021. The objections raised by the

respondents, including the alleged tutoring of the minor witness, omission of their names in the FIR, inconsistencies in the statements of the deceased and lack of contemporaneous medical certification, are all premature and cannot be conclusively decided at the stage of exercising power under Section 319 CrPC."

If the facts obtaining in the case at hand are tested on the anvil of elucidation of law by the Apex Court, what would emerge is, the evidence that is brought during the trial which was the same at the time of recording of the statement earlier, does not become a higher decree of evidence for the petitioner to be brought back into the web of proceedings. The concerned Court has erred in taking stray statement of witnesses which were completely contrary to what they had rendered at the time of investigation and it cannot become the fulcrum of an order of allowing an application under Section 319 of the Cr.P.C., In that light, the petition deserves to succeed.

¶11For the aforesaid reasons, the following: O R D E R

(i) Criminal Petition is allowed.

(ii) The order dated 7-02-2025 passed by the IV Additional District and Sessions Judge, Hassan sitting at Channarayapatna in S.C.No.194 of 2022 stands quashed.

(iii) The result of quashing of the order would be that the petitioner cannot be arraigned as an additional accused in S.C.No.194 of 2022.

Sd/- (M.NAGAPRASANNA) JUDGE

bkp CT:MJ

Reserved on : 07.08.2026 Pronounced on : 25.09.2026 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF SEPTEMBER, 2026 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL PETITION No.2796 OF 2025 BETWEEN: SURAJ REVANNA S/O H D REVANNA AGED ABOUT 35 YEARS RESIDING AT HOLENARASIPURA TOWN AND TALUK HASSAN - 573 211. ... PETITIONER (BY SRI BIPIN HEGDE ADVOCATE A/W SRI ABHINAY Y.T., ADVOCATE) AND: 1 . STATE OF KARNATAKA BY CHANNARAYAPATNA RURAL POLICE REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING COMPLEX HIGH COURT OF KARNATAKA BENGALURU - 560 001. 2. SHIVANANDA @ MADHU S/O NAGARAJU Digitally signed by PADMAVATHI B K Location: High Court of Karnataka AGED ABOUT 35 YEARS RESIDING AT NAMBIHALLI DANDIGANAHALLI HOBLI CHANNARAYAPATNA TALUK HASSAN - 573 225. ... RESPONDENTS (BY SRI B.N.JAGADEESHA, SPP-I FOR R-1; SRI MANJUNATHA H.B., ADVOCATE FOR R-2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 07.02.2025 PASSED ON I.A. FILED U/S 319 OF CR.P.C. IN S.C.NO.194/2022 BY THE 4TH ADDL. DIST. AND SESSIONS JUDGE, HASSAN DISTRICT AT CHANNARAYAPATNA AND CONSEQUENTLY DISMISS THE I.A. FILED U/S 319 OF CR.P.C. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 07.08.2026, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- CAV ORDER The petitioner is before the Court calling in question an order dated 07-02-2025 passed by the IV Additional District and Sessions Judge, Hassan sitting at Channarayapatna in S.C.No.194 of 2022 by which an application filed under Section 319 of the Cr.P.C., by the prosecution comes to be allowed and the petitioner is brought back into the web of proceedings. CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA 2. Heard Sri Bipin Hegde, learned counsel appearing for the petitioner, Sri B.N. Jagadeesha, learned State Public Prosecutor-1 appearing for respondent No.1 and Sri Manjunatha H.B., learned counsel appearing for respondent No.2. 3. Facts, in brief, adumbrated are as follows: - 3.1. On 03-12-2019 a complaint comes to be registered alleging that at about 8-00 p.m. on the said day, the complainant and his friends went to a farm house of one Santhosh, their friend. An hour later the petitioner along with 150 to 200 persons come to the farm house of Santhosh and abused Girish and Santhosh alleging that they have left JDS and joined BJP and threatened to kill them. Certain persons named in the petition had also come with an intention to kill them. Out of the said gang, one Mohan assaulted Girish on body and hands, Pradhi assaulted one Naveena with club on the right hand, N Bindenahalli Loki assaulted Ananda with hands and one Karadevu Sathish assaulted Santhosh with clubs. The complainant and others went inside the house. The petitioner is alleged to have further instigated others to barge into the house and they assaulted mercilessly and also damaged the cars. This becomes the fulcrum of the complaint in Crime No.168 of 2019 for offences punishable under Sections 114, 143, 147, 148, 307,323, 324, 427, 448, 504, 506 and 149 of the IPC. The offences alleged were including attempt to murder. The Police conduct investigation and file a charge sheet. 3.2. The petitioner who was an accused at the time of filing FIR was not an accused at the time of filing the charge sheet. Therefore, he was dropped from the array of accused finding no allegation against him for filing of a charge sheet. The concerned Court then takes cognizance of the offence and registers S.C.No.194 of 2022. Charges are framed against accused Nos.1 to 13 on 12-01-2024. After framing of charges 13 witnesses are examined. 11 witnesses turned hostile and they denied involvement of several of the accused. When things stood thus, on 05-10-2024 the prosecution files an application under Section 319 of the Cr.P.C., seeking to draw the petitioner back as an additional accused. The concerned Court issues summons on the application to the petitioner. The