Himachal Pradesh High Court
Amit Kumar vs State Of H.P on 24 July, 2026
2026:HHC:30602
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 666 of 2025
Reserved on: 17.7.2026
.
Date of Decision: 24.7.2026
Amit Kumar ...Petitioner
Versus
State of H.P. ...Respondent
of
Coram rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr Mohar Singh, Advocate.
For the Respondent/State : Mr Prashant Sen, Deputy
Advocate General.
Rakesh Kainthla, Judge
The present revision is directed against the order
dated 16.09.2025 passed by the learned Additional Sessions
Judge, Fast Track Court, Kinnaur at Rampur Bushahr, District
Shimla, H.P. (learned Trial Court), vide which an application filed
by the petitioner (accused before the learned Trial Court) under
Section 358 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
corresponding to Section 319 of the Code of Criminal Procedure
(Cr.PC) was dismissed. (The parties shall hereinafter be referred to
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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in the same manner as they were arrayed before the learned Trial
Court for convenience).
2. Briefly stated, the facts giving rise to the present
.
petition are that the police filed a charge sheet against the
petitioner/accused for the commission of offences punishable
under Sections 108 and 85 of Bharatiya Nayaya Sanhita, 2023
of
(BNS), Section 9 of the Prohibition of Child Marriage Act, 2006
and Section 6 of the Protection of Children from Sexual Offences
rt
Act (POCSO Act). It was asserted that the petitioner/accused had
married the victim (since deceased). He used to harass her,
suspect her character, and beat her. She narrated these facts to
her father (the informant). She committed suicide on 27.01.2025.
The matter was reported to the police. The police registered the
FIR. The police found that the victim was born on 05.08.2002.
The petitioner had married her on 07.10.2019. She had given birth
to a child on 03.08.2020. She was a minor on the date of her
marriage and birth of the child. Hence, a charge sheet was filed
before the learned Trial Court.
3. Learned Trial Court found sufficient reasons to
summon the accused. When the accused appeared, he was
charged with the commission of offences punishable under
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Section 9 of the Prohibition of Child Marriage Act, Sections 85
and 108 of the BNS and Section 6 of the POCSO Act.
4. The prosecution examined Dr. Ajay Kumar Negi
.
(PW1), Bhim Singh (PW2), Kamlesh (PW3), Prakash Chand
(PW4), Madan Lal (PW5), Constable Ajay Mehta (PW6), Inder
Kumar (PW7), Narinder Singh (PW8), Lady Constable Ashima
of
(PW9), Constable Gurudev (PW10), Constable Asha (PW11), Ram
Krishan (PW12) and constable Rajneesh Kishore (PW13).
5.
rt
The accused filed an application under Section 358 of
the BNS asserting that Prakash Chand (PW4) deposed that the
marriage between the victim and the accused was an arranged
marriage, which was solemnised by the parents, uncle, sister and
maternal uncle of the victim. Many people had participated in the
ceremonies. The statement of the witness Prakash Chand and the
photographs showed that the parents and maternal uncle of the
victim had intentionally encouraged and aided the commission of
the offences punishable under Section 6 of the POCSO Act and
Section 9 of the Prohibition of Child Marriage Act. They
suppressed the victim’s minority from the accused, his parents
and relatives. The entry of marriage was recorded at the instance
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of Gokal Ram. Hence, it was prayed that the persons mentioned
in the application be arrayed as the accused.
6. The application was opposed by the State by asserting
.
that no fruitful purpose would be served by summoning the
additional accused. It was a matter of investigation for which a
separate charge sheet would be filed. Hence, it was prayed that
of
the present application be dismissed.
7. Learned Trial Court held that the jurisdiction under
rt
Section 358 of BNS was extraordinary and could only be exercised
when the material on record established that the person sought
to be summoned had committed an offence. The police had
recorded the statements of the witnesses, in which it was
asserted that the marriage was solemnised by the victim and the
petitioner against the wishes of their parents. The statement of
Prakash Chand (PW4) was not sufficient to summon the family
members of the child victim. The photographs were yet to be
proved. The persons sought to be summoned as accused were the
material witnesses, and the application was filed to prevent them
from deposing in the Court. The Court could not infer without
their examination that they were instrumental in the
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solemnisation of the marriage between the victim and the
accused. Hence, the application was dismissed.
8. Being aggrieved by the order passed by the learned
.
Trial Court, the petitioner/accused has filed the present petition
asserting that the statement of Prakash Chand and the
photograph show that the parents and maternal uncle had
of
encouraged and aided the commission of offences punishable
under Section 6 of the POCSO Act and Section 9 of the Prohibition
rt
of Child Marriage Restraint Act. They suppressed the victim’s
minority from the accused and his parents. There was sufficient
material to summon the victim’s relatives as additional accused,
and the learned Trial Court erred in dismissing the application.
Therefore, it was prayed that the present revision be allowed and
the order passed by the learned Trial Court be set aside.
9. I have heard Mr Mohar Singh, learned counsel for the
petitioner/accused and Mr Prashant Sen, learned Deputy
Advocate General for the respondent No.1/State.
10. Mr Mohar Singh, learned counsel for the
petitioner/accused, submitted that the material on record shows
that the victim’s relatives had participated in the marriage. They
had actively abetted the commission of the crime. There was
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sufficient material on record to summon them as additional
accused and the learned Trial Court erred in dismissing the
application. Therefore, he prayed that the present application be
.
allowed and the order passed by the learned Trial Court be set
aside.
11. Mr Prashant Sen, learned Deputy Advocate General
of
for respondent No.1/State submitted that the petitioner and the
victim had solemnised the marriage contrary to the wishes of
rt
their parents as per the investigation conducted by the police.
The statement of Prakash Chand was not sufficient to conclude
that the victim’s relatives had participated in the marriage. The
statements of other witnesses are yet to be recorded, and the
persons sought to be summoned are the material witnesses of the
prosecution. The application has been filed to prevent them from
deposing against the petitioner. The learned Trial Court had not
dismissed the application, but held that the material on record
was insufficient to summon the accused at this stage. There is no
infirmity in the order passed by the learned Trial Court.
Therefore, he prayed that the present petition be dismissed.
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12. I have given a considerable thought to the
submissions made at the bar and have gone through the records
carefully.
.
13. The Hon’ble Supreme Court held in Neeraj Kumar v.
State of U.P., 2025 SCC OnLine SC 2639 that the Court can summon
a person as an additional accused if the person appears to have
of
committed the offence. This jurisdiction is extraordinary to be
exercised sparingly with due circumspection. The satisfaction
rt
required to summon a person as an additional accused is higher
than a prima facie case. It was observed: –
6. The law governing the summoning of an additional
accused under Section 319 CrPC is now well settled. Theprovision 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, fromthe evidence adduced before it, such person appears to
have committed an offence. Its object is to ensure that noguilty 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.
7. It is no 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::: Downloaded on – 24/07/2026 20:41:33 :::CIS
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2026:HHC:30602of 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 7 extensively discussed the
power conferred under Section 319 CrPC. Relevant part is
extracted hereunder:
of
“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
rt
prerequisite for the exercise of this power is similar to the
prima facie view which the Magistrate must come to totake cognisance 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 thebasis 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 tonote that the section also uses the words “such person
could be tried” instead of should be tried. Hence, what isrequired is not to have a mini-trial at this stage by having
examination and cross-examination and thereafterrendering 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
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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 evidence.
.
xxx
106. Thus, 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
of
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 it goes
unrebutted, would lead to conviction. In the absence of
rt
such satisfaction, the court should refrain from exercising
power under Section 319 CrPC. …
xxx
110. In 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) 10 SCC
192 : (2006) 3 SCC (Cri) 532: AIR 2006 SC 1892], wherein
it was held that a person, though initially 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)
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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
of
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
rt
inquiry. In para 105 of the judgment, however, it is
observed that “only where strong and cogent evidenceoccurs 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 ledbefore the Court is to be seen and not the evidence which
was collected at the stage of inquiry. However, there is no
contradiction between the two observations as theCourt also clarified that the “evidence”, based on which
an accused is to be summoned to face the trial in anongoing 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 inquirycan only be utilised for corroboration and to support the
evidence recorded by the Court to invoke the power under
Section 319 CrPC.
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 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
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2026:HHC:30602do so. At that stage, a 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:
of
“19. The principles of law as regards Section 319
CrPC may be summarised as under:
rt 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 notbeing the accused before it to face the trial
along with other accused persons, if the Court
is satisfied at any stage of the proceedings onthe evidence adduced that the persons who
have not been arrayed as accused should face
the trial. It is further evident that such a person,even though he had initially been named in the
FIR as an accused but not charge-sheeted, canalso 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 ofevidence 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 is the same dependent upon
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2026:HHC:30602against 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 isnot being tried already by the Court, and the
very purpose of enacting such a provision like
Section 319(1) clearly shows that even personsof
who have been dropped by the police during
investigation but against whom evidence
rt 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 thecomplainant is found to be worthy of
acceptance, then the satisfaction of the
investigating officer hardly matters. Ifsatisfaction of the investigating officer is to be
treated as determinative, then the purpose ofSection 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;
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(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
of
or cavalier manner, but only when strong or
cogent evidence is available rather than the mere
rt 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)
8. Keeping in view the principles delineated above, let us
now examine whether the Courts below have applied the
correct standard while declining the prosecution’s prayer
to summon the respondents as additional accused. As is
evident from the record, the prosecution has relied
primarily on three facets of evidence: (i) the testimony of
PW-1, the informant and brother of the deceased; (ii) the
testimony of PW-2, the minor daughter of the deceased,
along with her statement recorded during investigation;
and (iii) the statements of the deceased herself recorded
under Section 161 CrPC. We may consider each in turn.
14. The terms ‘prima facie case’ and ‘higher than prima
facie case’ were explained by the Hon’ble Supreme Court in
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Mohd. Kaleem v. State of U.P., 2026 SCC OnLine SC 397, wherein it
was observed:-
6. We have heard the learned counsel for the parties and
.
perused the case record. The central question is the
propriety of the exercise of power by the Trial Court under
Section 319 Cr.PC and the justifiability of the imprimatur
granted thereto by the Court below. Before proceeding to
the merits of the matter, it is important to understand the
scales on which the question of propriety will be adjudged.
Courts generally assess evidence at three distinct levels,
of
depending on the stage of proceedings and the nature of
the relief prayed for. The lowest threshold, or prima facie
standard, requires only a connection to proceed with
rt
formal charges. The middle threshold, which is often
described as strong and cogent, applies when Courts
consider summoning additional accused under Section 319
CrPC; the evidence must be reliable and reasonably
persuasive, but proof beyond reasonable doubt is not
required. The highest threshold demands proof beyond
reasonable doubt, the standard necessary for conviction,
where the Court must be fully satisfied of the guilt of the
accused. It is best illustrated through a hypothetical
situation-
At night, a high-end jewellery store is robbed. Police
investigation seizes CCTV footage showing a masked
person fleeing on a motorcycle, statements from two
eyewitnesses, and phone records linking certain suspects to
the vicinity of the store at the time of the incident.
At the first stage, the investigating officer submits a
charge-sheet against Person ‘A’. The Magistrate reviews
the evidence, including the CCTV footage, witness
statements, and other investigative material. Based on this,
the Magistrate finds that there is sufficient ground to
believe that ‘A’ may have committed the offence and
frames charges. This stage requires evidence indicating
involvement beyond mere suspicion, but it does not
demand foolproof or trial-level examination thereof.
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During the trial of ‘A’, evidence emerges suggesting that
Persons ‘B’ and ‘C’ may also have been involved in
planning or executing the robbery. A witness reports seeing
‘B’ near the scene discussing the plan with ‘A’, while phone
records and CCTV footage show interactions between ‘A’,
.
‘B’, and ‘C’. The Court would examine whether this
evidence is strong and cogent enough to summon ‘B’ and
‘C’ as additional accused under Section 319. Minor
contradictions in witness accounts or timing are noted, but
they do not automatically negate the overall reliability of
the evidence. At this stage, the court is not determining
guilt, only assessing whether a reasonable inference of
of
involvement exists.
As the trial continues, forensic evidence reveals
fingerprints of ‘B’ on the display case and DNA of ‘C’ on a
rt
glove left at the scene. Eyewitnesses place ‘B’ and ‘C’ at the
time of the robbery, and phone messages show
coordination among all three. Cross-examination fails to
provide credible alibis. Cumulative assessment of the
evidence leaves no reasonable doubt regarding the
participation of ‘A’, ‘B’, and ‘C’, and the Court can convict
all three. This represents the highest threshold, where
minor inconsistencies are immaterial because the totality
of the evidence conclusively establishes guilt.
8. The Trial Court’s reasoning in rejecting the Section 319
application, prima facie, appears to be largely aligned with
the principles laid down by this Court, such as the
requirement that evidence must be strong and cogent
rather than mere suspicion. Both Hardeep Singh v. State of
Punjab (2014) 3 SCC 92: (2014) 2 SCC (Cri) 86 and Neeraj
Kumar v. State of UP 2025 SCC OnLine SC 2639 emphasise
that the power under Section 319 CrPC is extraordinary
and should be exercised sparingly. The Court must assess
whether the evidence on record, if unrebutted, reasonably
indicates the involvement of the proposed accused.
15. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
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16. The copy of the charge sheet shows that the
prosecution witnesses have consistently stated that the marriage
between the petitioner and the victim was solemnised contrary to
.
the wishes of their relatives. The petitioner/accused relied upon
the statement of Prakash Chand (PW4) who stated in his cross-
examination that parents and family members of the deceased
of
were present in the marriage and had performed the ceremonies.
Learned Trial Court had rightly held that the statement of one
rt
witness was not sufficient to summon the victim’s relatives as
accused, especially when Prakash Chand admitted that he knew
the family of the accused, which shows that he has an interest to
support the accused. It was rightly submitted on behalf of the
State that the learned Trial Court had not rejected the prayer to
summon the victim’s relatives as accused, but had held that the
material on record was insufficient at this stage to summon them
as the accused. Therefore, it would be open for the accused to ask
the learned Trial Court to summon the victim’s relatives as
accused at an appropriate stage. Moreover, the finding recorded
by the learned Trial Court appears to be correct that the
application was filed to prevent the victim’s relatives from
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deposing against the accused and the application was not bona
fide.
17. The material on record is not sufficient at this stage to
.
satisfy that the victim’s relatives had committed the offence.
Thus, the dismissal of the application by the learned Trial Court
cannot be held to be bad.
of
18. Consequently, the present petition fails, and the same
is dismissed. rt
19. The observation made hereinbefore shall remain
confined to the disposal of the instant petition and will have no
bearing whatsoever on the merits of the case.
(Rakesh Kainthla)
Judge
24th July, 2026
(Chander)
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