Madhya Pradesh High Court
Harendra Dhakad vs The State Of Madhya Pradesh Thr on 17 April, 2026
NEUTRAL CITATION NO. 2026: MPHC-GWL: 12359
1 Criminal Revision No.266 of 2017
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE AMIT SETH
CRIMINAL REVISION No. 266 of 2017
HARENDRA DHAKAD
Versus
THE STATE OF MADHYA PRADESH THR AND OTHERS
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Appearance:
Shri Satendra Singh Rajput
Rajput- Advocate for applicant.
Shri Brijesh Kumar Tyagi - Public Prosecutor for respondent No.1/State.
Shri Bhupendra
pendra Singh Dhakad - Advocate for respondent No.2.
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Reserved on : 06.04.2026
Delivered on : 17.04.2026
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ORDER
1. With the consent of the parties, the matter is finally heard.
2. The instant criminal revision under Sections 397 and 401 of the Code
of Criminal
minal Procedure, 1973 [hereinafter referred to as “CrPC“] has been
filed against the order dated 14.02.2017 passed by the learned First
Additional Sessions Judge, Sabalgarh, District Morena in S.T. No.177/2011,
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2 Criminal Revision No.266 of 2017
whereby the application under Section 319 of CrPC filed by the complainant
seeking summoning of respondent No.2 as an accused in the matter has been
rejected.
3. The brief facts necessary for deciding the instant criminal revision
petition are as under:
3.1. An F.I.R. bearing Crime No.153/2010 came to
to be registered at Police
Station Kailaras,
laras, District Morena, on 05.06.2010
05.06.2010 by the applicant/
complainant stating that on the date of incident, on account of a previous
dispute pertaining to property, the accused namely Murarilal along with
Lokendra, Vinod and Jitendra Dhakad, armedwith Lathis and Sarias hurled
abusive words to the complainant, stating that he would not get the
registration of the property executed. When the complainant tried to stop
them, Lokendra assaulted him with iron rod, causing injury to the finger of
his right hand and Murarilal assaulted him with a Lathi on right shoulder.
Vinod also assaulted the complainant with a Lathi, causing an internal injury
and when the uncle of the complainant, Satendra, came for his rescue, Vinod
and Jitendra
dra assaulted him with Lathis, causing various injuries. On the said
complaint, an FIR was lodged and offences under Section 323, 294, 506B, 34
of the Indian Penal Code, 1860 [hereinafter referred to as “IPC“]were
registered against all the accused.
3.2. During
uring the course of investigation, respondent No.2 submitted a
representation to the SDOP, inter alia contending that he was working as a
Samvida Shala Shikshak Varg
Varg-II
II and, on the date of the incident, he was
discharging his duties as a Teacher at Governm
Government
ent Girls’ Middle School,
Kalmukhi, Development Block Khandwa, and was also engaged in census
duties and therefore was not even present at the place of incidence but yet he
Signature Not Verified
had been falsely implicated in this case.
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3.3. It appears that on the said represe
representation,
ntation, I.O. (the Investigating
Officer) was permitted to visit Khandwa, where he collected a certificate
dated 03.09.2010 issued by the Principal of Government Girls’ Middle
School, Kalmukhi, and the certificate issued by the Supervisor of the School,
inter alia indicating that on the date of the incident, respondent No.2 was
discharging his duties in the work of distribution of mid
mid-day
day meal and was
also inter alia engaged in census work. On the strength of the said
certificates, the Investigating Officer removed the name of respondent No.2
from the offences in question, and a charge sheet against the other accused
persons in the matter was filed before the learned trial Court on 14.12.2010.
3.4. An application under Section 319 of Cr.P.C. came to be filed
file by the
present applicant before the learned trial Court seeking summoning of
respondent No.2 as an accused in the matter on the ground that as per
information obtained by him under the RTI from the Office of the Collector,
Khandwa, respondent No.2 was no
nott assigned any census duties on the date of
the incident. It was further contended that the Investigating Officer, without
any substantial evidence as regards the respondent No.2 being not present on
the spot at the time of incident, has illegally removed the name of the
respondent No.2 from the offences in question by not filing the charge sheet
against him. The said application filed by the applicant came to be rejected by
the learned trial Court vide the impugned order dated 14.02.2017.
4. Learned counsel
el appearing for the applicant submits that, as per the
FIR dated 05.06.2010 registered at Police Station Kailaras, District Morena
for commission of offences under Sections 323, 294, 506
506-B
B and 34 of the
IPC, the complainant/present applicant specifically named respondent No.2,
who is stated to have committed the offence by assaulting his uncle Satendra.
Satendra
He submits that the date and time of incident is 05.06.2010 at about 8:00 AM,
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4 Criminal Revision No.266 of 2017
whereas the FIR was registered on the very same date at 08:30 AM. He
further submits that in the statements recorded under Section 161 of CrPC,
eye-witnesses
witnesses namely Dhani Ram Dhakad, Lakhan Dhakad and Satendra
Dhakad specifically stated that respondent No.2 assaulted the complainant
Harendra with a lathi. He submits that despite th
thee aforesaid, the prosecution,
on the strength of a certificate dated 03.09.2010 stated to have been issued by
the Principal, Government Girls’ Middle School, Kalmukhi, Khandwa, and a
certificate issued by the Supervisor indicating that on the date of incident
incid the
applicant was on his official duty at Khandwa, removed the name of
respondent No.2 from the offence and no charge-sheet
charge sheet was filed against him.
He further submits that before the learned trial Court, during the course of
trial, evidence of the prose
prosecution
cution witnesses including the present applicant
was recorded and PW-3,
PW 3, i.e., the complainant, in his evidence specifically
deposed regarding the commission of offence by respondent No.2. He
submits that in the teeth of the evidence brought on record against
again respondent
No.2, not only during investigation but also before the learned trial Court, the
plea of respondent No.2 that he was not present at the place of incident on the
relevant date could not have been decided without adjudication of evidence
during trial. He submits that the learned trial Court erred in rejecting the
application filed by the applicant. The learned trial Court ought to have
appreciated that on the date of incident, it was a school holiday being
Saturday. In such circumstances, the application
application ought not to have been
rejected. Learned counsel places reliance on the judgment passed by the
Coordinate Bench of this Court in the case of Ajay Khemaria and Anr. Vs.
State of M.P. &Anr. passed in MCRC No.693/2016,
No.693/2016, and the judgment
delivered by the Apex Court in the case of State of Orissa Vs. Debendra
Nath Padhi, reported in 2005 (1) SCC 568.
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5. On the other hand, learned counsel appearing for respondent No.2, by
referring to the complaint made by the respondent No.2 to the SDOP,
Kailaras, District
istrict Morena on 09.09.2010, submits that respondent No.2 was
falsely implicated in the case and that certificates were issued by the
Supervisor as well as the Principal of the school indicating the presence of
respondent No.2 in the school at Khandwa on the date of incident.
incident He
therefore, requested proper investigation and his exoneration from the crime
in question. He submits that in response thereto, the Investigating Officer in
the investigation did not find the presence of the applicant at the place oof
incident and, therefore, his name was rightly removed. He further submits
that once the prosecution has filed the challan after removing the name of
respondent No.2 from the offence, unless some additional material or
evidence comes on record, respondent No.2 cannot be arrayed as an accused
in the matter. In support of his contention, he places reliance on the judgment
delivered by the Apex Court in the case of Brijendra Singh & Ors. v. State of
Rajasthan, (2017) 7 SCC 706,
706, with special reference to parag
paragraph 15 and
submits that for arraigning the accused by invoking Section 319 of Cr.P.C.,
there has to be something more than prima facie material and the said aspect
has been appropriately dealt with by the leaned trial Court, while rejecting the
applicationn filed by the applicant.
6. Learned counsel appearing for the respondent No.1/State adopts the
arguments advanced by the learned counsel appearing for respondent No.2.
7. No other point has been argued by the leaned counsel appearing for the
parties.
8. Heard learned counsel for the parties and perused the record.
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9. The scope, applicability and the power of the Trial Court to arraign an
accused not named in the FIR or though named in the FIR but not charge-
charge
sheeted has been authoritatively dealt with by the Hon’ble Constitution Bench
of the Apex Court in the case of Hardeep Singh vs. Union of India; (2014) 3
SCC 92.. In the aforesaid case, the following questions were referred for
consideration by the Constitution Bench as follows: –
“(i) What is the stage at which power under Section 319 CrPC can be
exercised?
(ii) Whether the word “evidence” used in Section 319(1) CrPC could only
mean evidence tested by cross-examination
cross examination or the court can exercise the
power under the said provision even
even on the basis of the statement made
in the examination-in-chief
examination of the witness concerned?
(iii) Whether the word “evidence” used in Section 319(1) CrPC has been
used in a comprehensive sense and includes the evidence collected
during investigation or the
the word “evidence” is limited to the evidence
recorded during trial?
(iv) What is the nature of the satisfaction required to invoke the power
under Section 319 CrPC to arraign an accused? Whether the power
under Section 319(1) CrPC can be exercised only iiff the court is satisfied
that the accused summoned will in all likelihood be convicted?
(v) Does the power under Section 319 CrPC extend to persons not named
in the FIR or named in the FIR but not charged or who have been
discharged?”
10. The powers of the court to proceed under Section 319 of CrPC even
against those persons who are not arraigned as accused cannot be disputed.
This provision is meant to achieve the objective that the real culprit should
not get away unpunished. Paras 8, 12, 13, and 19 of the judgment in the case
of Hardeep Singh (Supra) reads as under:
“8. The constitutional mandate under Articles 20 and 21 of the
Constitution of India provides a protective umbrella for the smooth
administration of justice making adequate provisions
provisions to ensure a fair and
efficacious trial so that the accused does not get prejudiced after the law
has been put into motion to try him for the offence but at the same time
also gives equal protection to victims and to the society at large to ensure
that the guilty does not get away from the clutches of law. For the
empowerment of the courts to ensure that the criminal administration of
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justice works properly, the law was appropriately codified and modified by
the legislature under CrPC indicating as to how the courts should proceed
in order to ultimately find out the truth so that an innocent does not get
punished but at the same time, the guilty are brought to book under the
law. It is these ideals as enshrined under the Constitution and our laws
that
at have led to several decisions, whereby innovating methods and
progressive tools have been forged to find out the real truth and to ensure
that the guilty does not go unpunished.
12.Section
Section 319 CrPC springs out of the doctrine judex damnatur cum
nocensabsolvitur
bsolvitur (Judge is condemned when guilty is acquitted) and this
doctrine must be used as a beacon light while explaining the ambit and
the spirit underlying the enactment of Section 319 CrPC.
13.It
It is the duty of the court to do justice by punishing the rreal culprit.
Where the investigating agency for any reason does not array one of the
real culprits as an accused, the court is not powerless in calling the said
accused to face trial. The question remains under what circumstances
and at what stage should the
the court exercise its power as contemplated in
Section 319 CrPC
CrPC?
19.The
The court is the sole repository of justice and a duty is cast upon it to
uphold the rule of law and, therefore, it will be inappropriate to deny the
existence of such powers with the cour
courts
ts in our criminal justice system
where it is not uncommon that the real accused, at times, get away by
manipulating the investigating and/or the prosecuting agency.
agency The desire
to avoid trial is so strong that an accused makes efforts at times to get
himself
lf absolved even at the stage of investigation or inquiry even though
he may be connected with the commission of the offence.”
[Emphasis Supplied]
11. In Hardeep Singh‘s case,
case, the Constitution Bench of the Apex Court
has also settled the controversy on the issue as to whether the word
“evidence” used in Section 319(1) of CrPC has been used in a comprehensive
sense and indicates the evidence collected during the investigation, or the
word “evidence” is limited to the evidence recorded during trial. Upon
considering the same, the Apex Court in Hardeep Singh (supra) held that it
is that material, after cognizance is taken by the court, that is available to the
Court while making an
n enquiry into or trying an offence, which the court can
utilize or take into consideration for supporting reasons to summon any
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8 Criminal Revision No.266 of 2017
person on the basis of evidence adduced before the court. Moreover, the word
“evidence” has to be understood in its wider sense
sense,, both at the stage of trial
and even at the stage of inquiry. It means that the power to proceed against
any person after summoning him can be exercised on the basis of any such
material as brought forth before it. In the same judgment, it has been also
held
eld by the Apex Court that the duty and obligation on the court becomes
more onerous to invoke such powers consciously on such material after
evidence has been led during trial. The Apex Court also clarified that
“evidence” under Section 319 of CrPC could even be examination-in-chief
examination
and the court is not required to wait till such evidence is tested on cross-
cross
examination, as 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 not facing trial in the offense.
12. The constitution bench of the Apex Court in the case of Hardeep
Singh (supra) accordingly, answered the questions referred in the following
manner:
“117. We accordingly sum up our conclusions as follows:
Questions (i) and (iii) —
What is the stage at which power under Section 319 CrPC can be
exercised? And
nd
— Whether the word “evidence” used in Section 319(1) CrPC has been
used in a comprehensive sense and includes the evidence collected
during investigati
investigation
on or the word “evidence” is limited to the evidence
recorded during trial?
Answer
117.1. In Dharam Pal case [Dharam Pal v. State of Haryana, (2014) 3
SCC 306 : AIR 2013 SC 3018] , the Constitution Bench has already
held that after committal, cognizance of of an offence can be taken
against a person not named as an accused but against whom materials
are available from the papers filed by the police after completion of the
investigation. Such cognizance can be taken under Section 193 CrPCSignature Not Verified
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and the Sessions Judg
Judgee need not wait till “evidence” under Section 319
CrPC becomes available for summoning an additional accused.
accused
117.2. Section 319 CrPC, significantly, uses two expressions that have
to be taken note of i.e. (1) inquiry (2) trial. As a trial commences after
framing of charge, an inquiry can only be understood to be a pre pre-trial
inquiry. Inquiries under Sections 200, 201, 202 CrPC, and under
Section 398 CrPC are species of the inquiry contemplated by Section
319 CrPC. Materials coming before the court in course cours of such
inquiries can be used for corroboration of the evidence recorded in the
court after the trial commences, for the exercise of power under
Section 319 CrPC, and also to add an accused whose name has been
shown in Column 2 of the charge-sheet.
charge
117.3. In view of the above position the word “evidence” in Section 319
CrPC has to be broadly understood and not literally i.e. as evidence
brought during a trial
trial. Question (ii)–Whether
Whether the word “evidence”
used in Section 319(1) CrPC could only mean evidence ttested
ested by cross
cross-
examination or the court can exercise the power under the said
provision even on the basis of the statement made in the examination
examination-
in-chief
chief of the witness concerned?
Answer
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
cross-examination
examination.
Question (iv)—-What
What is the nature of the satisfaction required to invoke
the power under Section 319 CrPC to arraign an accused? Whether the
power under Section 319(1) CrPC can be exercised
exercised only if the court is
satisfied that the accused summoned will in all likelihood be convicted?
Answer
117.5. Though under Section 319(4)(b) CrPC the accused subsequently
impleaded is to be treated as if he had been an accused when the court
initially took cognizance of the offence, the degree of satisfaction that
will be required for summoning a person under Section 319 CrPC would
be the same as for framing a charge [Ed. : The conclusion of law as
stated in para 106, p. 138c-d,
138c d, may be compared:”Thus, we w 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
cross-examination,
examination,
it requires much stronger evidence than mere probability of his
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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”. See also especially in para 100 at p. 136f-g.].
136f
The
he difference in the degree of satisfaction for summoning the original
accused and a subsequent accused is on account of the fact that the
trial may have already commenced against the original accused and it
is in the course of such trial that materials are disclosed against the
newly summoned accused. Fresh summoning of an accused will result
in delay of the trial therefore the degree of satisfaction for summoning
the accused (original and subsequent) has to be different
different.Question
(v)–Does
Does the power under
under Section 319 CrPC extend to persons not
named in the FIR or named in the FIR but not charge charge-sheeted
sheeted or who
have been discharged?
Answer
117.6. A person not named in the FIR or a person though named in the
FIR but has not been charge-sheeted
charge sheeted or a person whowh 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. However, insofar as an accused who has
been discharged is concerned the requiremen
requirementt of Sections 300 and 398
CrPC has to be complied with before he can be summoned afresh
[Emphasis Supplied]
Supplied]”
13. When the facts of the case are examined in the light of law as settled by
the Apex Court in the case of Hardeep Singh (supra),, it is seen that the F.I.R.
lodged by the applicant specifically names respondent No.2 as an accused
and also specifies the role of respondent No.2. The statements of the other
prosecution witnesses, namely Satendra Dhakad, Lakhan Dhakad and
Dhaniram Dhakad, apart from the complainant, recorded under Section 161
of Cr.P.C., reiterate the same version as stated in the F.I.R..
14. Based upon the representation submitted by the respondent No.2
alleging his false implication in the case, the Investigating Officer has
collected the certificate dated 03.09.2010 issued by the Principal,
Government Girls’ Middle School, Kalmukhi, Khandwa so also, the
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certificate issued by the Supervisor, inter alia stating that on the date of
incident, respondent No.2 was present at the school in Khandwa
Khandwa and was also
discharging census duties. However, the documents placed on record
alongwith the charge sheet do not indicate that whether the said certificates
were verified from the attendance register of the school. A detailed reply to
the instant revision
vision petition filed by the respondent No.2 alongwith the lists of
the documents appended thereto, also does not contain any attendance
register to substantiate that in fact, on date of the incident, i.e., 05.06.2010,
when respondent No.2 was allegedly present in the school at Khandwa. After
filing of the charge sheet, the statements of the applicant (PW/3) and PW-4
PW
Satendra Dhakad have been recorded before the trial Court on 23.08.2016 and
15.09.2016 respectively, wherein specific allegations against the
th respondent
No.2 have been made.
15. The learned trial Court, while rejecting the application under Section
319 of Cr.P.C. filed by the respondent No.2 has placed much reliance on the
certificate issued by the Principal, Government Girls’ Middle School, stating
s
that on the date of the incidence, respondent No.2 was present at Khandwa.
The order impugned passed by the learned trial Court also refers to the
attendance register for the month of June 2010; however, a copy of the said
registrar is not available on record alongwith the final report/charge-sheet
report/charge
uploaded on ERP. Even the list of the documents filed by the respondent
No.2 does not contain any such attendance register. Only attendance register
filed by the respondent No.2 is of 01.05.2010, indicating
indicating that on the said date,
respondent No.2 attended a training programme for census work. However,
the same may be of no assistance to respondent No.2, as the date of the
incident is 05.06.2010.
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16. Much reliance has been placed by the learned counsel appearing
appea for the
respondent No.2 on the judgment by the Apex Court in the case of Brijendra
Singh vs. State of Rajasthan (2017) 7 SCC 706 to contend that while
arraying the accused by invoking Section 319 of Cr.P.C., something more
than “a prima facie case” is required to be seen by learned trial Court and
mechanically such an applicant cannot be allowed. However, in the case in
hand, though a plea of alibi is taken by the respondent No.2, in the considered
opinion of this Court, the material available on recor
record cannot be said to be
sufficient on the basis of which, the said plea of the respondent could have
been accepted at this stage as the plea of alibi by the respondent No.2 may be
required to be proved by cogent evidence during trial particularly, by taking
into consideration the subsequent evidence of PW/3 and PW/4, which also
has not been taken into consideration by the learned trial court while passing
the impugned order14.02.2017
14.02.2017 passed in S.T. No.177/2011.
No.177/
17. In view of the above consideration and the law laid down by the Apex
Court in the case of Hardeep Singh (supra), this Court deems it appropriate
to interfere in the matter. Accordingly, the impugned order dated 14.02.2017
passed by the learned First Additi
Additional
onal Sessions Judge, Sabalgarh, District
Morena in S.T. No.177/2011 is set aside. The revision petition preferred by
the applicant stands partly allowed.. The matter stands remitted to the learned
trial Court for deciding the application filed by the applic
applicant
ant under Section
319 of Cr.P.C. afresh in accordance with law and in terms of the judgment of
the Apex Court in the case of Hardeep Singh (supra).
(AMIT SETH)
JUDGEAK/-
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