Punjab-Haryana High Court
Ram Kumar And Others vs State Of Haryana And Another on 10 March, 2026
Author: Jasjit Singh Bedi
Bench: Jasjit Singh Bedi
CRR-2661-2025 (O & M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(108-A) CRR-2661-2025 (O & M)
Date of decision: 10.03.2026
(Through VC)
Ram Kumar and ors. ...... Petitioner(s)
V/s
State of Haryana andd anr. ...Respondent(s)
CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Mr. Aditya Sanghi, Advocate,
for the petitioner.
Mr. Viney Phogat, DAG, Haryana.
Mr. Lalit Narang, Advocate,
for respondent No.2.
****
JASJIT SINGH BEDI, J. (Oral)
The prayer in the instant revision petition is for setting aside of
the order dated 16.09.2025 passed by the Sessions Judge (Fast Track Court),
Sirsa vide which the petitioners alongwith certain co-accused have been
ordered to be summoned to face Trial under Section 358 BNSS (Section 319
Cr.P.C.) for the offences under Sections 103(2), 190 and 191(3) BNS, 2023.
2. The brief facts of the case are that an FIR No. 0361 dated
18.07.2024 under Sections 191(3), 190 and 103 (2) BNS, 2023, Police
Station Dabwali Sadar (Annexure P-1) came to be registered against Ram
Kumar son of Banwari Lal, Hetram son of Banwari Lal, Rajesh son of Ram
Kumar, Mukesh son of Hetram, Pawan son of Hetram, Vikram son of Ram
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Kumar, Dara Singh son of Bahadur Singh and Om Prakash son of Ramlal.
The relevant extract of the FIR (Annexure P-1) is as under:-
To, The Hon’ble Station House Officer, Police Station Sadar
Dabwali. Sir, It is most respectfully submitted that I, Sukhdev,
son of Rai Sahab, resident of village Jandwala Bishnoiyan, am
a resident of the said village. We are two brothers Mukesh
Kumar, my elder brother, and I, Sukhdev, the younger. 1,
Sukhdev Singh, was sleeping inside the house, while my brother
Mukesh was sleeping in the plot situated in front of the house.
Near him, Kirtan son of Rajendra and Sunil son of Bhagirath
were also sleeping. At about 01:30 A.M., I suddenly heard the
screams of my brother. On hearing my brother’s screams, I ran
towards the plot. When I reached there, I saw the following
persons running away from the direction of our plot: Ramkumar
son of Banwari Lal, Hetram son of Banwari Lal, Rajesh son of
Ramkumar Mukesh son of Hetram, Pawan son of Hetram,
Vikram son of Ramkumar, Dara Singh son of Bahadur Singh, all
residents of village Jandwala Bishnoiyan and Om Prakash son
of Ramlal, resident of village Jandwala Bishnoiyan. When I
went inside the plot, I saw that my brother Mukesh had multiple
injuries on his mouth and neck caused by a kassi (sharp-edged
hoe). When I held my brother, I found that he had already died.
Thereafter, I informed the police. Ramkumar, Hetram, Rajesh,
Mukesh, Pawan, Vikram, Dara Singh and Om Prakash jointly
murdered my brother Mukesh with the said kassi, which is lying
at the spot. Strictest legal action be taken against them.
Sd/- Sukhdev complainant
3. During the course of the investigation, Mukesh Kumar son of
Hetram was joined in investigation and got recovered his blood-stained
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clothes. On conclusion of the investigation, while he was challaned, the
seven remaining accused were exonerated.
4. After framing of charges, the statement of the complainant-
Sukhdev was recorded as PW-2. Based on the said statement, an application
was moved under Section 358 BNSS (Section 319 Cr.P.C.) for summoning
the petitioners as also their co-accused. The said application was allowed
and the 07 remaining accused including the petitioners were summoned to
face Trial under Sections 103(2), 190 and 191(3) BNS vide order dated
16.09.2025 passed by the Sessions Judge (Fast Track Court), Sirsa
(impugned order).
5. It is the aforementioned order which is under challenge in the
present petition.
6. The learned counsel for the petitioners contends that as per the
voluntary statement/disclosure statement of Mukesh son of Hetram it was he
alone who committed the offence in question. The medical evidence rules
out the possibility of any other accused as only a kassi (spade) has been used
in the occurrence which is a sharp-edged weapon. The summoning order is
based on the deposition of PW-2-Sukhdev Singh which is simply on
reiteration of the version in the FIR. No fresh evidence has been brought on
record. In fact, PW-2/Sukdev Singh is not an eye-witness. As the evidence
on record is insufficient to inculpate the petitioners, the impugned order
ought to be set aside.
7. The learned counsel for the State and the counsel for the
complainant, on the other hand, contend that the self-serving disclosure
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statement of Mukesh son of Hetram cannot be read in evidence. Eight
injuries with sharp-edged weapons have been found to be present on the
person of the deceased and it is highly unlikely that the same were caused by
one accused. The statement of PW-2/Sukhdev Singh (complainant) is
sufficient to prima facie establish that the petitioners alongwith their co-
accused Mukesh son of Hetram committed the offences in question. In fact,
there is little material alteration in the said statement which would only go to
show that the complainant has not significantly improved his version so as to
amount an improvement. Both the complainant and the accused party
belong to the same village and therefore, their identification by the
complainant cannot be doubted at least at this stage. There is no material
available on record as to how and in what manner the investigating agency
found the petitioners and their co-accused innocent, though, it has been
pointed out by the learned counsel for the State that that statement of certain
villagers were recorded to that effect. They contend that there is more than
prima facie evidence to summon the accused and minute examination of the
evidence cannot take place at this stage. Therefore, the present petition is
liable to be dismissed.
8. I have heard the learned counsel for the parties.
9. Before proceeding further in the matter, it would be apposite to
refer to the provisions of Section 358 BNSS (Section 319 Cr.P.C.).
Section 358 BNSS (Section 319 Cr.P.C), reads as under:-
“358/319. Power to proceed against other persons
appearing to be guilty of offence.
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(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 a fresh, 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.”
10. In the case of Hardeep Singh Versus State of Punjab & others,
2014(1) R.C.R. (Criminal) 623, the Hon’ble Supreme Court held as under:-
“5. On the consideration of the submissions raised and in view
of what has been noted above, the following questions are to be
answered by this Bench :
(i) What is the stage at which power under Section 319
Cr.P.C. can be exercised?
(ii) Whether the word “evidence” used in Section 319(1)
Cr.P.C. could only mean evidence tested by cross-
examination or the court can exercise the power under the
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said provision even on the basis of the statement made in
the examination-in-chief of the witness concerned?
(iii) Whether the word “evidence” used in Section 319(1)
Cr.P.C. has been used in a comprehensive sense and
includes the evidence collected during investigation or 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 Cr.P.C. to arraign an
accused? Whether the power under Section 319(1) Cr.P.C.
can be exercised only if the court is satisfied that the
accused summoned will in all likelihood convicted?
(v) Does the power under Section 319 Cr.P.C. extend to
persons not named in the FIR or named in the FIR but not
charged or who have been discharged?
*** *** ***
Question Nos.I & III
Q.1 What is the stage at which power under Section 319
Cr.P.C. can be exercised?
AND
Q.III Whether the word “evidence” used in Section 319(1)
Cr.P.C. has been used in a comprehensive sense and
includes the evidence collected during investigation or the
word “evidence” is limited to the evidence recorded during
trial?
A. In Dharam Pal’s case, the Constitution Bench has
already held that after committal, cognizance 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 investigation. Such
cognizance can be taken under Section 193 Cr.P.C. and the
Sessions Judge need not wait till `evidence’ under Section
319 Cr.P.C. becomes available for summoning an
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additional accused. ? Section 319 Cr.P.C., 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-trial
inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and
under Section 398 Cr.P.C. are species of the inquiry
contemplated by Section 319 Cr.P.C. Materials coming
before the Court in course of such enquiries can be used for
corroboration of the evidence recorded in the court after
the trial commences, for the exercise of power under
Section 319 Cr.P.C., and also to add an accused whose
name has been shown in Column 2 of the charge-sheet. In
view of the above position the word `evidence’ in
Section 319 Cr.P.C. has to be broadly understood and not
literally i.e. as evidence brought during a trial.
Question No. II
Q.II Whether the word “evidence” used in Section 319(1)
Cr.P.C. could only mean evidence tested by cross-
examination or the court can exercise the power under the
said provision even on the basis of the statement made in
the examination-in-chief of the witness concerned?
A. Considering the fact that under Section 319 Cr.P.C. a
person against whom material is disclosed is only
summoned to face the trial and in such an event under
Section 319(4) Cr.P.C. 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.
Question No. IV
Q.IV What is the nature of the satisfaction required to
invoke the power under Section 319 Cr.P.C. to arraign an
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accused? Whether the power under Section 319 (1) Cr.P.C.
can be exercised only if the cout is satisfied that the accused
summoned will in all likelihood be convicted?
A. Though under Section 319(4)(b) Cr.P.C. 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 Cr.P.C. would be
the same as for framing a charge. The 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.
Question No. V.
Q.V Does the power under Section 319 Cr.P.C. extend to
persons not named in the FIR or named in the FIR but not
charge-sheeted or who have been discharged?
A. A person not named in the FIR or a person though
named in the FIR but has not been charge-sheeted or a
person who has been discharged can be summoned under
Section 319 Cr.P.C. provided from the evidence it appears
that such person can be tried along with the accused
already facing trial. However, in so far as an accused who
has been discharged is concerned the requirement of
Sections 300 and 398 Cr.P.C. has to be complied with
before he can be summoned afresh.
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11. In Sartaj Singh Versus State of Haryana & another, 2021(2)
R.C.R. (Criminal) 527, the Hon’ble Supreme Court held as under:-
“6.2 Considering the law laid down by this Court in
Hardeep Singh (supra) and the observations and findings
referred to and reproduced hereinabove, it emerges that (i)
the Court can exercise the power under section 319 CrPC,
1973 even on the basis of the statement made in the
examination-in-chief of the witness concerned and the
Court need not wait till the cross-examination of such a
witness and the Court need not wait for the evidence
against the accused proposed to be summoned to be tested
by cross-examination; and (ii) a person not named in the
FIR or a person though named in the FIR but has not been
charge-sheeted or a person who has been discharged can
be summoned under section 319 CrPC, 1973 provided from
the evidence (may be on the basis of the evidence collected
in the form of statement made in the examination-in-chief of
the witness concerned), it appears that such person can be
tried along with the accused already facing trial.
6.3 In S. Mohammed Ispahani v. Yogendra Chandak (2017)
16 SCC 226, this Court has observed and held as under:
(SCC p. 243)
“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
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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, 1973. However, this
section gets triggered when during the trial some
evidence surfaces against the proposed accused.”
6.4 In the case of Rajesh v. State of Haryana (2019) 6 SCC
368, after considering the observations made by this Court
in Hardeep Singh (supra) referred to hereinabove, this
Court has further observed and held that even in a case
where the stage of giving opportunity to the complainant to
file a protest petition urging upon the trial court to summon
other persons as well who were named in FIR but not
implicated in the charge-sheet has gone, in that case also,
the Court is still not powerless by virtue of section 319
CrPC, 1973 and even those persons named in FIR but not
implicated in chargesheet can be summoned to face the trial
provided during the trial some evidence surfaces against
the proposed accused.
7. Applying the law laid down by this Court in the aforesaid
decisions to the case of the accused on hand,we are of the
opinion learned Trial Court was justified in summoning the
private respondents herein to face the trial as accused on
the basis of the deposition of the appellant – injured eye
witness. As held by this Court in the aforesaid decisions, the
accused can be summoned on the basis of even
examination-in-chief of the witness and the Court need not
wait till his cross-examination. If on the basis of the
examination-in-chief of the witness the Court is satisfied
that there is a prima facie case against the proposed
accused, the Court may in exercise of powers under section
319 CrPC, 1973 array such a person as accused and
summon him to face the trial. At this stage, it is required to
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be noted that right from the beginning the appellant herein –
injured eye witness, who was the first informant, disclosed
the names of private respondents herein and specifically
named them in the FIR. But on the basis of some enquiry by
the DSP they were not charge-sheeted. What will be the
evidentiary value of the enquiry report submitted by the
DSP is another question. It is not that the investigating
officer did not find the case against the private respondents
herein and therefore they were not chargesheeted. In any
case, in the examination-in-chief of the appellant-injured
eye witness, the names of the private respondents herein are
disclosed. It might be that whatever is stated in the
examination-in-chief is the same which was stated in the
FIR. The same is bound to be there and ultimately the
appellant herein – injured eye witness is the first informant
and he is bound to again state what was stated in the FIR,
otherwise he would be accused of contradictions in the FIR
and the statement before the Court. Therefore, as such, the
learned Trial Court was justified in directing to issue
summons against the private respondents herein to face the
trial.
8. Now, so far as the impugned judgment and order passed
by the High Court is concerned, it appears that while
quashing and setting aside the order passed by the learned
Trial Court, the High Court has considered/observed as
under:
“No evidence except the statement of Sartaj Singh,
which has already been investigated into by the
concerned DSPs was relied upon by the trial Court to
summon, which was not sufficient for exercising
power under Section 319 Cr.P.C., 1973.
As per statement of Sartaj Singh, Palwinder Singh
and Satkar Singh gave him lathi blows on the head.
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Manjeet Singh, Amarjeet Singh, Rajwant Singh,
Narvair Singh and Sukhdev Singh were holding
gandasi. Manjeet Singh, Amarjeet Singha and
Rajwant Singh gave him gandasi blows on the head
and face. All the injuries are stated to fall in the
offence under Sections 323, 324, 326, 341 read with
Section 149 IPC. In case, so many people as
mentioned above were giving gandasi and lathies
blows on the head, Sartaj Singh was bound to have
suffered more injuries, which would not have left him
alive and probably he would have been killed on the
spot. He seems to have escaped with only such
injuries as have invited offence only under Sections
323, 324, 326, 341 read with Section 149 of IPC.
Therefore, the trial Court erred in exercising his
jurisdiction summoning the other accused where
exaggeration and implication is evident on both
sides.”
8.1 The aforesaid reasons assigned by the High Court are
unsustainable in law and on facts. At this stage, the High
Court was not required to appreciate the deposition of the
injured eye witness and what was required to be considered
at this stage was whether there is any prima facie case and
not whether on the basis of such material the proposed
accused is likely to be convicted or not and/or whatever is
stated by the injured eye witness in his examination-in-chief
is exaggeration or not. The aforesaid aspects are required
to be considered during the trial and while appreciating the
entire evidence on record. Therefore, the High Court has
materially erred in quashing and setting aside the order
passed by the learned Trial Court summoning the accused
to face the trial in exercise of powers under section 319
CrPC, 1973 on the reasoning mentioned hereinabove. Even
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the observations made by the High Court referred to
hereinabove are on probability. Therefore, the impugned
judgment and order passed by the High Court is not
sustainable in law and on facts and is beyond the scope and
ambit of section 319 CrPC, 1973.
8.2 In view of the above and for the reasons stated that, the
present appeals succeed. The impugned judgment and order
passed by the High Court dated 28.08.2020 in revision
application bearing CRR No. 3238 of 2018 and CRMM No.
55631 of 2018 is hereby quashed and set aside and the
order passed by the learned Trial Court summoning the
private respondents herein to face the trial is hereby
restored. The private respondents herein now to face the
trial as summoned by the learned Trial Court. The present
appeals are allowed accordingly.
(emphasis supplied)
12. In Manjeet Singh Versus State of Haryana & others, 2021
SCC OnLine 632, the Hon’ble Supreme Court held as under:-
“34.The ratio of the aforesaid decisions on the scope and ambit of
the powers of the Court under section 319 CrPC, 1973 can be
summarized as under:
(i) That while exercising the powers under
section 319 CrPC, 1973 and to summon the persons not
charge-sheeted, the entire effort is not to allow the real
perpetrator of an offence to get away unpunished;
(ii) for the empowerment of the courts to ensure that the
criminal administration of justice works properly;
(iii) the law has been properly codified and modified by the
legislature under the CrPC indicating as to how the courts
should proceed to ultimately find out the truth so that the
innocent does not get punished but at the same time, the
guilty are brought to book under the law;
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(iv) to discharge duty of the court to find out the real truth
and to ensure that the guilty does not go unpunished;
(v) 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;
(vi) section 319 CrPC, 1973 allows the court to proceed
against any person who is not an accused in a case before
it;
(vii) 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 courts 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;
(viii) section 319 CrPC, 1973 is an enabling provision
empowering the court to take appropriate steps for
proceeding against any person not being an accused for
also having committed the offence under trial;
(ix) the power under section 319(1) CrPC, 1973 can be
exercised at any stage after the charge-sheet is filed and
before the pronouncement of judgment, except during the
stage of Sections 207 / 208 CrPC, committal, etc. which is
only a pretrial stage intended to put the process into
motion;
(x) the court can exercise the power under
section 319 CrPC, 1973 only after the trial proceeds and
commences with the recording of the evidence;
(xi) the word “evidence” in section 319 CrPC, 1973 means
only such evidence as is made before the court, in relation
to statements, and as produced before the court, in relation
to documents;
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(xii) it is only such evidence that can be taken into account
by the Magistrate or the court to decide whether the power
under section 319 CrPC, 1973 is to be exercised and not on
the basis of material collected during the investigation;
(xiii) if the Magistrate/court is convined even on the basis
of evidence appearing in examination-in-chief, it can
exercise the power under section 319 CrPC, 1973 and can
proceed against such other person(s);
(xiv) that the Magistrate/court is convinced even on the
basis of evidence appearing in examination-in-chief,
powers under section 319 CrPC, 1973 can be exercised;
(xv) that power under section 319 CrPC, 1973 can be
exercised even at the stage of completion of examination-in-
chief and the court need not has to wait till the said
evidence is tested on cross-examination;
(xvi) even in a case where the stage of giving opportunity to
the complainant to file a protest petition urging upon the
trial court to summon other persons as well who were
named in FIR but not implicated in the charge-sheet has
gone, in that case also, the Court is still not powerless by
virtue of section 319 CrPC, 1973 and even those persons
named in FIR but not implicated in the charge-sheet can be
summoned to face the trial, provided during the trial some
evidence surfaces against the proposed accused (may be in
the form of examination-in-chief of the prosecution
witnesses);
(xvii) while exercising the powers under section 319 CrPC,
1973 the Court is not required and/or justified in
appreciating the deposition/evidence of the prosecution
witnesses on merits which is required to be done during the
trial.
35. Applying the law laid down in the aforesaid decisions to the
facts of the case on hand we are of the opinion that the Learned
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trial Court as well as the High Court have materially erred in
dismissing the application under section 319 CrPC, and
refusing to summon the private respondents herein to face the
trial in exercising the powers under section 319 CrPC. It is
required to be noted that in the FIR No.477 all the private
respondents herein who are sought to be arraigned as
additional accused were specifically named with specific role
attributed to them. It is specifically mentioned that while they
were returning back, Mahendra XUV bearing no. HR-40A-
4352 was standing on the road which belongs to Sartaj Singh
and Sukhpal. Tejpal, Parab Saran Singh, Preet Samrat and
Sartaj were standing. Parab Sharan was having lathi in his
hand, Tejpal was having a gandsi, Sukhpal was having a
danda, Sartaj was having a revolver and Preet Singh was
sitting in the jeep. It is specifically mentioned in the FIR that
all the aforesaid persons with common intention parked the
Mahendra XUV HR-40A-4352 in a manner which blocks the
entire road and they were armed with the weapons. Despite the
above specific allegations, when the charge-sheet/final report
came to be filed only two persons came to be charge-sheeted
and the private respondents herein though named in the FIR
were put/kept in column no.2. It is the case on behalf of the
private respondents herein that four different DSPs inquired
into the matter and thereafter when no evidence was found
against them the private respondents herein were put in column
no.2 and therefore the same is to be given much weightage
rather than considering/believing the examination-in-chief of
the appellant herein. Heavy reliance is placed on the case of
Brijendra Singh (Supra). However none of DSPs and/or their
reports, if any, are part of the charge-sheet. None of the DSPs
are shown as witnesses. None of the DSPs are Investigating
Officer. Even on considering the final report/charge-sheet as a
whole there does not appear to be any consideration on the
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specific allegations qua the accused the private respondents
herein who are kept in column no.2. Entire discussion in the
charge-sheet/final report is against Sartaj Singh only.
36. So far as the private respondents are concerned only thing
which is stated is “During the investigation of the present case,
Shri Baljinder Singh, HPS, DSP Assandh and Shri Kushalpal,
HPS, DSP Indri found accused Tejpal Singh, Sukhpal Singh,
sons of Gurdev Singh, Parab Sharan Singh and Preet Samrat
Singh sons of Mohan Sarup Singh caste Jat Sikh, residents of
Bandrala innocent and accordingly
Sections 148, 149 and 341 of the IPC were deleted in the case
and they were kept in column no.2, whereas challan against
accused Sartaj has been presented in the Court.” .
37. Now thereafter when in the examination-in-chief the
appellant herein-victim-injured eye witness has specifically
named the private respondents herein with specific role
attributed to them, the Learned trial Court as well as the High
Court ought to have summoned the private respondents herein to
face the trial. At this stage it is required to be noted that so far
as the appellant herein is concerned he is an injured eye-
witness. As observed by this Court in the cases of State of MP v.
Mansingh (2003) 10 SCC 414 (para 9); Abdul Sayeed v. State of
MP (2010) 10 SCC 259; State of Uttar Pradesh v. Naresh (2011)
4 SCC 324, the evidence of an injured eye witness has greater
evidential value and unless compelling reasons exist, their
statements are not to be discarded lightly. As observed
hereinabove while exercising the powers under
section 319 CrPC the Court has not to wait till the cross-
examination and on the basis of the examination-in-chief of a
witness if a case is made out, a person can be summoned to face
the trial under section 319 CrPC.
38. Now so far as the reasoning given by the High Court while
dismissing the revision application and confirming the order
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passed by the Learned trial Court dismissing the application
under section 319 CrPC is concerned, the High Court itself has
observed that PW1 Manjeet Singh is the injured witness and
therefore his presence cannot be doubted as he has received fire
arm injuries along with the deceased. However, thereafter the
High Court has observed that the statement of Manjeet Singh
indicates over implication and that no injury has been attributed
to either of the respondents except they were armed with
weapons and the concerned injuries are attributed only to Sartaj
Singh even for the sake of arguments someone was present with
Sartaj Singh it cannot be said that they had any common
intention or there was meeting of mind or knew that Sartaj
would be firing. The aforesaid reasonings are not sustainable at
all. At the stage of exercising the powers under
section 319 CrPC the Court is not required to appreciate and/or
enter on the merits of the allegations of the case. The High
Court has lost sight of the fact that the allegations against all
the accused persons right from the very beginning were for the
offences under Sections 302,307, 341, 148 & 149 IPC. The High
Court has failed to appreciate the fact that for attracting the
offence under Section 149 IPC only forming part of unlawful
assembly is sufficient and the individual role and/or overt act is
immaterial. Therefore, the reasoning given by the High Court
that no injury has been attributed to either of the respondents
except that they were armed with weapons and therefore, they
cannot be added as accused is unsustainable. The Learned trial
Court and the High Court have failed to exercise the jurisdiction
and/or powers while exercising the powers under
section 319 CrPC.
39.Now so far as the submission on behalf of the private
respondents that though a common judgment and order was
passed by the High Court in CRR No.3238 of 2018 at that stage
the appellant herein did not prefer appeal against the impugned
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judgment and order passed by the High Court in CRR No.28 of
2018 and therefore this Court may not exercise the powers
under Section Article 136 is concerned the aforesaid has no
substance. Once it is found that the Learned trial Court as well
as the High Court ought to have summoned the private
respondents herein as additional accused, belated filing of the
appeal or not filing the appeal at a relevant time when this
Court considered the very judgment and order but in CRR
No.3238 of 2018 cannot be a ground not to direct to summons
the private respondents herein when this Court has found that a
prima facie case is made out against the private respondents
herein and they are to be summoned to face the trial.
40.Now so far as the submission on behalf of the private
respondents that though in the charge-sheet the private
respondents herein were put in column no.2 at that stage the
complainant side did not file any protest application is
concerned, the same has been specifically dealt with by this
Court in the case of Rajesh (Supra). This Court in the aforesaid
decision has specifically observed that even in a case where the
stage of giving opportunity to the complainant to file a protest
petition urging upon the trial Court to summon other persons as
well as who were named in the FIR but not implicated in the
charge-sheet has gone, in that case also, the court is still not
powerless by virtue of section 319 CrPC, 1973.
41. Similarly, the submission on behalf of the private respondents
herein that after the impugned judgment and order passed by the
High Court there is a much progress in the trial and therefore at
this stage power under section 319 CrPC, 1973 may not be
exercised is concerned, the aforesaid has no substance and
cannot be accepted. As per the settled preposition of law and as
observed by this Court in the case of Hardeep Singh (Supra), the
powers under section 319 CrPC, 1973 can be exercised at any
stage before the final conclusion of the trial. Even otherwise it is
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required to be noted that at the time when the application under
section 319 CrPC, 1973 was given only one witness was
examined and examination-in-chief of PW1 was recorded and
while the cross-examination of PW1 was going on, application
under section 319 CrPC, 1973 was given which came to be
rejected by the Learned trial Court. The Order passed by the
Learned trial Court is held to be unsustainable. If the Learned
trial Court would have summoned the private respondents herein
at that stage such a situation would not have arisen. Be that as it
may as observed herein powers under section 319 CrPC, 1973
can be exercised at any stage from commencing of the trial and
recording of evidence/deposition and before the conclusion of the
trial at any stage.
42. In view of the above and for the reasons stated above the
impugned judgment and order passed by the High Court and that
of the Learned trial Court dismissing the application under
section 319 CrPC submitted on behalf of the complainant to
summon the private respondents herein as additional accused are
unsustainable and deserve to be quashed and set aside and are
accordingly quashed and set aside. Consequently the application
submitted on behalf of the complainant to summon the private
respondents herein is hereby allowed and the Learned trial Court
is directed to summon the private respondents herein to face the
trial arising out of FIR No.477 dated 27.07.2016 in Sessions
Case No.362 of 2016 for the offences punishable under
Sections 302, 307, 341, 148 & 149 IPC. However, it is
specifically observed that the observations made hereinabove are
only prima facie for the purpose of exercising the powers under
section 319 CrPC and the Learned trial Court to decide and
dispose of the trial in accordance with the law and on its own
merits and on the basis of the evidence to be laid before it.”
(emphasis supplied)
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13. In Sagar Versus State of U.P. & another etc. 2022(2) R.C.R.
(Criminal) 344, the Hon’ble Supreme Court held as under:-
“9.The Constitution Bench has given a caution that power
under Section 319 of the Code is a discretionary and
extraordinary power which should be exercised sparingly
and only in those cases where the circumstances of the case
so warrant and the crucial test as noticed above 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. The learned Single
Judge of the High Court has even failed to consider the
basic principles laid down by this Court while
invoking Section 319 of the Code, which has been
considered by the learned trial Judge under its order dated
30 th January, 2018.”
(emphasis supplied)
14. In Sukhpal Singh Khaira Versus The State of Punjab, 2023(1)
SCC 289, the Hon’ble Supreme Court held as under:-
“32.We have also kept in view the point by point analysis of
the object and power to be exercised under Section 319 of
CrPC, as has been indicated in para 34 of Manjit Singh vs.
State of Haryana and Others (2021) SCC Online SC 632.”
(emphasis supplied)
15. A reading of the aforementioned judgments would show that
firstly, the crucial test to be applied for the purposes of summoning of an
additional accused is that there must be more than a prima facie case against
him which evidentiary standard is greater than that to frame charges but
short of satisfaction to an extent that the evidence, if it goes unrebutted
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would lead to conviction. This is on account of the fact that charges already
stand framed against the accused facing Trial and therefore, the standard of
proof for the purposes of summoning of an accused who had been initially
exonerated ought to be slightly higher. However, clearly, there is no
requirement that the evidence available on the file must be such that would
reasonably lead to conviction.
Secondly, the Court while exercising powers under Section 319
Cr.P.C. is not required or justified in appreciating the deposition/evidence of
the prosecution witnesses on merits which is required to be done during the
course of Trial.
16. Coming back to the facts of the instant case, a perusal of the
FIR (Annexure P-1) and the deposition of the complainant/PW-2 Sukhdev
who is a co-villager of the accused would prima facie establish that the
petitioners and their co-accused alongwith Mukesh son of Hetram have
committed the offence in question. The medical evidence in the shape of
the post-mortem report reveals as many as 08 injuries with sharp-edged
weapons. It is unlikely that the said injuries were inflicted by one person
alone. There is no material on record to show as to on what basis were the
petitioners and their co-accused who were summoned vide the impugned
order came to be exonerated other than the statement of the learned State
counsel to the effect that certain statements were recorded during the course
of the investigation leading to the exoneration of seven persons including the
petitioners. The disclosure statement of Mukesh son of Hetram wherein he
admits to be the sole accused is not admissible in evidence as having been
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made in police custody. In fact, by no stretch of imagination can it be held
that there is absolutely no evidence on record so as to summon the
petitioners and their co-accused. Quite to the contrary, there is more than
prima facie evidence available on record for which the petitioners and their
co-accused ought to be tried jointly with the challaned accused-Mukesh son
of Hetram.
17. In view of the above, I find no merit in the present petition and
the same stands dismissed.
18. The pending application(s), if any, shall stand disposed of
accordingly.
March 10, 2026 ( JASJIT SINGH BEDI)
sukhpreet JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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