Afr High Court
Case Details
SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI 1 2025:CGHC:46402 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2503 of 2025 1. Purushottam Agrawal S/o Late Maturam Agrawal Aged About 53 Years R/o Gajanandpuram Colony, Raigarh, District- Raigarh (C.G.) versus ... Petitioner 1. State of Chhattisgarh Through- District Magistrate, Police Station- Kotwali Raigarh, Chhattisgarh. 2. Ashay Yadav @ Sunny S/o Late Nawal Yadav R/o Near Laltanki, Ward No. 12, P.S. City Kotwali, District- Raigarh (C.G.) 3. Mohammad Yusuf S/o Peer Mohammad R/o In Front Of Jute Mill, Ward No. 32, P.S. City Kotwali, District- Raigarh (C.G.) ... Respondents For Petitioner : Mr. Kishore Bhaduri, Sr. Advocate assisted by Mr. Harsh Dave, Advocate. For Respondent(s) : Mr. Akhilesh Kumar, Govt. Advocate and Hon'ble Shri Justice Parth Prateem Sahu Order On Board 10/9/2025 1. This petition under Section 528 of Code of Criminal Procedure, 1973 (for short ‘CrPC’) is filed by petitioner who 2 has been summoned as an additional accused to face trial of Criminal Case No.134/2022.
Facts
2. Facts of the case, in brief, are that based on complaint filed by one Vimal Yadav alleging that on 27.10.2020 he entered in lift/elevator of petitioner’s nursing home, there was no cabin in lift, therefore, he fell down into shaft and sustained grievous injuries. It is further alleged that no caution sign or security guard was present to indicate that lift was out of order, which led to the accident. Therefore, it is prayed that FIR be registered against petitioner and other staff of nursing and legal action be taken against them after proper investigation. Based on aforesaid allegations, the offence was registered and during investigation, police found that Ashay Yadav and Mohd. Yusuf were responsible for maintenance of lift and safety requirements, therefore, after completion of investigation, final report was filed against them before the court of competent jurisdiction. During pendency of proceeding before learned trial Court, the prosecution submitted an application under Section 319 of CrPC for summoning present petitioner as additional accused. Learned Magistrate after hearing counsel for respective parties allowed application under Section 319 of CrPC vide order dated 22.4.2025, took cognizance against present petitioner under Sections 287, 337, 338/34 of IPC and issued summon. 3 The order of learned trial Court allowing application under Section 319 CrPC was put to challenge in a criminal revision, the same too has been dismissed by learned revisional Court by the order impugned. 3. Learned Senior Counsel for petitioner would argue that the impugned orders passed by both the Courts suffer from gross illegality, procedural impropriety and are against the settled principle of law. He submits that the power to include a person as an additional accused by taking recourse to Section 319 of Cr.P.C. is to be exercised only in exceptional cases only after the legal evidence comes on record and it appears to the Court that concerned person had committed the crime alleged against him and not ipse dixit or on surmises and conjectures. In case at hand, no such evidence on oath has been recorded before trial Court warranting summoning of petitioner and hence, the order passed by learned revisional Court shows complete non-application of mind. He also submits that petitioner was not named in final report/charge sheet and thus petitioner was found innocent during investigation and therefore, the prayer for proceeding against petitioner on an application under Section 319 CrPC can only be upon appreciation of evidence to be brought during trial, if it appears to the Court that such person could be tried and not before that. In support of his submission, he 4 places reliance on decisions of Hon’ble Supreme Court in case of Sukhpal Singh Khaira v. State of Punjab, reported in (2023) 1 SCC 289 and Hardeep Singh vs. State o Punjab, reported in (2014) 3 SCC 92. 4. On the other hand, learned State counsel opposes submissions made by learned Senior Counsel for petitioner and submits that the order passed by learned trial court is based on evidence and law as the complainant himself has mentioned the name of petitioner as an accused in FIR and hence, the petitioner has been rightly summoned to face trial. The impugned orders are in conformity with the settled principle of law and need not to be interfered with. 5. I have heard learned counsel for respective parties and perused the documents available in record. 6. For the purpose of this case, Section 319 of CrPC is material and therefore, relevant part of the same is extracted below for ready reference: “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. … …” 5 7. A careful reading of Section 319 CrPC makes it clear that trial court has undoubted jurisdiction to add any person not being the accused before it, if during course of enquiry into or trial of an offence if appears from the evidence that any person not being accused committed an offence. The trial court can take such a step to add such persons as accused on an application under Section 319 CrPC 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 in itself constitute evidence. 8. The parameters for dealing with an application under Section
Legal Reasoning
319 CrPC have been laid down by this Court in several cases. The Constitution Bench of the Hon'ble Supreme Court in the case of Hardeep Singh (supra), Hon’ble Supreme Court observed thus:- “76. Ordinarily, it is only after the charges are framed that the stage of recording of evidence is reached. A bare perusal of Section 227 Cr.P.C. would show that the legislature has used the terms “record of the case” and the “documents submitted therewith”. It is in this context that the word ‘evidence’ as appearing in Section 319 Cr.P.C. has to be read and understood. The material collected at the stage of investigation can at best be used for a limited purpose as provided under Section 157 of the Evidence Act i.e. to corroborate or contradict the 6 statements of the witnesses recorded before the court. Therefore, for the exercise of power under Section 319 Cr.P.C., the use of word `evidence’ means material that has come before the court during an inquiry or trial by it and not otherwise. If from the evidence led in the trial, court is of the opinion that a person not accused before it has also committed the offence, it may summon such person under Section 319 Cr.P.C. 78. It is, therefore, clear that the word “evidence” in Section 319 Cr.P.C. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during investigation. 105. Power under Section 319CrPC 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. 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 7 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." 9. In Sukhpal Singh Khaira (supra), it was observed by Hon’ble Supreme Court thus:- “15. At the outset, having noted the provision, it is amply clear that the power bestowed on the Court is to the effect that in the course of an inquiry into, or trial of an offence, based on the evidence tendered before the Court, if it appears to the Court that such evidence points to any person other than the accused who are being tried before the Court to have committed any offence and such accused has been excluded in the charge-sheet or in the process of trial till such time could still be summoned and tried together with the accused for the offence which 8 appears to have been committed by such persons summoned as additional accused." 10. In Para-41 of the decision in case of Sukhpal Singh Khaira (supra), Hon’ble Supreme Court has laid down the guidelines that the competent court must follow while exercising powers under Section 319 CrPC and one of such guidelines is that if the competent court finds evidence or if application under Section 319 Cr.P.C. is filed, regarding involvement of any other person in committing the offence based on evidence “recorded at any stage in the trial” before passing of the order on acquittal or sentence, it shall pause the trial at that stage and the Court shall proceed to decide the fate of the application under Section 319 Cr.P.C. 11. From a conjoint reading of above cited decisions show that power of summoning under Section 319 Cr.P.C. is not to be exercised routinely, it can be exercised only on the basis of the evidence adduced before the court during a trial. 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. 9 12. The word 'evidence' used in Section 319 Cr.P.C. is limited to the evidence recorded during trial. As per Section 3 of the Evidence Act, “evidence” means and includes: “(1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the court; such documents are called documentary evidence.” 13. In case of Hardeep Singh (supra), Hon’ble Supreme Court has explained the meaning of word ‘evidence’ as used under Section 319 CrPC and relevant paras of said decision are as follows:- “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. Question (ii)--Whether the word "evidence" used in Section 319 (1) CrPC 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? Answer 117.4. Considering the fact that under Section 319CrPC a person against whom 10 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." 14. It is the evidence tendered during trial of case if the offence is triable by a Court of Sessions. Material placed before committing Court cannot be treated as evidence collected during enquiry or trial. For this view, I find support from decision of Hon’ble Supreme Court in case of Ranjit Singh vs State of Punjab & ors, reported in (1998) 7 SCC 149. 15. It is, therefore, clear that the word “evidence” in Section 319 CrPC means only such evidence as is made before the court during trial or enquiry, in relation to statements, and as produced before the court, in relation to documents. 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 is to be exercised and not on the basis of material collected during the investigation. 16. So far as meaning of the word ‘trial’ is concerned, there is no definition of ‘trial’ in CrPC and it has always been understood to mean the proceeding which commences when the case is called on with the Magistrate on the Bench, the accused in the dock and representatives of the prosecution and defence, 11 if any, present in the Court for hearing of the case. In case of Union of India vs. Madan Lal Yadav, reported in (1996) 4 SCC 127, a three Judges Bench while dealing with proceedings in General Court Martial under the provisions of the Army Act, 1950 after referring to various dictionary meanings of the word ‘trial’, came to conclusion thus:- “19.It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial.” 17. Keeping in mind the above provisions of law and decisions of Hon’ble Supreme Court, if we examine the facts of present case, it is clear that the complainant in his complaint has simply mentioned that he opened the door of lift/elevator of petitioner’s nursing home and as there was no cabin in lift, he fell down into shaft and sustained grievous injuries. It is further alleged that there was no caution sign or security guard was present to indicate that lift was out of order, which led to the accident. Therefore, it is prayed that FIR be registered against petitioner and other staff of nursing and legal action be taken against them after proper investigation. 12 18. In the course of investigation, the management of nursing home informed the Station House Officer, Police Station City Kotwali Raigarh that since 2019 Aashay Yadav was responsible for ensuring the safety and maintenance of life, whereas Mohd. Yusuf being the Manager was responsible for supervision of nursing home. Since the aforementioned persons did not deny their responsibility, therefore, charge sheet was filed against them under Sections 287, 337, 338 34 of IPC. 19. Perusal of the order dated 22.4.2015 summoning the petitioner as an additional accused would show that learned trial Court considering that in the complaint, statement of complainant recorded during investigation as also in FIR there is mention of name of petitioner herein and therefore sufficient ground is available to arraign the petitioner as an additional accused in the matter. However, in the entire order of trial Court there is no whisper as to why and in light of which evidence adduced before it, the trial Court has formed opinion that petitioner should be summoned as an additional accused. Thus, it is quite clear that no evidence has been recorded till passing of the impugned order. It means that no evidence was recorded till the stage of passing of impugned order except charge sheet filed by the prosecution, hence, the impugned order allowing application filed under Section 319 13 CrPC, summoning the petitioner as an additional accused to face trial is not sustainable in law . 20. For the foregoing discussions and reasons, the petition is allowed. Impugned orders dated 30.7.2025 and 22.4.2025 are set aside. However, it is made clear that the prosecution will be at liberty to move fresh application under Section 319 CrPC at appropriate stage, if any occasion arises based on evidence. roshan/ Sd/- (Parth Prateem Sahu) Judge