Rajesh Kumar v. State of Haryana & Ors.

BRIEF FACTS

#2. Briefly stated, the prosecution case is that Hemant (since deceased), brother of the petitioner Rajesh Kumar, suffered burn injuries and ultimately succumbed thereto. During the course of proceedings, the petitioner sought summoning of respondent No.2 Renu Bala, respondent No.3 Meena Devi and the other proposed accused by alleging that they had actively participated in the commission of the offence. The principal basis of the application was the CCTV footage of cameras installed at the residence of the petitioner and the photographs extracted therefrom, wherein respondent No.2 Renu Bala is alleged to have been seen handing over a bag containing a bottle of petrol to her father CRR No.1642 of 2026(O&M) 2 Pradeep Kumar, while accused Om Dutt was allegedly carrying an iron rod before the occurrence. The petitioner further asserted that the deceased Hemant had earlier submitted several RTI applications against respondent No.3 Meena Devi, who was the Sarpanch and sister-in-law (Bhabhi) of Pradeep Kumar and Om Dutt, on account of which the accused persons were harbouring a grudge against the deceased. It was further alleged that although the petitioner had informed the investigating agency regarding the CCTV footage during investigation, the same was not initially taken into possession and was subsequently seized pursuant to the directions of the learned court. However, after considering the preliminary evidence adduced by the petitioner, the learned trial Court found no sufficient grounds for summoning the proposed accused and dismissed the application, giving rise to the present revision petition. CONTENTIONS

#3. Learned counsel appearing for the petitioner has vehemently contended that the learned trial Court has failed to appreciate the material available on record in its correct perspective. It is submitted that the CCTV footage along with the photographs extracted therefrom clearly depicts respondent No.2 carrying a bottle containing an inflammable substance immediately before the occurrence, thereby lending corroboration to the allegations levelled by the petitioner. It is argued that at the stage of summoning, the Court is only required to ascertain whether a prima facie case is made out and not to meticulously appreciate the evidence as would be done during trial. Learned counsel further submits that the impugned order suffers from misappreciation of the evidence and has resulted in failure of justice. Accordingly, it is prayed that the impugned order be set aside and the respondents be summoned to face trial. CRR No.1642 of 2026(O&M) 3

#4. Learned State counsel submitted that the application seeking summoning of the proposed accused had been moved by the prosecution before the learned trial Court on the basis of the material collected during the course of investigation and the additional material placed on record. It is contended that the learned trial Court adopted an unduly restrictive approach while appreciating the material available at the stage of summoning. Learned State counsel submits that the evidence on record was sufficient to justify summoning of the proposed accused for facing trial and, therefore, the impugned order deserves to be set aside. OBSERVATIONS AND FINDINGS

#5. I have heard the learned counsel for the both the parties and have carefully gone through the impugned order as well as the material available on record.

#6. Before adverting to the submissions, it would be appropriate to notice the statutory provision under which the present controversy arises. The application before the learned trial Court was filed under Section 358 of the Bharatiya Nagarik Suraksha Sanhita, 2023, corresponding to Section 319 of the Code of Criminal Procedure, 1973. The provision reads as under:- Section 358 BNSS - 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. CRR No.1642 of 2026(O&M) 4 (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1), then- (a) the proceedings in respect of such person shall be commenced afresh and the witnesses re-heard; (b) subject to clause (a), the case may proceed as if such person had been an accused when the Court took cognizance of the offence upon which the inquiry or trial was commenced." ******

#7. A plain reading of the aforesaid provision shows that the jurisdiction to summon a person, who was not originally arrayed as an accused, can be exercised only where it appears from the "evidence" that such person has committed the offence and could be tried together with the accused already facing trial. The power is extraordinary and must be exercised sparingly. The expression employed by the legislature is not "material collected during investigation" but "evidence". The ambit and scope of this expression have repeatedly engaged the attention of the Hon'ble Supreme Court.

#8. In the judgment of Yadwinder Singh v. Lakhi @ Lakhwinder Singh and another, 2025 (2) RCR (Criminal) 426, after considering the Constitution Bench judgment in Hardeep Singh v. State of Punjab2014 (3) SCC 92, the Hon'ble Supreme Court elaborately explained the scope of the expression "evidence" occurring in Section 319 Cr.P.C. (now Section 358 BNSS). In this CRR No.1642 of 2026(O&M) 5 case, it has been held that though the expression "evidence" occurring in Section 319 Cr.P.C. is to be understood in a wider sense during the stage of inquiry and trial, the Court is nevertheless required to act only upon such evidence or material as has lawfully come before it during the proceedings. The Court may utilise such material as is available before it to support evidence already adduced before the Court, but the provision does not authorise summoning of a person merely on the basis of investigation material or speculative inferences. The power is extraordinary in nature and is required to be exercised with great circumspection.

#9. Equally important is the distinction between "material" available before the Court and "legally admissible evidence". Every material produced before the Court does not automatically become evidence recognised by law. Whether a document, electronic record or any other material can be read in evidence necessarily depends upon its admissibility and proof in accordance with the provisions governing the law of evidence. The wider meaning assigned to the expression "evidence" under Section 358 BNSS does not dilute or dispense with the mandatory statutory requirements governing admissibility and proof. Any contrary interpretation would virtually render the provisions of the Bharatiya Sakshya Adhiniyam regulating proof of documentary and electronic evidence nugatory.

#10. It is in the aforesaid backdrop that the evidentiary value of the CCTV footage relied upon by the petitioner is required to be examined. The CCTV recording, the photographs extracted therefrom and the electronic storage device constitute electronic records within the meaning of the Bharatiya Sakshya Adhiniyam, 2023. The admissibility and proof thereof are governed by Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, which substantially CRR No.1642 of 2026(O&M) 6 corresponds to Section 65-B of the Indian Evidence Act, 1872. Unless the statutory conditions prescribed therein are fulfilled, such electronic record cannot attain the status of legally admissible evidence merely because it has been produced before the Court or marked as an exhibit. Where reliance is placed upon a copy of an electronic record, including a compact disc, pen drive, CCTV footage or photographs generated from such footage, the mandatory certificate contemplated under Section 63 is required to accompany the electronic record before it can be read in evidence.

#11. The legal position is no longer res integra. The Constitution Bench of the Hon'ble Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and others, 2020 (7) SCC 1, authoritatively held that compliance with the statutory requirement relating to the certificate is mandatory whenever electronic evidence is sought to be proved by way of a copy, unless the original electronic device itself is produced in circumstances recognised by law. The judgment further clarifies that an electronic record does not become admissible merely because it has been exhibited during the course of proceedings. Admissibility and proof must satisfy the statutory mandate.

#12. In the present case, although the CCTV footage and the photographs extracted therefrom appear to have been marked as exhibits, no certificate as contemplated under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 has been produced. Consequently, the said electronic record cannot be treated as legally proved. It is settled law that mere marking of a document as an exhibit does not dispense with the requirement of proving the document in accordance with law. An exhibited document does not automatically become admissible evidence if the statutory conditions governing its proof remain unfulfilled. CRR No.1642 of 2026(O&M) 7

#13. The submission advanced on behalf of the petitioner that the CCTV footage should nevertheless be treated as sufficient "evidence" for invoking Section 358 BNSS cannot be accepted. As noticed above, although the expression "evidence" occurring in Section 358 BNSS is to receive a liberal interpretation, such liberal interpretation does not extend to material which has not acquired the character of legally admissible evidence. The CCTV footage in the present case, in the absence of compliance with the mandatory requirements of Section 63 of the Bharatiya Sakshya Adhiniyam, remains only an unproved electronic record. Such unproved electronic material cannot, by itself, furnish the legal foundation for exercising the extraordinary jurisdiction of summoning an additional accused under Section 358 BNSS.

#14. Even otherwise, assuming for the sake of argument that the said electronic record is looked into, this Court finds that the CCTV footage does not unmistakably establish the allegation sought to be advanced by the petitioner. The footage merely depicts a person carrying a bottle. The recording neither establishes the contents of the bottle nor indicates that it contained petrol or any inflammable substance. No overt act suggestive of participation in the commission of the offence is discernible from the recording. Further, it cannot be overlooked that in ordinary course of human conduct, it is quite common for a family member leaving the house to be handed over a water bottle, food article or other personal belongings. Therefore, the mere handing over a bottle, without anything more, cannot reasonably give rise to an inference that it contained an inflammable substance or that it was intended to be used in the commission of an offence. Therefore, the inference sought to be drawn by the petitioner is founded upon conjecture rather than upon any objective feature emerging from the electronic record itself. CRR No.1642 of 2026(O&M) 8

#15. At the stage of summoning, though the Court is not expected to conduct a meticulous appreciation of evidence as at the stage of trial, there must nevertheless exist sufficient material capable of satisfying the judicial conscience that a case is made out. Suspicion, however strong, cannot substitute the legal standard required for summoning an accused. The material placed before the Court must disclose more than a mere possibility or conjecture. The view taken by this Court also finds support from the principles laid down in Hetram @ Babli v. State of Rajasthan amd amother, 2025 (2) RCR (Criminal) 18; Yadwinder Singh v. Lakhi @ Lakhwinder Singh and another, 2025 (2) RCR (Criminal) 426; and Satbir Singh v. Rajesh Kumar and others, 2025 (2) RCR (Criminal) 465, wherein it has been reiterated that the order of summoning cannot be founded upon speculative or inadequately proved material and that revisional interference is unwarranted unless the order under challenge suffers from patent illegality or perversity.

#16. Having examined the impugned order in the light of the aforesaid principles, this Court is satisfied that the learned trial Court has correctly appreciated the material available on record. The findings recorded do not suffer from any perversity, material illegality or jurisdictional error warranting interference in exercise of revisional jurisdiction. The order under challenge reflects a proper application of mind and cannot be said to have occasioned any miscarriage of justice. The CCTV footage is not legally proved in accordance with Section 63 BSA and, even otherwise, does not furnish sufficient material to indicate the complicity of the proposed accused. The learned trial Court rightly declined to summon them.

#17. Accordingly, the present revision petition is dismissed. CRR No.1642 of 2026(O&M) 9

#18. Pending miscellaneous application(s), if any, shall also stand disposed of.

10.07.2026 S. Pathania (VIRINDER AGGARWAL) JUDGE Whether speaking/reasoned: Yes/No Whether Reportable : Yes/No