1. This criminal revision under section 438 read with section 442 of the BNSS, 2023 is preferred being aggrieved by order dated 16.08.2024 in S.T. No.117/2018 arising out of crime No.588/2017 registered at P.S.- Pardeshipura, District Indore (MP) whereby application under section 319(4)(1)(b) of the Cr.P.C., 1973 (Annexure-A/3) and application under section 216 of the Cr.P.C., 1973 (Annexure-A/4) preferred by prosecution for summoning the respondent no.3 to 8 as an accused and taking cognizance under section 302, 304 read with section 34 of the IPC against them and also adding charges under section 302 of the IPC against respondent no.2 Vijay have been rejected.
2. Facts of the case, in brief, are that an offence under Section 304 of the IPC was registered at Police Station Pardesipura, Indore, as Crime No. 588/2017 on 29.11.2017 regarding the incident dated 27.11.2017, on the complaint of Kamal Kishore. The incident occurred during a ladies' music programme held in front of the complainant's house, during the dance, in which Lala @ Amit died. The offence was registered against Vijay, and after investigation, a final report was submitted under Section 173 of the Cr.P.C., 1973/Section 193 of the BNSS, 2023, disclosing the offence under Section 304 of the IPC only against respondent No. 2, Vijay Tanwar.
3. Vide order dated 23.08.2018, the 18th Additional Sessions Judge, Indore, framed a charge under Section 304 Part II of the IPC against respondent No. 2 and rejected the submission of the prosecution that an offence under Section 302 of the IPC was made out. Thereafter, to bring home the guilt, the prosecution examined Yashraj @ Kallu as PW-1, Laalchand as PW-2, Praveen as PW-3, Ritesh as PW-4, Sumit Malviya as PW-5, Rajesh Singh Yadav as PW-6, Golu @ Navnath Markat as PW-7, and Ashok as PW-8. Thereafter, counsel for the victim, Ashok, preferred an application under Section 301(2) of the Cr.P.C. on 18.04.2024. The application was allowed on 28.05.2024. Thereafter, the Additional Public Prosecutor conducting the trial preferred two separate applications, one under Sections 216 and another under section 319(4)(1)(b) of the Cr.P.C. Vide order dated 16.08.2024, the application under Section 216 for enhancement of the charge against respondent No. 2 was dismissed. Similarly, the application under Section 319(1) for taking cognizance and summoning Tejram, Kalu @ Tejpal, Pappu Pehalwan, Santosh Bhandari, and Vishal Bhandari as accused persons was also rejected.
4. Challenging both the orders, this revision petition has been preferred on the ground that, while passing the impugned order, the trial court failed to appreciate the oral evidence brought on record. The trial court did not at all consider the examination-in-chief and cross-examination of the eyewitnesses. The trial court also failed to consider the testimony of PW-4, Ritesh Mandad. The witness, in his statement recorded under Section 161 of the Cr.P.C. as well as in his deposition before the Court, duly narrated the incident and also stated the role of all the accused persons. The trial court further committed an error in considering the testimony of PW-5, Sumit Mittal, who is also an eyewitness and who, in his statement recorded under Section 161 of the Cr.P.C., duly narrated the incident and stated the role of all the accused persons. The trial court failed to appreciate the testimony of Golu @ Navnath Markat, examined as PW-7, who proved the mens rea of the accused persons, and recorded a perverse finding that the witness had failed to establish the intention or mens rea to commit the offence. The trial court further failed to appreciate the testimony of Hemant Mandad, examined as PW-9, and Ashok, examined as PW-8.
5. It is further submitted that the plain reading of the testimony of all these witnesses clearly reveals the acts and overt acts of all the accused persons. The trial court committed an error in relying upon the testimony of Yashraj, examined as PW-1, and Dalchand, examined as PW-2, who turned hostile, as they are interested witnesses. The presence of all the accused persons at the place of occurrence is well established, and the fact that all the accused persons conjointly, and with the requisite mens rea , committed the crime is also established. The trial court further failed to appreciate that, from the examination of the witnesses, it has come on record that the incident took place at around 10:00 PM, but no intimation regarding the injuries sustained by the deceased was given to his family members. At about 01:30 AM, the deceased was taken to the hospital, by which time he had already died. The trial court passed the order ignoring the mandate laid down in (2024) 3 SCC 142 (Gurdev Singh v. State of Punjab); (2008) 14 SCC 51 (Kailash v. State of Rajasthan), (2023) 7 SCC 344; Order dated 16.03.2022 passed in Criminal Appeal No. 443/2022 (Nahar Singh v. State of U.P.), and Order dated 05.12.2022 passed in Criminal Appeal No. 885/2019. and 2010 (2) MPLJ 611 .
6. It is further submitted that while passing the impugned order, the trial court overlooked its earlier order dated 23.08.2018, wherein all the facts were brought on record at the time of framing of charges. At that stage, the trial court had rejected the prayer of the prosecution for enhancement of charges. However, the scenario has now changed as the evidence of the witnesses has been recorded, and the truth has come out as light bright sunlight.
7. A perusal of the order dated 23.08.2018, whereby the charges were framed, shows that the trial court recorded the finding that, upon perusal of the case diary, statements of the witnesses, and other material available on record, the incident is stated to have happened within a short period. Thereafter, the trial court rejected the application on the ground that the mens rea has to be determined with reference to the attending circumstances in which the alleged act was committed. The opinion of the witnesses cannot established the mens rea . Vijay was aware that deceased is in a drunken position. Accordingly, the offence under section 304 Part-II of the IPC is made out. No case for enhancement of the charges is made out. Similarly the evidence brought on record does not reveal that Yashraj @ Kalu Mandad, Dalchand Bhandari, Rest Vishal Bhandari, Santosh @ Santi Bhandari and Pappu Pehlwan @ Yashwant have any role in the death of Ashok.
8. Firstly, the legal principles for exercising the power under section 319 of the Cr.P.C., 1973 which is being reproduced below:-
" 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.
(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 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."
9. In Hardeep Singh Vs. State of Punjab and Others 2014 SCC 92 the standard of evidence for exercising the power under section 319 of the Cr.P.C., 1973 has been laid down in para-98 and 99 which is being reproduced as below:-
"98. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary 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.
99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be 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 Cr.P.C. In Section 319 Cr.P.C. 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 Cr.P.C. to form any opinion as to the guilt of the accused. Q.(v) In what situations can the power under this section be exercised: Not named in FIR; Named in the FIR but not charge-sheeted or has been discharged?"
10. In Neeraj Kumar @ Neeraj Yadav vs State of U.P 2025 INSC 1386 Hon'ble Apex Court has discussed the law governing the summoning of an additional accused under Section 319 of the Cr.P.C., 1973 and the relevant para- 6 and 7 are being reproduced below:-
"6. The law governing the summoning of an additional accused under Section 319 CrPC is now well settled. The provision is an enabling one, empowering the Court, during the course of an inquiry or trial, to proceed against any person not already arraigned as an accused, if, from the evidence adduced before it, such person appears to have committed an offence. Its object is to ensure that no guilty person escapes the process of law, thereby giving effect to the maxim judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted). It casts a duty upon the Court to ensure that the real offender does not go unpunished, for only then can the concept of fair and complete trial be realised.
7. It is no longer res integra that the power conferred under this Section is extraordinary and discretionary in nature, intended to be exercised sparingly and with due circumspection. While invoking it, the Court must be satisfied that the evidence appearing against the person sought to be summoned is such that it prima facie necessitates bringing such person to face trial. The degree of satisfaction required is higher than that warranted at the stage of framing of charge, yet short of the satisfaction necessary to record a conviction. Such satisfaction must rest on cogent and credible material brought on record during the trial, and not based on conjectures or speculations. In this regard, reference to a few judicial pronouncements of this Court would be apposite.
7.1. The Constitution Bench of this Court in Hardeep Singh v. State of Punjab (((2014) 3 SCC 92)) extensively discussed the power conferred under Section 319 CrPC. Relevant part is extracted hereunder:
"90. ... all that is required for the exercise of the power under Section 319 CrPC is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the Magistrate must come to in order to take cognizance of the offence. Therefore, no straitjacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s). It is essential to note that the section also uses the words "such person could be tried" instead of should be tried. Hence, what is required is not to have a mini-trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all, for in light of sub-section (4) of Section 319 CrPC, the person would be entitled to a fresh trial where he would have all the rights including the right to cross examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of examination-in-chief, the court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, examination-in-chief untested by cross examination, undoubtedly in itself, is an evidence.
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106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be 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 1973. In section 319 of the Cr.P.C., 1973 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 persons 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 of Cr.P.C.,1973 to form any opinion as to the guilt of the accused.
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110. In Lal Suraj [Lal Suraj v. State of Jharkhand, (2009) 2 SCC 696 : (2009) 1 SCC (Cri) 844] , a two-Judge Bench held that there is no dispute with the legal proposition that even if a person had not been chargesheeted, he may come within the purview of the description of such a person as contained in Section 319 CrPC. A similar view had been taken in Lok Ram [Lok Ram v. Nihal Singh, (2006) 10 SCC 192 : (2006) 3 SCC (Cri) 532 : AIR 2006 SC 1892], wherein it was held that a person, though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added to face the trial.
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117.6. A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 CrPC provided from the evidence it appears that such person can be tried along with the accused already facing trial..."
(emphasis supplied)
7.2 In S. Mohammed Ispahani v. Yogendra Chandak 2017 INSC 999 it reiterated that under this Section the Court possesses the power to summon the persons not named in the chargesheet to face trial, if the evidence on record so warrants. It further clarified that a statement recorded under Section 161 CrPC, though not an independent piece of evidence, sufficient in itself to invoke the power under this Section may, nevertheless, be relied upon for corroborative purposes when supported by evidence emerging during trial. It was observed as under:
"34. ... No doubt, at one place the Constitution Bench observed in Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] that the word "evidence" has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. In para 105 of the judgment, however, it is observed that "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".This sentence gives an impression that only that evidence which has been led before the Court is to be seen and not the evidence which was collected at the stage of inquiry. However there is no contradiction between the two observations as the Court also clarified that the "evidence", on the basis of which an accused is to be summoned to face the trial in an ongoing case, has to be the material that is brought before the Court during trial. The material/evidence collected by the investigating officer at the stage of inquiry can only be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 CrPC.
35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the chargesheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the chargesheet, 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 summon other persons as well who were named in the FIR but not implicated in the chargesheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused."
(emphasis supplied)
7.3 In Omi v. State of M.P. (((2025) 2 SCC 621)), a coordinate bench of this Court laid the following principles of law with regard to Section 319 CrPC:
"19. The principles of law as regards Section 319CrPC may be summarised as under:
19.1. On a careful reading of Section 319CrPC as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceedings on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added to face the trial.
19.2. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the chargesheet or the case diary, because such materials contained in the chargesheet or the case diary do not constitute evidence.
19.3. The power of the court under Section 319CrPC is not controlled or governed by naming or not naming of the person concerned in the FIR.
Nor the same is dependent upon submission of the chargesheet by the police against the person concerned. As regards the contention that the phrase "any person not being the accused" occurred in Section 319 excludes from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the chargesheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court are included in the said expression.
19.4. It would not be proper for the trial court to reject the application for addition of new accused by considering records of the investigating officer. When the evidence of complainant is found to be worthy of acceptance then the satisfaction of the investigating officer hardly matters. If satisfaction of investigating officer is to be treated as determinative then the purpose of Section 319 would be frustrated."
7.4. Recently, this Court, through one of us (Sanjay Karol, J.), in Shiv Baran Vs. State of U.P. 2025 INSC 860 summarised the principles that the Court ought to keep in mind while considering an application under this Section. It was observed:
"15. The principles that the Trial Court ought to follow while exercising power under this Section are:
(a) This provision is a facet of that area of law which gives protection to victims and society at large, ensuring that the perpetrators of crime should not escape the force of law;
(b) It is the duty cast upon the Court not to let the guilty get away unpunished;
(c) The Trial Court has broad but not unbridled power as this power can be exercised only on the basis of evidence adduced before it and not any other material collected during investigation;
(d) The Trial Court is not powerless to summon a person who is not named in the FIR or Chargesheet; they can be impleaded if the evidence adduced inculpates him;
(e) This power is not to be exercised in a regular or cavalier manner, but only when strong or cogent evidence is available than the mere probability of complicity;
(f) The degree of satisfaction required is much stricter than the prima facie case, which is needed at the time of framing of charge(s);
(g) The Court should not conduct a mini-trial at this stage as the expression used is 'such person could be tried' and not 'should be tried'.
(emphasis supplied)
11. Recently the apex court in Mohammad Kaleem Vs. State of Uttar Pradesh and Other 2026 INSC 251 has laid down that scrutinizing contradiction and questioning of witnesses credibility is beyond scope of section 319 of CrPC 1973. The relevant para- 8, 9 and 10 are being reproduced as below:-
" 8. The Trial Court's reasoning in rejecting the Section 319 application, prima facie appears to be largely aligned with the principles laid down by this Court, such as the requirement that evidence must be strong and cogent rather than mere suspicion. Both Hardeep Singh v. State of Punjab (2014) 3 SCC 92 and Neeraj Kumar v. State of UP (2025) SCC OnLine SC 2639 emphasize that the power under Section 319 CrPC is extraordinary and should be exercised sparingly. The Court must assess whether the evidence on record, if unrebutted, reasonably indicates the involvement of the proposed accused.
9. At the same time, the Court has highlighted certain limits to the Trial Court's discretion at Section 319 CrPC. stage. Hardeep Singh(supra) clarified that the Court need not establish guilt or conduct a detailed credibility assessment at this stage, while Neeraj Kumar (supra) held that pre- trial scrutiny should not resemble a mintrial. The Trial Court, in this regard appears to have misdirected itself. In evaluating minor contradictions between witness statements and plausibility issues such as whether the complainant could have avoided injury, effectively applied a stricter standard than necessary.
10. Another instance is that higher than necessary standard being applied is reflected where the Court relied on the absence of jail records or highlighted minor discrepancies in hospital admission or FIR details. While these points raise valid questions about reliability, they are not points that can be gone into threadbare at this stage. Further, we find the Trial Court to have erred in taking a fragmented approach while appreciating evidence. The Trial Court treated each inconsistency in isolation rather than assessing the cumulative weight of all testimonies and circumstances. Similarly, reliance on documentary corroboration is not required; oral evidence alone, if credible, may suffice. The Court's emphasis on the lack of jail records and the physical plausibility of witness accounts could be seen as exceeding the threshold scrutiny expected at this stage. The Court overstepped the intended scope of pre-trial scrutiny, overemphasized minor inconsistencies, and did not fully consider the cumulative force of the evidence. The law consistently balances caution against undue summoning with the need to ensure that potentially implicated individuals are brought to trial when the record, taken as a whole, reasonably supports it."
12. In light of the above principles, while examining the legality of the impugned orders, this Court is required to examine the correctness of the impugned order, keeping in mind the challenges raised by the revision petitioner.
13. The revision petitioner, who examined himself as PW-8, was not present at the place of the incident. Therefore, this Court is examining the testimonies of Ritesh (PW-4), Sumit Mittal (PW-5), Golu @ Navnath Markat (PW-7), Hemant Mandad (PW-9), Sub-Inspector Kamal Kishore, then posted at P.S. Pardesipura and examined as PW-12, who seized the CD (Article A-1). The CD was played during the recording of his testimony before the Trial Court, and the witness was examined with regard to the contents of Article A-1. The testimony of Dr. Jitendra Singh Tomar (PW-14) is also being examined.
14. As per paragraphs 5 and 6 of the testimony of Ritesh (PW-4), the place of the incident was where a music programme was being held in connection with the marriage of Shakti, the nephew of the deceased, Amit @ Lala. Initially, the ladies participated in the dance, and thereafter the gents started dancing. Around 25-30 guests were dancing at a time on a cemented road that served as the dance floor. Apart from those who were dancing, there was a gathering of approximately 100 guests. Nearly half of the guests had consumed liquor. During the programme, the song "Peele Peele O Mere Raja" from the Hindi movie Tirangaa was playing in the background as recorded in CD (Article A-1), which captured approximately 49 seconds of the incident and there was no confrontation or utterance of any words reflecting any tense situation. The recording only shows that Vijay lifted Amit after he fell on the cemented road.
15. The cause of death of Amit @ Lala has been opined due to "cardio- respiratory failure", as reflected in Exhibit P-20 and the testimony of Dr. Jitendra Singh (PW-14). The same opinion was also expressed by Dr. A.K. Lanjewar, Department of Forensic Medicine, MGM Medical College, Indore, through Exhibit P-21.
16. Tested on the standard of "strong and cogent evidence," the material available on record does not render the findings of the Trial Court, rejecting both the applications, illegal or perverse warranting interference and summoning as an accused of respondent nos.3 to 8 and enhancement of charge of respondent no.2 Vijay Tanwar. Accordingly, no illegality is found in the impugned order. Consequently, the present revision petition stands dismissed.
17. A copy of this order be forwarded to the concerned Trial Court for information.
18. The record of the Courts below be sent back. C.C. as per rules.
