M Kali Raju Naidu v. State Of Karnataka - Criminal Petition

## Unlock Advanced Research with PRISM AI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

• Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc -... Upgrade to Premium [Cites 22, Cited by 0 ] ### Karnataka High Court

Sri. M Kali Raju Naidu vs State Of Karnataka on 5 March, 2026

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

-1-
NC: 2026:KHC:13572
CRL.P No. 15778 of 2025

                HC-KAR

                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 5TH DAY OF MARCH, 2026

                                         BEFORE
                       THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
                         CRIMINAL PETITION NO. 15778 OF 2025
               BETWEEN:

               SRI M. KALI RAJU NAIDU
               S/O LATE B.S.MARAPPA NAIDU,
               AGED ABOUT 52 YEARS,
               R/AT NO.24, 11TH C CROSS,
               NEAR FOOD OFFICE,
               KODANADRAMAPURAM,
               MALLESHWARAM,
               BENGALURU - 560 003.
                                                            ...PETITIONER
               (BY SRI RAVINDRA B.S., ADVOCATE)

               AND:

Digitally signed by 1. STATE OF KARNATAKA BY
SANJEEVINI J PEENYA POLICE STATION, PEENYA,
KARISHETTY
BENGALURU.
Location: High
Court of Karnataka REPRESENTED BY
THE STATE PUBLIC PROSECUTOR,
HIGH COURT COMPLEX.

               2.     G.PUTTAHANUMAKKA,
                      W/O G.V.GANGANAGAIAH,
                      AGED ABOUT 65 YEARS,
                      RESIDING NO.136,
                      2ND BLOCK, 10TH CROSS,
                      4TH MAIN ROAD,
                              -2-
                                           NC: 2026:KHC:13572
                                     CRL.P No. 15778 of 2025

HC-KAR

  BENGALURU - 560 032.
                                               ...RESPONDENTS

(BY SRI ANOOP KUMAR, HCGP FOR R-1;
SMT.BHAVANA G.K., ADVOCATE FOR R-2)

   THIS CRL.P IS FILED U/S FILED 528 BNSS OF 2023 (U/S

482 OF CR.PC) PRAYING TO SET ASIDE THE ORDER DATED
17.06.2025 IN C.C.NO.27258/2025 PENDING ON THE FILE OF
THE HON'BLE XXXI ADDL.ACJM COURT, BENGALURU
ANNEXURE-G.

   THIS PETITION, COMING ON FOR FINAL HEARING, THIS

DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA

                        ORAL ORDER Petitioner is before this Court calling in question an order

of the concerned Court dated 17-06-2025, which allows an

application filed by the complainant under Section 319 of the

Cr.P.C.

1. Facts in brief germane are as follows:

2.1. The 2nd respondent registers a complaint on

29-05-2015, in which the petitioner was also drawn as an -3- NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

accused. The said complaint becomes a crime in Crime No.501

of 2015. The police conduct investigation and file a charge

sheet. While filing the charge sheet, the name of the petitioner

gets dropped. Further proceedings go on before the concerned

Court. The prosecution noticing the fact the name of the

petitioner could not have been dropped while filing the charge

sheet, prefers an application under Section 319 of Cr.P.C. to

bring the petitioner back into the web of proceedings.

2.2. A notice is issued by the concerned Court to the

petitioner as to why he should not be brought back into the

web of proceedings. The petitioner replies to the said notice. On

consideration of the reply, the concerned Court passes an order

permitting the petitioner to be brought in as an accused, owing

to the law and the evidence that was found at the time when

the trial was on. The petitioner, on allowing of the application,

is before the Court in the subject petition, calling in question

the said order.

1. Heard Sri. Ravindra B.S., learned counsel appearing for

petitioner, Sri. Anoop Kumar, learned High Court Government -4- NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

Pleader appearing for respondent No.1 and Smt. Bhavana G.K,

learned counsel appearing for respondent No.2.

1. The learned counsel appearing for the petitioner

submits that petitioner is a purchaser from the hands of

K. Nithyananda Swamy, the accused no.1 and has nothing to

do with the GPA executed in the year 1992 in favour of accused

No.1 by one B.M.Rajanna. The petitioner has purchased the

property in the year 2015 from the hands of the said

K. Nithyananda Swamy. The learned counsel submits that Section 319 of Cr.P.C. cannot be invoked to misuse or abuse

the position, by bringing in all those who had been dropped,

without any rhyme or reason. He would seek quashment of the

order. He would add the circumstance of pendency of a civil

suit in O.S.No.903 of 2015 in which the present petitioner is

also a defendant before the concerned Court. On all these

scores, the learned counsel seeks quashment of the order

which brings him back into the web of crime.
-5- NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

1. Per-contra, the learned counsel appearing for the 2nd

respondent/complainant would vehemently refute the

submissions in contending that the complaint was filed not only

against Nithyananda Swamy. The complaint of forgery, fraud,

cheating and conspiracy was against both the accused No.1 and

the present petitioner. The police conduct investigation and

drop the name of the present petitioner from the array of

accused and draw only the accused No.1 into the web of

proceeding. The trial goes on. Owing to the evidence of PW1,

the prosecution files an application under Section 319 Cr.P.C.

seeking to bring in the petitioner, as accused no.2 in the trial,

which is rightly allowed by the concerned Court and needs no

interference.

1. I have given my anxious consideration to the

submissions made by the respective learned counsel and have

perused the material on record.

1. The afore-narrated facts are not in dispute. An

application under Section 319 Cr.P.C. comes to be filed by the -6- NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

complainant seeking to draw the accused/petitioner to the

proceedings. The application reads as follows:

" ೌರ ಾ ತ 31 ೇ ಎ ಎಂ ಎಂ ಾ ಾಲಯ, ೆಂಗಳ ರು ನಗರ

                               .   . ನಂ.27258/2018

       ಾ ದು ಾರರು :                   !ಾಜ ದ ಪರ ಾ$ %ೕಣ '(ೕಸರು

                                         *ರುದ+

 ಆ!ೋ%ತರು         :                  .ಾ ನಂ ಾ ಮತು0 ಇತರರು

      2ಾರ3ೕಯ ದಂಡ ಪ565      ಾ ಸಂ7.ೆ ಕಲಂ 319ರ9 ಆ:;ೕಜ ೆ ಪರ ಸ(<ಸು30ರುವ
                              ಸ(< >ೊಳ?@30ರುವ ಅB ಅ:ಯಜ ೆಯ ಪರ ಾ$ ಈ >ೆಳಕಂಡಂ.ೆ Dಾ5E ಸFಾ$ ೆ.

ಈ GೕಲHಂಡ IಕದJGಯನುK ಾ ದು ಾರು GೕFಾHL ದ ಆ!ೋ%ಗಳ
ರುದ+ 2ಾ.zÀA.¸ÀA.ಯ ಕಲಂ:419, 120-M, 420 !ೆ/ 34 ಐ% Oೕ.ಾ ೋPಾ!ೋಪQೆ
ಪRS ಸ(< ದುJ, ಆ!ೋ% ಾದ >ಾT!ಾಜ MU M,ಎV WಾರಪX 53 ವಷ , ಾಸ ನಂ:

24/25 11 ೇ >ಾ5V >ೋದಂಡ!ಾಮಪZರ,ಮFೆ<ೕಶ ರಂ, ೆಂಗಳ ರು-3 ರವರನುK ತ \ಾ

ಾಲದ(< ]ಾ^ಾ`ಾರ ಲಭ *ಲ< ೆ ಇರುವZದOಂದ ತ \ಾb>ಾOಗಳ? ಇವರನುK
ೋPಾ!ೋಪQಾ ಪRScಂದ >ೈMಟು5ತ0 ೆ, ಈ ಪ5ಕರಣವZ fಾgೕನು ರ7ತ, ಸಂhೆಯ
iಾಗೂ ಾ!ೆಂj IಕದJG ಾ$ರುತ0 ೆ, ಆ ಪ5ಕರಣ ಾ$ ಈ ಘನ ಾ ಾಲಯವZ
ಆ!ೋ%ಗಳ *ರುದ+ ಆ!ೋಪQೆವ!ೆ ಅ:;ೕಜ ೆ ಪರ ಾlತ ]ಾm ಾರ!ಾದ nಾ,]ಾ-1
(Dಾ5]ಾ-1) ಪZಟS ಹನುಮಕH ರವರ ]ಾm *nಾರQೆ WಾಡFಾ$ರುತ0 ೆ ಸದO ]ಾm ಾರರು
ಘಟ ೆ ೆ ಪpರಕ ಾ$ ]ಾq ನು9lರು.ಾ0!ೆ.

Dಾ5]ಾ.1 ರವರು ತಮr ]ಾq_ದ(< Iೕಸದ(< ಪ5ಮುಖ Dಾತ5 ವ7 ದ ವ 60 ಎ-2

ಾT!ಾಜ *ರುದ+ ಸಹ ಾನು 'ೕ(V tಾQೆಯ(< ದೂರು ಾಖ( ೆJ. ಆ ವ 60 ಸಹ ನನ ೆ
Iೕಸ Wಾ9ದುJ ಆತನುK ಾ ಾಲಯದ ಮುಂ ೆ iಾಜರುಪ9ಸಲು ಮತು0 ಆತ ಗು ಸಹ u^ೆ
ೕಡುವಂ.ೆ >ೋO>ೊಳ?@.ೆ0ೕ ೆ. ಎಂದು ಾ ಾಲಯದ ಮುಂ ೆ ನು9lರು.ಾ0!ೆ.
-7-
NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

ತ \ಾb>ಾO ೋPಾ!ೋಪQಾ ಪತ5ದ(< ]ಾಕಷುS ]ಾ^ಾ_`ಾರ ಲಭ *ಲ< ೆಂಬ

ಾರಣlಂದ >ೈMRSರುವ ಆ!ೋ% ಾದ ಎ-2 >ಾT!ಾಜ ರವರು ಈ ಕೃತ ದ(< 2ಾ$ ಾ$
ಆ!ೋಪ ೆಸ$ ಾJ!ೆಂದು Dಾ5]ಾ 1 ರವರವZ ]ಾq_lಂದ ೋಚOಸುತ0 ೆ.

ೋPಾ!ೋಪಣ ಪRSಯ(< ಆ!ೋ%ತ!ಾ$ ]ೇOಸlದJರೂ ಸಹ
' ಾ ಾಲಯದ(< nಾರQಾ ಹಂತದ(< ]ಾm ಾರರು (2ಾlತರು) ಾ ಾಲಯದ ಮುಂ ೆ
iಾಜರು ಪ9ಸದ ]ಾqದ ಆ`ಾರದ GೕFೆ ಾ ಾಲಯವZ *nಾರQೆಯ ಾವZ ೇ
ಹಂತದ(< ]ಾq`ಾರವZ ಲಭ ಾ$ ೆyಂದು ಅ:Dಾ5c ದ(< >ೈ MRSರುವ ಆ!ೋ%ಯನುK
ಆ!ೋ% ಾ$ ]ೇO >ೊಂಡು ಅbnಾರQೆ Wಾಡ ೇ>ಾ$ರುತ0 ೆಂದು ಈ >ೆಳಕಂಡ
ಪ5ಕರಣಗಳ(< Wಾನ ಸzೕ ಚ{ ಾ ಾಲಯ ಅಲiಾ ಾ| ಮತು0 ಾಂ ೆ ಉಚ~
ಾ ಾಲಯಗಳ? ಅ:Dಾ5ಯ ಪRSರುತ0 ೆ.

1. 2015 >ೆ•ಂV 50 (ಸzೕ ಚ{ ಾ ಾಲಯ)

2. 2005 65gನ€ Fಾ ಜನ € 2322 (ಅಲiಾ ಾ| ಉಚ~ ಾ ಾಲಯ)

3. 2008 65gನ€ Fಾ ಜನ € 1123 ( ಾಂ ೆ ಉಚ~ ಾ ಾಲಯ)

ಈ GೕಲHಂಡ 3ೕಪZ ಗಳನುK Wಾನ ಾ ಾಲಯದ ಅವ ಾಹ ೆ ಾ$
ಅ:;ೕಜ ೆ ಪರ ಈ ಕೂದ ಸ(<ಸFಾ$ ೆ.
ಾನೂನು ಸಮrತ ಾದ ಅb*nಾರQೆ ೆ ಮತು0 ಾ ಯ ಸಮrತ ಾದ 3ೕWಾ ನ>ೆH
ಬರಲು ೋPಾ!ೋಪQಾ ಪRSಯ(< >ೈ MRSರುವ >ಾT!ಾಜ ರವರನುK ಾ ಾಲಯದ
ಮುಂ ೆ iಾಜರು ಪ9 >ೊಂಡು *nಾರQೆ ನ•ೆಸುವZದು ಅ.ಾ ವಶ ಕ ಾ$ರುತ0 ೆ.

ಆದುದOಂದ ೋPಾ!ೋಪQಾ ಪತ5ದ(< >ಾT!ಾಜ ಅವರನುK ಈ ಘನ
ಾ ಾಲಯದ ಮುಂ ೆ iಾಜ!ಾ$ *nಾರQೆ ಎದುOಸಲು ಸಮU‚ iೊರ9ಸ ೇ>ೆಂದು
ಅ:;ೕಜ ೆಯ ಪರ ಈ ಘನ ಾ ಾಲಯದ(< Dಾ5E >ೊಳ@Fಾ$ ೆ.

ಸƒಳ: ೆಂಗಳ ರು ಸ7/-19/02/24
l ಾಂಕ19/02/2024 7Oಯ ಸiಾಯಕ ಸ>ಾ O ಅ:;ೕಜಕರು,
31 ೇ ಎ. .ಎಂ.ಎಂ. ಾ ಾಲಯ, ೆಂಗಳ ರು." -8- NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR Objections are filed by the petitioner to the said application.

The objections read as follows:

"IN THE COURT OF THE 31 ACMM AT BENGALURU C.C.NO.27258/2018 Between:
Peenya.P.S Complainant

 And,

 Nithyananda & others                            Accused

Statement of Objections by Proposed Accused
Kaliraju to the application filed by
Smt.G.Puttahanumakka under sec 319 of Crpc.

1.  It is submitted that application is not maintainable
   

   either under law or facts of the case.

2.  It is submitted that complainant has filed false
   

   complaint against the proposed accused for a
   offence under 419, 120B. and 420 of IPC contending that proposed accused is involved in the
   crime alleged by the complainant before the
   jurisdictional police.

3.  It is submitted that the police at first instance filed
   

   an FIR against the proposed accused for offence
   under sec 420 of IPC. After investigation the police
   has arrived to conclusion that proposed accused is
   a bonefide purchaser from the owner and he has
   purchased property from the lawful owner for a
   valuable sale consideration and he was put in
   possession of the property. in entire transaction
   there was a no involvement of at proposed accused
   in the crime alleged by the complainant.

4.  It is submitted that the complainant with malafide
   

   intention and to harass the proposed accused has -9- NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

file the application to include proposed accused as
one of the accused in the case.

1.  It is submitted that the complainant already file
   

   civil suit in O.S.No.903/2015 for relief of
   Declaration and injection and same is pending
   consideration before the Hon'ble court. As the
   matter is pending consideration before the
   competent civil court question of invoking criminal
   jurisdiction is nothing but abuse of process of law.

2.  It is submitted that there was no material to include
   

   proposed accused as a party in the case. Wherefore
   it is most respectfully prays that be please to reject
   the application in the interest of justice and equity."
   Sd/-

Bengaluru, Advocate for proposed
Accused
Date: 03/08/2024" On consideration of both, the application and the objections,

the concerned Court passes the following order:

"17-06-2025

Orders on application filed under Section 319 of

Cr.P.C.

By this application, the learned Sr. APP has sought
for impleading the left out accused No.2 Kaliraja also as
accused, and issue summons to him, as the complainant
has deposed in her evidence about the involvement of
said person also in the alleged offences. In the
application, the learned Sr.APP has relied upon the
decisions of Hon'ble Apex Court in 2015 Crimes 50,
Hon'ble Allahabad High Court in 2005 Criminal Law
Journal 2322 and Hon'ble Bombay High Court in 2008
Criminal Law Journal 1123.

• 10 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

1. On the other hand, the proposed person appeared
   through his counsel and filed objections contending that
   the application is not maintainable either in law or on
   facts. That the police at first instance filed FIR against him
   and after investigation arrived to conclusion that there is
   no involvement of proposed accused in the crime. That
   the complainant with malafide intention and to harass him
   has come up with this application. That the complainant
   has already filed civil suit in OS No.903/2015 for the relief
   of declaration and injunction, which is pending for
   consideration and as such the question of invoking
   criminal jurisdiction is nothing but abuse of process of
   law. That there is no material to include the proposed
   accused as party in this case. Hence prayed to reject the
   application, in the interest of justice and equity.

2. Heard arguments.

3. The learned counsel for proposed accused has
   vehemently argued that the proposed accused is
   purchaser of property. The complainant has already
   approached the civil court to ascertain her right. That the
   criminal court cannot decide the validity of GPA and Sale
   Deed. In support of his arguments, the learned counsel
   for proposed accused has produced the following
   decisions of Hon'ble Apex Court and our own Hon'ble High
   Court;

1) (2010) (1) SCC 250

2) (2014) 3 SCC 92

3) 2024(4) Kar. L.R. 241

1. Per contra, the learned Sr.APP submitted that the name of proposed accused is very well mentioned in the complaint and FIR. But in the charge sheet, his name is removed. That the complainant in her evidence has also spoken about the involvement of proposed accused in the alleged offences. In support of her arguments, the learned Sr.APP produced the following decisions of Hon'ble Apex Court and Hon'ble Delhi High Court;

1) Criminal Appeal No.978 of 2022 - Jitendra Nath
Mishra V/s State of U.P. & Anr.
- 11 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

2) CS (OS) 441/2020 - Vijay Kumar Nagpal V/s
Parveen Kumar Nagpal

1. Section 319 Cr.P.C. deals with power to proceed
   against other persons appearing to be guilty of offence. It
   is to be noted here that I.O. has filed charge sheet
   against accused No.1 and 3 for the offences punishable
   under Section 419, 120(B) and 420 r/w 34 IPC, by
   making note in column No.2 of charge sheet that as the
   allegations against accused No.2 were dis-proved during
   investigation, he has been dropped and cited as witness.

2. This application is filed by the learned Sr. APP for
   impleadment of left out accused No.2 also as accused, on
   the ground that complainant has deposed in her evidence
   about the involvement of said person also in the alleged
   offence.

3. I have carefully gone through the complaint
   averments. In the complaint, the complainant has made
   allegations that;

.......K.Nithyananda Swamy and
Kali Raju are fully aware that they have
no right or interest over my property.
They have forged signatures and
fabricated documents to illegally acquire
my property ......

.......kindly request you to take cognizance
of my complaint against (i)K.Nithyananda
Swamy, son of Krishnamurthy;

(ii) Kali Raju, son of Late Marappa
Naidu......

......fear that K.Nithyananda Swami, Kali
Raju and/or their henchmen ......

1. Further in the evidence of complainant got adduced by prosecution in this case, the complainant has spoken about the involvement of proposed accused also in the alleged commission of offences. The evidence of PW1 is quoted verbatim as under;

• 12 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

       ..........1 ೇ   ಆ!ೋ%    ತನ ೆ    !ಾಜಣ†   ಅವರು    B%ಎ
       ಬ!ೆದು>ೊRS ಾJ!ೆ ಅನುKವಂತಹ        ಾಖFೆ ಅನುK ಸೃ‡S   ಅದರ
       ಆ`ಾರದ GೕFೆ >ಾT!ಾಜು ಅವO ೆ ]ೈಟನುK Wಾ!ಾಟ
       Wಾ9ದJರು.       ಾನು ಒಬ‰ ವಯ]ಾ‚ದ ಮ7Šೆ ಇದುJ ನನK
       ಆ 0ಯನುK ಕಬTಸ ೇಕು ಅನುKವ ಉ ೆJೕಶlಂದ 1 ೇ ಆ!ೋ%
       ಮತು0 >ಾT!ಾಜು ಅವರು ]ೇO ಆ Oೕ3 ಸಂಚು ರೂ% ದJರು
       ಎಂದು ೊ.ಾ0cತು.........

.........>ಾT!ಾ‹ ಎನುKವರ *ರುದ+ ಸಹ ಾನು ದೂರು
ಾಖ( ದುJ ಅವರು ಸಹ ಾ ಾಲಯ>ೆH ಬರ ೇಕು.........

1. The allegations in complaint and the version of PW1
   stated supra would clearly show the involvement of left
   out accused No.2 also in the alleged offences. As such the
   prosecution has come up with this application to implead
   him also as one of the accused.

2. At this point of time, this court feels that the version
   of PW1 in chief examination without cross-examination
   can be considered for impleadment of the proposed
   person also as one of the accused person. In this regard,
   the decision reported in 2014(1) Crimes 133 SC can be
   relied upon, wherein it is observed that-

(q) Code of Criminal Procedure, 1973 - Section
319 - Examination-in-chief of prosecution
witnesses - Is evidence, though rebuttable - Such
evidence prima-facie necessitating bringing other
person to trial - Can be basis for proceeding u/s
319 - Not necessary to wait till cross-examination
is over (Paras 83 to 85)

83................All that is required for the exercise of
the power under Section 319 Cr.P.C. 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 pre-requisite 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 straight-jacket 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

• 13 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

     basis of evidence appearing in Examination-in-
     Chief, it can exercise the power under [Section 319](https://indiankanoon.org/doc/435819/) Cr.P.C. 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](https://indiankanoon.org/doc/1329373/) of [Section 319](https://indiankanoon.org/doc/435819/) Cr.P.C., 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 persons to
     face trial. In fact, Examination-in-Chief untested
     by cross-examination, undoubtedly in itself is an
     evidence.

84.Further, in our opinion, there does not seem to
be any logic behind waiting till the cross-
examination of the witness is over. It is to be kept
in mind that at the time of exercise of power
under Section 319 Cr.P.C., the person sought to
be arraigned as an accused, is in no way
participating in the trial. Even if the cross-
examination is to be taken into consideration, the
person sought to be arraigned as an accused
cannot cross examine the witness(s) prior to
passing of an order under Section 319 Cr.P.C., as
such a procedure is not contemplated by the Cr.P.C. Secondly, invariably the State would not
oppose or object to naming of more persons as an
accused as it would only help the prosecution in
completing the chain of evidence, unless the
witness(s) is obliterating the role of persons
already facing trial. More so, Section 299 Cr.P.C.
enables the court to record evidence in absence of
the accused in the circumstances mentioned
therein.

• 14 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

85.Thus, in view of the above, we hold that power
under Section 319 Cr.P.C. can be exercised at the
stage of completion of examination in chief and
court does not need to wait till the said evidence
is tested on cross-examination for it is the
satisfaction of the court which can be gathered
from the reasons recorded by the court, in respect
of complicity of some other person(s), not facing
the trial in the offence ...................

Further, it is observed that-

(d) Code of Criminal Procedure, 1973 - Section
319 - Person to be proceeded against -
Necessarily not an accused already facing trial,
either a person named in Column 2 of the charge
sheet or a person whose name has been disclosed
in any material before the court but not
investigated, and a person whose complicity may
be indicated and connected with the commission
of the offence (Para 15)

1. Section 319 Cr.P.C. allows the court to
   proceed against any person who is not an accused
   in a case before it. Thus, the person against
   whom summons are issued in exercise of such
   powers, has to necessarily not be an accused
   already facing trial. He can either be a person
   named in Column 2 of the charge sheet filed
   under Section 173 Cr.P.C. or a person whose
   name has been disclosed in any material before
   the court that is to be considered for the purpose
   of trying the offence, but not investigated. He has
   to be a person whose complicity may be indicated
   and connected with the commission of the
   offence......................

2. Hence, as observed by their Lordships in the decision
   cited supra, the chief examination evidence prima facie
   necessitating bringing other person to trial can be basis
   for proceeding under Section 319 Cr.P.C., and not
   necessary to wait till cross-examination is over. Further,
   the person to be proceeded against, necessarily not an
   accused already facing trial, either a person named in
   column 2 of the charge sheet or a person whose name
   has been disclosed in any material before the court but
   not investigated, and a person whose complicity may be

• 15 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

 indicated and connected with the commission of the
 offence.

1. Here in this case, there are allegations in
   complaint regarding the involvement of proposed
   accused. Further there is prima-facie chief
   examination evidence of complainant in respect of
   the involvement of proposed accused also in the
   commission of alleged offences. The name of
   proposed person is shown at column No.2 of charge
   sheet, and the name of above proposed person is
   disclosed by complainant, while deposing evidence
   before the court that he is also involved in the
   commission of offences.

2. It appears that the I.O. has not recorded the
   further statement of complainant regarding non-
   involvement of proposed accused, in the alleged
   commission of offences. It is very pertinent to note
   here that in the further statement of complainant
   dated 14-06-2025, she has clearly stated that-

......... .ಾ ನಂದ]ಾ g iಾಗೂ ಕT!ಾಜು ಎಂಬುವರುಗಳ?
ನಕ( ಾಖFಾ3ಗಳನುK ಸೃ‡S >ೊಂಡು, Œೕಜ O ಸ7
Wಾ9>ೊಂಡು ನಮ ೆ ೊ30ಲ<ದಂ.ೆ ಾಸನಪZರ ಸ•
OBಸSŽ ಕ•ೇOಯ(< OBಸSŽ Wಾ9>ೊಂಡು ನಮ ೆ Iೕಸ
Wಾ9ರು.ಾ0!ೆ......

But the I.O. has left out proposed accused from the
charge sheet, for the reasons best known to him.

1. The principles laid down in the decisions relied upon
   by the learned counsel for proposed accused supra is not
   in dispute. But with great respect, this court is of the
   considered opinion that the same are not applicable to the
   facts and circumstances of this case.

2. So to sum up, after carefully going through the
   averments of application coupled complaint
   averments, chief evidence of complainant, further
   statement of complainant and the principles laid
   down in the decision cited by this court supra, this
   court is of the considered view that there are prima-

• 16 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

 facie reasons and material to proceed against the
 proposed person also, by way of impleading him as
 one of the accused in this case. In the result, I
 proceed to pass the following:

ORDER

Application filed by learned Sr.APP under Section 319 Cr.P.C. for impleading the
proposed accused Kaliraj is hereby allowed
and he is impleaded as accused and
arraigned as accused No-2.

Issue summons to accused No-2 returnable
by 19/7/25.

Sd/-

17/6/25
XXXI A.C.J.M.,
Bengaluru City."

(Emphasis added)

The concerned Court in the aforesaid order observes that, the

complaint and the chief examination of the complainant, shows

the involvement of the petitioner - proposed accused in the

commission of the alleged offences. The name of the petitioner

is also seen at column No.2 of the charge sheet. Additionally,

the concerned Court also observes that despite the further

statement of the complainant regarding the involvement of the

petitioner, the investigating officer left the petitioner from the

charge sheet without any reason. Therefore, the issue now

• 17 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

would be, whether the order suffers from want of tenability or

otherwise?

1. Section 319 of the Cr.P.C. reads as follows:

"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."
(Emphasis supplied)

• 18 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR Section 319 of the Cr.P.C. permits the prosecution or any

person to file an application seeking to draw an accused, for the

reasons indicated therein. The concerned Court, by the

aforesaid order, on rendering reasons which are cogent and

coherent, has brought the petitioner back to the web of

proceedings.

1. The interpretation of Section 319 of the Cr.P.C. or its

purport need not detain this Court for long or delve deep into

the matter.

9.1. In OMI v. STATE OF M.P.1 the Apex Court holds

that even an accused who was dropped by the police in the

charge sheet can be summoned as additional accused under Section 319 of the Cr.P.C.. The Apex Court observes as follows:

"........ ......... .........

1. The petitioners being dissatisfied with the order passed by the trial court summoning them to face the trial preferred criminal revision application before the High Court. The High Court rejected [OMI v. State of M.P., 2024 SCC OnLine MP 9372] the revision application and thereby affirmed the order passed by the trial court summoning the petitioners in exercise of its powers under Section 319CrPC.

1 (2025) 2 SCC 621

• 19 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

1. In such circumstances , referred to above, the
   petitioners are here before this Court with the present
   petition.

2. We have heard Mr Anil Kaushik, learned Senior
   Counsel appearing for the petitioners.

3. In [Ramesh Chandra Srivastava v. State of
   U.P. Ramesh Chandra Srivastava v. State of U.P., (2021)
   12 SCC 608 : (2023) 2 SCC (Cri) 625] while this Court
   has approved of relying upon deposition which has
   not suffered cross-examination for the purpose of
   invoking Section 319CrPC, it is relevant to note the
   standards which have been fixed by this Court for
   invoking the power under Section 319CrPC. The
   statement of law in this regard is contained in paras 105
   and 106, respectively, of [Hardeep Singh Hardeep
   Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC
   (Cri) 86] : (SCC p. 138)

       "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.
   

4. 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 319CrPC. In
   Section 319CrPC the purpose of providing if 'it
   appears from the evidence that any person not
   being the accused has committed any offence' is

• 20 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

     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 319CrPC to form any opinion as to
     the guilt of the accused."

(emphasis in original)

11.The test as laid down by the Constitution
Bench of this Court for invoking the powers under
Section 319CrPC inter alia includes the principle that
only when strong and cogent evidence occurs
against a person from the evidence the power under
Section 319CrPC should be exercised. The power
cannot be exercised in a casual and cavalier manner.
The test to be applied, as laid down by this Court, is
one which is more than prima facie which is applied
at the time of framing of charges. It will all depend
upon the evidence which is tendered in a given case
as to whether there is a strong ground within the
meaning of para 105 of Hardeep Singh Hardeep
Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2
SCC (Cri) 86 [] referred to above.

........ ......... .........

1. We are not impressed with the submission as
   noted in para 12 above canvassed by the learned Senior
   Counsel for the simple reason that a person is named in
   the FIR by the complainant but the police, after
   investigation finds no role of that particular person and
   files 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.

2. In the aforesaid context, we may refer to a
   decision of this Court in [S. Mohammed
   Ispahani v. Yogendra Chandak S. Mohammed
   Ispahani v. Yogendra Chandak, (2017) 16 SCC 226 :

(2018) 2 SCC (Cri) 138] wherein the Court observed in
para 35 as under : (SCC p. 243)

"35. It needs to be highlighted that when a
person is named in the FIR by the complainant,

• 21 - NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

     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
     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 319CrPC. However,
     this section gets triggered when during the trial some
     evidence surfaces against the proposed accused."

1. Thus, 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 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 319CrPC and even those persons named in
   the 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.

2. It is relevant to note at this stage that the closure
   report filed by the police in the case on hand is yet to be
   looked into by the court concerned. The same has not
   been accepted till this date. However, the closure report
   now pales into insignificance in view of the order passed by
   the trial court under Section 319CrPC summoning the
   petitioners herein to face the trial. We may only add that it
   would have been in the fitness of things if the court
   concerned would have looked into the closure report at the
   earliest and passed an appropriate order one way or the
   other after hearing the de facto complainant. The court
   should not keep the closure report pending for
   consideration for a long time. Such report should be looked
   into promptly.

3. In the overall view of the matter, we are
   convinced that the High Court committed no error
   not to speak of any error of law in passing the

• 22 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

    impugned order [[OMI v. State of M.P.](https://indiankanoon.org/doc/169544507/), 2024 SCC
    OnLine MP 9372].

1. 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 charge-sheet or the case
diary, because such materials contained in the
charge-sheet or the case diary do not constitute
evidence."
(Emphasis supplied)

    9.2. In [NEERAJ KUMAR v. STATE OF U.P.2](https://indiankanoon.org/doc/63759035/), the Apex

Court summarizes the entire law on Section 319 of Cr.P.C. and

observes as follows:

"4. We have heard the learned counsel for the parties
and perused the material on record. The sole issue that
arises for our consideration is whether the Courts below, in
the attending facts and circumstances, were justified in
dismissing the application for summoning the respondents
as additional accused?
2
2025 SCC OnLine SC 2639

• 23 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

1. Section 319 CrPC contemplates that:

"(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. ..."
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.

1. 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.

• 24 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

    7.1. The Constitution Bench of this Court in [Hardeep
Singh v. State of Punjab](https://indiankanoon.org/doc/78958066/) [(2014) 3 SCC 92] extensively
discussed the power conferred under [Section 319](https://indiankanoon.org/doc/435819/) 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.

xxx

1. 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

• 25 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

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. ...

xxx

1. 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.

xxx
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](https://indiankanoon.org/doc/134307429/) [(2017) 16 SCC 226], 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](https://indiankanoon.org/doc/447673/) 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

• 26 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

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.

1. 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.](https://indiankanoon.org/doc/128625091/) [(2025) 2 SCC 621], a
coordinate bench of this Court laid the following principles
of law with regard to [Section 319](https://indiankanoon.org/doc/435819/) CrPC:

"19. The principles of law as regards Section 319 CrPC may be summarised as under:

19.1. On a careful reading of Section 319 CrPC as well as the aforesaid two
decisions, it becomes clear that the trial court has
undoubted jurisdiction to add any person not being

• 27 - NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

     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 319 CrPC 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."
- 28 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

                                     (emphasis supplied)

    7.4. Recently, this Court, through one of us (Sanjay
Karol, J.), in [Shiv Baran v. State of U.P.](https://indiankanoon.org/doc/180032062/) [2025 SCC OnLine
SC 1457] 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)

• 29 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

1. The deposition of PW-2, Shristi, the minor daughter of the deceased, prima facie has considerable evidentiary value, given the fact that she is allegedly an eyewitness to the occurrence. She narrated the events of the fateful day in the following terms:

....... ....... .......

From reading the above, it is evident that a quarrel
took place between her parents. During this altercation,
her father, Rahul Yadav, obtained a country made pistol
from her uncle Sattan @Vineet (Respondent No. 3 herein)
and, on the provocation of her grandmother Rajo @Rajwati
(Respondent No. 2 herein) and her aunt's husband Gabbar
(Respondent No. 4 herein), fired at her mother/deceased.
The High Court, however, in the impugned judgment,
concluded that PW-2 was not an eyewitness to the actual
firing and relied on her cross-examination wherein she
stated - "I had heard the sound of firing. From sound of
firing I came to know that, that two times firing was made.
I had seen empty cartridge on ground.". to hold that she
had reached the scene of occurrence only after hearing the
gunshots. In our considered view, the High Court's
approach is erroneous. Drawing such an inference
amounts to conducting a mini-trial at the stage of
summoning, which is impermissible. At the stage of
deciding the application under Section 319 CrPC, the
Court is not required to test the credibility or weigh
the probative value of the evidence as would be
done at the end of the trial for determining the
conviction or otherwise of the accused. What the
Court has to consider at this stage is whether the material
on record reasonably indicates involvement of the
proposed accused so as to exercise the extraordinary
power. Therefore, the reliance placed by the Courts below
on PW-2's cross-examination to discredit her testimony
was misplaced.

1. The respondents have further contended that PW- 2 did not initially name the respondents in her statement recorded during the investigation and that, being a minor, she may have been influenced or tutored to implicate the respondents, as she was residing with the appellant's family following the incident. However, we are not persuaded to accept this contention, as even in her statement recorded under Section 161, had categorically

• 30 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

named the respondents as those who instigated the
commission of the said crime. She stated:

....... ....... .......
While a statement recorded under Section 161 CrPC is not substantive evidence in
itself, it may be used to corroborate the evidence
recorded by the Court to invoke the power under Section 319 CrPC, as held in S. Mohammed
Ispahani (supra). Therefore, conjointly reading PW-2's
deposition along with her Section 161 statement, we find
that a specific and overt act has been assigned to the
respondents. Whether she actually witnessed the firing or
arrived immediately thereafter, and the extent to which
her statement inspires confidence, are matters that are to
be determined at the stage of trial, upon full appreciation
of the evidence. The testimony of a child witness shall be
weighed by the Court concerned in view of the principles in
laid in State of Rajasthan v. Chatra ([2025) 8 SCC
613] and State of M.P. v. Balveer Singh [(2025) 8 SCC
545].

1. Lastly, the prosecution has also placed reliance upon the statements of the deceased recorded during the investigation under Section 161 CrPC to seek the summoning of the respondents. However, the respondents have contended that such statements cannot be relied upon as, firstly, they were neither recorded in the presence of a Magistrate nor accompanied by any contemporaneous medical certification regarding the mental fitness of the deceased to give such statements; and secondly, both statements are inconsistent inter se, since the first one does not name the respondents whereas the second does.

....... ....... .......

1. Consequent to the above discussion, we find that the material on record, i.e. the depositions of PW-1 and PW-2, along with the statements of the deceased recorded during the investigation, prima facie suggests the complicity of the respondents in the commission of the said offence. There, thus, exists sufficient ground to exercise the power under Section 319 CrPC and summon them to face trial in Sessions Trial No. 1151 of 2021. The objections raised by the respondents, including the alleged tutoring of the minor witness, omission of their names in

• 31 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

 the FIR, inconsistencies in the statements of the deceased
 and lack of contemporaneous medical certification, are all
 premature and cannot be conclusively decided at the stage
 of exercising power under [Section 319](https://indiankanoon.org/doc/435819/) CrPC."

(Emphasis supplied)

The Apex Court holds that while deciding an application under Section 319 of the Cr.P.C., the Court is not required to test the

credibility or weigh the probative value of evidence since such

an exercise takes place at the end of trial for determining the

conviction or otherwise of the accused. What the Court has to

consider at this stage is whether the material on record

reasonably indicates involvement of the proposed accused, so

as to exercise the extraordinary power under Section 319 of the

Cr.P.C..

1. If the facts obtaining in the case at hand are

considered on the elucidation of law by the Apex Court, what

would unmistakably emerge is that the petitioner must come

out clean in a trial that is now pending against him. Mere

pendency of a civil suit will not clothe the petitioner with the

protection that he cannot be bought back into the trial once he

has been dropped. The dropping of the petitioner from the

• 32 -

NC: 2026:KHC:13572 CRL.P No. 15778 of 2025 HC-KAR

array of accused while filing the charge sheet, was itself prima

facie erroneous.

1. In that light, the petition lacking in merit stands

dismissed.

Consequently, I.A.No.1 of 2025 also stands disposed.

Sd/-

(M.NAGAPRASANNA)
JUDGE

BKP
List No.: 2 Sl No.: 36