CRM-M/2489/2019 of KAILASH AND ANR Vs STATE OF HARYANA AND ANR on 30 July 2026

REEMA SAINI

and their names were placed in Column No.12 of the challan. After framing of charges, prosecution examined complainant-Krishan Kumar as PW1 whereupon an application under Section 319 Cr.P.C. was moved before the Trial Court for summoning Kailash w/o Krishan and Nisha @ Gudiya daughter of Satpal, as additional accused under Section 319 Cr.P.C. The application was dismissed by learned Judicial Magistrate Ist Class, Rewari, vide order dated 09.06.2015. Revision petition challenging order dated 09.06.2015, too was dismissed by learned Additional Sessions Judge, Rewari on 30.04.2016. Trial proceeded and another witness PW2 Rohtash (injured) was examined, besides PW4 Sonam and PW6 Santosh. Application under Section 319 Cr.P.C. was again moved before the Trial Court for summoning the petitioners as additional accused. The application was yet again rejected by learned Trial Court, vide order dated 20.12.2016. Criminal revision challenging order dated 20.12.2016 learned Judicial Magistrate Ist Class, Rewari, too was dismissed by learned Additional Sessions Judge, Rewari, vide order dated 27.02.2017.

3. Both orders dated 20.12.2016 of learned Judicial Magistrate Ist Class, Rewari, and order dated 27.02.2017 of learned Additional Sessions Judge, Rewari, were challenged before this Court under Section 482 Cr.P.C. While deciding the petition and setting aside both orders, this Court observed as under: ‘In view of the judicial pronouncements above read with factual aspect of case like FIR, PW-2 and MLR, second application is maintainable. Perusal of the impugned orders dated 20.12.2016 and 27.02.2017, it is evident that court below has not applied its mind while considering entire statement of Pw-2-Rohtash dated 17.10.2016. What has been considered is only referring to the injury caused by Kailash. REEMA SAINI

Nothing has been stated in respect of Nisha and so also with reference to MLR-injury No.2 and 8...................’

4. Both orders dated 20.12.2016 and 27.02.2017 were set aside by this Court and the matter was remanded to Trial Court/Judicial Magistrate Ist Class, Rewari, for consideration on application filed under Section 319 Cr.P.C. afresh.

5. Vide impugned order dated 26.10.2018, learned Judicial Magistrate Ist Class, Rewari, after hearing both the parties and upon appreciation of evidence of PW1 Krishan Kumar, PW2 Rohtash and medico-legal report of Rohtash Ex.PW3/C found prima-facie sufficient material to summon petitioners Kailash w/o Krishan and Nisha @ Gudiya. Order dated 26.10.2018 of learned Judicial Magistrate Ist Class, Rewari, was challenged in revision and was upheld. Aggrieved therewith, Kailash and Nisha @ Gudiya, summoned as additional accused, to face trial with co- accused have filed quashing petition.

6. Learned counsel for the petitioners submits that the first application under Section 319 Cr.P.C. was dismissed vide order dated 09.06.2015 after due consideration, observing that there was no sufficient evidence against the petitioners, which order was upheld in revision. The second application too, was declined after recording statement of PW2 Rohtash. Thus, summoning of petitioners without any fresh material or evidence was abuse of process of law and had resulted in miscarriage of justice. Learned Trial Court ought to have been circumspect while passing the impugned order contrary to its previous order. He further submits that prosecution evidence on record was deficit as the police agency had already found allegations of participation of the petitioners false and placed their REEMA SAINI

names in Column No.12 of the challan. Reference was made to the statement of PW4 Sonam and it was argued that she did not attribute any specific role to either of the petitioners, who had been falsely implicated only to involve the entire family in the criminal case. Medico-legal report of Rohtash Annexure P2 was also referred to submit that there was no injury on the left wrist of Rohtash, said to be inflicted by Kailash. The orders passed by learned Judicial Magistrate Ist Class, Rewari, and learned Additional Sessions Judge, Rewari, were not based on correct appreciation and did not reflect due application of mind. Both orders deserved to be quashed and set aside as there was no strong or cogent evidence available against the petitioners. To support his contentions, learned counsel referred to Hardeep Singh Vs. State of Punjab and others, 2014(34) SCC 92 and Vikas Rathi Versus State of U.P. and another, 2023(6) SCC 702.

7. Learned counsel for respondent argues that petitioners’ involvement in the offence was disclosed in the FIR with specific roles and injuries attributed to both and their exoneration by the Investigating agency was irrelevant in the wake evidence of PW1 Krishan Kumar, PW2 Rohtash and the medico-legal report Annexure P-2. It was argued that learned Judicial Magistrate Ist Class, Rewari, rightly invoked Section 319 Cr.P.C. to summon the petitioners as additional accused to face trial under Section 323, 324, 506, 452, 148, 149 read with section 34 IPC. PW-4 Sonam also disclosed the names of the petitioners as the assailants while the precise injuries inflicted by the petitioners were disclosed by the injured PW-2 Rohtash. The oral version was supported by medico-legal report Annexure P-2. As such, there was more than prima-facie case made out against both REEMA SAINI

the petitioners, who were rightly summoned to face trial. No interference in the orders dated 26.10.2018 and 07.01.2019 was called for.

8. A five-Judge Bench of the Hon’ble Supreme Court in Hardeep Singh Vs. State of Punjab (2014) 3 SCC 92, has laid down the principles relating to exercise of powers under Section 319 Cr.P.C. Relevant portion thereof is reproduced as under: “105. 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.

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 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.” REEMA SAINI

9. In the first report to the police. made by complainant Krishan Kumar regarding the incident of assault dated 04.04.2012,specific roles have been attributed to both Kailash wife of Krishan and Nisha @ Gudiya d/o Satpal. As per FIR Kailash wife of Krishan was stated to be armed with farsa and to have given blow on the left wrist of Rohtash, whereas Gudiya d/o Satpal was stated to be armed with rod and alleged to have given blow on right thigh of Rohtash. When Rohtash was examined as a witness, his precise version with regard to petitioners was: ‘‘....................................................when I tried to save my daughter then Satpal S/o Mehar Chand who was having Farsa in his hand gave a blow on my left wrist. Kailash W/o Krishan who was having Farsa in her hand also gave a blow on my left wrist. Time was about 6.00 a.m. Mobin S/o Satpal who was having axe in his hand gave a blow on my right knee and again gave an axe blow on my left knee. Then Krishan S/o Mehar Chand holding Farsa in his hand gave a blow on my right arm and again gave a blow on my left foot. Krishan W/o Satpal who was having Farsa in her hand gave a blow on my right shoulder, Nisha who was having rod in her hand gave a blow on my right thigh......’ ‘

10. The argument of learned counsel for the petitioners that no specific roles were attributed to the petitioners by PW4 Sonam, therefore, the summoning order was not sustainable, does not carry conviction. Even PW4 Sonam has deposed on oath that alongwith other accused, Kailash wife of Krishan and Gudiya d/o Satpal, armed with Farsa, axe and rods were also present at the spot. She went on to state that Satpal and his family members had given injuries to her uncle, father and brother. The specific injuries inflicted have been narrated by the injured himself and the medico-legal REEMA SAINI

report, Annexure P2 duly proved by the medical expert provides ample corroboration to the ocular account. The submission that learned Magistrate, could not have taken a view contrary to its previous order is repelled, in view of order of this Court dated 01.10.2018 vide which it was observed that the Courts while passing orders dated 20.12.2016 and 27.02.2017 did not apply mind while considering the statement of PW Rohtash dated 17.10.2016.

11. The submission that petitioners were found innocent during the course of investigation also does not merit consideration in view of observations of the Apex Court in Omi Vs. State of M.P (2025) 2 SCC 621. In that case, the law with respect to Section 319 Cr.P.C. was reiterated and summarized in the following terms: “19. The principles of law as regards Section 319 of the CrPC may be summarized as under: 19.1 On a careful reading of Section 319 of the CrPC 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 F.I.R. 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. 19.3 The power of the court under Section 319 of the CrPC is not controlled or governed by naming or not naming of the person concerned in the FIR. Nor the same is dependent upon REEMA SAINI

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 No. 2 of the charge sheet, 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.”

12. While considering an application under Section 319 Cr.P.C., the Court is not to be swayed by the police investigation or opinion of the investigating officer in the charge sheet. What is relevant is ‘‘evidence” which is made before the Court in the form of oral submissions and documents brought on record. It is only “evidence” that can be taken into account by the Magistrate to decide whether powers under Section 319 Cr.P.C. are to be exercised and not the findings of the investigating officer. In the case in hand, a bare reading of examination-in-chief of PW2 Rohtash and PW4 Sonam coupled with the medico-legal report would be sufficient to hold that more than a prima-facie case was made out against the petitioners. REEMA SAINI

There is strong and cogent evidence against the petitioners justifying their summoning under Section 319 Cr.P.C. Finding of learned Judicial Magistrate Ist Class, Rewari, that there is sufficient material on record to summon the petitioners as accused is based on correct appreciation. Learned Additional Sessions Judge, Rewari has also noticed the statements of PW4 Sonam, PW9 Neeraj and PW10 Gajender recorded during the course of trial, after dismissal of the first revision filed by the complainant on 20.12.2026. The orders under challenge reflect due application of judicial mind and do not warrant interference. There is no ground to set aside and quash the impugned orders.

13. Judgment in Vikas Rathi Versus State of U.P. and another (supra) relied by learned counsel for the petitioner is of no assistance, having been rendered on its own facts.

14. The petition, being bereft of merit, is hereby dismissed. All the pending miscellaneous applications, if any, stand disposed of.

(SHALINI SINGH NAGPAL) 30.07.2026

JUDGE reema Whether speaking/reasoned : Yes Whether reportable : Yes/No REEMA SAINI