Bombay High Court

Chandan Suraj Jaiswar And Anr vs The State Of Maharashtra And Ors on 30 June, 2025

Author: Madhav J. Jamdar

Bench: Madhav J. Jamdar

2025:BHC-AS:27959-DB                                                       25-WP-3280-2024.DOC




                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION
                               CRIMINAL WRIT PETITION NO.3280 OF 2024


                 Chandan Suraj Jaiswar & Anr.                                ...Petitioners
                       Versus
                 The State of Maharashtra & Ors.                             ...Respondents


                 Mr. Mahesh Vaswani a/w. Ms. Shreya Tiwari, Ms. Aishwarya
                 Kadam i/b. Ms. Lakshita Fatnani, for the Petitioners.
                 Mr. S. H. Yadav, APP, for the Respondent No.1-State.
                 Mr. Sachin Tambe, MIDC Police Station, Mumbai, present.


                                               CORAM:      MADHAV J. JAMDAR, J.
                                               DATED :     30th JUNE 2025
                 JUDGMENT:

1. Heard Mr. Vaswani, learned Counsel appearing for the

Petitioners and Mr. Yadav, learned APP appearing for the

Respondent No.1-State.

2. This Writ Petition is filed by Chandan Suraj Jaiswar i.e.

accused No.1 and Suraj Vishwanath Jaiswar i.e. father of the

accused No.1. The challenge in this Writ Petition is to the order

dated 31st August 2023 passed by the learned Additional Sessions

Judge, City Civil & Sessions Court, Greater Mumbai below Exhibit-

121 in Sessions Case No.316 of 2014. By the impugned order, the

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said Application bearing Exhibit-121 has been rejected. The

Petitioner No.1 - Accused No.1 has sought the following reliefs in

said Application bearing Exhibit-121:

"A) This Hon'ble Court be pleased to allow this application u/s. 319 of Criminal Procedure Code, 1973 and summon and try the PW1/Mrs. Karuna Jitendra Yadav and her husband PW2/Mr. Jitendra Ramkhilavan Yadav as accused in the above matter for the offence of extortion.

B) This Hon'ble Court be pleased to issue directions under section 156(3) of Cr.P.C. to the Investigating Officer in the above case to investigate the role of the proposed accused PW-1/Complainant, Mrs. Karuna Jitendra Yadav, and Pw-2/Complainant's husband, Mr. Jitendra Yadav, and to summon and verify the voice recordings of concerned including of the DW-2/Applicant's father, Mr. Suraj Jaiswar, including voice samples of newly proposed accused as may be needed by the Investigating Officer of this case or as may be considered proper by this Hon'ble Court.

C) This Hon'ble Court be pleased to direct the Investigating Officer in the above matter to record and voice samples of PW-1/Complainant and PW-

2/Complainant's husband and DW-2/Applicant's father.

D) This Hon'ble Court be pleased to direct the Investigating Officer to investigate the above matter and file a report.

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E) This Hon'ble Court be pleased to grant liberty to the Applicant to make further application in regard with further prayers as may be essential to assist this Hon'ble Court to arrive at a just decision of the case."

(Emphasis added)

3. The said Application has been rejected by the learned Trial

Court by the impugned order dated 31st August 2023 on the

ground that under Section 319 of the Code of Criminal Procedure,

1973, ("Cr.P.C."), the Court can proceed against any person not

being the accused for any offence for which such person could be

tried together with the accused. Learned Trial Court has also taken

into consideration Section 223 of the Cr.P.C., which makes

provisions regarding the persons who can be charged and tried

together. The learned Trial Court further observed that the

allegations which are part of the Application bearing Exhibit-121

shows that the said instances have taken place after FIR was

lodged against the accused and accused has raised the defence of

extortion against the Informant and her husband. It has been

further observed that these witnesses are not the accused persons

in the FIR and that it is not part of the same transaction. On the

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other hand, the Informant is victim and her husband is witness of

the prosecution.

4. The learned Trial Court has also observed that the

prosecution has completed the evidence in the year 2018 and

thereafter, accused filed application for examination of the defence

witnesses and since last five years, accused is examining the

defence witnesses. It has been further observed that the victim and

her husband cannot be prosecuted in this case and even the said

allegations are not part of the offence, for which the accused are

facing trial.

5. In view of the above reasoning recorded by the learned Trial

Court, it is the contention of Mr. Vaswani, learned Counsel

appearing for the Petitioners that for the purpose of Section 319 of

the Cr.P.C., it is not necessary that same allegations should be there

against the accused and such person contemplated under Section

319 of the Cr.P.C.. Learned Counsel submitted that under Section

319 of the Cr.P.C. 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

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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. Mr. Vaswani, learned Counsel, relied on the decision of the

Supreme Court in the case of Hardeep Singh vs. State of Punjab &

Ors.1 and more particularly, on paragraph 117 of the same where

the Supreme Court has summarized the conclusions with respect to

interpretation of Section 319 of the Cr.P.C.. Mr. Vaswani, learned

Counsel also relied on the decision of the Supreme Court in the

case of Amitbhai Anilchandra Shah vs. Central Bureau of

Investigation & Anr.2 and he pointed out the factual position as set

out in paragraph 15 of the said decision and also pointed out

paragraph 58 which records summary of conclusions.

7. Mr. Vaswani, learned Counsel also pointed out cross-

examination of PW 1 i.e. victim and PW 2 i.e. husband of the

victim and submitted that the said evidence clearly shows the

involvement of PW 1 and PW 2 in the crime of extortion. He

therefore, submitted that the learned Trial Court has committed

1 (2014) 3 SCC 92 2 (2013) 6 SCC 348

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grave illegality and irregularity in rejecting the said Application

bearing Exhibit-121 filed under Section 319 of the Cr.P.C..

8. On the other hand, Mr. Yadav, learned APP submitted that on

28th January 2014 the First Informant has lodged FIR alleging that

the Petitioner No.1 i.e. accused No.1 and co-accused i.e. accused

No.2 have committed rape on her and therefore, FIR has been

lodged under Sections 376, 377, 307, 392, 452, 342 r/w 34 of the

Indian Penal Code, 1860 ("IPC"). Learned APP submitted that the

allegation in the said Application bearing Exhibit-121 is that PW 1-

victim and PW 2- husband of the victim have started demanding

money and they assured the accused that if monies are paid to

them, PW 1 would not give evidence against the accused. Learned

APP submitted that both these offences are different, distinct and

separate and therefore, by exercising power under Section 319 of

the Cr.P.C., both these persons i.e. PW 1-victim and PW 2-husband

of the victim cannot be tried together along with the accused who

are facing serious charges of rape.

9. Before proceeding further, it is necessary to set out the

prosecution case as reflected in the FIR and also particularly

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reflected in the evidence of PW 1- victim. The PW 1-victim has

stated in her deposition that on 28 th January 2014 at about 03:30

p.m. to 04:00 p.m., accused Chandan Jaiswal and accused Mohd

Ali Shaikh had knocked the door. Accused-Chandan Jaiswar told

her that he wants to examine the receipt of gas cylinder and after

checking the papers, she informed the Petitioner No.1 i.e. accused

No.1-Chandan Jaiswar that the receipt of gas cylinder was not

traceable. Thereafter, both the accused entered inside the house

and told her that they would check the receipt. At that time said

accused-Chandan Jaiswar took out the regulator of cylinder and

made signal to accused No.2-Mohd. Ali Shaikh. She has further

stated that as she was doubting them, she told them to go out and

that she would search for the receipt. However, the accused

forcibly closed her mouth by his hand and pushed her towards

wall. Thereafter, the Petitioner No.1 i.e. accused No.1-Chandan

Jaiswar told the PW 1 to remove her clothes and thereafter threats

were given that she would be killed and thereafter, both the

accused have committed rape on the victim. PW 1 has stated that

she waited for her husband to come and thereafter, the FIR was

lodged on 28th January 2014 at 04:30 p.m.

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10. In this background of the matter, it is required to note the

contention which has been raised by the Petitioner No.1 i.e.

accused No.1 in the said Application bearing Exhibit-121.

Paragraph No.3 of the said Application is relevant, which reads as

under:

"3) The Applicant further states that there were multiple instances between 05/02/2016 to 14/03/2016, where the Complainant and her husband have made extortion demands from the Applicant's father, Suraj Jaiswar for Rs.5,00,000/-

and the Applicant's father has also the voice recordings of these extortion demands which are already on record of this Hon'ble Court and have been played and marked exhibited also. The Complainant and her husband had also demanded money in the court while hearing of the above matter on 14/03/2016. The Applicant states that the extortion demands were made by the Complainant and her husband for Rs.5,00,000/- assuring that the Complainant will not depose a word against the Applicant if the demand of Rs.5,00,000/- is complied with and if the amount demanded is not paid by the Applicant's father, the same shall lead to consequences where the Complainant stated of deposing against the Applicant and making sure that the Applicant is sentenced to death. The Applicant's father has already made a written Police Complaint dated 04/04/2016 to the Senior Police Inspector of MIDC Police Station, Mumbai and also sent letter to superior police officers and to the Hon'ble Chief Minister, Maharashtra against the Complainant and her husband in recpect of extortion demands and has recorded his statement also on 06/04/2016 at MIDC Police Station, Mumbai and the Applicant's

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father's Suraj Jaiswar's statement is also on record of this Hon'ble Court and marked as EXHIBIT-107 on 21/10/2021."

(Emphasis added)

Thus, what is sought to be contended by the Petitioner No.1 i.e.

accused No.1 is that there were multiple instances between

05/02/2016 to 14/03/2016 where the Complainant and her

husband have demanded from the accused's father Rs.5,00,000/-

and the accused's father is having voice recordings of this extortion

calls and therefore, PW1- victim and PW 2- husband of the victim

should be tried for the offence of extortion along with the present

Petitioner No.1 i.e. accused No.1 and co-accused.

11. In view of the said contention, it is necessary to set out

Section 319 of the Cr.P.C., which reads as under:

"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

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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 added)

Thus, Section 319 of the Cr.P.C. contemplates that 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 same can be done by exercising power under Section

319 of the Cr.P.C..

12. In view of the above requirement of Section 319 of the

Cr.P.C., the learned Trial Court has considered the said request by

examining Section 223 of the Cr.P.C.. Section 223 of the Cr.P.C. is

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concerning persons who can be charged and tried together. Section

223 of the Cr.P.C. is as under:

"223. What persons may be charged jointly.--The following persons may be charged and tried together, namely:--

(a) persons accused of the same offence committed in the course of the same transaction;

(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;

(c) persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months;

(d) persons accused of different offences committed in the course of the same transaction;

(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such lastnamed offence;

(f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen property the possession of which has been transferred by one offence;

(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating

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to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges:

Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the [Magistrate or Court of Session] may, if such persons by an application in writing, so desire, and [if he or it is satisfied] that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together."

(Emphasis added)

Thus, what is inter alia contemplated by Section 223 of the Cr.P.C.

is that persons accused of same offence committed in the course of

the same transaction, persons accused of an offence and persons

accused of abetment of, or attempt to commit, such offence,

persons accused of more than one offence of the same kind within

the meaning of section 219 committed by them jointly within the

period of twelve months and persons accused of different offences

committed in the course of the same transaction can be tried

together.

13. Mr. Vaswani, learned Counsel has laid more emphasis on

Section 223(d) of the Cr.P.C., which contemplates that persons

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accused of different offences committed in the course of the same

transaction can be tried together. Learned Trial Court after

analyzing the material on record has held that the FIR has been

lodged by the PW 1 on 28th January 2014 is concerning the

incident of rape which has taken place on 28 th January 2014 in the

house of the victim. Whereas, the Application bearing Exhibit-121

is concerning multiple instances which had taken place between 5 th

February 2016 to 14th March 2016 where, as per the contention of

the Petitioner, the complainant and her husband made demands

and therefore committed offence of extortion. Perusal of the record

clearly shows that both these offences are different, distinct and

separate offences. They are not part of the same transaction. As far

as the offence of the rape is concerned, the same took place on 28 th

January 2014 and completed on the same day accordingly, the FIR

has been registered. As far as the allegation of extortion demands

made between 5th February 2016 to 14th March 2016 the same is

totally different transaction.

14. Mr. Vaswani, learned Counsel may be right in contending

that the extortion is for the purpose of not giving evidence against

the Petitioner No.1 i.e. accused No.1. However, power under

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Section 319 of the Cr.P.C. has to be exercised when original

accused and such persons can be tried together. It is also relevant

to note that Section 223 of the Cr.P.C. contemplates that where a

number of persons are charged with separate offences and such

persons do not fall within any of the categories specified in Section

223 of the Cr.P.C. and if such persons by an application in writing,

so desire, and if the learned Court is satisfied that such persons

would not be prejudicially affected thereby, and it is expedient so

to do, to try all such persons together then the said power can be

exercised. Thus what is required for exercise of power under

Section 319 r/w Section 223 of the Cr.P.C. and where the case do

not fall in any of the categories specified in Section 223 of Cr.P.C.,

such person who is charged for different offences has to file

application and such application to be allowed if such persons are

not prejudicially affected. In this case the PW1 i.e. victim and PW2

i.e. husband of the victim has not filed any such application. In any

case, if the same is permitted, then the subject Sessions Case will

be prejudicially affected.

15. Mr. Vaswani, learned Counsel has relied on the decision in

the case of Amitbhai Anilchandra Shah (supra) and more

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particularly, summary which has been recorded from paragraph

58.1 to 58.10. However, it is required to be noted that what is held

by the Supreme Court in that case is that officer-in-charge of a

police station has to commence investigation as provided in

Section 156 or 157 of the Code on the basis of entry of the first

information report, on coming to know of the commission of

cognizable offence. On completion of investigation and on the

basis of the evidence collected, the investigating officer has to form

an opinion under Section 169 or 170 of the Code and forward his

report to the Magistrate concerned under Section 173(2) of the

Code. It is further held that even after filing of such a report, if he

comes into possession of further information or material, there is

no need to register a fresh FIR, he is empowered to make further

investigation normally with the leave of the court and where

during further investigation, he collects further evidence, oral or

documentary, he is obliged to forward the same with one or more

further reports which is evident from sub-section (8) of Section

173 of the Code. In view of the above law laid down by the

Supreme Court, it is very relevant to note that it not the contention

of the Petitioner that the initial FIR has been lodged for extortion.

What is the contention of the Petitioner is that after FIR has been

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lodged for offence of rape on 28 th January 2014, during the period

of 5th February 2016 to 14th March 2016, PW 1-victim and PW-2-

husband of the victim have made extortion demands from the

Petitioner's father. Mr. Vaswani, learned Counsel has more

particularly relied on Paragraph No.58.4 of Amitbhai Anilchandra

Shah (supra), which reads as under:

"58.4. Further, on receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering FIR in the station house diary, the officer in charge of the police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Code. Sub-section (8) of Section 173 of the Code empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report(s) to the Magistrate. A case of fresh investigation based on the second or successive FIRs not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, is liable to be interfered with by the High Court by exercise of power under Section 482 of the Code or under Articles 226/227 of the Constitution."

(Emphasis added)

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Even by examining the facts of this case in the light of the law laid

down by the Supreme Court in the case of Amitbhai Anilchandra

Shah (supra), it cannot be said that the FIR dated 28 th January

2014, which has been filed by the PW 1-victim alleging that the

Petitioner No.1 i.e. accused No.1 and co-accused had committed

rape on her is nothing to do with the contention which is sought to

be raised in the Application bearing Exhibit-121 filed under

Section 319 of the Cr.P.C.. By no stretch of imagination it can be

said that the same are out of the same transactions.

16. Mr. Vaswani, learned Counsel has also relied on the decision

of the Supreme Court in the case of Hardeep Singh (supra),

wherein Section 319 of the Cr.P.C. analyzed. The relevant

paragraph 117 on which Mr. Vaswani, learned Counsel has relied,

reads as under:

"117. We accordingly sum up our conclusions as follows:

Questions (i) and (iii)

-- What is the stage at which power under Section 319 CrPC can be exercised?

AND

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-- Whether the word "evidence" used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?

Answer

117.1. In Dharam Pal case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation. Such cognizance can be taken under Section 193 CrPC and the Sessions Judge need not wait till "evidence" under Section 319 CrPC becomes available for summoning an additional accused.

117.2. Section 319 CrPC, significantly, uses two expressions that have to be taken note of i.e. (1) inquiry (2) trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 CrPC, and under Section 398 CrPC are species of the inquiry contemplated by Section 319 CrPC. Materials coming before the court in course of such inquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 CrPC, and also to add an accused whose name has been shown in Column 2 of the charge-sheet.

117.3. In view of the above position the word "evidence" in Section 319 CrPC has to be broadly understood and not literally i.e. as evidence brought during a trial.

Question (ii)--Whether the word "evidence" used in Section 319(1) CrPC could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on

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the basis of the statement made in the examination- in-chief of the witness concerned?

Answer

117.4. Considering the fact that under Section 319 CrPC a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) CrPC the proceeding against such person is to commence from the stage of taking of cognizance, the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.

Question (iv)--What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

Answer

117.5. Though under Section 319(4)(b) CrPC the accused subsequently impleaded is to be treated as if he had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 CrPC would be the same as for framing a charge [Ed.: The conclusion of law as stated in para 106, p. 138c-d, may be compared:"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". See also especially in para 100 at p. 136f-g.] . The difference in the degree of

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satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.

Question (v)--Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged?

Answer

117.6. A person not named in the FIR or a person though named in the FIR but has not been charge- sheeted 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. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 CrPC has to be complied with before he can be summoned afresh."

(Emphasis added)

17. The conclusion which is recorded in paragraph 117.5 of

Hardeep Singh (supra) is very relevant. What the Supreme Court

has held that under Section 319(4)(b) of Cr.P.C. the accused

subsequently impleaded is to be treated as if he had been an

accused when the court initially took cognizance of the offence and

that the degree of satisfaction that will be required for summoning

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a person under Section 319 Cr.P.C. would be the same as for

framing a charge. Thus, what is important is that such person

would be treated as accused if he had been an accused when the

Court initially took cognizance of the same. It is also important to

note that the provision of Section 319, provides that such person

has to be tried together with the original accused. In the facts and

circumstances it can not be said that the original accused i.e. the

Petitioner and the PW1-victim and PW2 - husband of the victim

can be tried together i.e. the Petitioner for offence of rape which

has taken place on 28th January 2014 and alleged offence of

extortion against PW1-victim and her husband which has allegedly

taken place on multiple occasions between 5 th February 2016 and

14th March 2016. Thus, there is no substance in any of the

contentions raised by Mr. Vaswani, learned Counsel.

18. Before parting with this order, it is required to note the

observations of the learned Trial Court in the impugned order in

paragraph 14, which reads as under:

"14. In this matter, prosecution has completed their evidence in the year 2018 and thereafter, accused filed application for examination of the defence witnesses and since last five years, accused is

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examining the defence witnesses. The accused filing the application for seeking various reliefs and has not concluded his defence evidence. The intention of the accused can be gathered by the applications and a prolonged defence evidence since last six years. This application is also a same attempt, so that trial will not be concluded."

The learned Trial Court has observed that the prosecution has

completed the evidence in the year 2018 and thereafter, accused

filed application for examination of the defence witnesses and

since last five years( as the impugned order is dated 31 st August

2023), accused is examining the defence witnesses and accused is

filing Application seeking various reliefs and has not concluded his

defence and it has been further observed that intention of the

accused can be gathered by the applications and a prolonged

defence evidence since last six years. Thus, in the facts and

circumstances, the learned Trial Court is requested to conclude the

trial expeditiously.

19. At this stage, Mr. Vaswani, learned Counsel states that he