This petition under section 482 of Cr.P.C. is filed feeling aggrieved by
the order dated 01.02.2024 passed by the First Additional Sessions Judge,
Distt. Ratlam in Cr. R. No. 54/2025, whereby the order dated 07.06.2023
passed by the Judicial Magistrate First Class, Distt. Ratlam in RCT No.
900503/2015 was set aside. The learned JMFC, Distt. Ratlam had allowed the
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application u/S 319 of Cr.P.C. and directed cognizance against respondent
no.2.
2. The exposition of facts, giving rise to the present petition, is as under:
Hasmukh Bhandari and Arpit Moonat objected. Hasmukh and Arpit
abused him in filthy language and assaulted him with slaps and fist
blows. He sustained injury on neck and nose. He went inside his
house. Hasmukh and Arpit entered his house and threatened to kill
him, if he reports the matter to police. On such allegations, the P.S.
Manak Chowk registered FIR at Crime no. 922/2014 for offence
punishable u/Ss. 294, 323,324, 506 and 34 of IPC against Hansmukh
and Arpit. The P.S. Manak Chowk, on completion of investigation,
filed final report on 31.12.2014. The trial is underway.
(ii) As informed by the petitioner, the charges were framed on
16.10.2023. The examination-in-chief of complainant Shailesh was
recorded on 16.02.2023. The petitioner moved an application u/S.
319 of Cr.P.C., requesting to implead respondent no.2- Prakash as
an accused in the trial at RCT No. 900503/2015
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(iii) Learned JMFC, Ratlam vide order dated 07.06.2023, allowed
the application and directed cognizance of offence punishable u/Ss.
294, 323, 324, 506 and 34 of IPC against proposed accused- Prakash
and also to implead Prakash as accused no. 3 in the trial.
(iv) Feeling aggrieved by the order taking cognizance of the JMFC,
Ratlam, accused Prakash preferred revision before the Court of
Sessions at Ratlam. Learned 1st ASJ, Ratlam after hearing both the
parties, allowed the revision petition and set aside the order dated
07.06.2023 passed by the JMFC, Ratlam vide impugned order dated
01.02.2024 in Cr.R. No. 54/2023.
3. The present petition is filed assailing the impugned order dated
01.02.2024 on the following grounds:
(iii) The complainant had submitted written complaint alleging
involvement of Prakash Moonat in the incident.
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On these grounds, it is requested that the order dated 01.02.2024 passed
in Cr.R. No. 54/2023 be set aside.
4. Learned counsel for petitioner, in addition to the grounds mentioned in
the petition, contended that the trial Court did not commit any mistake in
directing cognizance and impleadment of respondent no.2 as an accused on the
basis of evidence of the complainant in his examination-in-chief dated
16.02.2023. Learned counsel referred to the judgment of Apex Court in the
case of Hardeep Singh Vs. State of Punjab reported in AIR 2014 SC 1400 to
buttress his contention that the trial Court need not wait till cross-examination
to take cognizance against proposed accused. Learned counsel further referred
to application dated 20.12.2014 filed before the trial Court to contend that
after registration of FIR, the complainant had immediately moved higher
authorities alleging involvement of Prakash in the incident. Therefore, his
evidence in examination-in-chief is corroborated by the complaint dated
20.12.2014. Learned counsel for the petitioner also relied on the judgment of
Supreme Court in the case of Sukhpal Vs. State of Punjab reported in AIR
2023 SC 1023 to contend that the intention behind incorporation of S. 319
Cr.P.C. is to ensure that an accused, though not charge sheeted, if found to be
involved, should not go scot-free. The Revisional Court committed error in
ignoring these aspects of the matter. Therefore, the impugned order be set
aside.
5. Per contra, learned counsel for the respondent/State and learned counsel
for the respondent no.2 contended that the FIR dated 20.12.2014 did not
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mention complicity of proposed accused Prakash Moonat. The complainant
and his family members, in their statement recorded u/S 161 of Cr.P.C. on
21.12.2014 did not allege presence and involvement of Prakash Moonat in the
alleged incident. The final report was submitted on completion of investigation
on 25.02.2014. Learned JMFC, Ratlam took cognizance of offence against
accused Hasmukh Bhandai and Arpit Moonat for offence punishable u/S 294,
323, 324, 506 and 34 of IPC. Thereafter, charges were framed on 16.10.2014.
The complainant did not file any application for impleading the respondent
no.2 as an accused. Learned counsel further contended that the complainant, if
not satisfied with the non-registration of FIR against Prakash, could have
approached the Magistrate for recording of his evidence u/S 164 Of Cr.P.C. or
filed protest petition at the time of cognizance by the trial Court. The
application u/s 319 of Cr.P.C. was filed after delay of almost 09 years on
11.03.2023. Learned counsel submits that mere general and omnibus statement
in examination-in-chief is not sufficient for taking cognizance against proposed
accused Prakash Moonat in view of law laid down in the case of Hardeep
Singh(supra). Learned counsel also contended that the present petition u/S 482
of Cr.P.C. is not maintainable as equally efficacious relief of criminal revision
is available to the petitioner.
6. Heard, learned counsel for both the parties and perused the record.
7. The Supreme Court in case of Sukhpal (supra) laid down guiding
principles regarding stage for consideration of application under Section 319 of
CrPC and the conduct of joint or separate trial of the new accused. The
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Supreme Court in matter of Jitendra Nath Mishra v. State of U.P., reported in
(2023) 7 SCC 344, upon considering the law laid down in case of Hardeep
Singh (supra), observed as follows :
"10. Section 319CrPC, which envisages a discretionary power, empowers the court
holding a trial to proceed against any person not shown or mentioned as an accused
if it appears from the evidence that such person has committed a crime for which he
ought to be tried together with the accused who is facing trial. Such power can be
exercised by the court qua a person who is not named in the FIR, or named in the
FIR but not shown as an accused in the charge-sheet. Therefore, what is essential for
exercise of the power under Section 319 CrPC is that the evidence on record must
show the involvement of a person in the commission of a crime and that the said
person, who has not been arraigned as an accused, should face trial together with the
accused already arraigned. However, the court holding a trial, if it intends to exercise
power conferred by Section 319 CrPC, must not act mechanically merely on the
ground that some evidence has come on record implicating the person sought to be
summoned; its satisfaction preceding the order thereunder must be more than prima
facie as formed at the stage of a charge being framed and short of satisfaction to an
extent that the evidence, if unrebutted, would lead to conviction."
8. Recently, in matter of Omi v. State of M.P. reported in (2025) 2 SCC
621, again considering the law laid down in case of Hardeep Singh (supra), it
was laid down-
10. In Ramesh Chandra Srivastava v. State of U.P., (2021) 12 SCC 608, while this
Court has approved of relying upon deposition which has not suffered cross-examination
for the purpose of invoking Section 319 CrPC, 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 v. State of Punjab, (2014) 3 SCC 92 -
"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.
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-
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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 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 CrPC 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 referred to above.
*****
19. The principles of law as regards Section 319 CrPC 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.
19.3. The power of the court under Section 319CrPC is not controlled or governed
by naming or not naming of the person concerned in the FIR. Nor the same is
dependent upon submission of the charge-sheet 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 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
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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.
9. The material on record is considered in the light of aforestated
proposition of law.
10. The case diary relveals that Shailesh Shroti reported to SHO of P.S.
Manak Chowk, Distt. Ratlam on 20.12.2014 at 12:45 hours that on 20.12.2014,
around 12:30 hrs Hasmukh Bhandari and Arpit Moonat abused him in filthy
language and assaulted him with slaps and fist blows. He sustained scratch
injuires on his neck and nose by nails of Arpit Moonat. He ran and entered his
house. Hasmukh and Arpit followed him and threatened to kill him, if he
reports to the police. The P.S. Manak Chowk registered FIR at Crime No.
922/2014 and started investigation into the allegations. The incident was
reported within 15 minutes at P.S. Manak Chowk. Later, the statements of
Shailesh Shroti and Shiv Kumar were recorded on next day i.e 21.12.2014 u/S
161 of Cr.p.C. and statements of Ashi, Braj Mohan, Niranjan Purohit,
Mahendra and Kamlesh were recorded on 31.12.2014. The complainant
Shailesh Shroti, his family members and proposed eye-witnesses did not state
presence and complicity of Prakash Moonat in the alleged incident. The final
report was submitted against Hasmukh Bhandari and Arpit Moonat on
30.01.2014. The complainant did not file any protest petition at the time of
cognizance of offence against Hasmukh and Arpit assailing non-impleadment
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of Prakash Moonat. The complicity of Prakash Moonat was alleged before the
trial Court for the first time after examination-in-chief of complainant- Shailesh
Shroti. The material on record reveals that Shailesh Shroti(PW1), a Lawyer by
profession, alleged in examination-in-chief that Arpit Moonat and Prakash
Moonat abused him in filthy language. They manhandled him when he entered
his house. Arpit Moonat, Hasmukh Bhandari and Prakash entered his house.
Prakash and Hasmukh assaulted him with kick and fist blows on his chest and
private part. The complainant- Shailesh Shroti (PW-1) also produced a written
complaint (Exhibit P-6) addressed to the Superintendent of Police, Ratlam.
Learned trial Cout considering the evidence (the statement recorded in
examination-in-chief) of Shailesh (PW-1) and the complaint (Exhibit P-6)
proceeded to take cognizance against Prakash Moonat and directed to implead
him as accused no.3
11. Apparently, an altercation followed by assault by slaps and fist blows
occurred between neighbours over petty issue. The complainant is well
educated. He had signed the FIR which does not contain any allegation
recgarding presence and complicity of Prakash Moonat in the alleged incident.
The written complaint (Exhibit P-6) dated 22.12.2014 although contains the
allegation against Prakash Moonat, but the presentation of such complaint and
action thereupon should have been verified by the trial Court before proceeding
to implead the accused to face trial. It is pertinent to mention that the statement
of family members, daughter Aashi, Uncle Brij Mohan Shroti, eye-witnesses
Narayan, Mahendra Rathore and Kamlesh u/S 161 were recorded on
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31.12.2014. They also did not state anything about presence and complicity of
Prakash Moonat in the alleged offence. It appears that the complainant Shailesh
deliberately waited for recording of examination-in-chief to make omnibus
statement impleading the respondent no.2 Prakash Moonat in the alleged
offence. The learned First Additional Sessions Judge, Ratlam considering
aforestated aspects of the matter and conduct of the complainant concluded that
the material on record does not make out a case, more than prima-facie case,
sufficient to implead the respondent no.2 - Prakash Moonat as an accused. The
order of learned First Additional Sessions Judge does not suffer from any
irregularity or impropriety. Rather, the proceeding against respondent no.2 -
Prakash Moonat at such belated stage would be an abuse of process of court.
12. No case is made out for interference in the impugned order in exercise of
inherent jurisdiction.
13. Consequently, the petition is dismissed.
(SANJEEV S KALGAONKAR)
JUDGE
sh
SEHAR
2.5.4.20=900ec6fc757798eaeb3df7a
HASEE
f2568c8f27da, ou=HIGH COURT OF
MADHYA PRADESH BENCH AT
INDORE,CID - 7059964,
postalCode=452007, st=Madhya
Pradesh,
N
serialNumber=e7dbba955b262c04b
8413251ce7fb6f0b7dba610c57f155
9c08bf6c6f5dd40d4, cn=SEHAR
HASEEN
Date: 2026.02.02 18:39:56 +05'30'
