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High Court of Jharkhand · body

2025 DAILYLAW 33593 (JHR)

INFORMANT v. THE STATE OF JHARKHAND

Cr.Rev./464/2024 · 2025-04-09

Sanjay Prasad

Civil Appealbody2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

2025:JHHC:11038 -1- IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 464 of 2024 …. Informant (Mother of the Victim) ...… Petitioner Versus 1. The State of Jharkhand 2. Kunwar Kispotta @ Munna, S/O Late Budhan Kispotta, R/O Purani Ranchi, Masi Tola, PO : GPO, PS- Kotwali, Ranchi-834001 3. Augustina Mariyam Kujur @ Ritu, D/O Jams Kujur, R/O. 1st Street Road, Hindpiri, South Street, PO -GPO, PS- Hindpiri, Ranchi-834001 4. Mrs. Sandhya Bagla , Principal, Little Angels Nursery School, O. C. Compound, PS- Daily Market, PO-G.P.O. Near Vishu Road (Radhe Shyam Gali), District- Ranchi -834001, Jharkhand …… Opp. Parties ----- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the Petitioner : Mr. Alok Anand, Advocate Mr. Asif Khan, Advocate For the State : Mrs. Priya Shrestha, Spl. P. P. For the O. P. Nos. 2 and 3 : Mr. Subhashis Rasik Soren, Advocate Mr. Shobha Gloria Lakra, Advocate Ms. Mrinalini Adela Tete, Advocate Ms. Preeti Hembrom, Advocate Ms. Siugi Sharon Demta, Advocate For the O. P. No. 4 : Mr. Rajendra Krishna, Advocate Mr. Bibhash Sinha, Advocate …… C.A.V. on 25.02.2025 Pronounced on 09/04/2025 This Criminal Revision No. 464 of 2024 has been filed on behalf of the informant-victim mother challenging the order dated 16.01.2024 passed in Misc. Criminal Application No. 2832 of 2023 by the learned Additional Judicial Commissioner-IV-cum-Special Judge, POCSO, Ranchi the learned Additional Judicial Commissioner-IV-cum-Special Judge, POCSO, Ranchi has rejected the above Misc. Criminal Application no. 2832 of 2023, which was filed on behalf of the Informant-petitioner under Section 319 of 2025:JHHC:11038 -2- Cr.P.C. in connection with Daily Market P.S Case no. 19 of 2018 arising out of POCSO Case No.44 of 2018 instituted for the offences under Sections 377/34 of the Indian Penal Code and Sections 4 and 6 of the POCSO Act. 2. The informant had lodged the FIR against the opposite party no. 2, Kunwar Kispotta @ Munna and opposite party no. 3, Augustina Mariyam Kujur @ Ritu and who were Van Driver and Maid of Little Angel School by submitting the written application before the Officer In-charge Daily Market Police Station that the van driver used to undress her child and used to commit unnatural act, in his bums and used to ask him to pose like a dog and also used to stand up him in naked condition. Not only this, Van Driver used to pour water on his bums and thereafter he was made to wear the cloth. It is also alleged that the driver had committed such unnatural heinous acts against several children also. It is also alleged that even Ritu maid also used to laugh at this acts and both of them used to torture him and Ritu used to allow him to wear his clothes and both of them threatened him of dire consequences. It is also alleged that even the informant had given this information to the police. However, she was apprehensive that she will face repercussion in society due to this incident and future of the child may be spoiled in society. But his child continued to complaint of pain and injury in his private parts and had been suffering from high fever and ultimately she treated her child in Aastha Hospital through Dr. Rajiv Mishra and informed him about the matter. Then Doctor treated him and recommended to RIMS for medical check up of her child. However, due to bad condition of her child, she could not take her child to RIMS for medical check up and ultimately she had shown her child at Madhuri Nursing Home before the skin Doctor i.e Dr. S. K. 2025:JHHC:11038 -3- Prasad. Thereafter, the Doctor advised him to move before the police. Although, she initially avoided, but considering the pain and difficulty of her child, she got lodged the First Informant Report against Kunwar Kispotta @ Munna i.e. the opposite party no. 2 and Ritu Maid i.e. opposite party no. 3. 3. Heard Mr. Alok Anand, learned counsel for the petitioner assisted by Mr. Asif Khan, Advocate and Mrs. Priya Shrestha, learned counsel for the State and Mr. Subhashis Rasik Soren, learned counsel for the opposite party nos. 2 and 3 assisted by Ms. Mrinalini Adela Tete, Advocate and Mr. Rajendra Krishna, learned counsel for the opposite party no. 4 assisted by Mr. Bibhash Sinha, Advocate. 4. Leaned counsel for the petitioner has submitted that the impugned order dated 16.01.2024 passed by the learned Additional Judicial Commissioner-IV-cum-Special Judge, POCSO, Ranchi is illegal, arbitrary and not sustainable in the eye of law. It is submitted that this is a case of serious torture upon the son of the informant by committing unnatural acts by the opposite party no. 2, Kunwar Kispotta @ Munna and will assisted opposite party no. 3, Augustina Mariyam Kujur @ Ritu upon the child of the informant and for which the son of the informant had gone into depression and had suffered from fever and various ailments and he remained in pains for several days and as such, she was compelled to lodge the FIR against the opposite party no. 2, Kunwar Kispotta @ Munna, Van Driver and opposite party no. 3, Augustina Mariyam Kujur @ Ritu, Maid of the Little Angle School. It is submitted that even the information was given to the Principal of the Little Angle School i.e. O. P. No. 4, Mrs. Sandhya Bagla, but she tried to conceal the matter by alluring her for giving the school fee and bus fare to the son of 2025:JHHC:11038 -4- the informant in free. It is submitted that during pendency of trial at the stage of prosecution evidence, a petition was filed by the informant-petitioner i.e. mother of the victim, under Section 319 of the Cr.P.C. to summon the Principal of the School namely Mrs. Sandhya Bagla i.e. opposite party no. 4 as she had tried to conceal the matter and had not lodged the FIR against the opposite party nos. 2 and 3. It is submitted that the School Principal instead of taking legal course of action against accused persons i.e. the opposite party no. 2, Kunwar Kispotta @ Munna, Van Driver and opposite party no. 3, Augustina Mariyam Kujur @ Ritu, she tried to influence the informant by transferring an amount of total Rs. 7,600/- (Rs. 5,000/- for medical and Rs. 2,600/- for books) in the account of the informant on 07.04.2018. It is submitted that even Medical Board, constituted in RIMS Ranchi on 23.04.2018, has given finding in favour of the child. It is submitted that in view of Section 19 and 20 of the POCSO Act, Principal i.e. the opposite party no. 4 should be summoned as accused in this case as she has tried to conceal the real culprit. It is submitted that several prosecution witnesses i.e. P. W.-1 is the Victim Boy himself, P.W.-2 is the informant and the mother of the victim boy, P.W.-3 is the father of the victim boy and PW. -4 namely Zafar Alam Khan have supported the allegation against the Principal and as such, the impugned order dated 16.01.2024 passed by the learned Additional Judicial Commissioner-IV-cum-Special Judge, POCSO, Ranchi is illegal and may be set aside in the interest of justice and the opposite party no. 4 may be summoned and this Criminal Revision Application may be allowed. 5. On the other hand, learned Spl. P. P. has submitted that the impugned order passed by the learned Court below is fit and 2025:JHHC:11038 -5- proper and no interference is required from this Court. It is submitted that Principal is not an accused and as such, the learned Court below has not committed any wrong. 6. Learned counsel for the opposite party nos. 2 and 3 has submitted that the impugned order passed by the learned Court below is fit and proper and no interference is required from this Court and this Criminal Revision Application is devoid of merit. It is further submitted that the informant i.e. the mother of the victim has lodged the FIR after delay of 16 days and she has also concealed the fact from the society as well as before the police and even a person, who conceals his case is liable to be proceeded with as per the Section 21 of the POCSO Act. It is submitted that even Principal i.e. the opposite party no. 4, Sandhya Bagla is star witness in this case and the opposite party no. 2 wants to examine the Principal as witness in support of his defence. However, the informant-petitioner in order to put pressure upon her, has filed a petition under Section 319 of the Cr. P. C. to make her as an accused in this case only in order to deprive the opposite party nos. 2 and 3 to defend their case properly. It is further submitted that power under Section 319 of the CrPC should be sparingly and very rarely and this is not an extraordinary case in which the power of under Section 319 of the Cr.P.C. can be exercised and accordingly, this Criminal Revision Application may be dismissed. 7. On the other hand, learned counsel for the opposite party no. 4, after adopting the submission of learned Spl. P. P. and the learned counsel for the opposite party nos. 2 and 3, has further submitted that the opposite party no. 4 is innocent and has not committed any offence. It is submitted that the Opposite Party no. 4 is the Principal of the School in question and she has taken care the 2025:JHHC:11038 -6- child of the informant herself, who was studying in the school. It is submitted that Section 29 of the POCSO Act is not applicable to the opposite party no. 4. It is further submitted that opposite party no. 4 has not committed any offence under Sections 4 and 6 of the POCSO Act and at best for the sake of argument, she could have been proceeded under Section 19 of the POCSO Act for concealing the information from the police. It is submitted that Section 19 (5) of the POCSO Act prescribes that offence should be reported to the police earlier. Although no time limit is prescribed, but it is desirable that the informant should have reported the matter at the earliest to the police. However, even if the opposite party no. 4 has not reported the matter before the police for the sake of her school, even then also she cannot be tried for the offences, which had not been committed by her. It is submitted that Section 19 of POCSO Act prescribes the remedy to the victim. In support of his contention, learned counsel for the opposite party no. 4 has relied upon the judgement rendered in the case of Sarabjit Singh and Another Versus State of Punjab and Another reported in (2009) 16 SCC 46. It is submitted that apart from the informant, there is no other witnesses, who have supported the prosecution case and as such, the learned Trial Court has committed no illegality by rejecting the Petition filed under Section 319 Cr. P. C. by the Informant to summon the informant. It is further submitted that this is not a case in which more than sufficient evidence is available against the opposite party no. 4 and as such, the opposite party no. 4 cannot be proceeded under Section 319 of the Cr. P. C. Learned counsel for the opposite party no. 4 has further submitted that no offence has been committed by the opposite party no. 4 and as such, this Criminal Revision Application 2025:JHHC:11038 -7- may be dismissed. 8. Heard learned counsel for the parties and perused the Lower Court Records of this case. 9. It appears that although the informant –petitioner had lodged the FIR only against the opposite party no. 2, Kunwar Kispotta and opposite party no. 3, Ritu Maid, both employees of Little Angle School for the illegal acts. However, the police failed to take notice of the conduct of the opposite party no. 4, Mrs. Sandhya Bagla, who was the Principal of the School in contravention of Section 19 of the POCSO Act as the informant has stated to have informed the matter before the School Authorities and the police failed to inquire the Principal i.e. opposite party no. 4, Mrs. Sandhya Bagla, who was the Principal of the School for suppressing the acts of the opposite party no. 2, Kunwar Kispotta @ Munna and opposite party no. 3, Augustina Mariyam Kujur @ Ritu. 10. It also appears that the police has submitted charge sheet only against the opposite party no. 2, Kunwar Kispotta @ Munna and opposite party no. 3, Augustina Mariyam Kujur @ Ritu and has cited the prosecution witnesses. However, the police failed to examine Dr. Rajiv Mishra of Ashtha Hospital, Ranchi and Dr. A. S. Prasad of Madhuri Nursing Home, Ranchi and who had initially examined and treated the victim boy, who is the son of the Informant and which shows that the police, right from the beginning, was trying to suppress the proper facts by omitting the names of Dr. Rajiv Mishra of Ashtha Hospital, Ranchi and Dr. A. S. Prasad of Madhuri Nursing Home, Ranchi as prosecution witness. It appears that the police has cited seven doctors in the chargesheet. However, the prosecution examined only Dr. Sanjay Kumar as P.W.-6 only. The prosecution has agreed the either 2025:JHHC:11038 -8- towards, who examined in this case for the reasons best known to it. Although the case is fixed for defense evidence and prosecution evidence has already been closed and even some of the defence witnesses have been examined as submitted during course of the arguments before this Court after examining the opposite party no. 2, Kunwar Kispotta @ Munna and opposite party no. 3, Augustina Mariyam Kujur @ Ritu under Section 313 of the Cr.P.C. by the learned Courts below on 30.01.2024. 11. Although the case is fixed for defence evidence and there may be chance that some more defence witnesses may be examined and this Court vide order dated 16.01.2025 had passed the interim order by directing that the final judgment shall not be delivered till the disposal of this Criminal Revision Application. 12. At this stage, it is relevant to refer Sections- 19, 21, 22, 25 and 27 of the POCSO Act which read as follows:- “Section-19:- Reporting of offences.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of1974)any person(including the child), who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to,— (a) the Special Juvenile Police Unit; or (b) the local police. (2) Every report given under sub-section (1) shall be— (a) ascribed an entry number and recorded in writing; (b) be read over to the informant; (c) shall be entered in a book to be kept by the Police Unit. (3) Where the report under sub-section (1) is given by a 2025:JHHC:11038 -9- child, the same shall be recorded under sub-section (2) in a simple language so that the child understands contents being recorded. (4) In case contents are being recorded in the language not understood by the child or wherever it is deemed necessary, a translator or an interpreter, having such qualifications, experience and on payment of such fees as may be prescribed, shall be provided to the child if he fails to understand the same. (5) Where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed is in need of care and protection, then, it shall, after recording the reasons in writing, make immediate arrangement to give him such care and protection including admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report, as may be prescribed. (6) The Special Juvenile Police Unit or local police shall, without unnecessary delay but within a period of twenty- four hours, report the matter to the Child Welfare Committee and the Special Court or where no Special Court has been designated, to the Court of Session, including need of the child for care and protection and steps taken in this regard. (7) No person shall incur any liability, whether civil or criminal, for giving the information in good faith for the purpose of sub-section (1). Section-21:- Punishment for failure to report or record a case.—(1) Any person, who fails to report the commission 2025:JHHC:11038 -10- of an offence under sub-section (1) of section 19 or section 20 or who fails to record such offence under sub-section (2) of section 19 shall be punished with imprisonment of either description which may extend to six months or with fine or with both. (2) Any person, being in-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence under sub-section (1) of section 19 in respect of a subordinate under his control, shall be punished with imprisonment for a term which may extend to one year and with fine. (3) The provisions of sub-section (1) shall not apply to a child under this Act. Section-22:- Punishment for false complaint or false information.—(1) Any person, who makes false complaint or provides false information against any person, in respect of an offence committed under sections 3, 5, 7 and section 9, solely with the intention to humiliate, extort or threaten or defame him, shall be punished with imprisonment for a term which may extend to six months or with fine or with both. (2) Where a false complaint has been made or false information has been provided by a child, no punishment shall be imposed on such child. (3) Whoever, not being a child, makes a false complaint or provides false information against a child, knowing it to be false, thereby victimizing such child in any of the offences under this Act, shall be punished with imprisonment, which may extend to one year or with fine or with both. 2025:JHHC:11038 -11- Section-25:- Recording of statement of a child by Magistrate.—(1) If the statement of the child is being recorded under section 164 of the Code of Criminal Procedure, 1973 (2 of 1974)(herein referred to as the Code), the Magistrate recording such statement shall, notwithstanding anything contained therein, record the statement as spoken by the child: Provided that the provisions contained in the first proviso to sub-section (1) of section 164 of the Code shall, so far it permits the presence of the advocate of the accused shall not apply in this case. (2) The Magistrate shall provide to the child and his parents or his representative, a copy of the document specified under section 207 of the Code, upon the final report being filed by the police under section 173 of that Code. Section-27:- Medical examination of a child.—(1) The medical examination of a child in respect of whom any offence has been committed under this Act, shall, notwithstanding that a First Information Report or complaint has not been registered for the offences under this Act, be conducted in accordance with section 164A of the Code of Criminal Procedure, 1973 (2 of 1973). (2) In case the victim is a girl child, the medical examination shall be conducted by a woman doctor. (3) The medical examination shall be conducted in the presence of the parent of the child or any other person in whom the child reposes trust or confidence. (4) Where, in case the parent of the child or other person referred to in sub-section (3) cannot be present, for any 2025:JHHC:11038 -12- reason, during the medical examination of the child, the medical examination shall be conducted in the presence of a woman nominated by the head of the medical institution. Section-29:- Presumption as to certain offences.—Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. 13. In the above background, this Court requires to examine as to whether the learned Trial Court has committed error by rejecting the Petition filed under Section 319 of the Cr.P.C. filed by the Informant and not summoning the opposite party no. 4 under Section 319 of the Cr. P. C. 14. Therefore, this Court is not proceeding with the evidence of the prosecution witnesses as it may prejudice the case of either sides and may affect the trial of the case and as such, this Court refrains itself from giving any findings on the merit of the case for the present, except on the point of any culpability of the opposite party no. 4, Mrs. Sandhya Bagla. 15. It is further to be examined as to whether what should be standard of satisfaction of the learned Court below for summoning the accused. 16. It has also been held in the case of Sarabjit Singh and Another Versus the State of Punjab and Another reported in (2009) 16 SCC 46 at para-21, 23 and 24 as follows:- “Para-21:- An order under Section 319 of the Code, therefore, 2025:JHHC:11038 -13- should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. Para-23:- Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied.. Para-24:- We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly and the matter is remitted to the learned Sessions Judge for consideration of the matter afresh. The appeals are allowed with the aforementioned directions.” 17. It has also been held in the case of Dharam Pal and Others Versus the State of Haryana and Another reported in (2014) 3 SCC 306 at para-34 to 40 as follows:- “Para-34:- The view expressed in Kishun Singh case [Kishun Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470] , in our view, is more acceptable since, as has been held by this Court in the cases referred to hereinbefore, the Magistrate has ample powers to disagree with the final report 2025:JHHC:11038 -14- that may be filed by the police authorities under Section 173(2) of the Code and to proceed against the accused persons dehors the police report, which power the Sessions Court does not have till the Section 319 stage is reached. The upshot of the said situation would be that even though the Magistrate had powers to disagree with the police report filed under Section 173(2) of the Code, he was helpless in taking recourse to such a course of action while the Sessions Judge was also unable to proceed against any person, other than the accused sent up for trial, till such time evidence had been adduced and the witnesses had been cross-examined on behalf of the accused. Para-35:- In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(2) CrPC. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter. Para-36:- This brings us to the third question as to the procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Sessions Court.. 2025:JHHC:11038 -15- Para-37:- Questions 4, 5 and 6 are more or less interlinked. The answer to Question 4 must be in the affirmative, namely, that the Sessions Judge was entitled to issue summons under Section 193 CrPC upon the case being committed to him by the learned Magistrate. Para-38:- Section 193 of the Code speaks of cognizance of offences by the Court of Session and provides as follows: “193.Cognizance of offences by Courts of Session.— Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.” The key words in the section are that “no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code”. The above provision entails that a case must, first of all, be committed to the Court of Session by the Magistrate. The second condition is that only after the case had been committed to it, could the Court of Session take cognizance of the offence exercising original jurisdiction. Although, an attempt has been made by Mr Dave to suggest that the cognizance indicated in Section 193 deals not with cognizance of an offence, but of the commitment order passed by the learned Magistrate, we are not inclined to accept such a submission in the clear wordings of Section 193 that the Court of Session may take cognizance of the offences under the said section. Para-39:- This takes us to the next question as to whether under Section 209, the Magistrate was required to take cognizance of the offence before committing the case to the Court of Session. It is well settled that cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the 2025:JHHC:11038 -16- offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there be any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Sessions Judge. Para-40:- In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh case [Kishun Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470] that the Sessions Court has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Sessions Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein.” 18. It has also been held in the case of Hardeep Singh Versus the State of Punjab and Others reported in (2014) 3 SCC 92 at para-11, 12, 90, 92, 105, 106 and 117 as follows:- “Para-11:- Section 319 CrPC as it exists today, is quoted hereunder: “319.Power to proceed against other persons appearing to be 2025:JHHC:11038 -17- 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 reheard; (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) Para-12:- Section 319 CrPC springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC. Para-90:- As held in Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007 SC 1899] and Harbhajan Singh [(2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135] , 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 2025:JHHC:11038 -18- 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. Para-92:- Thus, in view of the above, we hold that power under Section 319 CrPC can be exercised at the stage of completion of examination-in-chief and the 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. Para-105:- Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those 2025:JHHC:11038 -19- 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. Para-106:- Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC 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. Para-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 — 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 Para-117.1:- In Dharam Pal case [Dharam Pal v. State of Haryana, 2025:JHHC:11038 -20- (2014) 3 SCC 306 : AIR 2013 SC 3018] , 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. Para-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. Para-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 the basis of the statement made in the examination-in-chief of the witness concerned? Answer Para-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 2025:JHHC:11038 -21- 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 Para-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 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? 2025:JHHC:11038 -22- Answer Para-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.” 19. It has been held in the judgment rendered in the case of Sartaj Singh vs The State Of Haryana on 15 March, 2021 reported in 2021 (5) SCC 337 the Hon'ble Apex Court considered the scope and ambit of section-319 of Cr.P.C. at Para-13.1, 13.1.1, 13.1.2, 13.1.3, 13.1.4, 13.1.5, 13.1.6, 13.1.7, 13.3 and 13.4 as follows:- "13.1 :-While considering the rival submissions, the law on the scope and ambit of Section 319 CrPC is required to be considered and for that few decisions of this Court are required to be referred to. 13.1.1. :- In Hardeep Singh2, this Court had an occasion to consider in detail the scope and ambit of the powers of the Magistrate under Section 319 CrPC, the object and purpose of Section 319 CrPC etc. It is observed in the said decision that the entire effort is not to allow the real perpetrator of an offence to get away unpunished. It is observed that this is also a part of fair trial and in order to achieve this very end that the legislature thought of incorporating the provisions of Section 319 CrPC. It is further observed that for the empowerment of the courts to ensure that the criminal administration of justice works properly, the law has been appropriately codified and modified by the legislature under the Cr.P.C. indicating as to how the Courts should proceed to ultimately find out the truth so that the innocent does not get punished but at the same time, the guilty are brought to book under the law. It is also observed that it is the duty of the court to find out the real truth and to ensure that the guilty 2025:JHHC:11038 -23- does not go unpunished. In Paragraphs 8 and 9, this Court observed and held as under: (Hardeep Singh Case2 , SCC pp. 112-13) "8:- The constitutional mandate under Articles 20 and 21 of the Constitution of India provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the used does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the Clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under CrPC indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished. 9:- The presumption of innocence is the general law of the land as every man is presumed to be innocent unless proven to be guilty. Alternatively, certain statutory presumptions in relation to certain class of offences have been raised against the accused whereby the presumption of guilt prevails till the accused discharges his burden upon an onus being cast upon him under the law to prove himself to be innocent. These competing theories have been kept in mind by the legislature. The entire effort, therefore, is not to allow the real perpetrator of an offence to get away unpunished. This is also a part of fair trial and in our opinion, in order to achieve this very end that the legislature thought of incorporating provisions of Section 319 CrPC. It is with the said object in mind that a constructive and purposive interpretation should be adopted that advances the cause of justice and does not dilute the intention of the statute conferring powers on the court to carry out the abovementioned avowed object and purpose 2025:JHHC:11038 -24- to try the person to the satisfaction of the court as an accomplice in the commission of the offence that is the subject-matter of trial." 13.1.2:- In the said case, the following five questions fell for consideration before this Court. “6. … 6.1. (i) What is the stage at which power under Section 319 CrPC can be exercised? 6.2. (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 the basis of the statement made in the examination-in-chief of the witness concerned? 6.3. (iii) 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? 6.4. (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 exercised only if the court is satisfied that the accused summoned will in all likelihood convicted? 6.5. (v) Does the power under Section 319 CrPC extend to persons not named in the FIR named in the FIR but not charged or who have been discharged?" 13.1.3:- While considering the aforesaid questions, this Court in Hardeep Singh2 observed and held as under: (SCC pp. 114-17, 123 & 125-26, paras 12-14, 17-19, 22, 47 & 53-56) “12:- Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C. 13:- It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and 2025:JHHC:11038 -25- at what stage should the court exercise its power as contemplated in Section 319 Cr.P.C.? 14:- The submissions that were raised before us covered a very wide canvas and the learned counsel have taken us through various provisions of Cr.P.C. and the judgments that have been relied on for the said purpose. The controversy centres around the stage at which such powers can be invoked by the court and the material on the basis whereof such powers can be exercised. * * * 17:- 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. 18:- The legislature cannot be presumed to have imagined all the circumstances and, therefore, it is the duty of the court to give full effect to the words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot-free by being not arraigned in the trial in spite of the possibility of his complicity which can be gathered from the documents presented by the prosecution. 19:- The court is the sole repository of justice and a duty is cast upon it to uphold the rule of Law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence. 2025:JHHC:11038 -26- * * * 22:-In our opinion, Section 319 CrPC is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial. It is this part which is under reference before this Court and therefore in our opinion, while answering the question referred to herein, we do not find any conflict so as to delve upon the situation that was dealt with by this Court in Dharam Pal (CB) [Dharam Pal v. State of Haryana. (2014) 3 SCC 306: AIR 2013 SC 3018). * * * 47:- Since after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319 of CrPC can be exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 Cr.P.C., committal, etc. which is only a pre-trial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. At this pre-trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance with Sections 207 and 208 CrPC, and committing the matter if it is exclusively triable by the Sessions Court. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Sections 207 to 209 CrPC is forbidden, by express provision of Section 319 CrPC, to apply his mind to the merits of the case and determine as to whether any accused needs to be added or subtracted to face trial before the Court of Session. * * * 53:- It is thus aptly clear that until and unless the case reaches the stage of inquiry or trial by the court, the power under Section 319 CrPC cannot be exercised. In fact, this proposition does not seem to have been disturbed by the Constitution Bench in Dharam Pal (CB) [Dharam Pal v. State of Haryana, (2014) 3 SCC 306: AIR 2013 SC 3018]. The dispute therein was 2025:JHHC:11038 -27- resolved visualising a situation wherein the court was concerned with procedural delay and was of the opinion that the Sessions Court should not necessarily wait till the stage of Section 319 CrPC is reached to direct a person, not facing trial, to appear and face trial as an accused. We are in full agreement with the interpretation given by the Constitution Bench that Section 193 CrPC confers power of original jurisdiction upon the Sessions Court to add an accused once the case has been committed to it. 54:- In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor could the legislature have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 CrPC. 55:- Accordingly, we hold that the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained hereinabove. 56:- There is yet another set of provisions which form part of inquiry relevant for the purposes of Section 319 CrPC i.e. provisions of Sections, 200, 201, 202, etc. Cr.PC applicable in the case of complaint cases. As has been discussed herein, evidence means evidence adduced before the Court. Complaint case is a distinct category of criminal trial where some sort of evidence in the strict legal sense of Section 3 of the Evidence Act 2025:JHHC:11038 -28- 1872 (hereinafter referred to as "the Evidence Act") comes before the court. There does not seem to be any restriction in the provisions of Section 319 CrPC so as to preclude such evidence as coming before the court in complaint cases even before charges have been framed or the process has been issued. But at that stage as there is no accused before the court, such evidence can be used only to corroborate the evidence recorded during the trial (sic or) for the purpose of Section 319 CrPC, if so required. What is essential for the purpose of the section is that there should appear some evidence against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well, Section 319 CPC acts as an empowering provision enabling the court/Magistrate to initiate proceedings against such other persons. The purpose of Section 319 CrPC is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be any difficulty in invoking powers of Section 319 CrPC at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses are being recorded. 13.1.4:- While answering Questions (iii), namely, 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, this Court, in the aforesaid decision has observed and held as under: (Hardeep Singh Case2, SCC pp. 126-27 & 131-32, paras 58-59, 78 & 82-85) “58:- To answer the questions and to resolve the impediment that is being faced by the trial courts in exercising of powers under Section 319 CrPC, the issue has to be investigated by examining the circumstances which give rise to a situation for the court to invoke such powers. The circumstances that lead to such inference being drawn up by the court for summoning a person arise out of the availability of the facts and material 2025:JHHC:11038 -29- that come up before the court and are made the basis for summoning such a person as an accomplice to the offence alleged to have been committed. The material should disclose the complicity of the person in the commission of the offence which has to be the material that appears from the evidence during the course of any inquiry into or trial of offence. The words as used in Section 319 CrPC indicate that the material has to be "where ... it appears from the evidence" before the court. 59:- Before we answer this issue, let us examine the meaning of the word “evidence” means and includes: "(1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence: (2) all documents including electronic records produced for the inspection of the court; such documents are called documentary evidence." * * * 78:- It is, therefore, clear that the word "evidence" in Section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation. * * * 82:- This pre-trial stage is a stage where no adjudication on the evidence of the offences involved takes place and therefore, after the material along with the charge-sheet has been brought before the court, the same can be inquired into in order to effectively with framing of charges. After the charges are framed, the prosecution is asked to led evidence and till that is done, there is no evidence available in the strict legal sense of Section 3 of the Evidence Act. The actual trial of the offence by bringing the accused before the court has still not begun. What is available is the material that has been submitted before the court along with the charge- 2025:JHHC:11038 -30- sheet. In such situation, the court only has the material that has been placed before the court for its consideration in order to proceed with the trial by framing of charges. 83. It is, therefore, not any material that can be utilised, rather it is that material after cognizance is taken by a Court, that is available to it while making an inquiry into or trying an offence, that the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. The inference that can be drawn is that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused. This would harmonise such material with the word "evidence" as material that would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have either been suppressed or escaped the notice of the court. 84:- The word "evidence" therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 CrPC. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial. 85:- In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. The "evidence" is thus, limited to the evidence recorded during trial. 2025:JHHC:11038 -31- 13.1.5:- While answering Question (ii) namely, whether the word "evidence" used in Section 319(1) CrPC means as arising in examination- in-chief or also together with cross-examination, in the aforesaid decision, this Court has observed and held as under: (Hardeep Singh Case2, SCC pp. 132-34, paras 86-92) “86:- The second question referred to herein is in relation to the word "evidence" as used under Section 319 CrPC, which leaves no room for doubt that the evidence as understood der Section 3 of the Evidence Act is the statement of the witnesses that are recorded during trial and the documentary evidence in accordance with the Evidence Act, which also includes the document and material evidence in the Evidence Act. Such evidence begins with the statement of the prosecution witnesses, therefore, is evidence which includes the statement during examination- in-chief. In Rakesh5, it was held that: (SCC p. 252, para 10) “10... It is true that finally at the time of trial the accused is to be given an opportunity to cross-examine the witness to test its truthfulness. But that stage would not arise while exercising the court's power under Section 319 CrPC. Once the deposition is recorded, no doubt there being no cross-examination, it would be a prima facie material which would enable the Sessions Court to decide whether powers under Section 319 should be exercised or not." 87. In Ranjit Singh Ranjit Singh6, this Court held that: (SCC p. 156, para 20) "20. … it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers." 88:- In Mohd. Shafi7 , it was held that the prerequisite for exercise of power under Section 319 CrPC is the satisfaction of the court to proceed against a person who is not an accused but against whom evidence occurs, for which the court can even wait till the cross- examination is over and that there would be no illegality in doing so. A similar view has been taken by a two-Judge Bench in Harbhajan Singh v. State of Punjab8. This Court in Hardeep Singh9seems to have misread the judgment in Mohd. Shafi7, as it construed that the said judgment laid down that for the 2025:JHHC:11038 -32- exercise of power under Section 319 CrPC, the court has to necessarily wait till the witness is cross- examined and on complete appreciation of evidence, come to the conclusion whether there is a need to proceed under Section 319 CrPC. 89:- We have given our thoughtful consideration to the diverse views expressed in the aforementioned cases. Once examination-in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence. 90:- As held in Mohd. Shafi7 and Harbhajan Singh8 , 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 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 2025:JHHC:11038 -33- 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 face trial. In fact, examination-in-chief untested by cross-examination, undoubtedly in itself, is an evidence. 91:- 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 CrPC, 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(es) prior to passing of an order under Section 319 CrPC, as such a procedure is not contemplated by CrPC. 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(es) is obliterating the role of persons already facing trial. More so, Section 299 CrPC enables the court to record evidence in absence of the accused in the circumstances mentioned therein. 92:- Thus, in view of the above, we hold that power under Section 319 CrPC can be at the stage of completion of examination-in-chief and the court does not need to 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. 13.1.6:- While answering Question (iv), namely, what is the degree of satisfaction required for invoking the power under Section 319 CrPC, this Court after considering various earlier decisions on this point, has observed and held as under: (Hardeep Singh case 2 , SCC p. 138, paras 105-06) “105:- Power under Section 319 CrPC 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 2025:JHHC:11038 -34- 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 CrPC. In Section 319 CrPC 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. 13.1.7:- While answering Question (v), namely, in what situations can the power under Section 319 CrPC be exercised: named in the FIR, but not charge-sheeted or has been discharged, this Court has observed and held as under: (Hardeep Singh case 2 , SCC p. 139-41, paras 112 & 116) “112:- However, there is a great difference with regard to a person who has been discharged. A person who has been discharged stands on a different footing than a person who was never subjected to investigation or subjected to, but not charge-sheeted. Such a person has stood the stage of inquiry before the court and upon judicial examination of the material collected during investigation, the court had come to the conclusion that there is not even a prima facie case to proceed against such person. Generally, the stage of evidence in trial is merely proving the material collected during investigation and therefore, there is not much change as 2025:JHHC:11038 -35- regards the material existing against the person so discharged. Therefore, there must exist compelling circumstances to exercise such power. The court should keep in mind that the witness when giving evidence against the person so discharged, is not doing so merely to seek revenge or is naming him at the behest of someone or for such other extraneous considerations. The court has to be circumspect in treating such evidence and try to separate the chaff from the grain. If after such careful examination of the evidence, the court is of the opinion that there does exist evidence to proceed against the person so discharged, it may take steps but only in accordance with Section 398 CrPC without resorting to the provision of Section 319 CrPC directly. * * * 116:- Thus, it is evident that power under Section 319 CrPC can be exercised against a person not subjected to investigation, or a person placed in Column 2 of the charge-sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 CrPC without taking recourse to provisions of Section 300(5) read with Section 398 CrPC.” 13.2:- Considering the law laid down by this Court in (Hardeep Singh 2 and the observations and findings referred to and reproduced hereinabove, it emerges that (i) the Court can exercise the power under Section 319 CrPC even on the basis of the statement made in the examination-in-chief of the witness concerned and the Court need not wait till the cross- examination of such a witness and the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination; and (ii) 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 (may be on the basis of the evidence collected in the form of statement made in the examination-in-chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial. 2025:JHHC:11038 -36- 13.3:- In S. Mohammed Ispahani v. Yogendra Chandak10, this Court has and held as under: (SCC p. 243) "35. It needs to be highlighted that when a named in the FIR by the complainant, but police, after investigation, finds no role 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. 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 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused." 13.4 In the case of Rajesh v. State of Haryana11, after considering the observations made by this Court in Hardeep Singh (supra) referred to hereinahove, this Court has further observed and held that 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 FIR but not implicated in the charge- sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in FIR but not implicated in charge- sheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused. 14:- Applying the law laid down by this Court in the aforesaid decisions to the case of the accused on hand, We are of the opinion that learned Trial Court was justified in summoning the private respondents herein to face the trial as accused on the basis of the deposition of the appellant- injured eye witness. As held by this Court in the aforesaid decisions, the accused can be summoned on the basis of even examination-in-chief of the witness and the Court need not wait till his cross- examination. If on the basis of the examination-in-chief of the witness the Court is satisfied that there is a prima facie case against the proposed accused, the Court 2025:JHHC:11038 -37- may in exercise of powers under Section 319 CrPC array such a person as accused and summon him to face the trial.” 20. It reveals from the records of this case that the Co-ordinate Bench (Justice Ratnakar Bhengra as then His Lordship was) of this Court, vide order dated 26.09.2024 had directed for impleading Sandhya Bagla as opposite party no. 4 (i.e. the Principal of the Little Angles School) in this case and had issued notice upon her and the opposite party no. 4 has also appeared before this Court and is contesting the case. Hence, this Court is going through the relevant part of the evidence of the prosecution witnesses relating to conduct of the opposite party no. 4, Mrs. Sandhya Bagla and has confined this Criminal Revision Application on the points of non-issuance of summon upon the opposite party no. 4 on the basis of prosecution evidence. 21. This Court is also surprised to see that the learned Court below has only mentioned the name of the victim boy in the form of evidence examined as P.W.-1, but also he has mentioned the name of the informant of the victim boy, who was examined as PW.-2 and has mentioned in the name of the father of the victim boy, who was examined as P.W.-3 in this case is in complete contravention of the judgment rendered in the case of Nipun Saxena and Anr. Versus Union of India reported in (2019) 2 SCC 703. This Court directs the learned Court below to remain careful in future and should not mention the name of the victim girl or the victim boy as well as the name of the natural parents while recording their evidence. 22. P.W.-1 is the Victim Boy himself, who has stated, during his evidence about the conduct of both i.e. the opposite party no. 2, 2025:JHHC:11038 -38- Kunwar Kispotta @ Munna and opposite party no. 3, Augustina Mariyam Kujur @ Ritu with which, this Court is not giving any opinion. However, the victim boy has also stated that his mother has informed the matter to the Principal of the School. However, the Principal only scolded both i.e. the opposite party no. 2, Kunwar Kispotta @ Munna and opposite party no. 3, Augustina Mariyam Kujur @ Ritu and who denied the occurrence before the Principal. 23. This witness i.e. P.W.-1 was not confronted by the defence side i.e. the opposite party no. 2, Kunwar Kispotta @ Munna and opposite party no. 3, Augustina Mariyam Kujur @ Ritu on the point of giving information to the Principal about the occurrence. 24. Thus, the evidence of P.W.-1 reflects that the Principal was having the knowledge of the occurrence about the illegal conduct of both i.e the opposite party no. 2, Kunwar Kispotta @ Munna and opposite party no. 3, Augustina Mariyam Kujur @ Ritu. 25. P.W.-2 is the informant and the mother of the victim boy and who has stated in detail about the occurrence and incidents taken place with her victim boy on different dates. However, this Court is not looking into the same for the present and confines only on the point of information to the Principal. P.W.-2 has also stated that she had informed about the incidents and occurrence taking place with her son on 05.04.2018, who asked her not to institute the case, rather she tried to suppress the institution of the case by alluring her to pay the school fees, book fees and any further requirement and had also deposited Rs. 5,000/- in the Bank Account of the PW-2. However, P.W.-2 lodged the FIR on the advice on 21.04.2018 only after considering the fact that his son is completely unwell and shocked. She was cross-examined thoroughly on the point of occurrence by the opposite party no. 2, Kunwar Kispotta @ Munna and 2025:JHHC:11038 -39- opposite party no. 3, Augustina Mariyam Kujur @ Ritu, but this Court is not looking the same and referring the same. 26. However, during cross-examination, she stated in para-38 and 41 that she has not instituted complaint before the school administration. However, this Court is not referring other paragraphs of the judgment regarding the school administration on the point of payment of money. 27. Thus, P.W.-2 has also stated that the Principal was informed about the occurrence, but no action was taken by the Principal. 28. P.W.-3 is the father of the victim boy and his name is not being disclosed. He has not stated about the conduct of the opposite party no. 4, though he has stated about the conduct of the opposite party no. 2, Kunwar Kispotta @ Munna and opposite party no. 3, Augustina Mariyam Kujur @ Ritu and as such, this Court is not referring into the same. P.W.-3 is also a Teacher of Central School, Ramgarh. However, he has stated that he learnt for the first time about the occurrence from his wife on 05.04.2018 and he had advised his wife to do whatever she feels necessary. Thus, PW-3 is silent about the role of the opposite party no. 4. 29. P.W.-4 is Zafar Alam Khan, who is Maternal Uncle of the victim boy and has stated during evidence that he learnt about the occurrence from his sister. Thereafter, he alongwith her sister decided to talk with the Principal of the School and they had arrived at the school of the victim boy and apprised her of the entire occurrence, but she denied. However, they were assured by the Principal Mrs. Sandhya Bagla to inquire the matter and informed them. However, when he contacted on telephone with the Principal i.e. opposite party no. 4, then she was advised not to proceed with the case and has tried to hush up the matter and has transferred the some amount in the Bank Account of 2025:JHHC:11038 -40- his sister. 30. This witness i.e. P.W.-4 was not confronted by the learned Defence Counsel i.e. defence side on the point of meeting with the principal i.e. O. P. No. 4. 31. Thus, evidence of P.W.-4 reveals that he alongwith his sister i.e. informant of this case had met with the opposite party no. 2, Mrs. Sandhya Bagla, who is the Principal of the Little Angles School, but she has not taken any steps, rather advised to hush up the case and had transferred the some amounts in the Bank Account of his sister. Thus, evidence of P.W.-4 has supported the prosecution case on the point of no action of the Principal. 32. P.W.-5 is one Monika Tudu, who is Sub-Inspector and has proved the statement of the victim boy marked as Ext.-2. She has not stated anything about opposite party no. 4. 33. P.W.-6 is Dr. Sanjay Kumar, who is Assistant Professor of RIMS, Ranchi and has examined the victim boy, who was brought by S.I. Monika Tudu and hence, evidence of P.W.-6 has not considered for the present. 34. P.W.-7 is Rajdev Prasad, who is the Investigating Officer of this case and has proved the certain documents. He also stated that he has recorded the statements of several persons including Dr. Sanjeev Mishra, Principal Sandhya Bagla and others. Thus, P.W.-7, Rajdev Prasad i.e. Investigating Officer of this case has not stated anything against the opposite party no. 4, except the fact that he himself failed to take notice regarding the statement of the informant as lodged in the FIR and had not taken the statement of Principal Sandhya Bagla. Therefore, IO has also shown leniency towards the opposite party no. 4. 35. P.W.-8 is Nitika, who was posted as Judicial Magistrate, 1st 2025:JHHC:11038 -41- Class, Ranchi on 27.05.2019 and had recorded the statement of the victim boy, abed about four years under Section 164 of the Cr.P.C. Thus, evidence of P.W.-8, Nitika is not relevant for the present. 36. It transpires that thereafter the statement of the accused persons i.e. the opposite party no. 2, Kunwar Kispotta @ Munna and opposite party no. 3, Augustina Mariyam Kujur @ Ritu were recorded under Section 313 of the Cr. P.C. on 30.01.2024. 37. Therefore, from the discussion made above, it would appear that P.W.-2 i.e. the Informant of this case and P.W.-4 i.e. the brother of the Informant are the persons, who have stated specifically about the conduct of the Principal i.e. opposite party no. 4 for not taking any action initially against the opposite party no. 2, Kunwar Kispotta @ Munna and opposite party no. 3, Augustina Mariyam Kujur @ Ritu, rather she advised them i.e. P.W.-2 i.e. the Informant of this case and P.W.-4 i.e. the brother of the Informant to hush up the matter and has transferred Rs. 5,000/- in the Bank Account of the P.W.-2. This act clearly shows that the Principal had no intention to proceed against the opposite party no. 2, Kunwar Kispotta @ Munna and O. P. No. 3, Augustina Mariyam Kujur @ Ritu, rather she tried to save them and she has not complied the provisions of Section 19 of the POCSO Act. 38. It reveals from the Lower Court Records that on 13.09.2023, a petition was filed on behalf of the informant under Section 319 of the Cr. P. C. to issue summon against the Principal of the School namely Sandhya Bagla proposed accused being guilty of the offence in the present case. 39. It reveals from the Lower Court Records that this petition was filed by the Informant after evidence of P.W.-8 i.e. Ms. Nitika, then learned Judicial Magistrate, 1st Class, Ranchi and after closure of 2025:JHHC:11038 -42- the prosecution evidence on 22.08.2023. The learned Court below has closed the prosecution evidence on 22.08.2023 and the case was fixed for examination of the accused persons i.e. the opposite party no. 2, Kunwar Kispotta @ Munna and opposite party no. 3, Augustina Mariyam Kujur @ Ritu under Section 313 of the Cr.P.C. on 12.09.2023 and the same was even mentioned in the order sheet of the learned Court below. Subsequently, on 21.09.2023, 07.10.2023, 29.11.2023, 20.12.2023, 02.01.2024, 16.01.2024, 17.01.2024 and 29.01.2024 respectively, but till then the accused persons i.e. the opposite party no. 2, Kunwar Kispotta @ Munna and opposite party no. 3, Augustina Mariyam Kujur @ Ritu had not been examined under Section 313 of the Cr.P.C. and vide impugned order dated 16.01.2024, the learned Court below has rejected the petitioner filed by the informant-petitioner under Section 319 of the Cr. P. C. 40. It further appears that the case was fixed for defence evidence on 15.02.2024 and on 15.02.2024, the opposite party no. 2, Kunwar Kispotta @ Munna and opposite party no. 3, Augustina Mariyam Kujur @ Ritu from the defence side filed a petition under Section 91 of the Cr. P. C. for summoning/production of some documents from the informant-PW-2 on 16.04.2022 and the said petition was rejected vide order dated 14.05.2024 by the learned Court below. 41. Thereafter, the defence side also filed a petition under Section 173 (8) of the Cr. P. C. on 04.07.2024 for further investigation on certain points, which was rejected vide order dated 12.08.2024 by the learned Court below. 42. It appears that the learned Court below has rejected the petition on the ground that the except the informant no any witnesses has uttered anything about the involvement of the Principal of the said 2025:JHHC:11038 -43- school in their evidence and the Principal of the said school had not participated directly or indirectly to commit the offence by the accused persons and was not aware about the occurrence and there was nothing material on record to find out the prima facie case made out against the Principal of the School. 43. 43. The learned Court below has also observed that unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case and (ii) a case for sparingly (sic sparing) exercise of jurisdiction would not be satisfied. 44. Therefore, this Court finds that while passing the impugned order dated 16.01.2024, the learned Court below has committed error of record by observing that except informant no other witness has supported the case against the Principal of the School to summon her as an accused. However, it reveals from the Lower Court Records that apart from the informant i.e. P.W-2, the mother of the victim, even P.W.-4, Zafar Alam Khan, who is own brother of the informant has fully supported the case of the prosecution on the point of information given to the Principal and to take action against the opposite party no. 2, Kunwar Kispotta @ Munna and opposite party no. 3, Augustina Mariyam Kujur @ Ritu respectively and had pointed out that the Principal had tried to suppress the case and also hush up the matter. 45. Thus, apart from the informant i.e. P.W-2, the mother of the victim, P.W.-4, Zafar Alam Khan, who is own brother of the informant, has also stated about the involvement of the Principal of the School i.e. opposite party no. 4- Sandhya Bagla in para-3 during his examination in-chief. Even P.W.-3, the father of the victim boy has stated that his wife has firstly gone to the school with regard to the incidents taking place with his son and thereafter he had gone before Doctor and after 2025:JHHC:11038 -44- boy became normal, then his wife has got the case instituted. 46. P.W.-3 is also a teacher in Central School, even if he has stated lightly with regard to the School Administration, but his evidence reveals that he has supported the case of the P.W.-2 i.e. the informant for moving before the Principal of the School and for apprising the Principal i.e. Opposite Party no. 4, Sandhya Bagla about the incident. 47. It would appear that prosecution has examined several witnesses in support of her case. It would also appear from the deposition that there is more than sufficient evidence available against Sandhya Bagla i.e. the Principal of the Little Angles School as the opposite party no. 4 vide order dated 26.09.2024 by the Co-ordinate Bench (Justice Ratnakar Bhengra as then His Lordship was) of this Court. 48. The Constitutional Bench of the Hon’ble Supreme Court has passed the several judgments and law laid down in the case of in the case of Dharam Pal and Others Versus the State of Haryana and Another reported in (2014) 3 SCC 306 and in the case of Hardeep Singh Versus the State of Punjab and Others reported in (2014) 3 SCC 92 and in the case of Sartaj Singh vs The State Of Haryana reported in 2021 (5) SCC 337 still hold the law. 49. Thus, from the judgment rendered by the Hon’ble Supreme Court in the case of Hardeep Singh Versus the State of Punjab and Others reported in (2014) 3 SCC 92, it is evident that the learned Trial Court has power to ample summon the person under Section 319 of the Cr. P. C., who is neither named in the FIR nor charge-sheeted by the police, but such person can be summoned under Section 319 of the Cr.P.C. provided from the evidence, it appears that such person can be tried along with the accused already facing trial. 50. In view of the discussion made above, the impugned order 2025:JHHC:11038 -45- dated 16.01.2024 passed in Misc. Criminal Application No. 2832 of 2023 by the learned Additional Judicial Commissioner-IV-cum-Special Judge, POCSO, Ranchi is set aside in the interest of justice and the matter is remitted to the learned Court below to pass a fresh order in light of the Petition filed under Section 319 of the Cr.P.C. by the Informant within a period of six months from the date/receipt of a copy of this order. 51. Accordingly, the Criminal Revision No. 464 of 2024 is allowed with the observation mentioned above. (Sanjay Prasad, J.) Kamlesh/N.A.F.R.