1 2025:CGHC:58568 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 3672 of 2025 Gagan Agrawal S/o Late Anup Agrawal Aged About 27 Years R/o Ganjbazar Kharsiya Chowk, Kharsiya, Raigarh (C.G.) ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Sho, Police Station- Kharsiya, District- Raigarh (C.G.) 2 - Pawan Garg S/o Ramavtar Aged About 55 Years R/o Ganjbazar Kharsiya Chowk, Kharsiya Raigarh (C.G.) 3 - Meena Garg W/o Pawan Garg Aged About 48 Years R/o Ganjbazar Kharsiya Chowk, Kharsiya Raigarh (C.G.) 4 - Umesh Garg S/o Ramavtar Aged About 45 Years R/o Ganjbazar Kharsiya Chowk, Kharsiya Raigarh (C.G.) ... Respondent(s) For Petitioner(s) : Mr. Ashish Shrivastava Sr. Advocate assisted by Mr. Udit Khatri and Ishaan Singh Rathore, Advocate For Respondent(s) : Ms. Sunita Manikpuri, Dy. G.A. 2 Hon’ble Shri Justice Arvind Kumar Verma Order on Board 03/12/2025 1. With the consent of the parties, heard finally. 2. The present petition has been filed by the petitioner under Section 528 of BNSS, 2023 for quashing and setting aside the impugned order dated 08.09.2025 passed by learned Second Additional Sessions Judge, Raigarh in Sessions case No. 58/2025, dismissing the application filed by the petitioner under Section 358 of BNS, 2023 for joining of additional accused in the array of accused for the commission of offence under Sections 296, 115(2), 324(2)), 331(6), 105, 3(5) of BNS, 2023. 3. The brief facts of the case leading to disposal of this petition are that the present petition is filed by the Petitioner being aggrieved by the impugned order dated 08.09.2025 passed by Ld. Second Additional Sessions Judge, Raigarh in Sessions Case 58/2025 whereby the application of the Petitioner under section 358 BNSS, 2023 for joining additional accused in the array of accused in the matter arising out of FIR no. 64/2025 for the commission of offence under section 296, 115(2), 324(2), 331(6), 105, 3(5) of BNS, 2023, has been dismissed without proper consideration and evaluation of the evidence available on record. Certified copy of impugned order dated 08.09.2025 passed in Sessions Case 58/2025 is herewith filed as Annexure P/1. Respondent no. 2-4, 3 namely, Pawan Garg, Meena Garg, Umesh Garg, Anurag Garg, and Manish Garg live in neighborhood, in front of the Petitioner's house. The aforesaid Respondents are of criminal nature and used to quarrel with Petitioner and his father, having a grudge against them. They always talk about their political connections and used to threaten Petitioner and his family due to which Petitioner and his family members were living in terror and used to stay away from them. On 21.01.2025, at night when the Petitioner returned home from work Respondent no. 5 started abusing and beating the Petitioner, subsequently father of the Petitioner who was inside the house came out to stop them. Then the mother of the Petitioner came out and somehow freed the Petitioner and his father and took them inside the house and closed the door. After some time the Respondents 4 & 5 broke the door and entered Petitioner's house and started beating him from belt and dragged him out of the house. When Petitioner's father came to intervene, respondents 2-4 along with two other accused started beating him with their hands and punches on stomach, chest and other sensitive parts of the body of the Petitioner's father with the intention of killing him They threw him on the floor, causing internal injuries and leading to his death. Petitioner also suffered internal injuries at several places. Pursuant to the aforesaid incident Petitioner lodged an FIR against Respondents no. 2-4 along with two others on 22.01.2025 at PS-Kharsiya, however, it is pertinent to mention that the Police registered FIR no. 64/2025 4 against the other two respondents only for the commission of offence under section 296, 115(2), 324(2) and 3(5) despite the fact that the father of the Petitioner died due to the overt act of the respondents and all the five, Respondents 2-6 were involved in the commission of offence. Copy of FIR no. 64/2025 dated 22.01.2025 is herewith filed as Annexure P/2. The cognizance of the aforesaid offence was taken by the Judicial Magistrate first class, Raigarh by registering the Criminal Case no. 52/2025. Subsequently, the chargesheet no. 83/2025 dated 10.03.2025 was filed by the Police wherein it is pertinent to mention that despite completion of the investigation and evaluation of the available evidences, particularly the videography of the incident, clearly depicting the involvement of all the five Respondents no. 2- 6 but police failed to make Respondents no. 2-4 accused in the matter. Furtehr, the videography of the incident is in pendrive which is in the possession of the Petitioner and the said video may be displayed if so directed by this Hon'ble Court. Copy of forensic transcript of the videography of the incident is herewith filed as Annexure P/3. Being aggrieved by the inaction of the Respondent no.1, Petitioner filed an application under section 358 of BNSS, 2023 before judicial Magistrate first class, Kharsiya to join additional accused in the crime no 64/2025 contending that the said case is a murder case and the police is deliberately protecting the criminals, further a videography of the incident depicting clear involvement of the said five accused has been 5 submitted, therefore, it is just and necessary to add Respondents no. 2-4 in the array of accused. It is Pertinent to mention that Respondents no. 2-4 are still giving various types of threats to the complainant and his family. That on 08.04.2025 reply to the aforesaid application was filed by the Respondents. Copy of application dated 25.03.2025 and its reply dated 08.04.2025 is herewith filed as Annexure P/4 and Annexure P/5, respectively. The statement of witnesses were manipulated by the Police in the chargesheet no. 83/2025 dated 10.03.2025 wherein except the statement of the Petitioner all the statements were changed stating that the Respondent No. 2-4 were not involved in the commission of the crime and they were just trying to stop the other two accused but the videography of the incident depicts the complete contrary picture. Further it is pertinent to mention that the many witnesses have submitted their affidavit vide dated 08.04.2025 before Ld. Judicial Magistrate First Class, Kharsiya that their statement in the aforesaid chargesheet has been changed by the Police. Copy of all the Affidavits filed before Ld. Judicial Magistrate First Class, Kharsiya is herewith filed as Annexure P/6 (colly). The Criminal Case no. 52/2025 was forwarded to the Sessions Court under the committal proceedings as the case is exclusively triable by the Court of Session. That the cognizance of the matter was taken by the Sessions Court vide its order dated 30.05.2025 and the case was registered as Sessions Case no. 58/2025. Copy of order dated 30.05.2025 along with all 6 the orders passed by Ld. Sessions Court in Sessions Case no. 58/2025 is herewith filed as Annexure P/7 (colly). Subsequently, Petitioner filed another application under section 358 of BNSS, 2023 vide dated 04.06.2025before Ld. Sessions Judge, Raigarh raising the contention that the said case is a murder case and in this murder case the police are deliberately protecting the criminals due to which the applicant is denied justice. Further, the videography of the case which has been presented in the court, shows involvement of all the five accused, even after that the Station House Officer, Kharsia has deliberately not included Respondents no. 2-4 in the array of accused with a malicious intention to benefit the accused. Copy of the application dated 04.06.2025 under section 358 of BNSS, 2023 is herewith filed as Annexure P/8. The said application filed by the Petitioner under section 358 of BNSS, 2023 for joining of additional accused in the Sessions Case no. 58/2025 has been dismissed by Ld. Second Additional Sessions Judge, Raigarh without considering and evaluating the evidences on record, particularly, the vidograph of the incident clearly showing the involvement of Respondents no. 2-4 and two other accused in the commission of the offence and the affidavit of the witnesses filed before Ld. Judicial Magistrate First Class, Kharsiya stating that their statement has been changed by the Police in the chargesheet. Copy of impugned order dated 08.09.2025 is already filed as Annexure P/1. 4. Learned Sr. Counsel submits that the Ld. Second Additional 7 Sessions Judge, Raigarh has erred in passing the impugned order dated 08.09.2025 and has failed to properly consider the contemporaneous videography of the incident, though it was a part of the police record and specifically relied upon by the Petitioner to demonstrate active participation of Respondent Nos. 2 to 4 in assaulting the deceased, resulting in a mechanical rejection of the application under Section 358 BNSS. The Ld. Second Additional Sessions Judge, Raigarh has failed to consider the fact that several material witnesses have filed sworn affidavits before the Judicial Magistrate First Class, Kharsiya, categorically stating that their police statements in Chargesheet No. 83/2025 were changed/suppressed qua Respondent Nos. 2 to 4, yet the court below has failed to even advert to these affidavits, thereby vitiating the order for non-consideration of highly relevant material. The trial court has misdirected itself in law in treating the request to join Respondent Nos. 2 to 4 as accused as if it were a prayer to alter the charge, instead of examining whether there existed a prima facie material from FIR, videography, and witness material warranting exercise of power under Section 358 BNSS to array additional accused so that the real offenders do not escape trial. The consistent case of the Petitioner has been that the police, despite having the videography and statements, deliberately excluded Respondent Nos. 2 to 4 from the array of accused and manipulated witness versions, but the court below has brushed aside this serious allegation without any inquiry or reasoning, 8 thereby abdicating its duty. The Ld. Sessions Court below has proceeded to rely solely on the police-recorded statements in Chargesheet No. 83/2025 (where Respondent Nos. 2 to 4 are shown as persons separating the fight) and has treated these as conclusive, ignoring (i) the earlier version in FIR, ii) videography, and iii) subsequent affidavits alleging change of statement of witnesses, which renders the impugned order perverse and against the settled principle that at this stage the court must look at the record as a whole, not only at the convenient part of the police case. The impugned order, by refusing to even consider summoning Respondent Nos. 2 to 4 in the teeth of clear material, violates the Petitioner's (son of the deceased) right to a fair and effective investigation and trial, and undermines the mandate that in a serious offence resulting in death, all persons prima facie involved must be brought before the court so that the truth emerges at trial. The court below has mischaracterized the occurrence as a limited quarrel involving only two accused, whereas the uncontroverted averments and annexures indicate (i) criminal intimidation over a long period by all Respondent Nos. 2 to 4 and two other accused, ii) unlawful entry into the Petitioner's house, and (iii) joint assault leading to death, thereby leading to an erroneous refusal to summon additional accused despite existence of material suggesting common participation. The combined effect of ignoring videography, affidavits, FIR narrative and sustained threats by Respondent Nos. 2 to 4 is that persons 9 prima facie responsible for the death of the Petitioner's father are being permitted to go scot-free at the threshold, which amounts to gross miscarriage of justice warranting interference by this Hon'ble Court to set aside the impugned order and direct their arraignment as accused in Crime No. 64/2025 and Sessions Case No. 58/2025. 5. Learned State counsel opposes the contentions made by the counsels for the petitioner and submits that the impugned order is well reasoned and does not need any interference and the present petition is liable to be dismissed. 6. Heard learned counsels for the respective parties and perused the record with utmost circumspection. 7. Perusal of record shows that the present petition has been filed challenging the order passed by the learned Trial Court whereby the application moved under Section 358(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking summoning of additional accused persons, namely Pawan Garg, Meena Garg and Umesh Garg, was rejected. 8. From the perusal of the case diary and the charge-sheet, it is evident that on the basis of the written report dated 22.01.2025, offences were registered against the accused persons. During investigation, statements of the complainant and other prosecution witnesses, namely Sumit Agarwal, Durga Devi Agarwal, Smt. Saluja, Vijay Kumar Sharma, Shiv Kumar Agarwal, Shailesh Agarwal, Mukesh Agarwal, Rakesh Agarwal and 10 Shubham Agarwal, were recorded. 9. A careful examination of these statements reveals that none of the witnesses have attributed any specific role of assault, abuse or threat to life against the proposed accused Pawan Garg, Meena Garg and Umesh Garg. On the contrary, the witnesses have consistently stated that these persons attempted to intervene and pacify the situation. 10. The learned Trial Court has rightly observed that merely on the basis of suspicion or omnibus allegations, a person cannot be summoned to face trial. The power under Section 358(1) BNSS, 2023 can be exercised only when strong and cogent evidence appears during inquiry or trial showing the involvement of a person who is not already an accused. 11. At the present stage of the case, i.e., prior to framing of charges, no such legally sustainable evidence has surfaced on record which would justify summoning the proposed accused persons to face trial along with the existing accused. 12. The impugned order passed by the learned Trial Court is well- reasoned, based on proper appreciation of evidence and does not suffer from any illegality, perversity or material irregularity warranting interference by this Court. 13. Accordingly, the present petition is dismissed. 14. At this stage, the learned Sr. Counsel prays for a liberty to revive the application under Section 358 of BNSS, 2023 before the trial Court. 11 15. During the trial, if it appears from the evidence that other persons not being the accused has committed any offence for which such person would be tried together with the accused then the petitioner is at liberty to file application under Section 358 of BNSS, 2023 before the trial Court. Sd/- (Arvind Kumar Verma) JUDGE Madhurima