Madhya Pradesh High Court
Harendra Dhakad vs The State Of Madhya Pradesh Thr on 17 April, 2026
NEUTRAL CITATION NO. 2026: MPHC-GWL: 12359
1 Criminal Revision No.266 of 2017
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE AMIT SETH
CRIMINAL REVISION No. 266 of 2017
HARENDRA DHAKAD
Versus
THE STATE OF MADHYA PRADESH THR AND OTHERS
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Appearance:
Shri Satendra Singh Rajput
Rajput- Advocate for applicant.
Shri Brijesh Kumar Tyagi - Public Prosecutor for respondent No.1/State.
Shri Bhupendra
pendra Singh Dhakad - Advocate for respondent No.2.
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Reserved on : 06.04.2026
Delivered on : 17.04.2026
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ORDER
1. With the consent of the parties, the matter is finally heard.
2. The instant criminal revision under Sections 397 and 401 of the Code of Criminal minal Procedure, 1973 [hereinafter referred to as "CrPC"] has been filed against the order dated 14.02.2017 passed by the learned First Additional Sessions Judge, Sabalgarh, District Morena in S.T. No.177/2011, Signature Not Verified Signed by: ANAND KUMAR Signing time: 18-04-2026 11:07:26 NEUTRAL CITATION NO. 2026: MPHC-GWL: 12359 2 Criminal Revision No.266 of 2017 whereby the application under Section 319 of CrPC filed by the complainant seeking summoning of respondent No.2 as an accused in the matter has been rejected.
3. The brief facts necessary for deciding the instant criminal revision petition are as under:
3.1. An F.I.R. bearing Crime No.153/2010 came to to be registered at Police Station Kailaras, laras, District Morena, on 05.06.2010 05.06.2010 by the applicant/ complainant stating that on the date of incident, on account of a previous dispute pertaining to property, the accused namely Murarilal along with Lokendra, Vinod and Jitendra Dhakad, armedwith Lathis and Sarias hurled abusive words to the complainant, stating that he would not get the registration of the property executed. When the complainant tried to stop them, Lokendra assaulted him with iron rod, causing injury to the finger of his right hand and Murarilal assaulted him with a Lathi on right shoulder.
Vinod also assaulted the complainant with a Lathi, causing an internal injury and when the uncle of the complainant, Satendra, came for his rescue, Vinod and Jitendra dra assaulted him with Lathis, causing various injuries. On the said complaint, an FIR was lodged and offences under Section 323, 294, 506B, 34 of the Indian Penal Code, 1860 [hereinafter referred to as "IPC"]were registered against all the accused.
3.2. During uring the course of investigation, respondent No.2 submitted a representation to the SDOP, inter alia contending that he was working as a Samvida Shala Shikshak Varg Varg-II II and, on the date of the incident, he was discharging his duties as a Teacher at Governm Government ent Girls' Middle School, Kalmukhi, Development Block Khandwa, and was also engaged in census duties and therefore was not even present at the place of incidence but yet he Signature Not Verified had been falsely implicated in this case.
Signed by: ANAND KUMAR Signing time: 18-04-2026 11:07:26NEUTRAL CITATION NO. 2026: MPHC-GWL: 12359 3 Criminal Revision No.266 of 2017 3.3. It appears that on the said represe representation, ntation, I.O. (the Investigating Officer) was permitted to visit Khandwa, where he collected a certificate dated 03.09.2010 issued by the Principal of Government Girls' Middle School, Kalmukhi, and the certificate issued by the Supervisor of the School, inter alia indicating that on the date of the incident, respondent No.2 was discharging his duties in the work of distribution of mid mid-day day meal and was also inter alia engaged in census work. On the strength of the said certificates, the Investigating Officer removed the name of respondent No.2 from the offences in question, and a charge sheet against the other accused persons in the matter was filed before the learned trial Court on 14.12.2010.
3.4. An application under Section 319 of Cr.P.C. came to be filed file by the present applicant before the learned trial Court seeking summoning of respondent No.2 as an accused in the matter on the ground that as per information obtained by him under the RTI from the Office of the Collector, Khandwa, respondent No.2 was no nott assigned any census duties on the date of the incident. It was further contended that the Investigating Officer, without any substantial evidence as regards the respondent No.2 being not present on the spot at the time of incident, has illegally removed the name of the respondent No.2 from the offences in question by not filing the charge sheet against him. The said application filed by the applicant came to be rejected by the learned trial Court vide the impugned order dated 14.02.2017.
4. Learned counsel el appearing for the applicant submits that, as per the FIR dated 05.06.2010 registered at Police Station Kailaras, District Morena for commission of offences under Sections 323, 294, 506 506-B B and 34 of the IPC, the complainant/present applicant specifically named respondent No.2, who is stated to have committed the offence by assaulting his uncle Satendra.
Satendra He submits that the date and time of incident is 05.06.2010 at about 8:00 AM, Signature Not Verified Signed by: ANAND KUMAR Signing time: 18-04-2026 11:07:26 NEUTRAL CITATION NO. 2026: MPHC-GWL: 12359 4 Criminal Revision No.266 of 2017 whereas the FIR was registered on the very same date at 08:30 AM. He further submits that in the statements recorded under Section 161 of CrPC, eye-witnesses witnesses namely Dhani Ram Dhakad, Lakhan Dhakad and Satendra Dhakad specifically stated that respondent No.2 assaulted the complainant Harendra with a lathi. He submits that despite th thee aforesaid, the prosecution, on the strength of a certificate dated 03.09.2010 stated to have been issued by the Principal, Government Girls' Middle School, Kalmukhi, Khandwa, and a certificate issued by the Supervisor indicating that on the date of incident incid the applicant was on his official duty at Khandwa, removed the name of respondent No.2 from the offence and no charge-sheet charge sheet was filed against him.
He further submits that before the learned trial Court, during the course of trial, evidence of the prose prosecution cution witnesses including the present applicant was recorded and PW-3, PW 3, i.e., the complainant, in his evidence specifically deposed regarding the commission of offence by respondent No.2. He submits that in the teeth of the evidence brought on record against again respondent No.2, not only during investigation but also before the learned trial Court, the plea of respondent No.2 that he was not present at the place of incident on the relevant date could not have been decided without adjudication of evidence during trial. He submits that the learned trial Court erred in rejecting the application filed by the applicant. The learned trial Court ought to have appreciated that on the date of incident, it was a school holiday being Saturday. In such circumstances, the application application ought not to have been rejected. Learned counsel places reliance on the judgment passed by the Coordinate Bench of this Court in the case of Ajay Khemaria and Anr. Vs. State of M.P. &Anr. passed in MCRC No.693/2016, No.693/2016, and the judgment delivered by the Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi, reported in 2005 (1) SCC 568.
Signature Not Verified Signed by: ANAND KUMAR Signing time: 18-04-2026 11:07:26NEUTRAL CITATION NO. 2026: MPHC-GWL: 12359 5 Criminal Revision No.266 of 2017
5. On the other hand, learned counsel appearing for respondent No.2, by referring to the complaint made by the respondent No.2 to the SDOP, Kailaras, District istrict Morena on 09.09.2010, submits that respondent No.2 was falsely implicated in the case and that certificates were issued by the Supervisor as well as the Principal of the school indicating the presence of respondent No.2 in the school at Khandwa on the date of incident.
incident He therefore, requested proper investigation and his exoneration from the crime in question. He submits that in response thereto, the Investigating Officer in the investigation did not find the presence of the applicant at the place oof incident and, therefore, his name was rightly removed. He further submits that once the prosecution has filed the challan after removing the name of respondent No.2 from the offence, unless some additional material or evidence comes on record, respondent No.2 cannot be arrayed as an accused in the matter. In support of his contention, he places reliance on the judgment delivered by the Apex Court in the case of Brijendra Singh & Ors. v. State of Rajasthan, (2017) 7 SCC 706, 706, with special reference to parag paragraph 15 and submits that for arraigning the accused by invoking Section 319 of Cr.P.C., there has to be something more than prima facie material and the said aspect has been appropriately dealt with by the leaned trial Court, while rejecting the applicationn filed by the applicant.
6. Learned counsel appearing for the respondent No.1/State adopts the arguments advanced by the learned counsel appearing for respondent No.2.
7. No other point has been argued by the leaned counsel appearing for the parties.
8. Heard learned counsel for the parties and perused the record.
Signature Not Verified Signed by: ANAND KUMAR Signing time: 18-04-2026 11:07:26NEUTRAL CITATION NO. 2026: MPHC-GWL: 12359 6 Criminal Revision No.266 of 2017
9. The scope, applicability and the power of the Trial Court to arraign an accused not named in the FIR or though named in the FIR but not charge-
charge sheeted has been authoritatively dealt with by the Hon'ble Constitution Bench of the Apex Court in the case of Hardeep Singh vs. Union of India; (2014) 3 SCC 92.. In the aforesaid case, the following questions were referred for consideration by the Constitution Bench as follows: -
"(i) What is the stage at which power under Section 319 CrPC can be exercised?
(ii) Whether the word "evidence" used in Section 319(1) CrPC could only mean evidence tested by cross-examination cross examination or the court can exercise the power under the said provision even even on the basis of the statement made in the examination-in-chief examination of the witness concerned?
(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 the word "evidence" is limited to the evidence recorded during trial?
(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 iiff the court is satisfied that the accused summoned will in all likelihood be convicted?
(v) Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?"
10. The powers of the court to proceed under Section 319 of CrPC even against those persons who are not arraigned as accused cannot be disputed. This provision is meant to achieve the objective that the real culprit should not get away unpunished. Paras 8, 12, 13, and 19 of the judgment in the case of Hardeep Singh (Supra) reads as under:
"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 provisions to ensure a fair and efficacious trial so that the accused 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 the 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 Signature Not Verified Signed by: ANAND KUMAR Signing time: 18-04-2026 11:07:26 NEUTRAL CITATION NO. 2026: MPHC-GWL: 12359 7 Criminal Revision No.266 of 2017 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 at 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.
12.Section Section 319 CrPC springs out of the doctrine judex damnatur cum nocensabsolvitur bsolvitur (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.
CrPC
13.It It is the duty of the court to do justice by punishing the rreal 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 at what stage should the the court exercise its power as contemplated in Section 319 CrPC CrPC?
19.The 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 cour courts ts 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.
agency The desire to avoid trial is so strong that an accused makes efforts at times to get himself lf absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence."
[Emphasis Supplied]
11. In Hardeep Singh's case, case, the Constitution Bench of the Apex Court has also settled the controversy on the issue as to whether the word "evidence" used in Section 319(1) of CrPC has been used in a comprehensive sense and indicates the evidence collected during the investigation, or the word "evidence" is limited to the evidence recorded during trial. Upon considering the same, the Apex Court in Hardeep Singh (supra) held that it is that material, after cognizance is taken by the court, that is available to the Court while making an n enquiry into or trying an offence, which the court can utilize or take into consideration for supporting reasons to summon any Signature Not Verified Signed by: ANAND KUMAR Signing time: 18-04-2026 11:07:26 NEUTRAL CITATION NO. 2026: MPHC-GWL: 12359 8 Criminal Revision No.266 of 2017 person on the basis of evidence adduced before the court. Moreover, the word "evidence" has to be understood in its wider sense sense,, both at the stage of trial and even at the stage of inquiry. It means that the power to proceed against any person after summoning him can be exercised on the basis of any such material as brought forth before it. In the same judgment, it has been also held eld by the Apex Court that the duty and obligation on the court becomes more onerous to invoke such powers consciously on such material after evidence has been led during trial. The Apex Court also clarified that "evidence" under Section 319 of CrPC could even be examination-in-chief examination and the court is not required to wait till such evidence is tested on cross-
cross examination, as 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 not facing trial in the offense.
12. The constitution bench of the Apex Court in the case of Hardeep Singh (supra) accordingly, answered the questions referred in the following manner:
"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 nd
-- Whether the word "evidence" used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigati investigation on or the word "evidence" is limited to the evidence recorded during trial?
Answer 117.1. In Dharam Pal case [Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : AIR 2013 SC 3018] , the Constitution Bench has already held that after committal, cognizance of 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 Signature Not Verified Signed by: ANAND KUMAR Signing time: 18-04-2026 11:07:26 NEUTRAL CITATION NO. 2026: MPHC-GWL: 12359 9 Criminal Revision No.266 of 2017 and the Sessions Judg Judgee need not wait till "evidence" under Section 319 CrPC becomes available for summoning an additional accused.
accused 117.2. Section 319 CrPC, significantly, uses two expressions that have to be taken note of i.e. (1) inquiry (2) trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre 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 cours 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.
charge 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 trial. Question (ii)--Whether Whether the word "evidence"
used in Section 319(1) CrPC could only mean evidence ttested ested by cross cross-
examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination examination-
in-chief chief of the witness concerned?
Answer 117.4. Considering the fact that under Section 319 CrPC a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) CrPC the proceeding against such person is to commence from the stage of taking of cognizance, the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross cross-examination examination.
Question (iv)----What 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 exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted? Answer 117.5. Though under Section 319(4)(b) CrPC the accused subsequently impleaded is to be treated as if he had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 CrPC would be the same as for framing a charge [Ed. : The conclusion of law as stated in para 106, p. 138c-d, 138c d, may be compared:"Thus, we w 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 cross-examination, examination, it requires much stronger evidence than mere probability of his Signature Not Verified Signed by: ANAND KUMAR Signing time: 18-04-2026 11:07:26 NEUTRAL CITATION NO. 2026: MPHC-GWL: 12359 10 Criminal Revision No.266 of 2017 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.].
136f The he 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 different.Question
(v)--Does Does the power under under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charge charge-sheeted sheeted or who have been discharged?
Answer 117.6. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted charge sheeted or a person whowh 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 requiremen requirementt of Sections 300 and 398 CrPC has to be complied with before he can be summoned afresh [Emphasis Supplied] Supplied]"
13. When the facts of the case are examined in the light of law as settled by the Apex Court in the case of Hardeep Singh (supra),, it is seen that the F.I.R. lodged by the applicant specifically names respondent No.2 as an accused and also specifies the role of respondent No.2. The statements of the other prosecution witnesses, namely Satendra Dhakad, Lakhan Dhakad and Dhaniram Dhakad, apart from the complainant, recorded under Section 161 of Cr.P.C., reiterate the same version as stated in the F.I.R..
14. Based upon the representation submitted by the respondent No.2 alleging his false implication in the case, the Investigating Officer has collected the certificate dated 03.09.2010 issued by the Principal, Government Girls' Middle School, Kalmukhi, Khandwa so also, the Signature Not Verified Signed by: ANAND KUMAR Signing time: 18-04-2026 11:07:26 NEUTRAL CITATION NO. 2026: MPHC-GWL: 12359 11 Criminal Revision No.266 of 2017 certificate issued by the Supervisor, inter alia stating that on the date of incident, respondent No.2 was present at the school in Khandwa Khandwa and was also discharging census duties. However, the documents placed on record alongwith the charge sheet do not indicate that whether the said certificates were verified from the attendance register of the school. A detailed reply to the instant revision vision petition filed by the respondent No.2 alongwith the lists of the documents appended thereto, also does not contain any attendance register to substantiate that in fact, on date of the incident, i.e., 05.06.2010, when respondent No.2 was allegedly present in the school at Khandwa. After filing of the charge sheet, the statements of the applicant (PW/3) and PW-4 PW Satendra Dhakad have been recorded before the trial Court on 23.08.2016 and 15.09.2016 respectively, wherein specific allegations against the th respondent No.2 have been made.
15. The learned trial Court, while rejecting the application under Section 319 of Cr.P.C. filed by the respondent No.2 has placed much reliance on the certificate issued by the Principal, Government Girls' Middle School, stating s that on the date of the incidence, respondent No.2 was present at Khandwa. The order impugned passed by the learned trial Court also refers to the attendance register for the month of June 2010; however, a copy of the said registrar is not available on record alongwith the final report/charge-sheet report/charge uploaded on ERP. Even the list of the documents filed by the respondent No.2 does not contain any such attendance register. Only attendance register filed by the respondent No.2 is of 01.05.2010, indicating indicating that on the said date, respondent No.2 attended a training programme for census work. However, the same may be of no assistance to respondent No.2, as the date of the incident is 05.06.2010.Signature Not Verified Signed by: ANAND KUMAR Signing time: 18-04-2026 11:07:26
NEUTRAL CITATION NO. 2026: MPHC-GWL: 12359 12 Criminal Revision No.266 of 2017
16. Much reliance has been placed by the learned counsel appearing appea for the respondent No.2 on the judgment by the Apex Court in the case of Brijendra Singh vs. State of Rajasthan (2017) 7 SCC 706 to contend that while arraying the accused by invoking Section 319 of Cr.P.C., something more than "a prima facie case" is required to be seen by learned trial Court and mechanically such an applicant cannot be allowed. However, in the case in hand, though a plea of alibi is taken by the respondent No.2, in the considered opinion of this Court, the material available on recor record cannot be said to be sufficient on the basis of which, the said plea of the respondent could have been accepted at this stage as the plea of alibi by the respondent No.2 may be required to be proved by cogent evidence during trial particularly, by taking into consideration the subsequent evidence of PW/3 and PW/4, which also has not been taken into consideration by the learned trial court while passing the impugned order14.02.2017 14.02.2017 passed in S.T. No.177/2011.
No.177/
17. In view of the above consideration and the law laid down by the Apex Court in the case of Hardeep Singh (supra), this Court deems it appropriate to interfere in the matter. Accordingly, the impugned order dated 14.02.2017 passed by the learned First Additi Additional onal Sessions Judge, Sabalgarh, District Morena in S.T. No.177/2011 is set aside. The revision petition preferred by the applicant stands partly allowed.. The matter stands remitted to the learned trial Court for deciding the application filed by the applic applicant ant under Section 319 of Cr.P.C. afresh in accordance with law and in terms of the judgment of the Apex Court in the case of Hardeep Singh (supra).
(AMIT SETH) JUDGE AK/-Signature Not Verified Signed by: ANAND KUMAR Signing time: 18-04-2026 11:07:26