Supreme Court of India
OMI @ OMKAR RATHORE & ANR.versusTHE STATE OF MADHYA PRADESH & ANR.
- Citation
- 2025 INSC 27
- Decided
- 2 January 2025
- Disposal
- Dismissed
Holding
A trial court has jurisdiction to summon a person as accused under Section 319 CrPC based on evidence adduced, even if the person was named in the FIR but not charge‑sheeted, and the closure report does not preclude this power.
Summary
The petitioners Omi (Omkar) Rathore and another were named in the FIR for a murder case but the investigating officer filed a closure report exonerating them and they were not included in the charge‑sheet. During trial, the first informant reiterated his FIR testimony implicating the petitioners, leading the trial court to invoke Section 319 of the CrPC and summon them as accused to face trial alongside the other co‑accused. The petitioners challenged this order, arguing that the closure report should preclude their summoning. The Supreme Court held that a trial court may, on the basis of evidence adduced before it, summon any person not already an accused under Section 319, even if that person was named in the FIR but not charge‑sheeted, and that the closure report does not bar such power. The Court reiterated the discretionary, extraordinary nature of the power and the need for strong, cogent evidence, citing earlier precedents. Consequently, the High Court’s order was affirmed and the petition was dismissed.
Issues considered
- Whether a trial court can summon a person as accused under Section 319 CrPC when the person is named in the FIR but not charge‑sheeted and a closure report exonerates him.
- Whether the closure report filed by the investigating officer must be considered before exercising the power under Section 319 CrPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 169, s. 319
- Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307
Subjects
Summoning person as accused for facing the trialExercise of powers u/s.319 CrPCPerson named in FIR but not chargesheetedPower to proceed against other persons appearing to be guilty of offenceClosure reportExamination-in-chiefSummonDefacto-complainant
Judgment
[2025] 1 S.C.R. 266 : 2025 INSC 27
Omi @ Omkar Rathore & Anr.
v.
The State of Madhya Pradesh & Anr.
(Special Leave Petition (Crl.) No. 17781 of 2024)
03 January 2025
[J.B. Pardiwala and R. Mahadevan, JJ.]
Issue for Consideration
Issue arose as regards summoning a person as accused for
facing the trial, when the said person was named in the FIR but
not chargesheeted.
Headnotes†
Code of Criminal Procedure, 1973 – s.319 – Power to proceed
against other persons appearing to be guilty of offence –
On facts, closure report filed by the I.O. exonerating the
petitioners from the alleged offence – In examination-in-
chief, the first informant categorically deposed against the
petitioners and also attributed a specific overt act – On
basis thereof, an application filed u/s.319 to summon the
petitioners as accused for facing the trial along with the other
co-accused – Trial court summoned them in exercise of its
powers u/s.319 to face the trial – High Court upheld the said
the order – Correctness:
Held: High Court committed no error in passing the impugned
order – Person is named in the FIR by the complainant but the
police, after investigation finds no role of that particular person
and files 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, provided
during the trial some evidence surfaces against the proposed
accused – Closure report filed by the police in the instant case is
yet to be looked into by the court concerned, and has not been
accepted till this date – However, the closure report now pales
into insignificance in view of the order passed by the trial court
u/s.319 summoning the petitioners to face the trial – It would have
been in fitness of things if the court concerned would have looked
into the closure report at the earliest and passed an appropriate
[2025] 1 S.C.R. 267
Omi @ Omkar Rathore & Anr. v. The State of Madhya Pradesh & Anr.
order one way or the other after hearing the defacto-complainant.
[Paras 16, 18, 19, 20]
Code of Criminal Procedure, 1973 – s.319 – Power to proceed
against other persons appearing to be guilty of offence –
Principles of law as regards s.319:
Held: Trial court has undoubted jurisdiction to add any person
not being the accused before it to face the trial along with other
accused persons, if the Court is satisfied at any stage of the
proceedings on the evidence adduced that the persons who
have not been arrayed as accused should face the trial – Such
person even though had initially been named in the FIR as an
accused, but not charge sheeted, can also be added to face the
trial – Trial court can take such a step to add such persons as
accused only on the basis of evidence adduced before it and
not on the basis of materials available in the chargesheet or
the case diary, because such materials contained in the charge
sheet or the case diary do not constitute evidence – Power of
the court u/s.319 is not controlled or governed by naming or not
naming of the person concerned in the FIR – Nor the same is
dependent upon submission of the chargesheet by the police
against the person concerned – Phrase 'any person not being
the accused' in s.319 clearly covers any person who is not being
tried already by the Court and the very purpose of enacting
s.319(1) is that even persons who have been dropped by the
police during investigation but against whom evidence showing
their involvement in the offence comes before the criminal court
are included in the said expression – It would not be proper for
the trial court to reject the application for addition of new accused
by considering records of the Investigating Officer – When the
evidence of complainant is found to be worthy of acceptance
then the satisfaction of the IO hardly matters – If satisfaction of
IO is to be treated as determinative then the purpose of s.319
would be frustrated. [Para 21]
Case Law Cited
Hardeep Singh v. State of Punjab [2014] 2 SCR 1 : (2014) 3
SCC 92 : (2014) 2 SCC (Cri) 86 – followed.
Ramesh Chandra Srivastava v. State of U.P. & Another [2021] 6
SCR 219 : (2021) 12 SCC 608; S. Mohammed Ispahani v. Yogendra
Chandak [2017] 10 SCR 29 : (2017) 16 SCC 226 – referred to.
268 [2025] 1 S.C.R.
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List of Acts
Code of Criminal Procedure, 1973; Penal Code, 1860.
List of Keywords
Summoning person as accused for facing the trial; Exercise of
powers u/s.319 CrPC; Person named in FIR but not chargesheeted;
Power to proceed against other persons appearing to be guilty
of offence; Closure report; Examination-in-chief; Summon;
Defacto-complainant.
Case Arising From
EXTRAORDINARY APPELLATE JURISDICTION: Special Leave
Petition (Crl.) No. 17781 of 2024
From the Judgment and Order dated 23.10.2024 of the High court
of Madhya Pradesh at Gwalior in CRR No. 3172 of 2022
Appearances for Parties
Anil Kaushik, Sr. Adv., Siddharth Sijoria, Ms. Swati Setia, Abhishek
Mishra, Mayank Gautam, Anurag Andley, Asha Ram Shivhare,
Advs. for the Petitioners.
Judgment / Order of the Supreme Court
Order
1. This petition arises from the judgment and order passed by the
High Court of Madhya Pradesh at Gwalior dated 23-10-2024 in
Criminal Revision No.3172/2022, by which the High Court rejected
the revision application filed by the petitioners – herein and
thereby affirmed the order passed by the 4th Additional Sessions
Judge, Gwalior in Sessions Trial No.233/2018 summoning the
petitioners – herein to face the trial for the offence of murder in
exercise of powers under Section 319 of the Code of Criminal
Procedure, 1973.
2. The First Information Report bearing Crime No.96/18 came to be
registered with the Padav Police Station, District Gwalior for the
offence punishable under Sections 302, 307, 147, 148 and 149 of
the Indian Penal Code (for, short the “IPC”).
[2025] 1 S.C.R. 269
Omi @ Omkar Rathore & Anr. v. The State of Madhya Pradesh & Anr.
3. The FIR came to be registered in all against seven individuals. The
FIR includes the name of the two petitioners – herein.
4. At the end of the investigation, the Investigating Officer filed a
closure report so far as the two petitioners – herein are concerned.
Against the other accused persons, the charge-sheet was filed for
the offences enumerated above.
5. The Trial Court started recording oral evidence. The original first
informant – PW3 stepped into the box. In his examination-in-chief,
he reiterated what he narrated in the FIR.
6. In his examination-in-chief the PW3 – Raghvendra Tomar, deposed
as under :-
“1. The date of the incident is 20.02.2018. I had gone to
the District Court with Abhishek Tomar for appearing in a
case. While returning after hearing, Pankaj Sikarwar, Veeru
Tomar in an Apache vehicle, Sonu Rathore, Omi Rathore,
Ravindra Sikarwar, Vijay Bhadoriya and Amit Bhadoriya in
a Safari car surrounded us near the LIC office at Tansen
Nagar Road. After surrounding us, Pankaj Sikarwar shot
at us with a pistol which hit Abhishek in his head. The
second shot was fired by Veeru Tomar which hit Abhishek
in the stomach. Then Sonu Rathore, Omi Rathore, Ravindra
Sikarwar, Vijay Bhadoriya, Amit Bhadoriya, all of them
together shot Abhishek with the common intention of
killing him. Then Raman and Sanjay came from behind
on a bike and tried to save Abhishek. All these people
fired at them too. After firing, these people fled from the
place of occurrence.
2. After this we called an ambulance. As soon as the
ambulance arrived, the police also arrived on the spot. As
soon as the police arrived, we brought Abhishek to Sahara
Hospital by an ambulance. In Sahara Hospital, the doctors
declared Abhishek dead. As soon as all his family members
arrived then his body was taken for postmortem. I lodged
a Dehatinalishi, which is Ex.P/10, whereupon A to A part
bears my signature. First Information Report was registered
on the basis of Dehatinalishi. The map panchayatnama
was prepared before me which is Ex.P/11, on which A to
270 [2025] 1 S.C.R.
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A part bears my signature. Police called me to the police
station and questioned me and took my statement. I am
able to identify the accused persons. Among the accused
persons produced through VC of Gwalior jail, I recognize
accused Veeru Tomar, but I do not know the remaining
accused Rahul Rajawat and Anand Rathore. I do not
recognize to accused Banti alias Ajay produced through
VC of Badwani jail. Seeing the accused Prithviraj present
in the court, the witness expressed that I do not recognize
him. I also do not recognize to the absent accused Gaurav.
I do not know to Vikram by name; if he appears in the
Court then I can recognize him.”
7. Thus, it appears that in the examination-in-chief, the original first
informant categorically deposed against the two petitioners – herein
and also attributed a specific overt act.
8. Relying on the oral evidence of PW-3, an application was filed under
Section 319 of the Code to summon the two petitioners as accused
for the purpose of facing the trial along with the other co-accused.
9. The petitioners being dissatisfied with the order passed by the Trial
Court summoning them to face the trial preferred Criminal Revision
Application before the High Court. The High Court rejected the
revision application and thereby affirmed the order passed by the
Trial Court summoning the petitioners in exercise of its powers under
Section 319 of the CrPC.
10. In such circumstances, referred to above, the petitioners are here
before this Court with the present petition.
11. We have heard Mr. Anil Kaushik, the learned Senior counsel appearing
for the petitioners.
12. In Ramesh Chandra Srivastava v. State of U.P. & Another (2021) 12
SCC 608 while this Court has approved of relying upon deposition
which has not suffered cross-examination for the purpose of invoking
Section 319 CrPC, it is relevant to note the standards which have
been fixed by this Court for invoking the power under Section 319
CrPC. The statement of law in this regard is contained in paras 105
and 106 respectively of Hardeep Singh [Hardeep Singh v. State of
Punjab (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] : (SCC p. 138)
[2025] 1 S.C.R. 271
Omi @ Omkar Rathore & Anr. v. The State of Madhya Pradesh & Anr.
“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 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. The test as laid down by the Constitution Bench of this Court for
invoking the powers under Section 319 CrPC inter alia includes the
principle that only when strong and cogent evidence occurs against
a person from the evidence the power under Section 319 CrPC
should be exercised. The power cannot be exercised in a casual
and cavalier manner. The test to be applied, as laid down by this
Court, is one which is more than prima facie which is applied at
the time of framing of charges. It will all depend upon the evidence
which is tendered in a given case as to whether there is a strong
ground within the meaning of para 105 of Hardeep Singh (supra)
referred to above.
272 [2025] 1 S.C.R.
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14. The only argument canvassed before us is that the Trial Court before
summoning the petitioners as accused in exercise of its powers under
Section 319 of the CrPC should have taken into consideration the
closure report filed by the I.O. exonerating the petitioners from the
alleged offence. According to the learned counsel, the Trial Court
as well as the High Court should not have overlooked the report
because the report clearly states that the two petitioners – herein
are in no manner connected with the alleged crime.
15. The closure report is on the record of this case. The relevant portion
of the closure report reads thus:
“Since the offence under section-302,307,147,148,149,120B
IPC & 25/27 Arms Act was found proved against Accused
persons Gajendra alias Gadra S/o Ramjilal Koli (Mahor)
aged 25 years resident of Tundila Police station Malanpur,
Bhind and Pussu alias Pushpendra Bhadoriya son of
Yogendra Singh Bhadoriya aged 26 years, R/o Kashi
Naresh ki Gali, P.S. Kilagate Gwalior, so issuing the
supplementary chargesheet No.86D/2018 on 08.11.2020,
it was produced before the court of respected CJM Sir
Gwalior vide missal No. 1776/18 on 09/11.2020.
That the complainant Raghvendra Singh Tomar has got
written the names of Pankaj Sikarwar, Ravindra Sikarwar,
Sonu Rathore, Omi alias Omkar Rathore, Vijay Bhadoriya,
Amit Bhadoriya in the FIR. During the investigation,
applications were given in the superior office by Poonam
Rathore, Rajendra Singh Bhadoriya, Santosh Singh
Sikarwar who are the family members of aforesaid persons.
Action was taken by including the applications in the
investigation. During the proceedings, CDR and statements
of Smt. Poonam Rathore, Rajendra Singh Bhadoriya,
Santosh Singh Sikarwar, Rakesh alias Banti Mishra, Mukesh
Bhadoriya, Mahesh Singh alias Pintu Shikarwar, Rajabeti
Tomar, Anita Sikarwar, Girija Devi Sikarwar, Dharmendra
Singh Parihar, Vinod Nagar, Shambhu Singh Parihar, Bharat
Singh Parihar, Narayan Chhawda, Dharmendra Gaud,
Anurag alias Cheeku Rine were recorded and records
relating to FIR of named accused persons and complainant
[2025] 1 S.C.R. 273
Omi @ Omkar Rathore & Anr. v. The State of Madhya Pradesh & Anr.
in the case in various police stations were collected. It was
found suspicious the presence of the above named accused
at the scene of incident. Presently sufficient evidence is
not available against them.
Statement of witness Rajender Singh Bhadoriya was
recorded regarding presence of accused Vijay Bhadoria
and Amit Bhadoriya in different place from the incident.
Applicant Rajendra Singh Bhadoriya stated in his
statement that he had three sons, the eldest being Ajay
Bhadoria, second son Sanjay Bhadoria both are mentally
handicapped and third son was Suraj Bhadoria who was
murdered on the door of my house on 21.10.2013 by
Abhishek Tomar, Parimal Tomar, Manish Kori, Deepak
Jat and other here persons whose FIR was lodged under
section 302 in police station Gwalior. Abhishek Tomar
was the main accused, he had shot a bullet to my son
Suraj. Amit Bhadoriya is a witness in a case of my son
Suraj and Vijay Singh Bhadoria is family uncle (Tau) of
Suraj. Amit Bhadoria is with me in the case of my son
Suraj. Names of Amit and Vijay Bhadoria have been got
written to put pressure in the case. On the date of incident
20.02.2018, Amit Bhataria had gone to attend his duty
in Civil Hospital Morar at 7.30 am in the morning and
he stayed there till 3.45 pm in the evening, after that,
he returned to his home Yadav Dharam Kanta where he
stayed till 6:00 O’clock of evening and Vijay Bhadoria
is posted with me and my guard Rajkumar Bhadoria
HC 188 in 13th Battalion is posted in Gwalior. Sanjay
Agarwal, Uma Bauhan, Arvind Singh Kushwah R/o Indore
were present in the wedding of my friend Rakesh Vyas’s
brother-in-law’s daughter in Kanak Garden at 2:00 pm,
in which all of we stayed till 3:30 pm and then went to
Maharajpura Air Force Station to drop Uma aunty. We
stayed there till about 4:00 pm, after leaving to Uma
Chauhan, all of we went to Vijay Tomar’s house behind
Hotel Adityaj, we took tea there and we stayed till 5:00
O’clock in the evening, writing the detailed statement, it
was included with CD, thus presence of accused persons
Amit Bhadoria and Vijay Bhadoria has not been found at
the place of incident.
274 [2025] 1 S.C.R.
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Statements of witnesses Pintu Sikarwar, Smt. Girja Devi,
Raja beti and Anita Sikarwar were recorded in respect of
the presence of accused Pankaj Sikarwar and Ravindra
Sikarwar apart from the incident place. They told that
Pankaj Sikarwar and Ravindra Sikarwar were sleeping at
their home at about 4.30 O’clock in the evening on 20.02.18
and Witness Santosh Singh stated in his statement that
Pankaj Sikarwar and Ravindra Sikarwar were present at
their home at 4.30 O’clock in the evening on 20.02.18.
Thereafter Pankaj Sikarwar and Ravindra Sikarwar reached
at their side (workplace) at Adityapuram and reached
City Centre at 5:00 pm. Raghavendra Tomar, Ravindra
Chauhan and Sanjay Tomar used to have animosity with
Pankaj and Ravindra.
That Pankaj Sikarwar had lodged a case Crime No. 22/17
under Section 307 of IPC against Raman Chauhan, Manoj
Kirar, Parmal Tomar and deceased Abhishek Tomar in
police station Hajira in which Pankaj was shot a bullet in
which chargesheet has been produced before the court.
Manoj Kirar had lodged a cross case relating to same
incident Crime No. 23/17 under section 307 against
Pankaj Sikarwar, Ravindra Shikarwar, Sonu Rathore and
Pankaj’s brother Bhoora alias Omkar Sikarwar. In which
during investigation, due to not getting any evidence for
chargesheet, FR was issued. Raman Chauhan’s brother
Neeraj Chauhan had lodged a case crime No. 275/17
under Section 308,34 of IPC in PS Hajira on 15.06.17
against suspects Pankaj Sikarwar, Ravindra Sikarwar, Sonu
Rathore and Saurabh Rajawat and on 27.10.17, Sandeep
Sikarwar who is brother-in-law of Raman Chauhan had
lodged a case Crime No. 534/10 under section 307 in PS
Gole Ka Mandir against Pankaj Sikarwar, Sonu Rathore
and Ravindra Sikarwar in which involvement of Pankaj
Sikarwar, Sonu Rathore and Ravindra Sikarwar was not
found, and investigation was conducted by the C.S.P.
Maharajpura Sir in his matter, it was disclosed in the
investigation that complainant Sandeep Sikarwar brother
in law of Raman Chauhan had lodged the names due to
animosity. Pankaj had lodged a case bearing Crime No.
[2025] 1 S.C.R. 275
Omi @ Omkar Rathore & Anr. v. The State of Madhya Pradesh & Anr.
22/2017 under Section 307 of IPC against Raghvendra
Tomar’s brother Parmal Tomar, due to which, Raghvedra
Tomar had got the names of Vijay Bhadoria, Amit Bhadoria,
Pankaj Sikarwar, Sonu Rathore, Ravindra Sikarwar and
Omi alias Omkar Rathor lodged for mounting pressure in
the matter.
That the call details of 20.02.18 of Pankaj Sikarwar and
Ravinder Sikarwar were obtained in which at 15.08 pm at
the time of occurrence of crime, tower location of Pankaj
Sikarwar’s mobile no. 9425187361 was in Rameshwari
Nagar Gadaipura Gwalior from 16.15 to 16.45 pm and tower
location of Ravindra Sikarwar’s Mobile No. 9754530830
was obtained in which it was found at Rameshwari Nagar
Gadaipura Gwalior from 14:00 and 16:48 pm, Pankaj
Sikarwar has been murdered in the area of police station
Hazira.
That when the statement of Neeraj Mishra was recorded
then he stated that on 20.02.18, he talked with Ravindra
Sikarwar at about 4.30 p.m. then Ravindra Sikarwar was at
his home at that time of the incident and witness Rakesh
alias Banti Mishra told in his statement that the information
was received at about 4.00 O’clock in the evening on
20.02.18 that Abhishek Tomar has been murdered then I
reached to the house of Pankaj Sikarwar, Pankaj Sikarwar
was sleeping at his home at that time, I got awoke to Pankaj
and told about the happening of incident then I went to
Ravindra’s house with Pankaj, after that Ravindra and
Pankaj went somewhere by a car. Similarly, the presence of
accused persons Pankaj Sikarwar and Ravindra Sikarwar
has not been found at the scene of the incident. That in
connection with the presence of accused Sonu Rathore
separate from the incident, statement of witness Poonam
Rathore wife of accused Sonu Rathore was recorded,
who said in her statement that on 20.02.18, my husband
Sonu Rathore had gone to the shop named Subham
Band Rajakheda in village Padua Pura, Pinahat, district
Agra at 10-30 O’clock in the morning by his Innova car
to get a band for the wedding of my nephew Annu alias
Anupam, who was with the band owner between 4:00 to
276 [2025] 1 S.C.R.
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5:00 pm, the bill of the band is made in the name of my
husband, the statement of the shop owner named Vinod
was recorded, who told in his statement that Sonu Rathore
was present at his shop Subham Band Rajakheda in
Pinahat district Agra between 4:00 to 5:00 o’clock in the
evening on 20.02.18 thus the presence of accused Sonu
Rathore was not found at the spot of incident.
That on 05.01.18, witness Santosh Singh Sikarwar
appeared at the police station who had stated that the
CCTV footage of accused in the case Omi alias Omkar
Rathore in the bank from 4:00 to 5:00 pm on 20.02.18
was preserved in the bank. Thereafter correspondence
was made with Bank and CCTV footage was obtained
in which Omi alias Omkar Rathore is seen present in
the bank from 4:00 to 5:00 pm on 20.02.18, photos of
which are attached in the diary. Similarly, the presence of
Omi alias Omkar Rathore was not found at the place of
incident. The above mentioned facts have come to light
in the investigation conducted by the then investigating
officer Inspector Santosh Singh.
That, after the transfer of Inspector Santosh Singh, further
investigation of the case was conducted by Inspector
Kamlesh Prajapati of Police Station Padav, Inspector
Sanju Kamle Officer Incharge of Police Station padav,
Inspector Anil Bhadauriya officer Incharge of Police Station
Padav, Inspector Prashant Yadav officer Incharge of
Police Station Padav, S.I. Balbir Mawai officer Incharge of
Police Station Padav, Inspector Gyanendra Singh, officer
Incharge, Police Station Padav, later on the investigation
of the case was done by me, Inspector Vivek Ashthana,
Police Station Padav.
Another accused in the case Pankaj Sikarwar has been
murdered earlier in area of police station Hajira. Name
of Pankaj Sikarwar is separated from this case. Death
certificate of Pankaj Sikarwar is included in this regard.
The above named accused persons are 01 - Vijay
Bhadoria son of Faujdar Bhadoria resident of Kala Mahal
Char Shahar ka Naka, 02 - Amit Bhadoria son of Shiv
[2025] 1 S.C.R. 277
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Singh resident of Sadar, 03- Ravindra Sikarwar son of
Rambir Singh Sikarwar, 42 years, resident of Gopal Nagar
Gadaipura, Birlanagar Gwalior 04- Sonu Rathore son of late
Shri Brijendra Singh Rathore, 39 years, resident of Char
Shahar Ka Naka, Ranipur Hajira Gwalior, 05. Omi alias
Omkar Rathore son of late Shri Brajendra Singh Rathore,
age 45 years, resident of Dhar Shahar Naka Ranipur
Hajira Gwalior, have not been found present at scene of
incident. There is complete lack of evidence against the
above accused prersons. At present, no sufficient evidence
is available against them for challan proceedings. After
obtaining permission from the Superintendent of Police,
District Gwalior, Closure report was made against the
above accused persons on 04.03.2022. Which would be
produced before the Honourable Court.
Previously arrested accused persons in the case : Due to
being found the offence proved against i.e. 1. Prithviraj alias
Raj son of Vijay Singh Chauhan aged 20 years resident
of Gudha Gudhi ka Naka Kampu Gwalior, 2. Banty alias
Ajay Bhadoriya son of Shyam Singh Bhadoriya aged 23
years, Resident of Shitla Mata ke bagal ke Kanchmill
Hajira Gwalior 3. Anand alias Annu Rathore son of Naresh
Rathore, aged 23 years, Resident Hanuman Chauraha
opposite Gupta Coal Depot, Laxmiganj Gwalior 4. Virendra
alias Veeru Tomar son of Bahadur Singh Tomar, age 37
years, resident of Indranagar Char Shahar ka Naka Hajira
Gwalior 5. Gaurav Rana s/o Manoj Rana, aged 21 years,
resident of village Udaipur Post Bijoli, Police Station Bijol,
District Gwalior 6. Rahul Rajawat son of Ravindra Rajawat,
aged 26 years, resident of New Colony No.-01, Kanchmill,
Hajira Gwalior 7. Vikram Singh Rana son of Diwan Singh
Rana, age 27 years, resident of village Bijoli, Gwalior 8.
Surendra alias Meenu Rathore son of Pan Singh Rathore,
age 25 years, resident of Indranagar Vyas Wali Gali, Char
Shahar ka Naka, Hajira Gwalior, 9. Gajendra alias Gadra
Koli alias Mahor son of Ramji Lal Koli, aged 25 years,
resident of village Tundila, Police Station Malanpur, District
Bhind, 10. Pushpendra alias Pussu son of Gopendra Singh
Bhadoriya, age 26 years, resident of Kashi Naresh Ki Gali
278 [2025] 1 S.C.R.
Digital Supreme Court Reports
Kila gate Gwalior the crime was proved against Kilagate
Gwalior, a challan has already issued and produced before
the honourable court. Therefore the report is respectfully
sent to your goodself.
Sd/- 16.03.2022
Officer in charge Police
Station Padav, District
Gwalior.”
16. We are not impressed with the submission as noted in para 14 above
canvassed by the learned Senior counsel for the simple reason that
a person is named in the FIR by the complainant but the police,
after investigation finds no role of that particular person and files
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.
17. In the aforesaid context, we may refer to a decision of this Court in
the case of S. Mohammed Ispahani v. Yogendra Chandak (2017) 16
SCC 226 wherein the Court observed in Para 35 as under:-
“It needs to be highlighted that when a person is named in
the FIR by the complainant, but police, after investigation,
finds no role of that 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. At
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.”
18. Thus, 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 the FIR but not
[2025] 1 S.C.R. 279
Omi @ Omkar Rathore & Anr. v. The State of Madhya Pradesh & Anr.
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 the FIR but not implicated in the charge-sheet
can be summoned to face the trial provided during the trial some
evidence surfaces against the proposed accused.
19. It is relevant to note at this stage that the closure report filed by
the police in the case on hand is yet to be looked into by the court
concerned. The same has not been accepted till this date. However,
the closure report now pales into insignificance in view of the order
passed by the trial court under Section 319 of the Cr.P.C. summoning
the petitioners herein to force the trial. We may only add that it would
have been in fitness of things if the Court concerned would have
looked into the closure report at the earliest & passed an appropriate
order one way or the other after hearing the defacto-complainant. The
Court should not keep the closure report pending for consideration
for a long time. Such report should be looked into promptly.
20. In the overall view of the matter, we are convinced that the High
Court committed no error not to speak of any error of law in passing
the impugned order.
21. The principles of law as regards Section 319 of the CrPC may be
summarised as under:
a. On a careful reading of Section 319 of the CrPC as well as the
aforesaid two decisions, it becomes clear that the trial court has
undoubted jurisdiction to add any person not being the accused
before it to face the trial along with other accused persons, if
the Court is satisfied at any stage of the proceedings on the
evidence adduced that the persons who have not been arrayed
as accused should face the trial. It is further evident that such
person even though had initially been named in the F.I.R. as
an accused, but not charge sheeted, can also be added to
face the trial.
b. The trial court can take such a step to add such persons as
accused only on the basis of evidence adduced before it and
not on the basis of materials available in the charge-sheet or
the case diary, because such materials contained in the charge
sheet or the case diary do not constitute evidence.
280 [2025] 1 S.C.R.
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c. The power of the court under Section 319 of the CrPC is
not controlled or governed by naming or not naming of the
person concerned in the FIR. Nor the same is dependent upon
submission of the chargesheet by the police against the person
concerned. As regards the contention that the phrase ‘any
person not being the accused’ occurred in Section 319 excludes
from its operation an accused who has been released by the
police under Section 169 of the Code and has been shown in
column No. 2 of the charge sheet, the contention has merely
to be stated to be rejected. The said expression clearly covers
any person who is not being tried already by the Court and the
very purpose of enacting such a provision like Section 319(1)
clearly shows that even persons who have been dropped by the
police during investigation but against whom evidence showing
their involvement in the offence comes before the Criminal Court
are included in the said expression.
c. It would not be proper for the trial court to reject the application
for addition of new accused by considering records of the
Investigating Officer. When the evidence of complainant is
found to be worthy of acceptance then the satisfaction of the
Investigating Officer hardly matters. If satisfaction of Investigating
Officer is to be treated as determinative then the purpose of
Section 319 would be frustrated.
22. In the result, this petition fails and is hereby dismissed.
23. It is needless to clarify that it shall be open for the petitioners to
raise all contentions available to them in law before the Trial Court
including placing reliance on the closure report whatever its worth.
24. Pending applications, if any, also stand disposed of.
Result of the case: Petition dismissed.
†
Headnotes prepared by: Nidhi Jain
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