DAMACIANO FERNANDESversusGIRDHARLAL GANGANI AND ANR

2026:BHC-GOA:1932
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                         IN THE HIGH COURT OF BOMBAY AT GOA
                         CRIMINAL WRIT PETITION NO.78 OF 2026

                                    DAMACIANO FERNANDES
                                             VERSUS
                             GIRDHARLAL GANGANI & ANOTHER
                                                  …
               Mr. Nitin Sardessai, Senior Advocate with Mr. L. Raghunandan, Mr. S.
               Vales and Mr. Siddhant Sardessai, Advocates for Petitioner
               Mr. S. R. Rivankar, Senior Advocate with Mr. Rama Rivankar,
               Advocate for Respondent No.1.
                                                 …
                                          CORAM : S. G. CHAPALGAONKAR, J.
                                          DATED : 22nd SEPTEMBER, 2026.
               FINAL ORDER:-

               1.    The petitioner impugns order dated 08.11.2023 passed by

               Additional Sessions Judge-1, North Goa in Criminal Revision

               Application No.3/2023.


               2.    The petitioner filed private criminal complaint for cheating before

               Judicial Magistrate First Class at Mapusa, particularly for offences

               punishable under Sections 415, 418, 420 r/w Section 120-B and 34 of

               Indian Penal Code. The learned Magistrate recorded statement of Shri.

               Joseph Fernandes/complainant no.2 in verification. The complainant

               then summoned Mr. Girdharlal Gangani as their witness. Pursuance to

               summon, he appeared before Court. While his examination was going

               on, he filed application for his discharge as witness in proceeding. The

               learned Magistrate rejected application vide order dated 18.03.2016.


               3.    Mr. Girdharlal Gangani filed Criminal Revision Application

               No.60/2016 before Sessions Judge at Mapusa, who dismissed Revision
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Application observing that allegations in complaint shows that accused

as well as witness was dodging complainant. An allegation is made

against witness that he had been doing so in connivance with accused

fraudulently and dishonestly to cheat complainant. As such, witness

should have been made as accused.


4.    It appears that, in light of aforesaid observations, petitioner filed

application dated 21.07.2018 before Judicial Magistrate First Class at

Mapusa under Section 319 of Cr.P.C. for proceeding against Mr.

Girdharlal Gangani and Mr. Andrew Rodrigues alleging them to have

committed criminal acts alongwith accused no.1. Thereupon, learned

Magistrate passed order dated 03.03.2020 directing to proceed against

Mr. Girdharlal Gangani and Mr. Andrew Rodrigues as accused in

addition to accused no.1. Thereafter, Ld. Trial Court directed the

Complainant to take steps as regard to amend cause title to issue

summons to newly added accused, upon which Summons were issued to

newly added accused Mr. Girdharlal Gangani and Mr. Andrew

Rodrigues on 20.10.2022. The petitioner has also filed present Writ

Petition raising challenge to order dated 03.03.2020 passed by Judicial

Magistrate First Class at Mapusa.


5.    Respondent No. 1 being aggrieved by order dated 03.03.2023

made an application before the Ld. Addl. Sessions Judge bearing

Criminal Revision Application No. 3/2023 which was allowed by order
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dated 08.11.2023 thereby quashing and setting aside the order dated

03.03.2023 and holding that there was no material for invoking the

powers under Section 319 of Cr.P.C. and adding Respondent no. 1 as an

accused.         The petitioner seeks to take exception to order dated

08.11.2023, thereby exonerating respondent no.1.


6.       The learned Senior Advocates appearing for both parties fairly

concede that observations of learned Sessions Judge in impugned order

and further order passed by learned Judicial Magistrate First Class,

thereby directing to proceed against Mr. Girdharlal Gangani and Mr.

Andrew Rodrigues as accused at preliminary stage of private complaint

was contrary to law laid down by Constitutional Bench of Supreme

Court in case of Hardeep Singh Vs. State of Punjab and Ors. 1, wherein

it is observed that word ‘evidence’ means only such evidence as is made

before court, in relation to statements, and as produced before court, in

relation to documents. It is only such evidence that can be taken into

account by Magistrate or Court to decide whether power under Section

319 Cr.P.C. is to be exercised and not on the basis of material collected

during investigation. While considering application of Section 319 of

Cr.P.C. in case of complaint cases it has been observed as under:

         “51. There is yet another set of provisions which form part of
         inquiry relevant for the purposes of Section 319 Cr.P.C. i.e.
         provisions of Sections 200, 201, 202, etc. Cr.P.C. applicable
         in the case of Complaint Cases. As has been discussed herein,
         evidence means evidence adduced before the court.
         Complaint Cases is a distinct category of criminal trial where
1    2014 (3) SCC 92.
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     some sort of evidence in the strict legal sense of Section 3 of
     the Evidence Act 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 Cr.P.C.
     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 for the
     purpose of Section 319 Cr.P.C., if so required.
     52. 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
     Cr.P.C. acts as an empowering provision enabling the
     court/Magistrate to initiate proceedings against such other
     persons. The purpose of Section 319 Cr.P.C. 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 Cr.P.C.
     at the stage of trial in a complaint case when the evidence of
     the complainant as well as his witnesses is being recorded.

     53. Thus, the application of the provisions of Section 319
     Cr.P.C., at the stage of inquiry is to be understood in its
     correct perspective. The power under Section 319 Cr.P.C. can
     be exercised only on the basis of the evidence adduced before
     the court during a trial. So far as its application during the
     course of inquiry is concerned, it remains limited as referred
     to hereinabove, adding a person as an accused, whose name
     has been mentioned in Column 2 of the charge sheet or any
     other person who might be an accomplice.”

7.   In light of aforesaid exposition of law, learned Senior Advocates

appearing for parties concedes that addition of accused at pre-

cognizance stage in private complaint in exercise of Section 319 of

Cr.P.C is not permissible. Eventually learned Magistrate was not
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justified in issuing summons to Respondent no. 1 treating him to be

accused. Admittedly complaint before him is at pre cognizance stage.

There is no material on record that can lay foundation for action under

Section 319 of Cr.P.C. Hence, following order:

                                   ORDER

a.       Criminal Writ Petition is allowed.


b.       The impugned order dated 08.11.2023 passed by Additional

Sessions Judge, North Goa in Criminal Revision Application No.3/2023

as well as order dated 03.03.2020 passed by Judicial Magistrate First

Class at Mapusa in CC No.218/14/E are quashed and set aside keeping

all contentions open to be considered at post cognizance stage of

proceeding based on evidence of complainant and his witness.



                                          (S. G. CHAPALGAONKAR)
                                                   JUDGE
Devendra/September-2026