ORDER :

1. Delay condoned.

Leave granted.

Heard learned Counsel for the parties.

This appeal is preferred against the judgment of the Allahabad High Court passed in Criminal Revision. The revision was preferred by the appellant against the order dated 25th January, 2012 passed by the Additional Sessions Judge,

Saharanpur under Section 319 of the Criminal Procedure Code summoning the appellant to face trial for an offence punishable under Sections 304 and 115 of the Indian Penal Code.

2. According to the appellant, he has been summoned to face trial only on an accusation made by respondent No.2 Shameem that he is guilty of the offence in view of dying declaration of the deceased Naseem where he stated as follows:

"My wife Nasreen is talking with a boy Vikas s/o Ramesh of Chamar caste in mobile. When I snatched mobile from her, she throw kerosene oil lamp over me, lamp is lightening due to which my clothes catches fire. This incident had happened near about One' clock at night. My wife is in relation with him."

3. The appellant contended that though the police exonerated him during investigation, as there was no evidence showing his complicity in the commission of a crime. Nasreen against whom charge was levied, moved an application under Section 319 of the Criminal Procedure Code which was allowed by the Additional Sessions Judge who did not consider whether there exists a possibility that the accused so summoned, in all likelihood, would be convicted or not. According to the appellant, he could not have been so summoned since he was not present at the place of the incident nor was there any element of instigation carved out from the FIR. Against the initial order of Sessions Judge dated 15th October, 2011 the appellant moved the High Court in Criminal Revision. The High Court allowed the Criminal Revision and set aside the impugned order and directed the Sessions Judge to decide the application afresh under Section 319 in accordance with the directions of this Court in the cases of Mohd Shaft v. Mohd. Rafiq and Anr., (2007) 2 CCR 255 (SC) : (2007) 4 SLT 506 : (2007) 11 DLT (Cri.) 370 (SC) : 2007 (58) ACC 254 and Sarabjit Singh & Anr. v. State of Punjab & Am., (2009) 3 CCR 143 (SC) : (2009) 5 SLT 42 : (2010) 2 SCC (Cri) 141. However learned Additional Sessions Judge again brushed aside the appellant's submissions and summoned the appellant to face the trial for the offence under Sections 304 and 115 by a loconic order dated 25th January, 2012. The Second Revision before the Allahabad High Court was dismissed. Hence this appeal by special leave. Section 319 of the Criminal Procedure Code reads as follows:

"Power to proceed against other persons appearing to be 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 witnesses re-heard;

(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."

4. The section undoubtedly empowers the Court, in the course of an inquiry or trial of an offence to proceed against a person for an offence from the evidence on record. The power can therefore be exercised from the