Point of Law: It is a settled principle of law that power under Section 319 of Cr.P.C. has to be exercised very sparingly, because it is an extraordinary power given to court and cannot be exercised in a routine manner. The said power is required to be exercised in appropriate cases wherever court feels that real culprits have been left out in case. An order under Section 319 of Cr.P.C. is required to be passed only after judicious application of mind to material available on record and resultant order should be a well reasoned order.

ORDER :

1. The petitioners herein have challenged the order dated 19.01.2019 passed by the court of the Senior Civil Judge and JMFC, Bidar in C.C. No. 253/2012, wherein the learned Magistrate has allowed the application filed under Section 319 of Cr.P.C. by the prosecution to add the petitioners as accused in the case and issued summons to the petitioners herein.

2. Brief facts of the case are that on the basis of a compliant of one Siddramappa Nagashetty Patil dated 23.03.2012 an FIR was registered in Crime No. 58/2012 for the offences punishable under Sections 143, 147, 323, 504 and 506 read Section 149 of IPC against eight persons including the petitioners herein. The police after investigation in the case have filed charge sheet against five accused persons and the name of the petitioners herein were left out at the time of filing the charge sheet. The charge sheet was filed for the offences punishable under Sections 143, 147, 323, 504 and 506 read with Section 149 of IPC. After filing of charge sheet, the case is now pending before the court of Senior Civil Judge and JMFC, Bidar in C.C. No. 253/2012.

3. During the course of trial in the said case, the complainant Siddramappa was examined as PW-1 on 02.07.2018. In his examination-in-chief he has stated that the petitioners have also assaulted him along with other accused and caused injuries. Even before examination in chief of PW-1 was completed the learned APP has sought adjournment on the ground that he is required to file an application under Section 319 of Cr.P.C. and accordingly further examination-in-chief of complainant PW-1 was adjourned and there afterwards on the application filed by the learned APP, the learned Magistrate has passed the impugned order allowing the said application and adding the petitioners as accused in the case and accordingly issued summons to them.

4. Learned counsel for the petitioners submits that the impugned order passed by the learned Magistrate is highly illegal and same is without application of mind. He submits that even before examination-in-chief is completed the learned APP has filed this application and based on a stray statement made by PW-1 the learned Magistrate has passed the impugned order which has got serious consequences and therefore he submits that impugned order is bad in law.

5. He also submits that the order has been passed after about 7 years from the date of incident and therefore there is a bar under Section 468 of Cr.P.C. for taking cognizance of the alleged offences and even under the said ground the order passed is bad in law. He submits that the impugned order has been passed without affording an opportunity to the petitioners and therefore the same is in violation of principle of natural justice and accordingly he prays to allow the petition.

6. Per contra, learned High Court Government Pleader and the learned counsel appearing for respondent No. 2-complainant seriously oppose the petition stating that the learned Magistrate was justified in passing the impugned order on the basis of the available evidence on record. They submit that the accused is not required to be heard at this stage and it is only after the subjective satisfaction of the learned Magistrate, the impugned order has been passed. They also submit that petitioners have been left out in the charge sheet in spite of there being sufficient material against them to connect them to the crime and therefore justice is now done by arraying them as accused. Therefore, they have prayed to reject the petition.

7. Section 319 of Cr.P.C. reads as follows:

“319. 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 p