The power under Section 319 of the CrPC is discretionary and should be exercised sparingly and only in cases where the circumstances of the case so warrant.

J.B. Pardiwala, J.

1. By this writ application under Article 227 of the Constitution of India, the petitioner - original complainant calls in question the legality and validity of the order dated 2nd December, 2013 passed by the 2nd Additional Sessions Judge, Himmatnagar Camp at Idar, below Exhibit: 12 in the Sessions Case No. 43 of 2012, by which, the learned Judge rejected the application filed by the Public Prosecutor under Section 319 of the Code of Criminal Procedure, 1973 to implead the persons named in the application as accused.

2. The facts of this case may be summarized as under:

2.1. On 17th December, 2011, the petitioner herein lodged a First Information Report being I-C.R. No. 0075 of 2011 at Vijaynagar Police Station, District: Sabarkantha for the offence punishable under Sections 302 read with 34 of the Indian Penal Code. In the F.I.R., he named three persons (i) Indrajit Somaji Ninama, (ii) Chirag Manubhai Jadhav, and (iii) Bharatbhai Sukhabhai Rabari, as the suspects. In the F.I.R., the petitioner has not attributed any particular overact to the three suspects named. In fact, he could not have because he is not an eyewitness to the incident in question. The entire case hinges on the circumstantial evidence.

2.2. It appears that at the end of the investigation, chargesheet was filed wherein three persons sought to be impleaded as accused under Section 319 of the Code were not made accused. No chargesheet was filed against those three persons. The trial commenced. The petitioner stepped into the box. In his Examination-in-Chief, he deposed as under:

"I am doing labour work. The deceased Mohitbhai is my nephew. The incident in question occurred on 17th December, 2011. On that day, I was at my home and left for work at about 8 O'clock in the morning. When I left for work, I saw five boys standing behind a Shopping Centre situated at Sector - 3. Those were Bharat Rabari, Chirag Jadhav, Indrajit Ninama, my nephew Mohit Parmar and Suraj Rathod @ Bholu. On seeing Mohit, I stopped and inquired with him as to where he was going. He replied that he was going to Bhiloda with his friends to attend a marriage. Thereafter I did not say anything and left for my work. I returned home at about 6 to 7 O'clock in the evening. While at home, I learnt at about 8.30 in the night that my nephew Mohit, who had gone to Bhiloda to attend the marriage, had a fight and in the said fight, he injured himself and had been admitted at the Bhiloda Civil Hospital. I also learnt that his condition was serious. On receipt of such information, I called for Dilipbhai, who happens to be the son of my Motabhai (Kaka), and Manibhai Bababhai. I also called Mekwanbhai. I reached the Bhiloda Civil Hospital along with all the three named above. On reaching Bhiloda Civil Hospital, I saw my nephew on a stretcher lying in a dead condition. He had sustained injuries on his thigh and was bleeding profusely. At that time, one more dead body was lying in the dressing room. The second person had also sustained injuries in his leg and was bleeding profusely. The dead body was of Suraj. When I came out of the dressing room, 4 boys were sitting over there. They were Bharat Rabari, Chirag Jadhav, Indrajit Ninama and one unidentified person. On the trouser of the unidentified person, there were bloodstains. I inquired with Indrajit as to who was the unidentified person. Indrajit did not give any reply. I once again inquired and at that time, he replied that he was one of our community members and was a good friend. I thereafter inquired with Indrajit as to what had happened. Indrajit did not give reply. Therefore I inquired with Bharat Rabari and Chirag Jadhav. Bharat Rabari took me in one corner and informed that it is the boy sitting next to Indrajit and who is the friend of Indrajit had assaulted both Mohit and Suraj. Thereafter I once again met Indrajit and asked him for whose the marriage they had gone to Bhiloda. He in turn informed that there was no marria