While giving evidence as PW.1 in C.C.No.100/1999 on the file of Judicial first Class Magistrate, Court Ponnai, one Aboobacker deposed in examination in chief that the motor bike bearing Engine No.325089 and chassis No.5B 325089 (valued Rs.30,000/-) was stolen after 8 P.M. on 23-1-1999 and when he went on 10th February, 1999 to Amala Hospital, Thrissur for seeing a patient, a close relative of the patient told him that he saw one Mubarack, who has been arraigned as an accused after trial started by the learned Magistrate under Section 319 Cr.P.C. on allowing an application filed by the Assistant Public Prosecutor has been undergoing treatment at that hospital for the injury sustained by him in a motor accident. PW.1 visited Mubarack, who was undergoing treatment as an indoor patient and the said Mubarack told him that the injuries were sustained by him while he was riding a motorcycle and that he sustained injuries as a result of hitting of motor cycle on a bus. When PW.1 asked Mubarack whether any motorcycle was owned by him, he made a clean breast saying that the motorcycle owned by him, he made a clean breast saying that the motorcycle belonging to the brother of PW.1 was stolen jointly by Mubarack, Muhammed Shaji and Sainudheen. PW.1 deposed that guilty conscience made Mubarack to make the confession. It is also has evidence that Mubarack confessed that they have changed the number, silencer and handle to conceal the identity of the motorcycle. PW.1 asserted that he had informed about the making of confession by Mubarack to the investigation officer and it is his evidence that the investigation officer asked him not to disclose the fact to anyone and promised to make investigation.

2. Before examination in chief of PW.1 was completed, the Assistant Public Prosecutor who conducted the prosecution filed an application under Section 319 Cr.P.C. for arraigning Mubarack as an accused and that application was allowed by the learned Magistrate arraigning petitioner as an accused.

3. Learned counsel for the petitioner submitted that the power under Section 319 Cr.P.C. is an extraordinary power and should be used very sparingly. Counsel relied on the decision of the Supreme Court in Michael Machado v. C.B.I. (2000 SCC (Crl) 609) to contend that no material is available to arraign the petitioner as an accused invoking the powers under Section 319 Cr.P.C. There cannot he any quarrel with the proposition that the power under Section 319 Cr.P.C. has to be exercised sparingly. Learned counsel also contended before me that extrajudicial confession is a weak I lice of evidence and the trial court ought not have relied on that weak piece of evidence to exercise its powers under Section 319 Cr.P.C. counsel also submitted that there is no reliable evidence to prove that the confession made was voluntary and true and the facts admitted in the confessional statement are true.

4. Section 319 of the Code of Criminal Procedure, 1973 reads thus:

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 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 Ss. (1) then -

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such per