The main legal point established in the judgment is the discretionary power of the court under Section 319 of the Code to add any person not being an accused before it and try him along with the other accused based on evidence produced during the trial.

H.R. Panwar, J.-By the instant criminal revision petition under Section 397/401, Code of Criminal Procedure, 1973 (for short ‘the Code’ hereinafter) the petitioner-complainant has challenged the order dated 08.04.2004 passed by the Additional Sessions Judge (Fast Track), No. 2, Bikaner (for short ‘the trial Court’ hereinafter) in Sessions Case No. 39/2003 whereby the trial Court dismissed the application filed by the petitioner through Additional Public Prosecutor under Section 319 of the Code. Aggrieved by the order impugned, the petitioner has filed the instant revision petition.

2. The facts and circumstances giving rise to the present revision petition are that the petitioner complainant lodged a First Information Report at Police Station, Gajner, District Bikaner on 01.09.2002 inter alia alleging therein that he alongwith his uncle Durgaram the deceased, Bakhtaram, cousin Laxmanram and Pritamsingh was working in the agriculture field. They went to the field in the jeep of deceased Durgaram. While they were working in the field on 31.08.2002, at about 4.30-5.00 P.M., Naraindan, Shiv Dan, Kushaldan all sons of Rughnathdan, Naraindan, Bhagwandan, Shabhudan sons of Mohandan, Harudan S/o Vijaydan, Vasudev, all by caste Charan came to the filed of the complainant in a tractor having arms in their hands. Naraindan and Shivdan S/o Raghnathdan were having Barchis in their hands and others had Barchi, Bhala and Lathi in their hands. Naraindan S/o Rughnathdan told that today is chance to kill the complainant and others. All the accused persons named hereinabove surrounded the complainant and others in the field and attacked them. Naraindan S/o Rughnathdan inflicted Barchi blow on the head of Durgaram the deceased due to which he fell down and all the accused persons named in the FIR started beating the deceased. The complainant and other tried to rescue, they were also beaten. Shivdan gave a Barchi blow on his hand, due to which he fell down. Thereafter, others gave beating. On hearing hue and cry, neighbour Mularam came and took them to PBM Hospital, Bikaner, where Durgaram succumbed to injuries. On this report, the police registered crime report No. 35 dated 01.09.2002 for the offences under Sections 302, 307, 447, 147, 148 and 149, IPC against eight persons including Respondents No.2, 3 and 4. The investigation ensued and after usual investigation, police filed challan against Naraindan, Shivdan, Kushaldan Sons of Rughnathdan, Bhagwandan S/o Mohandan and Harudan S/o Vijaydan for the offences noticed above. However, Respondents No. 2, 3 and 4 were left out and were not challaned by the police on the ground of alibi. The trial Court framed charges for the offences noticed above against accused persons who were challaned by the police and proceeded with the trial of the case.

3. The Prosecution examined PW-1 Om Prakash the petitioner, on 02.09.2003, PW-2 Mularam on 03.09.2003 and PW-3 Preetam Singh on 05.09.2003. After the statement of these witnesses, an application under Section 319 of the Code was filed by the petitioner through Additional Public Prosecutor conducting the session case requesting therein that from the evidence produced before the Court during trial prima facie it establishes that the Respondents No.2, 3 and 4 who were not being accused in the case have also committed the offences noticed above, for which they be tried together with the accused facing trial on taking cognizance against them. By the order impugned dated 08.04.2004, the trial Court dismissed the said application. Aggrieved by the order impugned, the petitioner has filed the instant revision petition.

4. I have heard learned Counsel for the petitioner as well as the public prosecutor and the Counsel appearing for the contesting Respondents No.2 to 4. Perused the order impugned and challan papers as well as the statement of witnesses recorded by the trial Court PW-1 Om Prakash, PW-2 Mularam and PW-3 Preetam Singh.

5. It is contended by the lea