The power to summon an additional accused under Section 319 CrPC should be used sparingly and only when there is compelling evidence to make out a prima facie case against the person sought to be impleaded.

S.R. Bhargava

1. This revision is directed against order passed by Sessions Judge. Nainital in Sessions Trial No 135 of 1989, under Sections 8/18 and 8/20 of Nandrocotic Drugs and Psychotropic Substances Act, summoning the revisionist under Section 319 (2) for being tried together with Daya Ram.

2. For the purposes of this revision it may be stated that in 1987-88 revisionist Ratan Prakash was contractor of Bhang. On 3rd February, 1988 at about 3 p. m. 5.100 Kg opium and 17 kg. charas were recovered from residential house of Ratan Prakash who was not present at the house. His servant was present at the time of recovery and was arrested. On a complaint against Ratan Prakash and Daya Ram for offences under Sections 8/18 and 8/.2u of the aforesaid Act both of them were committed to sessions. On 12th July, 1989 the then sessions Judge, Nainital after perusing the record and documents and hearing the submissions of the counsel of the parties found that in statements under Section 161 CrPC the public witnesses of recovery not only admitted their presence at the time of recovery but said that the recovery was made from the premises in occupation of Daya Ram at his pointing out from the corner of a room in occupation of said Daya Ram himself Even Karan Singh, a member of the raiding party made similar statement under Section 161 CrPC. The then Sessions Judge held that the recovery was affected from the premises in occupation of accused Daya Ram and at his pointing out. Even after recovery he claimed the recovered articles. The learned Sessions Judge further held that the circumstances of the case showed that the contraband articles were found in exclusive possession of Daya Ram. The learned Sessions Judge even pointed out the evidence collected during investigation that Daya Ram was servant of Ratan Prakash. The learned Sessions Judge discharge Ratan Prakash under Section 227 CrPC charges were framed against Daya Ram. During evidence in the testimony of Pranpati Singh. PW 3. it emerged that Daya Ram is a poor man living in a hut at Thakurdwara in district Moradabad and during service with Ratan Prakash he used to travel from Thakurdwara to Kashimpur every day. An application for summoning Ratan Prakash under Section 319 (2) CrPC was moved and it was asserted that the recovery was made from the house of Ratan Prakash and for a poor man like Daya Ram it was not possible to possess such a huge quantity of opium and charas. The learned Sessions Judge went through evidence and came to the conclusion that it appears that Ratan Prakash also committed offence. Hence he passed the impugned order.

Sections 227 and 228 CrPC provide the stage for the commencement of trial. Trial in a Criminal case commences from framing of charge or charges. Section 228 lays down that if on consideration of the record of the case and documents submitted therewith and after hearing the submissions of the accused and the prosecution the Judge is of the opinion that there is ground for presuming that the accused has committed an offence exclusively triably by court of sessions he should frame charge or charges against the accused in writing. Section 227 provides the converse. It lays down that when after consideration of the record of the case and documents submitted therewith and after hearing the submission of the accused and the prosecution, the Judge considers that there is not sufficient ground for proceeding against the accused, he should discharge the accused and record reasons for the same. It is evident that ground for presuming that accused has committed an offence means prima facie case that the accused has committed an offence. Absence of ground for proceeding against the accused, therefore, means absence of a prima facie case that accused has committed offence. It is obvious that the earlier Sessions Judge found that there was absence of prima facie case for which he gave reasons and discharged the revisionist.

3. Before consideration of Section