Shri Kant Tripathi, J.:-

1. Heard the learned counsel for the petitioners and the learned AGA for the respondent no.1 and perused the impugned judgment and order.

2. With the consent of the learned counsel for the parties, this petition is being disposed of finally at the stage of admission.

3. It appears that the petitioners Rajol, Chote Bhaiya and Ajai have been summoned under section 319 CrPC to face trial in regard to the offences under sections 302/34 IPC in S.T.No. 166/2008 State vs. Vijay (Crime No. 1234/2007), police station Bangarmau, district Unnao, vide the order dated 15.5.2010 passed by the Additional Sessions Judge/Special Judge (E.C.Act) Unnao.

4. The petitioners were named in the FIR but their names were left in the charge sheet. During the trial, PW-1 Ramu @ Anil Kumar was examined, who has deposed in regard to complicity of the petitioners alongwith the charge-sheeted accused. The learned Additional Sessions Judge, placing reliance on the statement of the said witness (PW-1), has passed the impugned order summoning the petitioners.

5. The learned counsel for the petitioners submitted that the learned Additional Sessions Judge has not recorded any satisfaction that on the basis of the evidence adduced, there was a possibility of conviction of the petitioners, therefore, the summoning order is bad. It was also submitted that the investigation against the petitioners was already pending on the date of the impugned order, therefore, the provisions of section 319 CrPC ought not to have been invoked.

6. The learned counsel for the petitioners further submitted that the Additional Sessions Judge has passed the summoning order only on the basis of the statement of the aforesaid witness without examining other witnesses and getting them cross-examined.

7. In Joginder Singh v. State of Punjab (1979) 1 SCC 345), the Apex Court while dealing with the ambit and scope of section 319 CrPC, held that the court has power to add any person as accused if there is sufficient evidence indicating his involvement in the offence.

8. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi (1983 (1) SCC 1) the Apex Court after referring to the decision of Joginder Singh's case (supra) observed that the power under section 319 CrPC is an extra ordinary power, which should be used very sparingly only if compelling reasons exists for taking cognizance against the other person against whom some action has not been taken.

9. In the case of Rakesh & another vs. State of Hariyana, 2001 SCC (Crl) 1090, the Apex Court extended the meaning of the term 'evidence' used in section 319 CrPC to include not only the evidence given during the inquiry or trial but also the evidence collected during the investigation and forming part of the case diary. The Apex Court overruled the submission that the term 'evidence' used in section 319 CrPC would mean "evidence which is tested by cross- examination' by holding that the question of testing the evidence by cross-examination would arise only after addition of the accused.

10. But in the case of Mohd. Shafi v. Mohd. Rafiq & Anr., (2007) 4 SCR 1023, the Apex Court expressed a contrary opinion and propounded that the trial judge in terms of Section 319 CrPC was required to arrive at his satisfaction only after the cross-examination of the witnesses is over with no exception.

11. Another Division Bench of the Apex Court in the case of Hardeep Singh vs. State of and Punjab and another 2008 (16) SCALE 276, doubted the correctness of the judgment rendered in the case of Mohd. Shafi v. Mohd. Rafiq & another (supra) and referred the following two questions to a Larger Bench:

(i) When the power under sub-section (1) of section 319 of the Code of addition of accused can be exercised by a Court? Whether application under section 319 is not maintainable unless the cross-examination of the witness is complete?

(ii) What is the test and what are the guidelines of exercising power under sub-section (1) of section 319 of the Code? Whet

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