Hon'ble Shri Kant Tripathi,J.:-

1. Heard the learned counsel for the revisionists 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 revision is being disposed of finally at the stage of admission.

3. The revisionists Ansar, Qamruddin and Ateeq Ahmad have preferred this revision against the order dated 3.4.2010 passed by the learned Additional Sessions Judge. Fast Track Court No.8, Pratapgarh in S.T. No. 465 of 2009, State vs. Yaar Mohammad & others, whereby the learned Additional Sessions Judge has summoned the revisionists under section 319 CrPC to face trial in regards to the offences under sections 307/149, 352, 427, 504 and 506 IPC, police station Mandhata, district Pratapgarh.

4. During the trial, PW-1 was examined, who has deposed in regard to complicity of the revisionists along with the charge-sheeted accused. The learned Additional Sessions Judge placing reliance on the statement of the said witness, has passed the impugned order summoning the revisionists.

5. The learned counsel for the revisionists 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 revisionists, therefore, the summoning order is bad. The learned counsel further submitted that it was necessary for the trial court to record the statements of other witnesses of fact and to get concluded their cross-examination.

6. In order to appreciate the aforesaid submissions, it is necessary and expedient to refer to some of the important decisions of the Apex Court:

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? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood woul

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