JUDGMENT :

[Shamim Ahmed, J.]

1. This criminal revision has been filed by the revisionist Lalia @ Chandra Prakash against the judgment and order dated 22.12.1993 passed by Sessions Judge, Etawah summoning the revisionist under Section 319 CrPC for facing the trial in ST No. 435 of 1990 under Section 307 IPC and further issuing non bailable warrant against the revisionist for his appearance before the Court below.

2. Heard Sri Purushottam Dixit, learned counsel for the revisionist, learned A.G.A. for the State and perused the record.

3. Brief facts of the case are that on 14.5.1990 an FIR was lodged by the informant Ved Prakash that accused Surendra and others had injured his brother Chandra Prakash by opening fire upon him.

4. Learned counsel for the revisionist submits that after investigation the police has submitted the police report against two accused persons namely Surendra son of Baburam and Babu Ram son of Charan Lal only. However, as against the revisionist no police report was filed and the investigation against him was pending. He further submits that thereafter the learned Sessions Judge without perusing the papers on record and without considering the fact of pendency of investigation against the applicant issued the process in exercise of power under Section 319 CrPC and summoned the revisionist.

5. Learned counsel for the revisionist further submits that the Investigating Officer has not found any material against the revisionist nor found his involvement in the instant case was proved. Therefore, his name was dropped in the charge-sheet.

6. Learned counsel for the revisionist further submits that earlier on an application of the prosecution, the revisionist was ordered to be summoned by the Court below under Section 319 CrPC by order dated 29.5.1991 and the same was challenged before this Court. This Court vide order dated 8.10.1991 passed in Criminal Revision No. 1014 of 1991 quashed the said order of summoning and as such the revisionist cannot again be summoned on the application of the prosecution.

7. Learned counsel for the revisionist further submits that the opposite party No. 2, informant filed an application 48-Kha under Section 319 CrPC before the learned Sessions Judge, Etawah, who without going through the legal provisions contained under Section 319 CrPC summoned the revisionist and others for facing the trial vide impugned order dated 22.12.1993.

8. Learned counsel for the revisionist further submits that power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be sparingly used only in those cases where the circumstances of the case so warrant. In support of his argument, learned counsel for the revisionist has placed reliance on paragraph 105 and 106 of the Constitution Bench judgment of the Hon'ble Apex Court in the case of Hardeep Singh v. State of Punjab and others, (2014) 3 SCC 92. Paragraph 105 and 106 of the aforesaid judgment is quoted as under :

“105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the Court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfact