The court held that the power under Section 319 Cr.P.C. must be exercised with strong evidence and cannot be invoked after the trial of co-accused has concluded.

JUDGMENT :

(Ram Manohar Narayan Mishra, J.)

1. Instant Criminal Revision has been preferred under Section 397/401 Cr.P.C. against order dated 26.02.2024 passed by Learned Session Judge, Bhadohi in Misc. Criminal Case No. 155 of 2018 Ramesh Tiwari Vs. State, whereby the revisionist has been summoned to face trial in exercise of powers under Sections 319 Cr.P.C. for charge under Sections 323, 325, 452, 504, 506, 308 IPC in a case arising out of Case Crime No.186 of 2006, P.S. Suriyawa, District Bhadohi. Revisionist has been summoned on application filed by respondent No.2, the informant in the case.

2. Heard learned counsel for the revisionist, learned counsel for the respondent No.2 and learned A.G.A. for the State-respondent and perused the material available on record.

3. Learned counsel for the revisionist has contended that the learned court below has not recorded its finding with regard to its satisfaction while passing the impugned order dated 26.02.2024 in exercise of powers under Section 319 Cr.P.C.. Whereby the revisionist has been summoned to face trial for charge under Sections 323, 325, 452, 504, 506, 308 IPC.

4. Learned counsel for the revisionist further contended that it is settled law that a person should not be summoned by trial court in exercise of power under Section 319 Cr.P.C. as a matter of routine and the power should be exercise on the basis of cogent and plausible evidence. This power should not be exercised mechanically on the ground that some evidence has come on record implicating the person sought to be made an accused. Thus the impugned order is not sustainable in the eye of law. The power under Section 319 Cr.P.C. is discretionary and it should not be exercised only due to fact that some evidence has been adduced during trial connecting him with the offence alleged. The court should exercise its judicial discretion, after considering all the relevant facts and circumstances, it is an extraordinary power conferred on the court and it should be used sparingly only if the compelling reasons exists for taking cognizance against the persons who has not been arrayed as an accused in chargesheet. It is bounden duty of the trial court to record its satisfaction as laid down in the judgment of the Hon’ble Supreme Court in Brijendra Singh & Ors vs State Of Rajasthan and others, 2017 (7) SCC 706. The moot question is degree of satisfaction i.e. required satisfaction it must be 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 satisfaction, the court should refrain from exercising power under Section 319 CrPC.

5. He lastly submitted that the Investigating Officer had not found complicity of the accused revisionist, in the offence and his presence was not found on the spot. The revisionist is named in the FIR, but his naming in the FIR was found false during investigation and his name was dropped by the Investigating Officer in the chargesheet. The Investigating Officer submitted chargesheet against three named accused persons Dinesh alias Kaptan, Suresh Vishwakarma and Ramesh Vishwakarma to face trial in S.T. No. 84 of 2006 State Vs. Dinesh alias Kaptan and others in the court of Session Judge, Bhadohi and were convicted and sentenced for said charges vide judgment and order dated 28.09.2017. The Investigation Officer had found presence of the revisionist some where else during investigation and not on the spot of occurrence. The respondent No.2, informant Rajeev Vishwakarma had filed an application under Section 319 Cr.P.C. after recording of evidence of PW-1 Rajeev Vishwakarma and PW2-