The discretion to invoke the power under Section 319 of CrPC is to be exercised sparingly and only in cases where strong and cogent evidence warrants such action. The individual act of the accused shall be considered at the time of passing judgment.

ORDER

Sanjay Dwivedi, J. - These petitions have been filed by the applicant/petitioners under Sections 401 and 482 of the Code of Criminal Procedure asking for quashing of order dated 26.11.2013 whereby the trial Court exercising the power provided under Section 319/193 of CrPC decided the application directing that the name of present applicant/petitioners be included in the array of accused persons and also directed that arrest warrant be issued against them for securing their presence before the Court.

2. The said order is being assailed by the present applicant/petitioners mainly on the ground that from the impugned order itself, it reveals that the trial Court has relied upon the statements of PW-1, PW-4, PW-6 and PW-7, namely, Ramrati, Raj Kumar Shukla, Ganesh Prasad Shukla and Kamlesh Prasad Shukla respectively, in which, they have taken the name of present applicant/petitioners and observed that as per their statement, the present applicant/petitioners should be made accused and as such, directed that they be arrested and produced before the Court so as to conduct a trial against them in relation to the offence registered vide Crime No.373/2003 under Sections 307/376 (2A)/436 of the Indian Penal Code.

3. Shri Sanjay Agrawal, learned senior counsel and other counsels appearing for the applicant/petitioners have submitted that though the trial Court has taken shelter of the statement of those witnesses, but from perusal of their statement, it is clear that they have not taken the name of present applicant/petitioners and as such, exercising the power provided under Section 319 of CrPC by the trial Court is absolutely illegal and the order making the present applicant/petitioners accused in the alleged crime deserves to be set aside.

4. Shri Agrawal has read over the statement of those witnesses, which have been filed by the applicant/petitioners along with the revision/petitions and pointed out that the order passed by the trial Court and observation made therein is absolutely perverse because the name of present applicant/petitioners has not been taken by any of the witnesses, although in the FIR, the name of present applicant/petitioners was there. He has submitted that the CID investigated the matter and found that the present applicant/petitioners were not present on spot at the time of alleged crime and their presence was found somewhere else, therefore, as per the provision of Section 169 of CrPC when the charge-sheet was filed, the present applicant/petitioners were not made accused. He has further submitted that merely because one and two witnesses have taken the name of present applicant/petitioners does not mean that they should be made accused that too exercising extra ordinary power provided under Section 319 of CrPC. He has submitted that the power can be exercised sparingly under the circumstances when there is cogent material available before the Court indicating the role of person not made accused and his presence as an accused is necessary in the trial. He has submitted that merely because the name of present applicant/petitioners has been taken without indicating any role in the crime, the order passed by the trial Court issuing warrant of arrest directing their inclusion in the array of accused persons is not proper. He has further submitted that the investigation was done, in which, the present applicant/petitioners were not found involved in the alleged crime and as such, they have wrongly been made accused exercising the power of Section 169 of CrPC. He has further submitted that under such circumstances, the impugned order exercising the power provided under Section 319 of CrPC by the trial Court is absolutely unfounded and is liable to be set aside. In support of his submission, the counsel for the applicant/petitioners have placed reliance upon the judgments reported in (2023) 1 SCC 289 (Sukhpal Singh Khaira Vs. State of Punjab), (2022) 6 SCC 389 (Sagar Vs. State of Uttar Pradesh and another), (2021)