ORDER

With consent of the parties heard finally.

1. This criminal revision under section 397/401 of Cr.P.C.has been filed b y the petitioner being crestfallen by the order under section 319 of Cr.P.C. delivered in judgment dated 17.3.2023, passed by the learned 7th Additional Sessions Judge, Mandsaur District Mandsaur in ST No.21/2017 whereby the learned trial Court has made the petitioners accused under section 319 of Cr.P.C. and issued notice for separate trial against the petitioners.

2. At the time of passing the impugned judgement, the learned trial Court has convicted and acquitted the accused persons. Appellants Sabir and Sadab were convicted under section 148, 307/149, 333/149 and 394 of IPC and the co-accused namely Nahru, Raja @ Muzaffar, Juber, Jafar, Firoz, Mohd. Yusuf and Sadab were acquitted from all the charges.

3. In this regard, the learned trial Court, passing the impugned judgment, mentioned in para Nos.73 to 75 that the petitioners have played important roles in the said offence. It is also disclosed that the petitioners were made accused at early stage, however, the prosecution has filed the final report under section 173(8) of Cr.P.C. to the effect that they have no role in the crime. In this regard, the learned trial Court has also observed that the role of the petitioners is found suspicious, hence, they are required to be prosecuted. As such, after observing as aforesaid, in view of the judgement of Hon'ble apex Court rendered in the case of Sukhpal Singh Khaira v. State of Punjab (2023) 1 SCC 289, the learned trial Court has adjudicated that separate trial should be initiated against the petitioners and therefore, a notice for separate trial should be issued against them.

4. Counsel for the petitioners in this revision petition as well as in arguments submits that earlier, the petitioners were made accused at early stage, however, the prosecution has filed the final report under section 173(8) of Cr.P.C. to the effect that they have no role in the crime. It is further submitted that the cognizance under section 319 of Cr.P.C. has been taken against the petitioners whereas such type of evidence is not admissible. It is further submitted that the petitioners have been foisted as accused only on the ground of suspicion, therefore, the order of learned trial Court regarding taking cognizance against the petitioners under section 319 of Cr.P.C be set aside.

5. In course of arguments, it is further contended by learned counsel for the petitioner that the learned trial Court has made the petitioners as accused, in view of the guidelines enumerated by the Hon'ble apex Court in the case of Sukhpal Singh (supra), however, the learned trial Court has not passed the impugned order in accordance with the law laid down by Hon'ble apex Court. It is further submitted that the order of summoning the petitioners as accused should be passed before pronouncement of the order of acquittal in such type of cases where the order of acquittal and conviction both are recorded.

6. With regard to merits of the case, it is demurred by learned counsel for the petitioners that the petitioners only on the basis of suspicion, they cannot be impleaded in this case. Therefore, the order of learned trial Court is not in conformity with law and therefore, it is entreated that the impugned order regarding the petitioner, deserves to be set aside. In support of his contention, counsel for the petitioner placed reliance over the judgment of this Court passed i n CRR No.2034/2023 [Lalit Agarwal v. State of Madhya Pradesh] decided on 28.6.2023 wherein this Court has considered the similar point and set aside the proceedings issued against the petitioner there in under section 319 of Cr.P.C.

7. Learned counsel for the State has remonstrated the contentions of the petitioners and submitted that the findings of the learned trial Court regarding issuance of notice to the petitioners is based on correct assumptions. Therefore, the said finding does not wa