JUDGMENT 1. - In a Sessions Trial in which petitioner, Ganpat Singh, has been standing his trial being charged under Section 302, 330 and 342, Indian Penal Code, alongwith other accused persons, the evidence of 11 witnesses was led by the prosecution and thereafter, the petitioner moved an application under Section 319, Criminal Procedure Code for summoning six other persons, namely, Ratansingh, Puransingh, Dashrath Singh, Laxman-singh, Chhatarpal Singh and Sangaur Kaur, for being arrayed them as accused in criminal case registered at police station Niwai on the report of one, Mool Singh (Pw1). This application under Section 319, Criminal Procedure Code has been rejected by the Sessions Judge, Tonk, vide his order dated 8.8.1990. 2. In the application under Section 319, Criminal Procedure Code it had been stated that as per the statement of Moo] Singh (Pw7) and Uma Kanwar (Pw9), the afore named six persons were the persons who gave beating to Gulab Kanwar (wife of the petitioner) in a closed 'door room owned and possessed by these persons. The trial Judge dismissed the said application on the ground and while admitting that specific overt-act though has been stated by Mool Singh (Pw7) and Uma Kanwar (Pw9) against the afore-named six persons but, no such specific overt act has been stated by these two prosecution witnesses (Pw7 and Pw9) in their police statements (Ex. D.1 and D. 2). 3. Now, the question arises as to what should be the basis of summoning the additional accused under Section 319, Cr.P.C. It cannot be disputed that under Section 319, Criminal Procedure Code, if in course of any inquiry into, or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. Therefore, a look at the above provisions of Section 319, Criminal Procedure Code makes it precise that in case from the evidence recorded during trial it appears that some persons other than the accused being tried before the Court, appear to have committed then the Court is fully em-powered to summon that person for being arrayed as additional accused in the case. 4. 4. From the above, next question which emerges for consideration is as to on what evidence, process can be issued against such person. A similar controversy arose in Sheo Ram Singh v. State of Rajasthan, 1982 RLR 550 (D.B) . In Sheo Ram Singh's case (ibid), the question framed was, Whether the word 'evidence' used in Section 319, Criminal Procedure Code signified and means the evidence recorded in the Court, or it can also include the evidence recorded by the Police both, oral and documentary? and this Court (D.B.) held as under "The term 'evidence' as used in Section 319, Criminal Procedure Code means the statements of witnesses recorded before the Court during an inquiry or trial and does not include the statements recorded by the police under Section 161, Criminal Procedure Code or the statements recorded at the instance of the police by the Magistrate under Section 164, Criminal Procedure Code and the statements recorded by the Magistrate under Section 202(2), Criminal Procedure Code and the papers submitted by the police in the form of any other documents, simpliciter." Since there has been divergence of the opinion on the point in question expressed by different benches of this Court, therefore, a reference was made in Dalip Singh and others v. State of Rajasthan 1988(2) RLR 2079 (F.B.) to a larger Bench. The full Bench of Three Judges of this Court in Dalip Singh's case, construing the meaning of the 'evidence' and the implications of the term 'inquiry into and trial' after discussion of catena of decisions of this Court as well as that of the Apex Court, held as under : "In view of the above discussion, we regret to disagree with the view taken by the Division Bench of this Court in the case of Sheoram Singh (supra) that recording of statement in the Court is a pre-requisite for proceeding under Section 319(1) of the Code and adding a person as an accused. We would however like to add that the extra ordinary power conferred on the Court by this Section should be sparingly used and if the Court intends to exercise such a power on the basis of documents placed before it prior to recording any statement there must exist compelling reasons for doing so. We would however like to add that the extra ordinary power conferred on the Court by this Section should be sparingly used and if the Court intends to exercise such a power on the basis of documents placed before it prior to recording any statement there must exist compelling reasons for doing so. We, therefore, approve the view taken in Ajaib Singh's case (supra) and following (followed)in Harjiram's case (supra)." In Ajaib Singh v. State of Rajasthan 1978 RLW 9 and Harjiram v. State, 1979 Cr. L.J. (Raj.) 248 , discussing in detail the provisions of Section 319, G.P.C. this Court observed that the word, "evidence" in Section 319 includes the statement recorded by the Police under Section 161, Criminal Procedure Code and the documents submitted in the Court along with the challan. The view taken by this Court in Ajaib Singh's case and Harjiram's case (supra) has been approved by the Full Bench of this Court in Dalip Singh's case (supra) and now the decks are clear and the meaning of the term 'evidence' in Section 319, Criminal Procedure Code cannot be narrowly constructed so as to mean only statements recorded before the Court. 5. However, according the Full Bench decision in Dalip Singh's case (supra), Section 319(1), Criminal Procedure Code is to be pressed into service upon the prima facie satisfaction of the Court and if the Court is satisfied that there is material to proceed under Section 319(1) then there is no necessity for postponing action under that Section till some statement is recorded. And, in view of the decision of Full Bench in Dalip Singh's case, Section 319(1) vests in the Court power to correct the error of the investigating agencies, if it appears that there is some flaw in proceeding only against some persons and dropping others and in this view of the matter, as held in Dalip Singh's case, such a power is meant to check the unbridled power of the investigating agency in determining the guilty or innocence of the suspects. 6. Thus, having benefited by the enlightments derived from the decisions, referred to above, I may add that Section 319, Criminal Procedure Code also does not impose any restriction for the exercise of power by the Court under that Section during the course of trial if the investigation agency has dropped the person while filing the challan before the trial Court. Thus, having benefited by the enlightments derived from the decisions, referred to above, I may add that Section 319, Criminal Procedure Code also does not impose any restriction for the exercise of power by the Court under that Section during the course of trial if the investigation agency has dropped the person while filing the challan before the trial Court. Moreover, in view of the observations of the Apex Court in Municipal Corporation of Delhi v. Ram Kishan Rohtagi 1983(1) SCC p.1. , the mere fact that the proceedings have been quashed against some of the accused will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it. And, in view of the principles of law laid down in Joginder Singh v. State of Punjab, 1979(1) SCC p. 345 , Section 319 does not exclude person dropped under Section 169, Criminal Procedure Code and as held by the Apex Court, the very purpose of enacting such a provision like Section 319(1), Criminal Procedure Code clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal Court are included in the expression, "any person not being the accused" occurring in Section 319, Criminal Procedure Code. 7. In other words, it cannot be said that though the police statements do not disclose complicity of the suspects sought to be added as accused in the commission of the offence in the case, but the evidence led before the Court during trial, discloses the involvement of such an accused person in the office, then, the Court may have-no ample powers to exercise its discretion under Section 319, Criminal Procedure Code for summoning such person not disclosed in the Police statements of the witnesses for being arrayed them as accused. Rather, it may proceed with, while exercising its powers under Section 319, Criminal Procedure Code, summoning of the persons against whom evidence showing their involvement in the offence comes before it even only during trial, otherwise it would tend to disclose failure of substantial justice and failure to exercise conferral power and in addition thereto, would disclose abuse of its conferral power under Section 319, Criminal Procedure Code and otherwise also, the conferral of the power under Section 319(1), Criminal Procedure Code upon the Court would be rendered nugatory. 8. Now, I advert to the facts of the case and apply the above test to the case at hand. The present one is a case where F.I.R. states the names of the persons including those who are sought to be arrayed as accused during trial, and where initially the investigation, un-controvertedly, was conducted by one Shri Narain Singh a closed relative of the persons sought to be arrayed as accused, as he has married to Smt. Nand Kanwar who is daughter of Jagannath Singh who is real brother of father of the suspects. Petitioner's assertion is that being closed relative, Narain Singh has foisted the case against the petitioner while leaving six suspects, named above, scot free. 9. The trial Court observed that the evidence of Mool Singh (Pw7) and Uma Kumari (Pw9) cannot be believed because, they are relatives to the petitioner (Ganpat Singh). Mool Singh (Pw7) is brother-in-law of Ganpat Singh and Uma Kumari is his daughter (Ganpat Singh's) and also because, the facts and circumstances stated by these.two witnesses (Pw7 and Pw9) during trial before the Court do not find place in their place (sic police) statements recorded under Section 161, Criminal Procedure Code. The trial Court discussed the evidence of these two witnesses and evaluated their evidence and then came to the conclusion that their evidence before it, is contradictory to their police statements therefore, it cannot be presumed that Puransingh, Chhatarpal Singh, Dashrath Singh, Laxman Singh, Ratan Singh and Sringar Kaur, are involved in the commission of the crime of murder of the deceased. 10. A bare perusal of the impugned order makes it precise that the trial Judge has scanned the evidence recorded before him and then gave finding about the admissibility and credibility of the testimony of the prosecution witnesses. 10. A bare perusal of the impugned order makes it precise that the trial Judge has scanned the evidence recorded before him and then gave finding about the admissibility and credibility of the testimony of the prosecution witnesses. In other words, the trial Judge has made a roving inquiry into the pros and cons of the evidence and weighed the evidence as if he was giving final verdict on the prosecution evidence. The trial Judge is not meant to act a mouth piece of the prosecution. The main reason for not invoking jurisdiction under Section 319, Criminal Procedure Code by the trial Judge is that the details given by Pw7 and Pw9 at the trial had not figured in their statement under Section 161, Cr.P.C. But, in my view, clearly that falls within the domain of appreciation of evidence to be done finally at the end of the trial before pronouncing upon the guilty of the concerned accused. Thus, there is a fundamental defect in the findings arrived at by the trial Judge who has not applied judicial mind while considering the application under Section 319(1), Criminal Procedure Code which goes to the root of the proceedings. The trial judge should have drawn only the presumption of guilt of the newly accused sought to be added, which cannot be in the sense of the law governing the trial of criminal case for giving final verdict. It is only for the purpose of deciding prima facie whether Court should proceed with summoning the additional accused or not ? However, the Court at the stage is not required to evaluate or appraise the evidence to assess whether the evidence is sufficient for conviction. 11. The petitioner alongwith this misc. petition has produced certified copy of the statements of the prosecution witnesses recorded by the trial Court, including that of Mool Singh (Pw7) and Uma Kumari (Pw9). However, the Court at the stage is not required to evaluate or appraise the evidence to assess whether the evidence is sufficient for conviction. 11. The petitioner alongwith this misc. petition has produced certified copy of the statements of the prosecution witnesses recorded by the trial Court, including that of Mool Singh (Pw7) and Uma Kumari (Pw9). A careful perusal of the statements of Mool Singh (Pw7) and Uma Kumari (Pw9) and the version given out in the F.I.R. prima facie makes it clear that Ratan Singh, Puran Singh, Dashrath Singh, Chhatarpal Singh, Laxman Singh, and Sangar Kaur gave serious beating to the deceased (Gulab Kanwar) in the presence of Uma Kumarai (aged 13 years daughter of the deceased) in.their house at village Khandevat for a dispute of alleged money lending transaction and after beating, Smt. Gulab Kanwar died and further that Gulab Kanwar alongwith Uma Kumari, was lastly seen in the company of the suspects. There is also evidence of the rope having been recovered from the house of these persons during the investigation, and the dead body is stated to have been taken from their house at village Khandevat. In my view, the aforesaid facts appearing in the evidence led before the trial Court during trial goads towards the inference of prima facie case of involvement or culpability of the suspect sought to be arrayed as accused, in the murder of the deceased. 12. The trial Judge has blatantly misdirected himself in holding the evidence of Pw7 and Pw9 untrustworthy at the stage of considering the application under section 319, Criminal Procedure Code as it was not within his domain to do so, and, therefore, he has betrayed misguided approach by not exercising ample power to summon additional accused and he could have resorted to exercise this power to correct the error of the investigating agency as apparently and indubitably there were some flaws in proceeding only against the petitioner and flaws in dropping the suspects sought to be arrayed as accused. By not summoning the suspects under Section 319, Criminal Procedure Code on the evidence at the trial, the trial Judge has acted as a mouth piece of the prosecution and has not applied his judicial mind and thus, the process of the Court has been seriously abused resulting in grave and substantial justice (sic injustice) and it warrants interference by me to pass orders ex-debito justice. 13. In the result, the misc. petition is allowed; the impugned order dated 8.8.1990 is set aside; and the application of the petitioner under Section 319, Criminal Procedure Code is allowed; and the trial court is directed to array the persons named above and in the petitioner's application under section 319, Criminal Procedure Code, as accused in Sessions case No. 5/89 and then by summoning them, proceed with trial against them in accordance with Section 319(4), Criminal Procedure Code and the procedure provided under the Code of Criminal Procedure.Petition allowed. *******