JUDGMENT : A. Pasayat, J. - Petitioners call in question legality of order dated 3-8-1993 passed by learned Judicial Magistrate, First Class, Panoosh 'in short, JMFC') in purported exercise of power u/s 319. Code of Criminal Procedure, 1973 (in short, the 'Cr PC'), by which direction has been given for issue of summons to them for facing trial as accused persons. 2. Background in which a complaint was filed by Orissa Industries Limited (hereinafter referred to as the 'opposite party') is as follows : An article was published authored by Shri B. K. Mishra, its the then local correspondent,(hereinafter referred to as the 'accused'), in the daily "Telegraph" on 9-3-1989. According to opposite party, the article was defamatory in character, so far as it was concerned, and therefore, an offence punishable u/s 500 read with Section 499 of the Indian Penal Code, 1860 (in short, the IPC) was committed. It filed ICC Case No. 13 of 1989 in the Court of JMFC, Panposh. Decided on 14tb July, 1994. 3. On 28-11-1989, an application was filed by accused to proceed against Editor and Printer of the newspaper in terms of Sec.319, Cr PC. By order dated 19-3-1990 learned JMFC did not accept the prayer, as according to him examination-in-chief alone cannot be said to be evidence, on the basis of which Court can act in terms of Sec 319, Cr PC. 4. By the impugned order, it was held by learned Magistrate that the article published under the authorship of accused against whom complaint was filed by the opposite party made the petitioners liable for prosecution in the sense that as Publisher and Printer, and Editor, it was their responsibility to ensure that no defamatory article was published. Thereafter on the conclusion that there was refusal to receive the summonses, non-bailable warrants were issued. 5. Mr. J3yant Das. learned counsel appearing for the petitioners submits that no fresh and/or relevant material was brought after refusal of prayer made by the accused for exercise of power u/s 319, Cr PC. According to him no material exists which necessitates initiation of action against the petitioners and exercise of power u/s 319 should not be done in a routine manner without adequate reasons for exercise of that extraordinary power. According to him no material exists which necessitates initiation of action against the petitioners and exercise of power u/s 319 should not be done in a routine manner without adequate reasons for exercise of that extraordinary power. It is his submission that the complainant did not make any grievance so far as the petitioners are concerned, and the accusations were solely against the accused. The reasons which weighed with the learned JMFC are not sufficient for exercise of power u/s 319. It is also submitted that there was no question of any refusal by petitioner No. 1 since he was not staying in the address in which the summons was sent, and therefore. the question of refusal does not arise So far as petitioner No. 2 is concerned, similar submission was made. It is also submitted that the exercise of power u/s 319 was beyond the prescribed period of limitation. 6. Power Under Sections 319, Cr PC can be exercised by the Court suo motu or on the application of someone including the accused already before it, if it is satisfied that any person other than the accused has committed any offence for which he is to be tried together with the accused. This power is discretionary with the Court and the discretion must be exercised judicially having regard to the facts and circumstances of each case. It is really an extra- ordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word 'evidence' in Section 319 contemplates the evidence of witnesses given before the Court. Under Sub sec. (4)(1)(b) of Sec 319. Cr PC it is specifically made clear that it will be presumed that the newly added person had been en accused person, when the Court took cognizance of the offence upon which the inquiry or trial was commenced. This would show that by virtue of Sub-section (4)(1)(b) of Section 319 a legal fiction is created that the cognizance would be presumed to have been taken, so far us the newly added accused is concerned. [See Radharani Panda v. Arnapurna Padhi alias Panda and Anr. ; (1994) 7 OCR 429]. This would show that by virtue of Sub-section (4)(1)(b) of Section 319 a legal fiction is created that the cognizance would be presumed to have been taken, so far us the newly added accused is concerned. [See Radharani Panda v. Arnapurna Padhi alias Panda and Anr. ; (1994) 7 OCR 429]. In the peculiar circumstances of the case, I permit the petitioners to make a motion before the learned JMFC, Panposh for re consideration of the matter. It is open to the petitioners to highlight before him about all relevant aspects which according to them would make further proceeding against them undesirable. If such a motion is made, the learned JMFC shall consider the same in accordance with law. Till disposal of the matter, personal attendance of the petitioners shall not be insisted upon and on a proper application being made, the learned JMFC shall consider the question of their being represented u/s 205, Cr PC, if occasion so arises. The learned counsel for petitioners states that the motion shall be made before the learned JMFC on 6th September, 1994. Since the opposite party is represented through counsel in this Court, no notice fixing the date to 6th September, 1994 need be given to it, but the accused shall be notified by the learned JMFC about posting of the date to 6-9-1994. Send back the records immediately. In view of the above order, JMFC issued against the petitioners shall not be executed. The criminal revision is accordingly disposed of.