JUDGMENT 1. - This criminal misc. petition is directed against the order dated 16.10.2001 passed by Additional Sessions Judge, Rajgarh in Sessions Case No. 52/99 State v. Krishan , whereby the trial court suo moto exercised the powers under section 319 Cr.P.C. and impleaded petitioner in the array of accused and took cognizance for the offence under section 304 I.P.C. against the petitioner and summoned the petitioner by non-bailable warrant. 2. Aggrieved by the order impugned dated 16.10.2001, petitioner has filed this criminal misc. petition under section 482 Cr.P.C. At the joint request of appearing parties, this petition is finally decided. 3. I have heard learned counsel for the parties. Perused the order impugned. 4. Briefly stated case of the prosecution is that; FIR No. 28 was lodged on 21.3.1994 at Police Station, Sidhmukh by PW, 3 Tola Ram inter alia stating therein that on 21.3.1994 at about 11-12 in the night, his nephew Purshottam along with Rakesh and Krishna was going on a motorcycle, ahead of them, petitioner Narendra was proceeding in his car. When they reached near Police Station, it was alleged that petitioner suddenly applied the brakes of his car, due to which, the motorcyclists who were following the car dashed the car from behind. On this account, there was some altercation between the petitioner and motorcyclists. It was alleged that a stone was thrown which hit Purshottam by which he sustained injury. He was taken to hospital and succumbed to injury after about 10 days. After investigation, police filed a challan against Krishan alias Kishan for the offence under section 304 I.P.C. The case was committed to the court of learned Additional Sessions Judge and the accused Krishan alias Kishan was put on trial. 5. Prosecution examined P.W. 1 Hanuman Prasad, P.W. 2 Sohanveer Singh, P.W. 3 Tola Ram, author of FIR P.W. 4 Santlal alias Satya Narayan, P.W. 5 Babulal, P.W. 6 Rakesh Kumar, P.W. 7 Bhagwan Singh, P.W. 8 Ajay Kumar, P.W. 9 Fakhruddin, P.W. 10 Kishan Lal, P.W. 11 Puran Singh, P.W. 12 Gordhan, P.W. 13 Rajendra Kumar and P.W. 14 Safi Mohammed. P.W. 14 was examined by the trial court on 16.10.2001 and the trial court suo moto exercised the powers under section 319 Cr.P.C. and directed the petitioner to be impleaded in the array of accused and took cognizance for the offence under section 304 I.P.C.against the petitioner. P.W. 14 was examined by the trial court on 16.10.2001 and the trial court suo moto exercised the powers under section 319 Cr.P.C. and directed the petitioner to be impleaded in the array of accused and took cognizance for the offence under section 304 I.P.C.against the petitioner. On the basis of statement of P.W. 3 Tola Ram recorded by the trial court on 14.12.2000, learned counsel for the petitioner contended that the deceased sustained only one injury by blunt (stone) and that injury has been assigned to accused Krishan alias Kishan who had been challenged by the police and is facing trial for the offence as noticed above. Except P.W. 3, no other prosecution witness named the petitioner. The statement of P.W. 3 recorded by the police under section 161 Cr.P.C. during investigation P.W. 3 Tola Ram categorically stated that, stone was throw by accused Krishan alias Kishan and in the statements of other prosecution witnesses recorded by the police under section 161 Cr.P.C., almost all the witnesses stated that it was Krishan alias Kishan who thrown stone which hit the deceased Purshottam. However, P.W. 3 has improved his version and deviated from his previous statement. The statement of P.W. 3 is not corroborated by any of the eyewitnesses examined by the trial court. He further submitted that soon after the injury sustained by Purshottam, he was taken to Government Hospital, Sidhmukh for treatment. The father of deceased Purshottam, Shri Ram Ral has given in writing to Medical Officer-in-charge, Hospital that his son sustained injury by fall and he does not want to lodge case with police. He further submitted that the trial of the case is at the fag end and at that stage, when there was no sufficient material, the trial court erred in impleading the petitioner as accused and taking cognizance of offence against him. 6. Learned counsel for the petitioner has relied on judgment of Hon'ble Supreme Court in Michael Machado & anr. He further submitted that the trial of the case is at the fag end and at that stage, when there was no sufficient material, the trial court erred in impleading the petitioner as accused and taking cognizance of offence against him. 6. Learned counsel for the petitioner has relied on judgment of Hon'ble Supreme Court in Michael Machado & anr. v. Central Bureau of Investigation & Anr., 2000 Cr.L.R. (SC) 265 , wherein Hon'ble Supreme court has held as under: "The basic requirements of invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused." 7. The Honble Supreme Court further held that the power conferred on the Court u/s. 319 Cr.P.C. is only discretionary as could be discerned from the words `the Court may proceed against such person. The discretionary power so conferred should be exercised only to achieve criminal justice. It was further held that unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned. It was further held that the Court should refrain from adopting such a course of action. Thus, it is clear that before Court exercises the power conferred u/s. 319 Cr.P.C., the Court is required to satisfy that there is a reasonable prospect of the case as against the person sought to be arraigned as accused ending in conviction of the offence concerned. 8. It is settled law that powers under section 319 Cr.P.C. should be sparingly and cautiously used only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of process of court, if such power is not exercised. 8. It is settled law that powers under section 319 Cr.P.C. should be sparingly and cautiously used only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of process of court, if such power is not exercised. In the instant case, after thorough investigation, the police filed challan against the accused Krishan alias Kishan for the offence under section 304 I.P.C.and he has been put to trial. The trial court took cognizance against Krishan alias Kishan and proceeded to record the statements of as many as 14 witnesses and none of the witnesses, examined by the prosecution, named the petitioner except P.W. 3 Tola Ram who has been examined as back as on 14.12.2000 and the order impugned was passed by the trial court as late as after 10 months of recording of the statement of P.W. 3 Tola Ram. From record, it appears that P.W. 3 was examined by police under section 161 and before police, he categorically stated that it was accused Krishan alias Kishan who thrown single stone which hit deceased. The version given by Tola Ram in his statement under section 161 Cr.P.C. was corroborated by almost all the eye- witnesses examined by the prosecution under section 161 Cr.P.C. It is obvious from the record and two other persons namely Rakesh P.W. 6 and Krishan were also on the same motorcycle when the alleged occurrence took place. Neither Rakesh nor Krishan stated that the stone was thrown by petitioner but on the contrary, both these eye- witnesses stated that it was Krishan alias Kishan who thrown the stone which hit deceased Purshottam. More so, P.W. 3 Tola Ram was not the eye-witness of occurrence inasmuch as he went on the site after hearing some noise in front of house of Mahavir Vaidya and when he reached to site, he found that Purshottam was lying on the ground having injury on head. 9. In Michael Machado & Anr. v. Central Bureau of investigation & Anr. (supra), Honble Supreme Court has held that unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned, the Court should refrain from adopting such a course of action. 9. In Michael Machado & Anr. v. Central Bureau of investigation & Anr. (supra), Honble Supreme Court has held that unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned, the Court should refrain from adopting such a course of action. From the material on record, it cannot be said that by evidence available on record, the trial court could be hopeful that there is reasonable prospect of the case as against the petitioner ending in conviction of the offence concerned. In this view of the matter, in my considered opinion, the trial court fell in error in impleading the petitioner in the array of accused and taking cognizance of the offence against him. 10. Consequently, this petition succeeds and is allowed. The order impugned dated 16.10.2001 passed by Additional Sessions Judge, Rajgarh (Churu) in Sessions Case No. 52/99 is set aside and quashed.Petition allowed. *******