B. M. GUPTA, J. ( 1 ) BOTH the petitions are arising out of one common order, hence both have been heard together and are being disposed of by this common order. ( 2 ) THE facts in brief are, that one Madhav singh lodged a report immediately after two hours of the incident at P. S. Dehat on 7th september, 2005 alleging against total eight person including the present petitioners, that by firing guns, they committed murders of Baijnath Singh, Shambhu Singh and shyam Singh and caused injuries to Banti singh and Bhupendra Singh. This report was registered at crime no. 438/05 for the offence punishable under Sections 302 and 307/34 of IPC. After investigation, charge- sheet was filed only against accused Kornal singh and Indrajeet Singh and about rest of the six named accused, it was mentioned that the case is not proved against them. ( 3 ) AFTER committal of the case, the Session Trial No. 265/05 is pending. During trial, after recording of the statements of eight witnesses ineluding the examination of Chief of Madhav Singh, one application was filed by complainant Madhav Singh under Section 319 of Cr. P. C. praying therein to take cognizance against rest of the six accused persons, who were left by the police namely Ramavatar Singh, Arvind, rajendra, Dharrnendra, Udaiveer and brijendra. Vide impugned order dated 8. 9. 2006. The learned 6th Additional Sessions Judge (Fast Track), Bhind has taken cognizance against aforementioned six accused persons for the offence punishable under Sections 147, 148, 149, 302 and 307 read with 149 of IPC. It is this order, which has been assailed in the aforementioned two petitions by five persons. Out of six, udaiveer did not choose to assail the order. ( 4 ) DURING the course of arguments Shri a. K. Barua, the learned senior counsel for petitioners Ramavatar and Brijendra has drawn attention on the provisions of Section 319 of Cr. P. C. and also on the following judgments: - 1. Lok Ram v. Nihal Singh and another. 2006 (2) Crimes 119. 2. Palanisamy Gounder and another v. State- (2006) 1 SCC (Cr.) 568 3. Kavuluri Vivekananda Reddy and another v. State of A. P. and another, (2006)2 SCC Cr. 324. and has submitted that without recording full statement of a witness, taking cognizance against the petitioners on such incomplete statement is erroneous. 2006 (2) Crimes 119. 2. Palanisamy Gounder and another v. State- (2006) 1 SCC (Cr.) 568 3. Kavuluri Vivekananda Reddy and another v. State of A. P. and another, (2006)2 SCC Cr. 324. and has submitted that without recording full statement of a witness, taking cognizance against the petitioners on such incomplete statement is erroneous. Out of eight, seven witnesses have not stated against them and they have been declared hostile. Considering the uncrossed testimony of witness Madhav Singh, coupled with the charge-sheet papers, cognizance has been taken. The uncrossed testimony of Madhav singh cannot be considered as evidence, as provided in Evidence Act. Uncrossed testimony is neither an evidence nor sufficient to come to the conclusion for taking cognizance as provided under Section 319 of Cr. P. C. ( 5 ) SHRI V. K. Saxena, the learned senior counsel appearing on behalf of petitioner arvind, Rajendra and Dharmendra has, in addition to what it has been argued by Shri barua, has submitted, that unless the Court is satisfied that there is reasonable prospect of the case, as against the newly brought accused ending in conviction, taking cognizance is erroneous. He has drawn attention on the following judgments: - 1. Michael Machado and another v. Central Bureau of Investigation and another, 2000 SCC (Cr.) 609. 2. Krishnappa v. State of Karnataka, 2004, SCC (Cr. 12093. 3. Dharam Pal and Ors. v. State of haryana and Anr, (2006) 1 SCC (Cr.) 273 4. Kishori Singh and Ors. v. State of bihar and Anr, (2006) 1 SCC (Cr.) 275. ( 6 ) COUNTERING the contention Shri Brijesh sharma, the learned Government Advocate for the State and Shri Shukla, the learned counsel for the complainant, have submitted that even on uncrossed testimony, the cognizance can be taken and recording of the whole of the evidence is not required. It is also submitted by both of them that not only in FIR, but in the statements of the madhav Singh, the involvement of the petitioners have been appeared. Their specific overt acts have also been mentioned, which are supported by the medical evidence. Shri shukla has also submitted that in the statements under Section 161 of Cr. P. C. of the other witnesses, police did not mention the name of the petitioners, only because of the political influence of the opposite party. Their specific overt acts have also been mentioned, which are supported by the medical evidence. Shri shukla has also submitted that in the statements under Section 161 of Cr. P. C. of the other witnesses, police did not mention the name of the petitioners, only because of the political influence of the opposite party. As the M. L. A. of the area is family member or relative of them. In support he has drawn attention of the ,court at a letter dated 19. 9. 05 written by Madhav Singh to Superintendent of Police, Bhind, a letter dated 23. 9. 05 written to District Magistrate, bhind letter dated 6-10-2005 also written to District Magistrate, Bhind along with the affidavits of himself, witness Banti and padam Singh Sikarw. r-, executed on 5. 10. 05. They have cited the following judgments in their favour: - 12. Rakesh and Anr. v. State of haryana, 2001 (5) Supreme Court Today, 300. 13. Rukhsana Khatoon (Sint.) v. Sakhawat Hussain andanr, -2004 SCC (Cr.) 1153. 14. Kallu and Ors. v. State ofm. P, 2006m. P. H. T. 440. 15. Dalip Singh and Ors. v. State of rajasthan. 1989 Cr. LJ 600. ( 7 ) THE impugned order has been assailed mainly on the ground that the uncrossed testimony of Madhav Singh cannot be considered as evidence as provided under section 319 (1) of Cr. P. C. Section 319 of Cr. P. C. , which goes as under:- 319. Power to proceed against other persons appearing to be guilty of offence - (1) Where, in the 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. (Emphasis Supplied ). ( 8 ) THE aforementioned judgments cited on behalf of both the parties, one judgment rendered by the Apex Court in Rakesh (supra) has completely answered this contention, which is based on identical facts. In this case also the cognizance under Section 319 of Cr. P. C. was taken only on the basis of uncrossed testimony of the prosecutrix which was assailed on the same ground. The apex Court has observed in para 13. "13. In this case also the cognizance under Section 319 of Cr. P. C. was taken only on the basis of uncrossed testimony of the prosecutrix which was assailed on the same ground. The apex Court has observed in para 13. "13. Hence, it is difficult to accept the contention of the learned counsel for the appellants that the term 'evidence' as used in Section 319 criminal Procedure Code would mean evidence which is tested by cross-examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. Section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross- examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. " this observation of Apex Court on this point is having binding effect and on this basis, the contention on behalf of petitioners is answered negatively. ( 9 ) ADMITTEDLY, about the incident happened at 8. 30 A. M. Report was lodged by the eyewitness Madhav Singh at 10. 50 A. M. As contended on behalf of the respondents as well as observed by the learned Sessions judge in page 6 of the impugned order dated. 8. 9. 06, that without any delay, the investigating officer also reached at the spot. In the report, the names of the petitioners among assailants were mentioned along with their specific overt acts. Appearance of the names with overt acts of the petitioners in such prompt FIR, in such facts that the investigating officer also reached at the spot, has been pressed with full force on behalf of the respondents. In support of their contention that during investigation in statements of 161 Cr. P. C. names were not written by the police on account of political pressure, as the MLA of area is closely related to the petitioners, they have drawn attention on copies of the letters written to superintendent of Police and District Magistrate of the area. Having this apprehension in mind, the complainant applied for the copies of the statements recorded during investigation which were not given to him, despite his depositing the requisite fees and despite filing applications before Superintendent of Police and the District Magistrate. Having this apprehension in mind, the complainant applied for the copies of the statements recorded during investigation which were not given to him, despite his depositing the requisite fees and despite filing applications before Superintendent of Police and the District Magistrate. It is also mentioned on behalf of the respondents that alongwith the aforementioned applications, the affidavits of three eyewitnesses viz. Madhav Singh, Banti @ shatrughan Singh and Padam Singh, in support of the case, were also enclosed. On account of political pressure, charge-sheet was not filed against the petitioners. This contention gets support from the copies of exhibits P-19 to P-23, which have been exhibited in the statements of Madhav Singh during trial. On perusal of these applications, it appears that since very beginning, the complainant was making the authorities alert about this apprehension, that the faulty investigation might be conducted on account of the political pressure. In support of this contention, Madhav Singh (PW8) has also stated on oath during trial. ( 10 ) IN these circumstances, it is contended on behalf of the respondents that the case of the complainant should not suffer on account of such faulty investigation. It is submitted that despite such laps in investigation, on the basis of the statement of madhav Singh (PW8) recorded during trial, the impugned order can be sustained as observed in the case of Kallu (supra) by another Bench of this Court. In the case of kallu, although, the name of the newly added accused was not appearing in the charge-sheet papers, despite that, on the basis of statement recorded during trial, step of taking cognizance against the newly added accused was upheld, observing that in the light of the statement in Court, the statements of Section 161 Cr. P. C. have lost their significance. ( 11 ) IN the case of Michael Macchado and anr. (supra), the investigation was conduced by CBI and charge-sheet was filed against 4 accused persons. Charge-sheet was not filed against Chief Manager of the Bank michael Machado. When the trial in the criminal case against four accused persons proceeded to the penultimate stage after examining 54 witnesses, the Magistrate ordered two more persons, the petitioners to array as accused. (supra), the investigation was conduced by CBI and charge-sheet was filed against 4 accused persons. Charge-sheet was not filed against Chief Manager of the Bank michael Machado. When the trial in the criminal case against four accused persons proceeded to the penultimate stage after examining 54 witnesses, the Magistrate ordered two more persons, the petitioners to array as accused. Considering the facts that if the order of the Magistrate is sustained the proceedings in respect of newly added persons are to be recommended afresh, meaning thereby, the entire massive evidence thus far collected and the time which the Court has thus far spent for recording the evidence of such a large number of witnesses, besides the cost involved of all concerned to reach up to the present stage, would all become, for all practical purpose, a waste - a colossal waste. The Hon'ble Apex court has observed in following paragraphs - "14. . . . . . . . . . . Unless the Court is hopeful that there is a reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the Court should refrain from adopting such a course of action". 15. . . . . . . . . . . . 16. The statements of those three witnesses were placed before us. No doubt the statements may create some suspicion against the appellants. But suspicion is not sufficient to hold that there is reasonable prospect of convicting the appellants of the offence of criminal conspiracy. 17. We strongly feel that a situation has not reached as to waste the whole massive evidence already collected by the trial Court thus far, against the 4 accused arraigned in the case. Hence the order of the trial Court in exercise of Section 319 of the Code has to be interfered with for enabling the trial to proceed to its normal culmination. " in these facts the Court set aside the order, taking cognizance. ( 12 ) IN the case of Krisnappa (supra) the trial Court had rejected the application observing that the incident happened in the year 1993 in which certain simple injuries were found along with damage of some crops, the application was filed after examination of 17 prosecution witnesses and recording of the statements of the accused under section 313 of Cr. P. C. It was also observed by learned Magistrate that on the ?evidence, the possibilities of the appellant being convicted were remote. While setting aside the order of the trial Court rejecting the application, the High Court, on the ground that some of the P. Ws had deposed about the presence of the newly added accused, on the date of the incident and about instigation made by him to other accused to commit the offence and reversed the order of the trial Court. In these circumstances, the Apex Court while setting aside the order, observed in paragraphs 5, 6, 7 and 10 that - "5. The High Court, in the impugned judgment, has come to the conclusion that some of the prosecution witnesses have deposed about the presence of the appellant on the date of the incident and also abut the instigation made by him to the other accused persons to destroy the crops and trees grown by PW1. 6. It has been repeatedly held that the power to summon and accused is an extraordinary power conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. 7. In the present case, we need not go into the question whether prirnu facie the evidence implicates the appellant or not and whether the possibility of his conviction is remote, or his presence and instigation stood established, for in our view the exercise of discretion by the magistrate, in any event of the matter, did not call for interference by the High Court, having regard to the facts and circumstances of the case. 10. Applying the test as aforesaid to the facts of the present case, in our view, the trial Magistrate is right in rejecting the application. The incident was of the year 1993, seventeen witnesses had been examined. The statements of the accused under Section 313 Cr. PC has been recorded. The role attributed to the appellant, as per the impugned judgment of the high Court, was of instigation. Having regard to these facts coupled with the quashing of proceedings in the year 1995 against the appellant, it could not be held that the discretion was illegally exercised by the trial magistrate so as to call for interference in exercise of revisional jurisdiction by the High court. Having regard to these facts coupled with the quashing of proceedings in the year 1995 against the appellant, it could not be held that the discretion was illegally exercised by the trial magistrate so as to call for interference in exercise of revisional jurisdiction by the High court. ( 13 ) IN the case of Palanisamy Gounder (supra), the charge sheet was initially filed against five persons. Later, on an application of Public Prosecutor, both the appel- lants as accused nos. 4 and 5 were dropped by the Sessions Court. During trail, on the basis of the statements of PW1, PW2 and pw3, on an application filed by the Public prosecutor, both the appellants were against summoned as accused No. 4 and 5, while observing that though the case against the persons dropped to be added was not on solid evidence but they had to be impleaded as accused in order to find out the real truth. The Hon'ble Apex Court, while referring the case of Michael Machado (Supra) observed that it is not hopeful that there is a reasonable prospect, the case against the newly added accused ending in their conviction, set aside the order. As stated hereinabove, the facts of all the three cases of Michael Machado, Krishnappa and ?palanisamy are different than the present case. ( 14 ) THE facts of the case of Kavalluri vivekananda Reddy (supra) are that the appellant who was summoned as new accused along with one more person was the brother of the deceased. There was a dispute of land in between the appellant and the deceased. At the relevant time, dispute arose about fixing electric motor on well. Charge-sheet was filed against only one accused, who was relative of the appellant, on the ground that he pushed the deceased into the well. During trail, an application under section 319 of Cr. P. C. was filed by the widow of the deceased after examination of seven witnesses, which was allowed by a cryptic order. The statements of seven witnesses examined during trial were of general nature, that the appellant instigated the main accused. In these facts, the Hon'ble apex Court, while referring the case of krishnappa (supra) has observed against that the power under Section 319 of Cr. The statements of seven witnesses examined during trial were of general nature, that the appellant instigated the main accused. In these facts, the Hon'ble apex Court, while referring the case of krishnappa (supra) has observed against that the power under Section 319 of Cr. P. C. is discretionary and has to be exercised only to achieve criminal justice and that the court should not turn against another per- son whenever it comes across evidence connecting that other person also with the offence. The provisions of Section 319 of Cr. P. C. are required to be used sparingly summoning of new accused after expiry of eight years, on the facts and circumstances and also having regard to the deposition of the witnesses is not called for. This observation of the Courts shows that after such a long period, on the basis of general allegations, new accused ought not to be summoned. ( 15 ) THE facts of the case of Lokram (supra) are that it was a case of dowry death, due to burning. Three accused were charge- sheeted including the husband of the deceased. Father-in-law was left on the ground that he was a Govt. servant and was found on duty at the relevant time in the school. The application was rejected by the Sessions court, the High Court allowed the same. The order of the High Court was upheld by the Apex Court. This has been cited on behalf of the petitioners in support of their contention, that the powers of Section 319 of Cr. P. C. are to be used sparingly and only after compelling reasons exist for taking action against the newly added person and also in support of the contention that taking cognizance against new accused should be only on the basis pf evidence adduced during trial and not on the basis of materials available in charge-sheet of the case diary. ( 16 ) CONSIDERING all the judgments cited hereinabove, it appears that the power under Section 319 of Cr. P. C. are discretionary and are to be used sparingly when the court is hopeful that there is a reasonable prospect of the case, as against the newly brought accused ending in conviction and the approach of the Court should be based on the evidence recorded during trial. The other material of the charge sheet papers is not required to be considered. The other material of the charge sheet papers is not required to be considered. Keeping these principles in mind, if the impugned order is to be considered. The uncrossed testimony of Madhav Singh can be considered as an evidence in the case, in view of the observation of the Apex Court in the case Rakesh (supra ). He has stated against the petitioners about their specific involvement in the incident. About petitioner Ramavatar, he states that he was carrying 12 bore gun and exhorted in the words," (Matter in other language) "along with this exhortation, he himself fired his gun hitting at the hand of injured Bunt. The bullets fired by the petitioner rajendra and Brijendra, hit the deceased Bhagirath. The bullet fired by dharmendra, hit the deceased Shambu. The bullets fired by petitioner Arvind, hit the deceased Syam and the bullets fired by udaiveer, hit the deceased Shambu. He immediately lodged the report Ex. P-18 at the Police Station. Admittedly, this FIR corroborates this statement and also it is corroborated by the medical evidence. This fact has been argued on behalf of the respondents and not controverted on behalf of the petitioners during the arguments. The facts which have been stated by this witness about his filing applications and affidavits before the authorities during investigation can also be considered because that is now part of the statement of this witness during trial and the documents have been exhibited in the statement. The Statements of madhav Singh is one of the three eyewitness. Rest two Bunti and Padam Singh are yet to be examined. Considering this legal evidence, the satisfaction of the Court as required by the observation of the aforementioned judgments of the Apex Court, appears in existence. Considering all the facts and circumstances, this evidence on the record, appears sufficient to sustain the impugned order. ( 17 ) CONSEQUENTLY, petition being devoid of merits and also substance, is dismissed. Petition dismissed. .