JUDGMENT Hon’ble Vijay Kumar Verma, J.—Can a person summoned pursuant to an order passed by a Court in exercise of power conferred by Section 319 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) be tried for the offence for which he is summoned after the conclusion of the trial wherein such an order of summoning was passed, is also a question that falls for determination in this revision, which has been preferred against the order dated 5.2.2004 passed by 1st Additional Sessions Judge, Chitrakoot in S.T. No. 263 of 2000 (State v. Jagdish) under Section 302, I.P.C., whereby the revisionists and one other person Rahmat Ullah Khan have been summoned to face trial together with the charge-sheeted accused-Jagdish. 2. The facts leading to the filing of this revision, in brief, are that murder of S. P. Bezeleel was committed in the intervening night of 1/2.5.1998 in a house situated in Mission Compound Karwi, District Chitrakoot. First Information Report was lodged on 2.5.1998 at 7.45 a.m. by his son Noel Bezeleel at P.S. Karwi, where a case under Section 302 I.P.C. was registered at crime No. 163/98 against (1) Jagdish Prasad; (2) Anna Mary Grothe; (3) Miss Aase Jorgensen and (4) Rahmat Ulla Khan. After investigation, charge-sheet was submitted against Jagdish only. On the case being committed to the Court of Session, S.T. No. 263 of 2000 was registered against the accused Jagdish, who was charged under Section 302, I.P.C. After recording the statement of P.W. 1 Noel Bezeleel, the public prosecutor moved an application under Section 319, Cr.P.C. to summon Anna Mary Grothe, Aase Jorgensen and Rahmat Ullah Khan to face trial together with the accused Jagdish. That application has been allowed by the Court below vide impugned order and the revisionists as well as Rahmat Ullah Khan have been summoned to face trial under Section 302, I.P.C. in case crime No. 163 of 1998, P.S. Karwi together with accused Jagdish. Hence, this revision. 3. Although counter affidavit of the complainant Noel Bezeleel has been filed, but his Counsel was not present on the date of hearing. Hence, arguments of Sri Pradeep Kumar, learned Counsel for the revisionists and learned A.G.A. representing the State have only been heard. 4. Hence, this revision. 3. Although counter affidavit of the complainant Noel Bezeleel has been filed, but his Counsel was not present on the date of hearing. Hence, arguments of Sri Pradeep Kumar, learned Counsel for the revisionists and learned A.G.A. representing the State have only been heard. 4. At the outset, it was contended by learned Counsel for the revisionists that the impugned order has become ineffective and inoperative, because the trial of charge-sheeted accused Jagdish has already been concluded vide judgment dated 22.7.2004 and since, S.T. No. 263 of 2000 is not pending, hence, trial of the revisionists cannot be made now. The contention of the learned Counsel for the revisionists was that the persons, who have been summoned to face trial under the provisions of Section 319, Cr.P.C. can be tried only if the trial of the charge-sheeted accused is pending and if the trial of the charge-sheeted accused is concluded, the persons summoned pursuant to an order passed by the Court in exercise of the power conferred by Section 319, Cr.P.C. cannot be tried. I am not impressed with this argument. It is true that the charge-sheeted accused Jagdish has been acquitted vide judgment dated 22.7.2004 (Annexure SA-I to the supplementary affidavit dated 19.11.2007), but in my considered view, on this ground, the impugned order has not become ineffective or inoperative. While admitting this revision on 24.2.2004, this Court had stayed the operation of the impugned order dated 5.2.2004 and therefore, in view of the stay order granted by this Court, the trial of the revisionists in S.T. No. 263 of 2000 was not possible. The impugned order, when passed cannot be said to be without jurisdiction, since at that stage, the trial against chargesheeted accused Jagdish was pending and the revisionists, who were summoned vide impugned order could be tried together with him. Therefore, if during the pendency of this revision, the trial of Jagdish has concluded, the impugned order dated 5.2.2004 would not become ineffective and inoperative. Section 319, Cr.P.C. reads as under : "319. Therefore, if during the pendency of this revision, the trial of Jagdish has concluded, the impugned order dated 5.2.2004 would not become ineffective and inoperative. Section 319, Cr.P.C. reads 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. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence, which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1) then— (a) The proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." 5. Section 319(4)(a), Cr.P.C. shows that the proceedings against the person/persons under sub-section (1) are required to be commenced as afresh and the witnesses reheard. The entire proceedings have to be recommenced from the beginning of the trial. All the witnesses have to be examined afresh. Opportunity has to be granted to such a person to cross-examine those witnesses. There has to be de hovo trial. Under sub-section (4)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the enquiry or trial was commenced. It means that by virtue of Section 319 (4)(b), a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned. It means that by virtue of Section 319 (4)(b), a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned. Therefore, having regard to the provisions of sub-section (4)(a) and (b) of Section 319, in my considered view, due to conclusion of the trial against charge-sheeted accused, order passed by the Court under Section 319 (1), Cr.P.C. summoning other persons to face trial, would not become inoperative or ineffective. 6. The question as to the effect of the conclusion of trial after passing an order under Section 319(1) Cr.P.C., came for consideration in the case of Sashi Kant Singh v. Tarkeshwar Singh and another, 2002(45) ACC 164 (SC). After considering various provisions of the Code of Criminal Procedure and certain well settled principles of interpretation of statute, the Hon’ble Supreme Court has held that conclusion of trial of charge-sheeted accused has no effect on the trial of other person, who has been summoned pursuant to an order passed by Court in exercise of power conferred by Section 319 Cr.P.C. and such person can be tried for the offence for which he is summoned. Therefore, in view of the aforesaid legal position, the impugned order of summoning the revisionists to face the trial cannot be set-aside on the ground of conclusion of trial in S.T. No. 263 of 2000 against the charge-sheeted accused Jagdish. 7. The scope and ambit of Section 319, Cr.P.C. have been elucidated in several decisions of Hon’ble Apex Court. In Michael Machado and another v. Central Bureau of Investigation and another, 2000 (3) SCC 262 , construing the words “the Court may proceed against such person” in Section 319 of the Code, the Hon’ble Supreme Court held that the power is discretionary and should be exercised only to achieve criminal justice and that the Court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. It was further held that a judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It was further held that a judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. The Court, while examining an application under Section 319 of the Code, has also to bear in mind that there is no compelling duty on the Court to proceed against other persons. In a nutshell, for exercise of discretion under Section 319 of the Code all relevant factors including those noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused. 8. The above principles were highlighted in Krishnappa v. State of Kamataka, 2004 (7) SCC 792 . 9. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, 1983 (1) SCC 2, it was held : “In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence, the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is 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." 10. In the case of Lok Ram v. Nihal Singh and another, AIR 2006 SC 1892 , it was observed by the Hon’ble Apex Court : “Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it. If it is satisfied that any person other than accused had committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. If it is satisfied that any person other than accused had committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary 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 that evidence of witnesses given in Court.” 11. Testing the impugned order in the light of the observations made in the aforesaid decisions, let us now examine the merit of the impugned order. The revisionists have been summoned by the Court below exercising the power under Section 319, (1) Cr.P.C. merely on the basis of the statement of complainant Noel Bezeleel, who admittedly is not the eye-witness of the incident of murder of his father Sri S.P. Bezeleel. In the First Information Report (Annexure 2), the revisionists Miss Anna Mary Grothe and Aase Jorgensen as well as other person named Rahmat Ullah Khan were made accused merely on the basis of suspicion. Although in his examination-in-chief recorded as P.W. 1 in S.T. No. 263 of 2000, the complainant Neol Bezellel has stated that murder of his father was committed on 2.5.1998 by Anna Mary Grothe, Aase Jorgensen and Rahmat Ullah Khan and Jagdish, but this statement is not very material, because he did not see the incident of murder of his father. There was no other incriminating substantive evidence at the time of passing the impugned order against the revisionists or Rahmat Ullah Khan to show their involvement in the murder of deceased. Therefore, summoning of the revisionists and Rahmat Ullah Khan by the Court below exercising the power under Section 319, Cr.P.C. merely on the basis of the statement of P.W. 1, Noel Bezeleel is wholly illegal. 12. For the reasons mentioned herein-above, I am of the considered view that the impugned order has been passed by the Court below in mechanical manner without applying its mind and the revisionists as well as Rahmat Ullah Khan have been summoned to face trial without any evidence. Therefore, the impugned order cannot be sustained. 13. In the result, the revision is allowed. Therefore, the impugned order cannot be sustained. 13. In the result, the revision is allowed. The impugned order dated 5.2.2004 passed by the 1st Additional Sessions Judge, Chitrakoot in S.T. No. 263 of 2000 (State v. Jagdish) is set-aside and the application moved by the first informant Noel Bezeleel under Section 319, Cr.P.C. is hereby rejected. Office to send a copy of this order within a week to the Court of 1st Additional Sessions Judge, Chitrakoot for information and necessary action. ————