JUDGMENT Hon’ble R.K. Rastogi, J.—This is an application under Section 482, Cr.P.C. to quash the order dated 1.8.2007 passed by A.S.J./Fast Track Court No. 3, Mainpuri in Session Trial No. 119/2007, State v. Bijendra Singh, under Sections 307, 504, I.P.C. Police Station Bichwan, District Mainpuri. 2. The facts relevant for disposal of this application are that on 25.7.2006 a F.I.R. was lodged by Jabar Singh, Opposite Party No. 2 against Bijendra Singh and his brother Lal Singh (the present applicant) at P.S. Bichwan, District Mainpuri with these allegations that on 24.7.2006 at about 8.00 P.M. when he was at his house, the accused Bijendra and Lal Singh, who were drunk, came to his house and started to abuse him. Jabar Singh asked them not to abuse. Then Lal Singh gave an axe blow to him but Jabar Singh escaped injury. Bijendra Singh fired from his country-made pistol upon Jabar Singh but the fire hit his wife Sri Devi on her head. She was seriously injured. Then he took her to the district hospital for treatment but the doctors asked him to bring Chitthi Majroobi from the Police Station. Then he went to police station along with his wife and lodged the report. 3. The police registered the case under Sections 307 and 504, I.P.C. against both the accused persons but after investigation the I.O. came to the conclusion that there was no sufficient evidence against the accused Lal Singh. So he did not submit any charge-sheet against Lal Singh and filed the charge-sheet against Bijendra Singh only. 4. The case was committed to the Court of Sessions by the Magistrate, where charges were framed against the accused Bijendra Singh under Sections 307 and 504, I.P.C. Thereafter statement of Jabar Singh was recorded as P.W. 1 who named both the accused persons in his examination-in-chief and further stated that Lal Singh had given axe blow to him but he escaped the injury then an application was moved from the side of the prosecution to summon Lal Singh as an accused under Section 319, Cr.P.C. That application was allowed by the learned Additional Sessions Judge vide his order dated 1.8.2007. Against that order, the accused Lal Singh filed this application under Section 482, Cr.P.C. 5. I have heard the learned Counsel for the applicant and the learned A.G.A. for the State. Against that order, the accused Lal Singh filed this application under Section 482, Cr.P.C. 5. I have heard the learned Counsel for the applicant and the learned A.G.A. for the State. Nobody has put in appearance on behalf of the opposite party No. 2 Jabar Singh though notice was served upon him through his wife. Learned Counsel for the applicant submitted that in view of the Ruling of the Hon’ble Apex Court in the case of Mohd. Shafi v. Mohd. Rafiq, 2007 (58) ACC 254, it was essential for Trial Court to get the witness Jabar Singh cross-examined first and then suitable orders should have been passed on the application under Section 319, Cr.P.C. taking into consideration the cross-examination of the witness. He submitted that since in the present case the Presiding Officer of the Court had passed this summoning order without cross-examination of P.W. 1 Jabar Singh, on the basis of his examination-in-chief only, the order passed by him, being against the ruling of Hon’ble Apex Court in the aforesaid case, is liable to be set aside, and this application under Section 482 should be allowed and the matter should be remanded to the learned Lower Court for fresh decision on the application under Section 319, Cr.P.C. after providing an opportunity to the present accused in the case to cross-examine Jabar Singh P.W. 1. 6. I agree with the above submissions of the learned Counsel for the applicant. Taking into consideration the law laid down by the Hon’ble Supreme Court in above Ruling it was essential for the learned Trial Court to first permit cross-examination of Jabar Singh P.W. 1 and then suitable order should have been passed on the application under Section 319, Cr.P.C. in the light of that cross-examination. The learned Counsel for the applicant has filed a copy of the statement of Smt. Sri Devi wife of informant Jabar Singh recorded by the I.O. under Section 161, Cr.P.C. in which it has been stated by her that Lal Singh was not present on the spot at the time of the incident. The learned Counsel for the applicant has filed a copy of the statement of Smt. Sri Devi wife of informant Jabar Singh recorded by the I.O. under Section 161, Cr.P.C. in which it has been stated by her that Lal Singh was not present on the spot at the time of the incident. Taking her above statement into consideration, the Presiding Officer of the Court may also examine Sri Devi before passing any order on the application under Section 319, Cr.P.C. The Hon’ble Apex Court in its recent Ruling Rajendra Singh v. State of U.P. and another, (2007) 7 SCC 378 , has laid down sufficient guidelines as to how the power under Section 319 should be exercised and has made the following observations in paras 16, 20 and 21 of the judgment : "16. Section 319 (1), which is relevant for our purpose reads : “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.” As I see it, the words are plain and the meaning clear. When in the course of the enquiry or trial, it appears to the Court from the evidence that a person, not arrayed as an accused, appears to have committed any offence for which that person could be tried together with the accused, the Court may proceed against that person. Surely, it must appear to the Court from the evidence that someone not arrayed as an accused, appears to have committed an offence. Be it noted, the Court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has a discretion not to proceed, since the expression used is “may” and not “shall”. The legislature apparently wanted to leave that discretion to the trial Court so as to enable it to exercise its jurisdiction under this section. Even then, it has a discretion not to proceed, since the expression used is “may” and not “shall”. The legislature apparently wanted to leave that discretion to the trial Court so as to enable it to exercise its jurisdiction under this section. The expression “appears” indicates an application of mind by the Court to the evidence that has come before it and then taking a decision to proceed under Section 319 of the Code or not. With great respect, I see no reason to describe the power as an extraordinary power or to confine the exercise of it only if compelling reasons exist for taking cognizance against any other person against whom action has not been taken. After all, the section only gives power to the Court to ensure that all those apparently involved in the commission of an offence are tried together and none left out. I see no reason to curtail this power of the Court to do justice to the victim and to the society. It appears to me that it is left to the judicial discretion of the Court, judicially trained, to decide to proceed or not to proceed against a person in terms of Section 319 of the Code. 20. The power under Section 319 of the Code is conferred on the Court to ensure that justice is done to the society by bringing to book all those guilty of an offence. One of the aims and purposes of the criminal justice system is to maintain social order. It is necessary in that context to ensure that no one who appears to be guilty escapes a proper trial in relation to that guilt. There is also a duty to render justice to the victim of the offence. It is in recognition of this that the Code has specifically conferred a power on the Court to proceed against others not arrayed as accused in the circumstances set out by this section. It is a salutary power enabling the discharge of a Court’s obligation to the society to bring to book all those guilty of a crime. 21. Exercising of power under Section 319 of the Code, in my view, is left to the Court trying the offence based on the evidence that comes before it. The Court must be satisfied of the condition precedent for the exercise of power under Section 319 of the Code. 21. Exercising of power under Section 319 of the Code, in my view, is left to the Court trying the offence based on the evidence that comes before it. The Court must be satisfied of the condition precedent for the exercise of power under Section 319 of the Code. There is no reason to assume that a Court trained in law would not exercise the power within the confines of the provision and decide whether it may proceed against such person or not. There is no rationale in fettering that power and. the discretion, either by calling it extraordinary or by stating that it will be exercised only in exceptional circumstances. It is intended to be used when the occasion envisaged by the section arises.” 7. It is thus clear from the perusal of the above quoted observations of the Hon’ble Apex Court that the Court has to exercise its discretion in judicial manner as to whether a person should be summoned as an accused under Section, 319 Cr.P. C. or not. If on the basis of the evidence produced before it, it appears to the Court that the person in respect of whom the prayer had been made for summoning him under Section 319, Cr.P.C. might have joined the other accused in doing the offence, and his name had been dropped from the array of the accused persons in an unjustified manner with a view to favour him or otherwise, the Court may summon him as an accused under Section 319, Cr.P.C. so that all the persons concerned with the crime may be jointly tried in the interest of justice. But if on the basis of the evidence produced before it as well as on consideration of that evidence which was relied upon when he was discharged at the earlier stage, it appears to the Court that his participation in the incident appears to improbable and that he is being unnecessarily dragged in the litigation, the Court may refuse to summon him under Section 319, Cr.P.C. This discretion lies with the Court. This discretion has been conferred upon the Court use of the phrase the Court may proceed” used in sub-section (1) of Section 319, Cr.P.C. and for exercise of this discretion, the Court may itself put questions to a witness in the nature of cross-examination to ascertain truth. This discretion has been conferred upon the Court use of the phrase the Court may proceed” used in sub-section (1) of Section 319, Cr.P.C. and for exercise of this discretion, the Court may itself put questions to a witness in the nature of cross-examination to ascertain truth. If there appears genuine possibility of participation of that person (proposed to be summoned under Section 319, Cr.P.C.) in the incident he should be summoned under Section 319, Cr.P.C., but if it appears to the Court that he has falsely been implicated simply with a view to harass him, the Court may refuse to summon him. 8. Since the aforesaid legal proposition has not been taken into consideration by the learned Trial Court while deciding the application under Section 319, Cr. P.C., the order passed by him on the above matter cannot be upheld and it is liable to be set aside. 9. The application under Section 482, Cr.P.C. is, therefore, allowed. The order dated 1.8.2007 passed by A.S.J./Fast Track Court No. 3, Mainpuri in Session Trial Case No. 119/2007 under Section 307, 504, I.P.C. Police Station Bichwan, District Mainpuri on the application under Section 319 Cr.P.C. is set aside and the matter is remanded to this Court for fresh disposal of the above application in the light of the observations made above in the body of the judgment. ————