JUDGMENT : I. Mahanty, J. - The Petitioner Sundarmohan Nayak has filed the present application u/s 482, Code of Criminal Procedure seeking to challenge an order dated 23.7.2009 passed in G.R.Case No. 530 of 2002 by the learned Chief Judicial Magistrate, Mayurbhanj, Baripada, invoking his power u/s 319, Code of Criminal Procedure by which he directed addition of the Petitioner as an accused and issued summons to him to appear before the Court and to face trial along with the other accused, namely, Bapi Nayak. 2. From the basic facts of the case it appears that an F.I.R. was lodged by one Saraswati Singh alleging that her mother Chandramani Singh died due to electrocution by coming in contact with an illegally drawn electric wire, from an Lift Irrigation Point (in short 'L.I. point') by the present Petitioner namely, Sundarmohan Nayak. On the basis of the said F.I.R. Badasahi P.S. No. 64/02 was registered u/s 304A of the Indian Penal Code (in short 'IPC') and investigation was taken up. After completion of investigation Charge sheet was filed only against Bapi Nayak-O.P.2 (son of the Petitioner) and he was called upon to face his trial. In course of trial a number of witnesses were examined and the case was posted for judgment. Instead of delivering the judgment the learned C.J.M. took note of the testimony of P.Ws.2, 3, 5, 8 and 10 and on the basis of such statements recorded in course of trial, passed the impugned order dated 23.7.2009 directing the addition of the present Petitioner, Sundarmohan Nayak as an accused and issued summons to him to face his trial in purported exercise of power u/s 319, Code of Criminal Procedure 3. Mr. S.K. Mishra, learned Counsel for the Petitioner strenuously urged that the materials on the basis of which the learned C.J.M. had issued summons to the Petitioner, was very much available at the time of submission of Charge sheet in the shape of statements of various witnesses recorded u/s 161, Code of Criminal Procedure However, neither the police filed Charge sheet against the present Petitioner nor the learned C.J.M. issue process vidsnsistho Petitioner at the time of taking cognizance. It is therefore, submitted that the impugned order directing issue of summons to the Petitioner in purported exercise of the power u/s 319, Code of Criminal Procedure at this belated stage cannot be sustained in the eye of law. 4. It is therefore, submitted that the impugned order directing issue of summons to the Petitioner in purported exercise of the power u/s 319, Code of Criminal Procedure at this belated stage cannot be sustained in the eye of law. 4. Mr. Mishra further submitted that on a bare reading of the statements of the P.Ws.2, 3, 5, 8 and 10, the case of the prosecution no longer survives especially when P.W.8, ho is the owner of the Lift Irrigation Point, had stated in his evidence that electricity supply to his L.I. point had been disconnected more than 6 to 7 years prior to the date of alleged occurrence. Learned counsel for the Petitioner submitted that Hon'ble Supreme Court recently in various judgments has laid down the principles and circumstances under which the extraordinary jurisdiction u/s 319, Code of Criminal Procedure can be exercised. In this respect he placed reliance on the judgments of the Hon'ble Supreme Court in the case of Brindaban Das and Ors. v. State of West Bengal reported in (2009) 42 OCR (SC) 543, Sarabjlt Singh and Anr. v. State of Punjab reported in (2009) 43 OCR (SC) 761 as well as the judgment of this Court in the case of Bamakanta Behera ' Sahu and Another and Sri Sukadev Sahu and Another Vs. State of Orissa, . 5. Mr. Mishra, learned Additional Government Advocate appearing on behalf of the State, on the other hand, submitted the impugned order passed by the learned C.J.M. in exercising power u/s 319 Code of Criminal Procedure should not be interfered with since the power of the High Court u/s 482, Code of Criminal Procedure is to be sparingly used only for the purpose of giving effect to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. In the present impugned order dated 23.7.2009 learned C.J.M. has correctly exercised his power u/s 319, Code of Criminal Procedure since in the course of the trial of an offence, it appeared from the evidence of various prosecution witnesses, that the present Petitioner namely, Sundarmohan Nayak, not being the accused has committed an offence u/s 304A, I.P.C. and therefore he has arrayed the present Petitioner as an accused and has issued summons to him. Learned State Counsel further submitted that the present Petitioner would suffer no prejudice what-so-ever, since under Sub-section (1) of Section 319, Code of Criminal Procedure on adding the present Petitioner as an accused, the trial is to be commenced afresh and the witnesses were required to be re-heard and therefore the Petitioner would have adequate opportunity of defending himself. 6. Before proceeding to deal with the contentions advanced by the learned Counsel for the parties, it becomes extremely important to take note of the evidence of certain witnesses recorded in course of the trial. P.W.10, namely, Santish Chandra Nanda is the A.S.I, of Police at Gujidarada Outpost (Bhadrak (R)) who was the Investigation Officer in that case. From his evidence it appears that on 11.6.2002 this witness was the A.S.I, of Police at Badasahi Police Station and he registered the case on the basis of the F.I.R. lodged by Smt. Saraswati Singh (P.W.3) and took up investigation into the case in the F.I.R. (Annexure-1) to the present application the informant has stated as follows:- ... white my mother Chandramani Singh wife of late Bira Singh was proceeding to village pond to wash her cloths and while crossing the farmland of Sri Sundarmohan Nayak, she came in contact with the electric G.I. wire erected by him to illegally draw electricity to his house from the L.I. point and she died due to electrocution. (Translated from the F.I.R. written in Oriya) 7. P.W.10 claimed that he visited the place of occurrence and on reaching the spot he found the dead body of Chandramani Singh was lying there. There he examined the other witnesses. He seized an aluminum pot (being carried by the deceased) and four numbers of Ganthas (Blankets) and one open G.I. wire from the spot and prepared the seizure list marked Exhibit-1. He further stated that during investigation he found that there was illegal electrical connection from the L.I. point of one Pravat Acharya, son of late Puma Acharya to the house of Sundarmohan Nayak. Inspite of such statement recorded in examination in chief, the said witness further stated that after completion of investigation Charge sheet was submitted under Sections 304/379, I.P.C. read with Section 39 of the I.E. Act against accused Bapi Nayak (son of the present Petitioner) who at that stage was absconding. Inspite of such statement recorded in examination in chief, the said witness further stated that after completion of investigation Charge sheet was submitted under Sections 304/379, I.P.C. read with Section 39 of the I.E. Act against accused Bapi Nayak (son of the present Petitioner) who at that stage was absconding. In paragraph-3 of his deposition before the Court he has stated that "Sri Sundarmohan Nayak is an old man and did not know how to use electric current and that pertain witnesses pf Dhanasahi stated before him that the accused Bapi Nayak (O.P.2) son of the Petitioner Sundarmohan Navak being a young man had taken the electric current un-authorisedly from the L.I. Point of one Pravat Kumar Acharya to his house through open G.I, wire and bamboo pillars and such open G.I, wire came in contact with the wet 'Ganthas' (blankets) which the deceased was carrying for washing the same in the village pond resulting her death". It is most important to note here that, none of the so called witnesses (witnesses of village Dhanasahi) have been shown as charge sheet witnesses and yet, the I.O. submitted, charge sheet not against the present Petitioner Sundarmohan Nayak but against Bapi Nayak (O.P.2) that too without.even bothering to record the statement of the present Petitioner Sundamohan Nayak, who was the sole accused named in the F.I.R. 8. P.W.2 Mali Singh (husband of the informant P.W.3 Saraswati Singh, informant), P.W.5 Kumari Mina Singh daughter of the informant and eye-witness have categorically stated in their evidence that the deceased Chandramani Singh had died after coming in contact with the open live G.I. wire taken by Sundarmohan Nayak (Petitioner) from the L.I. point to his house at a low height unauthorizedly, and the deceased accidentally camo in contact with the same and died at the spot. P.W.5 fifteen years old daughter of the informant Kumari Mina Singh as an eye witness has stated in her evidence that she along with her younger brother Chiku Singh were present at the spot during the occurrence and the wire was a live open electric G.I. wire which was connected from the L.I. point up to the house of Sundarmohan Nayak and although she along with her brother had tried to save life of her grandmother (deceased), some co-villagers apprehending danger to their lives dissuaded them from going near their grand-mother and disconnected the live G.I. wire from the L.I. point. 9. The learned C.J.M. placed reliance on the aforesaid evidence and came to a conclusion that compelling circumstances exit for adding Sundarmohan Nayak as an accused in the pending trial and accordingly decided to invoke his power u/s 319, Code of Criminal Procedure 10. Now I come to deal with the citations relied on by the Petitioner. In the case of Brindaban Das & Ors. (Supra) the Hon'ble Supreme Court laid down the principle that "the use of discretionary power vested in Section 319, Code of Criminal Procedure and the exercise thereof has to be considered on its own set of facts and circumstances; In the matters relating invocation of powers u/s 319, the Court is not merely required to take note of the fact that the name of a person who has not been named as an accused in the F.I.R. has surfaced during the trial, but the Court is also required to consider whether such evidence would be sufficient to convict the person being summoned. Since the issuance of summons u/s 319, Code of Criminal Procedure entails a de novo trial and a large number of witnesses may have been examined and their re-examination could prejudice the prosecution and delay the trial, the trial Court has to exercise such discretion with great care and perspicacity." After having reiterated the aforesaid principle the Hon'ble Supreme Court went on to consider "the quality of the evidence adduced by the prosecution so far as the newly added accused is concerned and came to a view that it was difficult to hold with any amount of certainty that the same would in all probability secure conviction against the Appellant." 11. In the facts of the present case and the evidence adduced by the prosecution, the present Petitioner, namely, Sundarmohan Nayak had been named in the F.I.R. itself. It is not that the present Petitioner against whom the C.J.M. has exercised power u/s 319, Code of Criminal Procedure was named only in the evidence of the witnesses. The Petitioner in this case was named as the only accused in the F.I.R. 12. The next case relied upon by the Petitioner is the case of Sarabjit Singh & Anr, (supra). In the said casei the-Hon'ble Supreme Court reiterated the principlejunder Section 319, Code of Criminal Procedure and held that; "a stringent test has to be applied before exercising extraordinary jurisdiction u/s 319, Code of Criminal Procedure and the mere existence .of a prima facie case would not serve the purpose. Adequate evidence should be available on record which would reasonably lead to conviction of that person sought to be summoned and therefore a higher standard should be adopted than required for taking cognizance or framing of charge. In the aforesaid case the investigating officer upon completion of investigation had submitted charge sheet only against ten persons and filed final report against the Appellants therein. The Hon'ble Supreme Court in the aforesaid judgment after dealing with the various judgments rendered by it Court came to hold that, Section 319 of the Code of Criminal Procedure can be exercised only on the basis of the fresh evidence brought before it and not on the basis of material which has been collected during the investigation, particularly when a final form was submitted and the same had been accepted by the Magistrate concerned against the Appellants therein. 13. In the present case at hand, even though the present Petitioner Sundarmohan Nayak had been named in the F.I.R. as the only accused, the I.O. P.W.10 in his evidence, stated that since the Petitioner is an old man and does not know how to use the electric current and that "witness of village Dhanasahi" have stated before him, that the accused Bapi Nayak, son of the Petitioner had taken the electricity unauthorisedly from the L.I. point of Anr. person to his house which had resulted electrocution of the deceased Chandramani Singh. person to his house which had resulted electrocution of the deceased Chandramani Singh. As has been noted herein above, none of the so called "witnesses of village Dhanasahi", who claim to have stated before the I.O. that, it was accused Bapi Naik (O.P.2) and not Sundarmohan Na\ak (Petitioner) named in the F.I.R, who had taken illegal electric connection, have been examined as charge sheet witnesses. What is even more shocking to take note of is the fact that the 1.0. did not even record the statement of the present Petitioner although he had been named as the only accused in the F.I.R. The present case is clearly a case where the investigating officer has, for reasons best to known to him, failed to discharge his duty as an impartial investigator and has proceeded against one Bapi Nayak, even though the said Bapi Nayak was not named in the F.I.R., nor any evidence was laid before him to exclude the present Petitioner from the charge sheet. His entire endeavor appears to have been to keep Sundarmohan Nayak outside the scope of prosecution. More importantly, even though the Petitioner was the only accused named in the F.I.R. while filing the Charge sheet against Bapi Nayak, no final report against the Petitioner was ever filed by the I.O. In my humble opinion the facts of the present case are clearly distinguishable from the fact.s of the cases that arose for consideration before the Hon'ble Supreme Court and therefore can provide no assistance to the Petitioner. 14. Apart from the aforesaid two citations, learned Counsel for the Petitioner also placed reliance on the judgment of this Court, in the case of Ramakanta Behera ' Sahu & Ors (supra). In the fact of the said case, this Court came to a conclusion that the power should not be exercised mechanically only on the ground that some evidence has come on record against the person who is not facing trial and such jurisdiction should be exercised very sparingly if compelling reasons exist. In the fact of the said case, this Court came to a conclusion that the power should not be exercised mechanically only on the ground that some evidence has come on record against the person who is not facing trial and such jurisdiction should be exercised very sparingly if compelling reasons exist. In the said case this Court took note of the fact that even though the Petitioners were named in the F.I.R. as accused persons, however since the materials collected in course of investigation did not indicate their complicity in the commission of alleged offences, it is not disputed that dying declaration of the deceased made before witnesses as well as recorded by the investigating police officer and the Magistrate do not at all implicate the Petitioners with commission of alleged offences. Therefore, it was held that trial Court proceeded mechanically to exercise the jurisdiction u/s 319, Code of Criminal Procedure 15. It would be relevant to take note of the judgment of the Hon'ble Supreme Court in the case of Joginder Singh and Another Vs. State of Punjab and Another, while dealing with the scope and ambit of Section 319, Code of Criminal Procedure the Hon'ble Supreme Court observed in paras-6 & 9, which read as thus:- 6. A plain reading of Section 319(1), Code of Criminal Procedure which occurs in chapter XXIV dealing general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused?. 9. As regards the contention that the phrase "any person not being the accused" occurring in S. 319 excludes from its operation an accused who has been released by the police u/s 169 of the Code and has been shown in column No. 2 of the charge sheet, the contention has merely to be stated to be rejected. 9. As regards the contention that the phrase "any person not being the accused" occurring in S. 319 excludes from its operation an accused who has been released by the police u/s 169 of the Code and has been shown in column No. 2 of the charge sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Sec. 319(1) clearly shows that even persons who have been dropped by he police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court are included in the said expression. 16. In the case of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, the Hon'ble Supreme Court reiterated the principles laid down in the case of Joginder Singh and Anr. (supra) and observed in para-19, which, reads as follows:- In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfied 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 ihem and try them along with 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. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the Court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against Respondent 2 to 5 will not prevent the Court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it. 17. The case of Joginder Singh and Anr. (supra) and the case of Municipal Corporation of Delhi (supra) are relied upon by the Hon'ble Supreme Court in the case of Guriya @ Tabassum Tauquir and Others Vs. 17. The case of Joginder Singh and Anr. (supra) and the case of Municipal Corporation of Delhi (supra) are relied upon by the Hon'ble Supreme Court in the case of Guriya @ Tabassum Tauquir and Others Vs. State of Bihar and Another, where the Hon'ble Supreme Court has observed in para-13, which reads as follows:- 13. On a careful reading Section 319 of the Code as well as the aforesaid two decision it becomes clear that the trial Court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with rSther accused persons, if the Court is satisfied at any stage of the proceeding on the evidence adduced that the perspn who have not been arrayed as accused should face the trial. It is further evidence that such person even thpuqh had initially been named in the F.I.R. as an accused, but not charge sheeted, can also be added to face the trial. The trial Court can take such a step to add such person as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge sheet or the case diary, because such material contained in the charge sheet or the case diary do not constitute evidence. 18. In the light of the aforesaid judgments of the Hon'ble Supreme Court, the contentions raised by the learned Counsel for the Petitioner that the similar evidence which was available to the trial Court, at the time of passing the impugned order, was also available to it at the time of taking cognizance, is wholly baseless. At the stage of taking cognizance the only material available before the trial Court was the charge sheet or the case diary and such material is not evidence. It. is only basing upon the evidence which is rendered in course of trial, the trial Court may, in its considered view, seek to direct addition of a person as an accused, which includes, a person who had been named in the F.I.R. but not charge sheeted. It. is only basing upon the evidence which is rendered in course of trial, the trial Court may, in its considered view, seek to direct addition of a person as an accused, which includes, a person who had been named in the F.I.R. but not charge sheeted. In the present case the trial Court has relied upon the evidence given before it, in course of the trial against O.P.2 and on consideration of the same, has sought to pass the impugned order by exercising its power u/s 319, Code of Criminal Procedure to implead the Petitioner as an accused and therefore, in my earnest view, the contentions advanced by the learned Counsel for the Petitioner cannot be accepted. 19. In the present case all the witnesses including the eye witness, as well as the F.I.R., the present Petitioner has been named as sole accused and the evidence of P.W.10 (I.O.), clearly indicates that he had not even bothered to record the statement of the present Petitioner and instead has proceeded against Bapi Nayak (O.P.2) son of the present Petitioner, allegedly based on the evidence of certain witnesses, whom he has not even cited as charge sheet witnesses. Therefore I am of the considered view that learned C.J.M. in the present circumstances has correctly exercised his jurisdiction u/s 319, Code of Criminal Procedure On a reading of the evidence of P.Ws. 2, 3 and 5, it is clear that substantial evidence exists, which could reasonably indicate about involvement of the Petitioner. Therefore, I find no merit in the present application, which stands dismissed. Interim order dated 4.9.2009 passed in Misc. Case No. 1921 of 2009 stands vacated.