Judgment :- 1. The Petitioner approaches this Court with a prayer to set aside the order passed by the Judicial Magistrate Court, Arupukottai in C.C. No.33 of 2010 dated 27.04.2010 in Crime No.105 of 2010 on the file of the Respondent-Police. 2. The learned Counsel appearing for the Petitioner would submit that the Petitioner is A3 and he has been falsely implicated in this case in Crime No.105 of 2010 on the file of the Respondent-Police for the alleged offence punishable under Sections 341, 323 and 324, I.P.C. He would further submit that during the commencement of trial and during the examination of P.Ws.1 and 2 only, the learned Judicial Magistrate has passed the following order and ordered to array the Petitioner as A3 in this case: “A1, A2 present. L.W.1, L.W.2 examined as P.W.1 and P.W.2. Ex.P1 marked. P.W.1, P.W.2 gave their evidence discussing one Ravichandran as if he assaulted P.W.1 in the incident. The evidence of P.W.1 against Ravichandran is supported by the evidence of P.W.2. The Wound Certificate would disclose that the injured informed the Doctor that she was assaulted by three persons. There is sufficient materials to proceed against Ravichandran. Hence, it is ordered to array Ravichandran as Accused No.3 and Issue summon to him.” 3. Heard the learned Counsel appearing for the Petitioner as well as the learned Government Advocate (Criminal side) and perused the materials available on record. 4. The learned Counsel appearing for the Petitioner would submit that after due investigation only, charge-sheet has been filed and in the First Information Report, the Petitioner’s name was not found place and in the First Information Report, nothing has been mentioned against the Petitioner. In Section 161(3) of Cr.P.C. Statements of the de facto Complainant and his wife also, they have not whispered anything against the Petitioner. But, the Petitioner herein is cited as one of the attestor of the Observation Mahazar and he is also cited as L.W. No.3 in the charge sheet also cited as L.W. No.3 in the charge sheet. For the first time, when the de facto Complainant and his wife were examined in witness box only, they have stated that the Petitioner has caught hold of P.W.1/de facto Complainant and hence he was arrayed as A3, so he prayed for the allowing of the Appeal. 5. The alleged occurrence has been taken place on 14.01.2010. For the first time, when the de facto Complainant and his wife were examined in witness box only, they have stated that the Petitioner has caught hold of P.W.1/de facto Complainant and hence he was arrayed as A3, so he prayed for the allowing of the Appeal. 5. The alleged occurrence has been taken place on 14.01.2010. Even though, it was stated for the first time that the Petitioner herein has caught hold of P.W.1 for facilitating A1 and A2 for the commission offence, it is only an afterthought. 6. While perusing the A.R. Copy of P.W.2, wherein, she has stated that on 14.01.2010 at 4.00 p.m, at lane in her5 house, three known persons have assaulted her with Uli/Blade and sustained injuries,. Admittedly, P.W.1 has not sustained injuries. Admittedly, P.W.1 has not sustained any injury. I perused the deposition of P.W.1/de facto Complainant, wherein, he has stated that “TAMIL” Except these, nothing has been mentioned against the Petitioner. In such circumstances, it is painful to accept that the Petitioner has caused injury to P.W.1. Admittedly, P.W.1 has not sustained any injury and he has not examined by the Doctor, P.W.2 only sustained injury and she has taken treatment. Now, it is appropriate to consider the decision relied upon by the learned Counsel appearing for the petitioner in Mohd. Shafi v. Mohd. Rafiq and another, 2007 (14) SCC 544, wherein, it has been held as follows: “6. Section 319 of the Code of Criminal Procedure reads thus: “319 . Power to proceed against other persons appearing to he 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 persons 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. .(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 subsection (1) then- .(a) the proceedings in respect of such person shall be commenced afresh, and witnesses reheard; .(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.” 7. Before, thus, a Trial Court seeks to take recourse to the said provision, the requisite ingredients therefore must be fulfilled. Commission of an offence by a person not facing trial, must, therefore, appeal to the Court concerned. It cannot be ipse dixit on the part of the Court. Discretion in this behalf must be judicially exercised. It is incumbent that the Court must arrive at its satisfaction in this behalf. 8. As interpretation of the abovementioned provision is now covered by some decisions of this Court, we need not state ingredients at this stage. 9. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, 1983 (1) SCC, a Division Bench of this Court while holding that even if a person had not been sent for trial by the police, the Trial Court would be entitled to invoke its jurisdiction after taking evidence, stating: (SCC p.8.para 19) “19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the Court that the order 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. More than this we would not like to say anything further at this stage. 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.” (emphasis supplied) This aspect of the matter has also recently been considered in Yuvaraj Ambar Mohite v. State of Maharashtra, 2006 (10) Scale 369. 7. It is also appropriate to consider the case in Palanisamy Gounder and another v. State represented by Inspector of Police, 2005 (12) SCC 327 , wherein, it has been held as follows: 3. The power under Section 319 of the Code cannot be exercised so as to conduct a fishing inquiry. We have already noticed the observations of the learned Trial Judge that though the case against the Appellants was not on solid foundation but it was felt that to find out the real truth they deserved to be added as Accused. The manner in which the power under Section 319 deserves to be exercised has been laid down in Michael Machado v. Central Bureau of Investigation, holding that unless the Court is hopeful that there is a reasonable prospect of the case against the newly added Accused ending in their conviction for the offence concerned, the Court shall refrain from adding them as Accused. In Krishnappa v. State of Karnataka, a Bench of which one of us (Hon’ble Mr. Justice Y.K. Sabharwal) was a member, following Michael Machado it was said that: (SCC p. 795, para 9) “9. In Michael Machado v. Central Bureau of Investigation, construing the words ‘the Court may proceed against such person’ in Section 319, Cr.P.C., this 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. This Court further held that a judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has already proceeded 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, Cr.P.C. , has also to bear in mind that thee is no compelling duty on the Court to proceed against other persons. Ina nutshell, it means that for exercise of discretion under Section 319, Cr.P.C., all relevant factors, indulging the one 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. It is also appropriate to consider the decision in Balakrishnan v. Inspector of Police, Kalayarkovil P.S., Sivagangai District and another, 2010 (2) MLJ (Crl) 251, wherein, this Court has held as follows: “For invoking Section 319, Cr.P.C., it should appear to the Court from the evidence collected during the 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 he could as well be tried along with already arraigned Accused. Simply because a prosecution witness has spoken about the involvement of another person in the offence in his chief-examination, it would not necessitate the Court to include the name of that person as an Accused and the Court ought to have satisfied itself with the other available evidence before summoning said person.” 9. Considering the above said citations along with the facts of the case, it reveals that when P.Ws.1 and 2 were deposed before the Court only, the learned Judicial Magistrate came to know that during the commission of offence, the Petitioner had caught hold of P.W1/de facto Complainant. But no Complaint has been given against the Petitioner herein and the Petitioner is also one of the attestor of the Observation Mahazer and he was also cited as L.W.3 in the charge-sheet. Furthermore, in this case. P.W.1 has not sustained any injury. 10. But no Complaint has been given against the Petitioner herein and the Petitioner is also one of the attestor of the Observation Mahazer and he was also cited as L.W.3 in the charge-sheet. Furthermore, in this case. P.W.1 has not sustained any injury. 10. In such circumstances, I am of the opinion that the learned Judicial Magistrate ought to have satisfied himself that the Petitioner has committed an offence for which he could as well be tried along with A1 and A2 and simply because P.Ws.1 and 2 have deposed before the Court that the Petitioner has caught hold of P.W.1, even his name neither mentioned in the First Information Report nor Section 161(3) of Cr.P.C. statements, it will not necessitate the Court to include the name of that person as an Accused and the Court ought to have satisfied itself with the other available evidence before summoning said person. 11. Hence, on perusal of the Case Diary and the order passed by the learned Judicial Magistrate, I am of the opinion that the learned Judicial Magistrate has not given subjective satisfaction in the po0ssibility of conviction of the Accused and hence, the same is liable to be set aside. 12. In fine, this Criminal Original Petition is allowed and the order dated 27.04.2010 made in C.C. No.3 of 2010 passed by the learned Judicial Magistrate, Aruppukottai is hereby set aside. Consequently, connected Miscellaneous Petition is closed.