Judgment : One of the prosecution witnesses viz., PW1, in a Sessions Case in which the offences involved are under Section 120B read with Sections 364 I.P.C., 302 I.P.C. and 201 I.P.C., is the revision petitioner as he is aggrieved by the order dated 29.3.2010 in Crl.M.P.No.4239 of 2009 in S.C.No.309 of 2003 pending in the court of the IV Additional Sessions Judge, Ernakulam, by which his petition filed under Section 319 of the Code of Criminal Procedure (for short ‘the Cr.P.C.’) to add one A.P. Abookbacker Musaliyar as an additional accused in the above sessions case is dismissed. 2. The allegation of the prosecution in the above sessions case is that in the evening of 29.7.1993, accused Nos.1 and 4 abducted one Chekannur Moulavi in a jeep from his house and when they reached Kolappuram, accused Nos.3, 5, 6 and 7 joined with accused Nos.1 and 4 and as instructed by A4, A6, A7, A5 and A3 put a cloth around the neck of Moulavi from behind and thus committed murder of him at 9.30 p.m. on 29.7.1993. 3. The first respondent, the Central Bureau of Investigation (for short ‘the C.B.I.’) is the agency, who undertook the investigation, and they have filed a report on the basis of which the above sessions case was instituted. The alleged date of occurrence is 29.7.1993 and the above sessions case was instituted after ten years, that is during the year 2003 and thus, the trial was commenced much earlier. The present petition is preferred during the year 2009 at a stage when the prosecution evidence is over and when the case is ripe for questioning the accused under Section 313 Cr.P.C. The learned Sessions Judge, who recorded the evidence of the prosecution witnesses, came to the conclusion that there is no material compelling to invoke Section 319 of Cr.P.C. and to add the second respondent as an accused in the above sessions case. It is the above finding and order dismissing the petition filed under Section 319 of Cr.P.C. challenged in this Crl.R.P. 4. I have heard Sri. K. Ramakumar, learned Senior Counsel appearing for the revision petitioner and Sri. M.V.S. Namboothiry, Standing Counsel appearing for the C.B.I., the first respondent herein and also heard Sri. M.R. Venugopal, learned Public Prosecutor for the State. 5. I have heard Sri. K. Ramakumar, learned Senior Counsel appearing for the revision petitioner and Sri. M.V.S. Namboothiry, Standing Counsel appearing for the C.B.I., the first respondent herein and also heard Sri. M.R. Venugopal, learned Public Prosecutor for the State. 5. Learned Senior Counsel during his strenuous argument submitted that the approach made by the court below upon a petition filed under Section 319 of the Cr.P.C. is absolutely perverse, illegal and incorrect and therefore, the above order is liable to be set aside. The learned counsel invited my attention to paragraph 7 and particularly the observation of the learned Single Judge to the effect that “the court is not bound to proceed even when there is evidence justifying such action.” According to the learned Senior Counsel, the above observation and the approach disclosed the mind of the learned Sessions Judge, which cannot be approved in the light of the decisions of the Apex Court as well as this Court on this subject. In support of the above submission, the learned counsel heavily relied upon the decision of this Court reported in Baijunath v. Station House Officer [2005 (3) KLT 253] and according to the learned Senior counsel, when the materials on record prima facie show the involvement of the person, who is sought to be added as an accused, the court should act under Section 319 impleading such person as an accused. Learned counsel, to substantiate the submission, read over the deposition of one Veerankutty, who was examined as PW4 and also the deposition of PW1, the revision petitioner. 6. On the other hand, stoutly opposing the revision petition as well as the contention advanced on behalf of the revision petitioner, Mr. M.V.S. Namboothiri, learned Senior Counsel appearing for the C.B.I submitted that the impugned order is factually and legally correct and as such, there is no illegality or irregularity or impropriety to interfere with the same exercising the revisional jurisdiction of this Court. The learned Standing Counsel submitted that the C.B.I, the investigation agency during the time of investigation enquired into the allegation against the second respondent herein and during such investigation, no lead or evidence could be gathered which is sufficient to implicate the second respondent as an accused in the above sessions case. The learned Standing Counsel submitted that the C.B.I, the investigation agency during the time of investigation enquired into the allegation against the second respondent herein and during such investigation, no lead or evidence could be gathered which is sufficient to implicate the second respondent as an accused in the above sessions case. It is also pointed out by the learned Standing Counsel that in an earlier occasion, PW3 the wife of the deceased had also filed an application with the same prayer which was allowed by the trial court, but that order of the trial court was subsequently set aside by this Court which was again approved by the Apex Court holding that the available evidence is not sufficient to array the second respondent as an accused. It is also the submission of the learned counsel that the trial court, when dealt with the petition preferred by the revision petitioner, considered the evidence of PW1 and PW4 and the same judicial mind, who recorded the evidence of PW1 and PW4 and also the other witnesses after having considered the deposition of Pws.1 and 4, came to a conclusion and convinced that there are no sufficient grounds to add the second respondent as an additional accused by invoking Section 319 of Cr.P.C. In support of the submission, the learned counsel for the CBI placed reliance upon the decisions reported in Michael Machado and another v. Central Bureau of Investigation and another (2000) 3 SCC 262, Prabhavathiamma v. State of Kerala (2007 (4) KLT 601) and Suman v. State of Rajasthan and another (2010) 1 SCC 250. It is also submitted by the learned counsel that now the trial is in progress and the prosecution evidence is already over and the case is now pending for questioning of the accused under Section 313 of the Cr.P.C. and at this stage, neither the petition moved before the trial court upon which the impugned order was passed nor the revision petition is entertainable. 7. In the light of the rival pleadings of the parties and the arguments advanced, the question to be considered is whether the impugned order of the trial court is tainted and incorrect, illegal or improper so as to interfere with the same in exercise of the revisional jurisdiction of this Court. 7. In the light of the rival pleadings of the parties and the arguments advanced, the question to be considered is whether the impugned order of the trial court is tainted and incorrect, illegal or improper so as to interfere with the same in exercise of the revisional jurisdiction of this Court. In order to consider the above question, first of all it is required to consider the factual position of the case and the stage at which the impugned order is passed. The allegation in the above sessions case is that one Chekannur Moulavi disappeared from his residence on 29.7.1993 and it is further alleged that he was murdered in pursuance of a conspiracy hatched among the accused. On the basis of the said allegation, the investigation was undertaken by the first respondent-CBI and after a prolonged investigation, the said agency filed a report implicating the present accused responsible for the disappearance and the murder of the said Moulavi and thus, the present Sessions Case was instituted after the expiry of ten years from the alleged disappearance and the murder of the deceased person. In the impugned order, the learned Sessions Judge has already stated the prosecution allegation in a nutshell and overt act alleged against the accused. It is also discernible from the order that as on the date of the impugned order, the prosecution evidence, which consists of the depositions of Pws.1 to 40, the documentary evidence, such as Exts.P1 to P37 and the material objects MOs.1 to 15 are over and the case was ripe for questioning the accused under Section 313 of Cr.P.C. It is also observed by the learned Sessions Judge that previously, as indicated earlier, PW3 preferred Crl.M.P.No.143 of 2005 with identical prayer which was allowed by the trial court by order dated 26.7.2005 and the said order was challenged in Crl.R.P.No.1919 of 2005 before this Court and this Court set aside the order of the trial court dated 26.7.2005 and though the said order of this Court was challenged in the Apex Court, the same was not successful. That being the factual and procedural position, now let us consider the legal position as on today. 8. Learned counsel for the revision petitioner placed much reliance upon the decisions of this Court in Prabhavathiamma’s case and Baijunath’s case (supra). That being the factual and procedural position, now let us consider the legal position as on today. 8. Learned counsel for the revision petitioner placed much reliance upon the decisions of this Court in Prabhavathiamma’s case and Baijunath’s case (supra). Learned single Judge of this Court in Baijunath’s case, after referring to the Supreme Court decision in Joginder Singh v. State of Punjab (AIR 1979 SC 339), held that in case, during trial, the evidence recorded shows that any person not being the accused appears to have committed the offence, such person also can be tried along with other accused. Learned counsel also invited my attention to paragraph 55 of the same decision in which the learned single Judge also quoted a portion of the judgment in Narayanan Nambiar v. State of Kerala (1987 (1) KLT 871) about the legal position discussed and laid down by the learned single Judge, which is not disputed at all. In the said decision, the learned single Judge has considered various aspects of Section 319 and the condition required for impleading a person who is not an accused before the court. But, in the above case, the learned Judge has held that the evidence should indicate reasonable prospect of conviction of such other persons. A mere suspicion of his/their involvement in the offence is not enough (emphasis supplied). Another decision relied on by the learned counsel for the petitioner is the Prabavathiamma’s case. In the above decision, this Court clarified that the court has power to add any person as an accused even after the starting of the trial, but on contingencies contemplated under Section 319. It is further held that the power under Section 319 shall be used sparingly. In the very same decision, the Division Bench has further held that the expression, “any person not being the accused” used in Section 319 of the Cr.P.C. means a person to whom no process was issued as an accused by the police or any person who was not being tried by the court as an accused. The facts and circumstances involved in the present case and the issue involved are entirely different from those dealt with in those decisions. The facts and circumstances involved in the present case and the issue involved are entirely different from those dealt with in those decisions. The Supreme Court in the decision reported in Michael Machado’s case (cited supra) has laid down the essential conditions for exercising the powers under Section 319 and it is held that evidence should indicate reasonable prospect of conviction of such other person(s). It is also held that mere suspicion of his/their involvement in the offence is not enough and power of the court under Section 319 is discretionary in nature and it should be exercised judicially having regard to various factors including the state at which the trial has proceeded already, the quantum of evidence collected and time spent by court in collecting evidence. In the said case, the Honourable Supreme Court has observed that where none of the 49 witnesses examined by the Magistrate making any allegation against the appellants and only the three remaining witnesses making reference about the role played by the appellants in the offence, but such reference was insufficient to make out the offence against the appellants and accordingly, held that there is no justification for proceeding against the appellants by recommencing the entire trial afresh. While laying down the guidelines and interpreting the scope of Section 319 of the Cr.P.C., the Apex Court in the above decision has held as follows:- “11. The basic requirements for invoking the above section is that it should appear to the court from the evidence collected during 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 that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused. 12. But even then, what is conferred on the court is only a discretion as could be discerned from the words “the court may proceed against such person”. The discretionary power so conferred should be exercised only to achieve criminal justice. 12. But even then, what is conferred on the court is only a discretion as could be discerned from the words “the court may proceed against such person”. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. 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 must be remembered that there is no compelling duty on the court to proceed against other persons. 13. In Municipal Corpn. Of Delhi v. Ram Kishan Rohtagi this Court has struck a note of caution, while considering whether the prosecution can produce evidence to satisfy the court that the other accused against whom proceedings have been quashed or those who have not been arrayed as accused, have also committed an offence in order to enable the court to take cognizance against them and try them along with the other accused. This was how leaned Judges then cautioned: “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.” 14. The court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4), that proceedings in respect of newly-added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be recommenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite large in number the court must seriously consider whether the object sought to be achieved by such exercise are worth wasting the whole labour already undertaken. If the witnesses already examined are quite large in number the court must seriously consider whether the object sought to be achieved by such exercise are worth wasting the whole labour already undertaken. Unless the court is hopeful that there is a reasonable prospect of the case as against the newly-brought accused ending in being convicted of the offence concerned we would say that the court should refrain from adopting such a course of action.” (emphasis supplied) In the recent decision of the Apex Court in Suman’s case (cited supra), the Apex Court has held as follows:- “16. Section 319 CrPC applies to all the courts including the Sessions Court. It empowers the court 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 other accused. If such person is not attending the court, he can be arrested or summoned. If he is attending the court, although not under arrest or upon a summons, he can be detained by such court for the purpose of inquiry into, or trial of the offence which he appears to have committed. Sub-section (4) lays down that where the court proceeds against any person under sub-section (1), the proceedings in respect of such person shall be commenced afresh and witnesses are reheard. 17. A reading of the plain language of sub-section (1) of Section 319 CrPC makes it clear that a person not already an accused in a case can be proceeded against if in the course of any inquiry into or trial of an offence it appears from the evidence that such person has also committed any offence and deserves to be tried with other accused. There is nothing in the language of this sub-section from which it can be inferred that a person who is named in the FIR or complaint but against whom charge-sheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry into or trial of any offence the court finds that such person has committed any offence for which he could be tried together with the other accused.” In the light of the legal position as enunciated through the above judgment, the question to be considered is how far this Court is justified in interfering with the order of the learned Sessions Judge, issued in exercise of his discretionary powers vested under Section 319 of the Cr.P.C. In this juncture, it is pertinent to note that in an earlier occasion, the trial court allowed the prayer similar in nature which was subsequently set aside by this Court and the same was approved by the Apex Court. Mr. Ramakumar, learned Senior Counsel during his argument read over the depositions of PWs.1 and 4 and emphasized the relevant portion, which according to him, is sufficient to exercise Section 319 of the Cr.P.C. and to implead the second respondent as an accused. On hearing the depositions of PWs.1 to 4, which was read over to me, I am of the view that the learned Sessions Judge is absolutely correct in refusing to exercise the discretionary jurisdiction to implead a person, who is not an accused, in the light of the facts and circumstances involved in the case. In this juncture, it is relevant to note that the impugned order is passed by the same court, which got the privilege of observing the demeanour of witnesses and which has gone through the documents produced by the prosecution and to identify and appreciate the material objects. In the decision of the Apex Court in Michael Machado’s case (supra), the Apex Court has held that the evidence should indicate reasonable prospect of conviction of such other person(s) and mere suspicion of his/their involvement in the offence is not enough. I am of the view that the learned Sessions Judge moulded his opinion after considering the evidence which is relied on by the revision petitioner and other facts and circumstances involved and examining the same in the light of the decisions of the Apex Court referred above. I am of the view that the learned Sessions Judge moulded his opinion after considering the evidence which is relied on by the revision petitioner and other facts and circumstances involved and examining the same in the light of the decisions of the Apex Court referred above. Going by the entire provisions of Section 319 of the Cr.P.C., it can be seen that in case of adding a new person as accused, the entire process of recording evidence has to be restarted afresh as indicated by the Honourable Apex Court. The Apex Court, in the Michael Machado’s case and another case, has held “Unless the court is hopeful that there is a reasonable prospect of the case as against the newly-brought accused ending in being convicted of the offence concerned we would say that the court should refrain from adopting such a course of action.” 9. Section 319 of the Cr.P.C. is quoted herein for convenience which runs as follows:- “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.” Section 319 of the Cr.P.C. is coming under Chapter XXIV of the Cr.P.C which deals with general provisions as to inquiries and trials. Thus, Section 319 is a particular provision giving powers to the trial court including the sessions court to proceed against other person appearing to be guilty of offence though he is not already arrayed as an accused. As held by the Honourable Apex Court in the decision in Michael Machado’s case (cited supra), the powers vested upon the trial court are discretionary in nature and when such trial court deals with an issue as to whether a person is to be added as an additional accused or not, the said discretion should be exercised judicially and very sparingly. In order to exercise such discretionary jurisdiction, the learned Judge has to keep in mind the entire evidence available as on the date of the consideration of the issue and also the materials and evidence pressed into service for invoking Section 319 of the Cr.P.C. After such consideration and weighing of the evidence, it is for the trial court to decide whether his action would be justified for invoking Section 319 especially with an objective assessment, as to whether there is any reasonable prospect of the case as against a person, proposed to add newly, ending in being convicted of the offence concerned, at the risk of the procedural task contemplated by sub-section 4(a) of Section 319 of the Cr.P.C. If the result of such inquiry is positive, he must invoke the provision and his action would be justified and if the result is negative, certainly the court should refrain from adopting such a course of action. 10. In the present case, after considering the entire facts, circumstances, materials and also the evidence, which are pressed into service by the revision petitioner in support of his prayer under Section 319 of Cr.P.C., the trial court, the fact finding authority, has found that though the court has ample power to add another person as an additional accused, there is no evidence justifying such action. In this juncture, it is also relevant to note that the investigation agency like the C.B.I. has already enquired into the allegation against the second respondent and the said agency is of the opinion that no evidence could be gathered so as to implicate the second respondent as an accused in the above sessions case. The said fact is also relevant and supportive in favour of the conclusion arrived by the learned Sessions Judge. The said fact is also relevant and supportive in favour of the conclusion arrived by the learned Sessions Judge. Thus, the trial court concluded that there are no compelling materials to invoke Section 319 of Cr.P.C. The findings and observations of the learned Sessions Judge are fully in terms of the dictum laid down by the Honourable Apex Court in Michael Machado’s case (cited supra). In other words, the learned Sessions Judge, after having considered the factual and legal issues involved in the case, followed the dictum laid down by the Honourable Apex Court expressing the same in different words. 11. In the light of the above settled legal position and having regard to the facts and circumstances involved in the case, which I indicated earlier, I am of the view that the learned Sessions Judge is absolutely correct, legal and proper in dismissing the petition filed by the revision petitioner under Section 319 of the Cr.P.C. and I find no reason to interfere with such an order, which is issued in exercise of the discretionary powers of the court under Section 319 of the Cr.P.C., by exercising the revisional jurisdiction of this Court. In the result, there is no merit in the Criminal Revision Petition and accordingly, the same is dismissed.