JUDGMENT 1. - By this common order, all - mentioned two revision (sic.) petitions filed by the revisionists herein - above, are being disposed as they have been directed against a common order passed on 1.2.2005 by learned Additional Sessions Judge (Fast Track) No. 1, Ajmer, in Sessions Case No. 125/2004, whereby complainant's application filed under Section 319 of the Code of Criminal Procedure (herein - after referred to as 'the Code'), had been allowed and cognizance against other accused, including the present petitioners, had been taken. 2. Briefly stated facts of the case, relevant for the purpose of disposal of this petition are, that at the instance of respondent no. 2, FIR 106/2004 for offence under Section 302 read with 34 IPC was registered at Police Station Dargah, Ajmer, on 29.7.2004, by Mohd. Arif against seven accused persons, alleging therein that when his brother Mohd. Sadiq (deceased), on his way to home at about 8.00 p.m., stopped at a shop for cigarette smoking, seven named persons armed with knives, lathies, sariyas, bottles, etc., inflicted injuries on his body, consequent whereto, he died at the spot. It was also alleged that they had previous enmity with one Hanif, who had constructed a house in their neighbourhood. 3. After usual investigation, the police filed charge - sheet against three persons only viz. Mushtaq, Abrar and Vakil, for offences under Section 302 read with 34 IPC. The case being exclusively triable by sessions, was committed, which was received by the trial court by way of transfer. 4. The learned trial court, after hearing the charge arguments, read over the charge against three accused persons for offence under Section 302 read with 34 IPC and the examination in chief of PW.1 Ant, complainant, was recorded. It is even before the cross examination of PW.1, that an application was filed by complainant Arif under Section 319 of the Code, which was allowed by the learned trial court vide impugned order. It is this order, which has been assailed by the petitioner. 5. It is even before the cross examination of PW.1, that an application was filed by complainant Arif under Section 319 of the Code, which was allowed by the learned trial court vide impugned order. It is this order, which has been assailed by the petitioner. 5. The petitioner's contention is that the order impugned is legally unsustainable, as the provisions of Section 319 of the Code have been totally overlooked and without there being any material to proceed against the present petitioners as also against other four persons (not before this court - already acquitted), yet the learned trial court referring only to the examination in chief of PW. 1 and also to the statements recorded by police under Section 161 of the Code, allowed the application under Section 319 and ordered to proceed against these persons, whose names neither appeared in the FIR nor was there any material before the court and that this was not the stage to allow the application under Section 319 of the Code. 6. Per contra, learned Public Prosecutor submitted that Court has all powers to proceed against the persons if it appears during the enquiry or trial that there is an evidence to proceed against others, who have not been charge-sheeted. 7. I have considered the rival arguments of both the parties and have looked into the relevant legal provisions and the principles of law enunciated by the Apex Court from time to time in this regard. Reliance had been placed by learned counsel for the petitioner on the judicial pronouncement of Apex Court in the matter of Michael Machado & another v. Central Bureau of Investigation & another, 2000 (2) Crimes 23 (SC) , wherein the Hon'ble Apex Court has laid down the basic requirements for invoking Section 319. Reliance was also placed on the Apex Court judgment in the utter of Brindaban Das & others v. State of West Bengal, 2009(1) WLC (SC) Cri. 450 : (2009) 3 SCC 329 , stating that there was no material evidence of complicity of the petitioners in the incident before the trial court. 8. In this regard, Section 319 (1) of the Code is relevant, which is extracted below : "319. Power to proceed against other persons appearing to be guilty of offence. 450 : (2009) 3 SCC 329 , stating that there was no material evidence of complicity of the petitioners in the incident before the trial court. 8. In this regard, Section 319 (1) of the Code is relevant, which is extracted below : "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) xxx xxx xxx (3) xxx xxx xxx (4) xxx xxx xxx" As is clear from above that the court has been given discretionary power to proceed against persons other than those against whom the charge - sheet has been filed, but the rider is that in the course of any inquiry into or trial of an offence, if it appears from the evidence that any person not being the accused, has committed any offence for which he could be tried together with the accused before the court, the court can proceed against such person for the offence which have been committed by him. 9. Strangely, the learned trial court has based its order only on the examination in chief of PW.1 Arif, who was yet to be cross examined and the application Was Ned under Section 319 of the Code. The learned trial court, besides basing its order on the examination in chief of Mohd. Arif, PW. 1 - the only witness, has also based its order on the basis of statements recorded by the police under Section 161 of the Code, whereas the statements recorded by the Investigating Officer under Section 161 of the Code, can by no stretch of imagination, be termed as evidence during the inquiry or trial. 10. The word 'evidence' has been defined in Section 3 of the Indian Evidence Act, 1872, as under : "Evidence" means and includes - (1) all statements which the Court permits or requires to be made before it by witnesses. 10. The word 'evidence' has been defined in Section 3 of the Indian Evidence Act, 1872, as under : "Evidence" means and includes - (1) all statements which the Court permits or requires to be made before it by witnesses. in relation to matters of fact under inquiry, such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence." The words "inquiry into" or "trial of" used in Section 319 of the Code are also relevant. Word "inquiry" has been defined in clause (g) of Section 2 of the Code as under: "2. Definitions.- In this Code, unless the context otherwise requires, - (a) xxx xxx xxx (b) xxx xxx xxx (c) xxx xxx xxx (d) xxx xxx xxx (e) xxx xxx xxx (f) xxx xxx xxx (g) "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;" So, the statements under Section 161 of the Code, which were made the basis of the order, cannot be said to be evidence during inquiry. 11. In the same manner, trial had just started and only first witness was examined, that too remained incomplete. It cannot be said that there was material to proceed at that stage against the revisionists. 12. The learned trial court, by passing this impugned order, had utterly ignored the provisions of law and this order cannot be sustained. 13. The Apex Court in the matter of Michael Machado & another (supra) while dealing with the provision under Section 319 of the Code, has held that the court must be reasonably satisfied from evidence already collected that the other person committed offence and could well be tried along with already arraigned person. There must be reasonable prospect of conviction and the discretionary power should be exercised judicially. In that case, after examination of 54 witnesses, when the trial proceeded to penultimate stage, the Magistrate ordered for arraying two more persons at that stage, as statements of some of the witnesses had created some suspicion against newly arraigned accused. The Apex Court said that suspicion was not sufficient to hold that there is reasonable prospect of convicting newly arraigned accused. That was the case where Hon'ble Apex Court held that the addition of two new accused persons, warranting new trial, was not sustainable at that stage. The Apex Court said that suspicion was not sufficient to hold that there is reasonable prospect of convicting newly arraigned accused. That was the case where Hon'ble Apex Court held that the addition of two new accused persons, warranting new trial, was not sustainable at that stage. In para 11, Apex Court held as under: "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." In the same manner in Brindaban Das & others (supra), the Apex Court was dealing with the said provision of Section 319 and it was considered as to when powers under Section 319 should be invoked and what were the matters which should be considered. The Apex Court held that powers under Section 319 should only be invoked where it is imperative to meet ends of justice. Evidence adduced against such persons must be substantive evidence in order to summon them for trial, warranting their prosecution thereafter with good chance of conviction. In that case, the Apex Court found that there was no direct a evidence of complicity of appellants in the incident, therefore, the orders summoning them, had been set aside. 14. As is clear from above, as also from the clear language of the Section itself, there has to be some evidence and evidence is what is recorded before the Court and not the statements recorded by the police under Section 161 of the Code. 15. Section 319 of the Code, no doubt is a discretionary Section and the common thread in most matters where the use of discretion is an issue is that in the exercise of such discretion each case has to be considered on its own set of facts and circumstances. 16. 15. Section 319 of the Code, no doubt is a discretionary Section and the common thread in most matters where the use of discretion is an issue is that in the exercise of such discretion each case has to be considered on its own set of facts and circumstances. 16. In matters relating to invocation of power under Section 319 of the Code, 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 FIR, 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. The trial court is expected to exercise the discretion with great care and perspicacity, because the power under Section 319 is to be invoked not as a matter of course, but in circumstances where the invocation of such power is imperative to meet the ends of justice. The fulcrum on which the invocation of Section 319 of the Code rests, is whether the summoning of person other than the named accused, would make such a difference to the prosecution as would enable it not only to prove its case but to also secure the conviction of the person summoned. It is only logical that there must be substantive evidence against a person in order to summon him for trial, although he is not named in the charge- sheet or he has been discharged from the case, which would warrant his prosecution thereafter with a good chance of his conviction. 17. In the present case, just the first witness who is the complainant himself and who did not name these petitioners in the FIR, has been examined, that too examination in chief and there is the fact of previous enmity between the two families (neighbour, on account of construction of house). Therefore, it can barely be said that there was any substantial evidence to proceed further because the witnesses were yet to be examined and moreover, there is no reason as to the complainant PW.1 not naming the petitioners in the FIR itself, especially when there has been an enmity and they are neighbours. Therefore, it can safely be said that in the instant case, there was no substantial material against them at that stage, to proceed against them. 18. Therefore, it can safely be said that in the instant case, there was no substantial material against them at that stage, to proceed against them. 18. Before parting, it is not out of place to mention that vide judgment dated 30.6.2008, all other four accused who were arrayed pursuant to allowing of application under Section 319 of the Code, have already been acquitted. 19. In view of the settled position of law and the clear - cut provision of Section 319 of the Code, which probably has been overlooked by the learned trial Judge, the order is held as totally illegal and not sustainable. Therefore, it deserves to be set aside, and is hereby set aside. The revision petitions, filed by accused petitioners, are allowed. The stay application also stands disposed. 20. The Registry is directed to send copy of this order to the concerned trial Judge.Revision Allowed. *******