Judgment : This revision is directed against the order dated 4-11-2011 passed in Crl.M.P.No.123 of 2011 in C.C.No.585 of 2007 on the file of Judge, Family Court-cum-Additional District & Sessions Judge, Nellore, whereby and whereunder, the learned Additional Sessions Judge dismissed the application moved under Section 319 Cr.P.C for addition of Gangala Sridhar as an accused in C.C.No.585 of 2007. 2. Background facts, in a nutshell, are:- LW-1-Gurram Ramanaiah presented a report before the Station House Officer, Nellore Rural P.S., alleging inter alia that on 26-4-2006 at about 10 am, while LW-5-Gurram Vijaya Kumar was consuming beer near the cool drink shop of LW-7-G.Pothaiah, LW-6-Bhaskar Reddy chastised Gurram Vijaya Kumar for taking beer in front of his uncle Venu (A-1). LW-5-Gurram Vijaya Kumar stated to have told him that he would not care anybody. Thereupon, A-1-Venu went to the house of LW-5-Gurram Vijaya Kumar and informed the same to his mother. In turn, his mother chastised LW-5 (Gurram Vijaya Kumar). LW-5-Gurram Vijaya Kumar went to the house of A-1-Venu and abused him. A-2-Gangala Ramaiah having come to know of the incident proceeded to the house of LW-1-Gurram Ramanaiah and warned him. LW-1-Gurram Ramanaiah along with Gurram Bhaskar, Gurram Venkata Kistaiah, Gurram Sankaraiah, Gurram Penchalaiah, Gurram Ravi, Gurram Vijaya Kumar and Gurram Seenaiah armed with deadly weapons attacked A-2-Gangala Ramaiah. A-1-Gangala Venu, A-3-Gangala Srinivasulu @ Seenaiah, A-4-Gangala Venkatasubbaiah joined with A-2-Gangala Ramaiah and all of them attacked LWs 1 to 5 and caused injuries to them. Basing on the report lodged by LW-1-Gurram Ramanaiah, LW-17-B.B.Chenchaiah, Station House Officer, Nellore Rural P.S., registered a case in Crime No.111 of 2005 under Section 324 read with 34 IPC and took up investigation. During the course of investigation, 16 witnesses have been examined. After completing investigation, LW-18-L.Prabhakar Rao, S.I of Police, Nellore Rural P.S., laid charge sheet in the Court of IV Additional Judicial First Class Magistrate, Nellore. The learned Magistrate took the charge sheet on file as C.C.No.585 of 2007. A-4-Gangala Venkata Subbaiah stated to have died and case against him stood abated. A-1 to A-3 entered appearance through a counsel. Subsequently, C.C.No.585 of 2007 came to be transferred to the file of Family Court-cum-Additional District & Sessions Judge, Nellore to be tried along with S.C.No.184 of 2006 simultaneously. A-4-Gangala Venkata Subbaiah stated to have died and case against him stood abated. A-1 to A-3 entered appearance through a counsel. Subsequently, C.C.No.585 of 2007 came to be transferred to the file of Family Court-cum-Additional District & Sessions Judge, Nellore to be tried along with S.C.No.184 of 2006 simultaneously. The learned Additional Sessions Judge, on hearing the prosecution and the accused framed charges against A-1 to A-3 on 23-5-2011 and posted the case for trial. 3. LW-2-Gurram Bhaskar filed Crl.M.P.No.123 of 2011 under Section 319 Cr.P.C seeking direction to Gangala Sridhar to take trial along with A-1 to A-3. It is stated in the petition filed under Section 319 Cr.P.C that the witnesses examined during the course of investigation have specifically stated the participation of Gangala Sridhar in the commission of the offence and specific overt act has been attributed to him, i.e., he (Gangala Sridhar) poked LW-2-Gurram Bhaskar with an iron rod on his abdomen. Gangala Sridhar (respondent No.2 herein) filed counter in Crl.M.P.No.123 of 2011 opposing the prayer sought for. It is stated in the counter that the police filed charge sheet in the year 2005 and whereas petition under Section 319 Cr.P.C is filed at a belated stage. The statements recorded under Sections 161 and 164 Cr.P.C cannot be utilised for summoning him under Section 319 Cr.P.C to take trial along with other accused. 4. The learned Additional Sessions Judge, on hearing the counsel appearing for the parties and on considering the material brought on record, proceeded to dismiss the application, by order dated 4-11-2011. The relevant portion of the order reads as hereunder:- “As per the provisions when and 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. No trial is commenced before this Court and yet to be commenced by giving schedule along with S.C.No.184/2006 on the file of this Court in which this Court inclined to give schedule and also to take up trial in this matter. No trial is commenced before this Court and yet to be commenced by giving schedule along with S.C.No.184/2006 on the file of this Court in which this Court inclined to give schedule and also to take up trial in this matter. So far no evidence is recorded in this matter to consider anything under Section 319 Cr.P.C. If really the petitioner herein was aggrieved person, he would have filed private complaint before the learned IV Additional Judicial Magistrate of I Class, Nellore for taking cognizance against the proposed accused but no steps were lodged by the petitioner i.e., LW-2 who is one of the injured in this case. This section is applicable only on the basis of evidence let in before this Court as per the decision reported in Y.Sarada Reddy v. Puttur Rami Reddy reported in 2008(2)SCJ 783 and not at this stage. The court may proceed against the said person and discretion power is given to the Magistrate to be exercised and facts and circumstances should be considered. There is stringent test required to be applied. If really the evidence on record is such that it would reasonable lead to convict all person sought to be added as party as contemplated under Section 319 Cr.P.C., it will be considered at the time of trial but not at this stage. Petitioner is at liberty to move an application to that effect after recording evidence of witnesses connecting to this case but not at this stage. Therefore the petition is liable to be dismissed at this stage.” Hence this revision. 5. Heard learned counsel appearing for the petitioner, learned counsel appearing for the 1st 2nd respondent and learned Additional Public Prosecutor appearing for the respondent-State. 6. Learned counsel appearing for the petitioner submits that the statements of witnesses recorded under Section 161 Cr.P.C speak of the participation of the proposed accused/respondent No.2 in the commission of the offence and more so, specific overt act has been attributed to him in assaulting LW-2-G.Bhaskar and the same has been stated not only by the injured but also by other witnesses in which case, dismissal of the petition filed under Section 319 Cr.P.C is wholly unjustified and instead, the trial Court ought to have directed Gangala Sridhar (respondent No.2 herein) to take trial along with the other accused. Learned counsel further submits that the application under Section 319 Cr.P.C can be moved either during enquiry or trial of the case. In support of his submissions, reliance has been placed on the decision of Supreme Court in Suman v. State of Rajasthan (2010 CRI.L.J 851), wherein it has been held that a person, who is named in first information report or complaint with the allegation that he/she has committed any particular crime or offences, but against whom the police does not launch prosecution or files charge-sheet or drops the case, can be proceeded against under Section 319 Cr.P.C., if from the evidence collected/produced in the course of any inquiry into or trial of an offence, the Court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused. 7. Learned counsel appearing for the 2nd respondent-proposed accused submits that the police, after due investigation, deleted the 2nd respondent from the array of the accused and therefore, until and unless some evidence has been adduced by the prosecution to probabilize his participation in the commission of the offence, he cannot be summoned to take trial along with the other accused. In support of his submissions, reliance has been placed on the decision of Supreme Court in Sarojben Ashwinkumar Shah v. State of Gujarat ((2012)1 Supreme Court Cases (Cri) 867). The Supreme Court in the cited case has culled out the legal position from the material provisions of Section 319 of Code and it is thus:- (i) The Court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone. (ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court. (iii) The phrase "any person not being the accused" occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court. (iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word `evidence' in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the charge sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the evidence let in before it. (v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power, which should be used very sparingly, and only if evidence has come on record, which sufficiently establishes that, the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused. (vi) The court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then. (vii) Regard must also be had by the court to the constraints imposed in Section 319 (4) that proceedings in respect of newly added persons shall be commenced afresh from beginning of the trial. (viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion. 8. (vii) Regard must also be had by the court to the constraints imposed in Section 319 (4) that proceedings in respect of newly added persons shall be commenced afresh from beginning of the trial. (viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion. 8. On a careful reading of Section 319 of the Code as well as the aforesaid two decisions, 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 the other accused persons, if the court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person, even though had initially been named in the FIR 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 persons 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 materials contained in the charge sheet or the case diary do not constitute evidence, vide decision of the Supreme Court in Guriya @ Tabassum Tauquir v. State of Bihar ((2007) 8 Supreme Court Cases 224). 9. The petitioner (LW-2) though stated the participation of the proposed accused (2nd respondent) in the commission of the offence, the Investigating Officer found participation of the proposed accused as not true and filed charge sheet against A-1 to A-4 only. The learned Additional Sessions Judge, on considering the material brought on record, proceeded to dismiss the application reserving liberty to the petitioner to move the application after recording the evidence of the witnesses. Once charges are framed, the trial has to be proceeded. During the course of trial, if the witnesses speak of the participation of the proposed accused, the Court has every discretion to summon the proposed accused to take trial along with the other accused. In the given facts and circumstances, dismissal of the application of the petitioner by the trial Court reserving liberty to him to move an application on the basis of the evidence adduced, cannot be said to be illegal, irregular or perverse. In the given facts and circumstances, dismissal of the application of the petitioner by the trial Court reserving liberty to him to move an application on the basis of the evidence adduced, cannot be said to be illegal, irregular or perverse. Therefore, I am not inclined to interfere with the order impugned in the revision. 10. Accordingly, the Criminal Revision Case is dismissed.