JUDGMENT: R. Ranjith, J. 1. Petitioner proceeded as an additional accused (A3) in a pending case by the magistrate under Section 319 of the Code of Criminal Procedure (for short “the Code”), has filed the above petition to quash Annexure 2 order so passed as an abuse of the process of the court, invoking the inherent powers of this court under Section 482 of the Code. 2. Short facts necessary for disposal of the case can be summed up thus: As against two accused, parents of the present petitioner, on a report filed by the Sub Inspector of Police, Kattappana in Crime No.86/09 cognizance of the offences under Sections 323, 324, 326 and 427 read with Section 34 of the Indian Penal Code {for short “the IPC”} was taken by the Judicial Magistrate of the First Class, Kattappana numbering the case as C.C.No.171/09. After the appearance of the accused and compliance of the formalities, the trial proceeded. The evidence of the de facto complainant was recorded as PW.1. In her examination-in-chief, she stated that the petitioner, son of the accused now proceeded against as an additional accused, was also involved in the occurrence, and that he had assaulted her with an iron rod striking on her left lower limb thrice and thereby she sustained a fracture. The magistrate, on the basis of the statement given by her and also taking note that even in the first information statement recorded from her, she has imputed that the petitioner was a co-assailant in the assault on her person, passed Annexure 2 order for adding the petitioner as a co-accused under Section 319 of the Code. That order is challenged as improper and unsustainable under law in the petition, for quashing the same under Section 482 of the Code. 3. The main thrust of challenge canvassed by the learned counsel to assail Annexure 2 order is that the magistrate has invoked the powers under Section 319 of the Code to add the petitioner as an accused solely on the basis of evidence recorded in examination-in-chief of the de facto complainant/PW1 alone without waiting for her statements tested in cross-examination. 3. The main thrust of challenge canvassed by the learned counsel to assail Annexure 2 order is that the magistrate has invoked the powers under Section 319 of the Code to add the petitioner as an accused solely on the basis of evidence recorded in examination-in-chief of the de facto complainant/PW1 alone without waiting for her statements tested in cross-examination. Adverting to the scope and ambit of Section 319 of the Code and also under what circumstance it can be invoked of, the learned counsel for the petitioner contended that since an order for addition of an accused cold be made only on the basic of evidence, to ensure that there is no abuse of that provision, primary satisfaction to add a person already not proceeded with as a co-accused demands scrutiny of such evidence after being subjected to cross-examination. Solely on the basis of the examination-in-chief of a witness, It is not proper and appropriate to invoke Section 319 of the Code to add a new accused in the crime especially where cognizance of offence against other accused persons name has been taken on a police report laid after a full-fledged investigation of the crime, is the submission of the counsel. 4. Section 319 of the Code is an enabling provision which empowers the court to proceed against person’s not appearing before it, but from the evidence tendered in the case appear to be guilty of one or other offence imputed, or of any other offence, in such case. That Section of the Code reads thus: 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. (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 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. 5. Sub-sections (1) and (2) of the Section provide for situation when a Court hearing a case against some accused persons finds from the evidence that some person or persons, other than the accused who face trial or inquiry are also connected with the very offence or any connected offence. In such a situation, the court is empowered to proceed against such person or persons for the offence which he or they appears or appear to have committed issuing process against them for the purpose. That power under Section 319 of the Code can be exercised when the enquiry or trial is pending, but not after delivering the judgment. Sub-section (3) of the Section deals with the situation where the person sought to be proceeded against is attending the court, though not under arrest or upon summons, empowering the court to detain such person for the purpose of inquiry or trial of the offence which he appears to have committed. Sub-section (4) provides that where cognizance is taken against the newly added accused, it shall be deemed to have been taken as if he was an accused person when the court first took cognizance of the offence against eh earlier accused, but with a rider that the proceedings in respect of such added accused shall be commenced afresh and the witnesses re-heard. In the present case, the ambit and scope of the word “evidence” in sub-section (1) of Section 319 of the Code whether the statement of a witness recorded in inquiry or trial requires to be subjected to cross-examination in treating it as evidence for the purpose of adding a new accused under the Section and how far the court is empowered to do so without such cross-examination of the witness by the accused who are already before the court, that alone emerge for consideration, but not matters covered by the other sub-sections referred to above. The aforesaid question in relation to the term ‘evidence’ under sub-section(1) of Section 319 has come up for consideration before the Supreme Court in more than one case, some of them dealing with that question directly, and others, touching upon that aspect also. 6. In Rakesh and another v. State of Haryana {2001(6) SCC 248}, challenge raised that the term “evidence” used in Section 319 of the Code to be considered as such has to be tested by cross-examination was repelled. Analysing the scope and ambit of the word ‘evidence’ used in the section, it has been held thus: “The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. Section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. The word “evidence” occurring in sub-section (1) is used in a comprehensive and broad sense which would also include the material collected by the investigating officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that the person not arraigned before it is involved in the commission of the crime. 7. IN Mohammed Shafi v. Mohammed Refiq {AIR 2007 SC 1899} emphasizing how the discretion is to be exercised by the court in summoning a person for proceeding against him as an additional accused invoking Section 319 of the Code, the Supreme Court has observed thus: “….. 7. IN Mohammed Shafi v. Mohammed Refiq {AIR 2007 SC 1899} emphasizing how the discretion is to be exercised by the court in summoning a person for proceeding against him as an additional accused invoking Section 319 of the Code, the Supreme Court has observed thus: “….. it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness.” 8. In Kailash v. State of Rajasthan {AIR 2008 SC 1564}, analyzing Section 319 of the Code, it has been held that they key words in the Section are “it appears from the evidence”, “any person”, and “has committed any offence”. The question whether the statement of the witness has to be tested in cross-examination to satisfy the term ‘evidence’ as used in the section, was not specifically considered in the above decision, but, it has been cautioned that merely because some witnesses have mentioned the name of one person or other the discretion under Section 319 of the Code is not to be resorted to. The Supreme Court, in the aforesaid decision, has held thus: “The discretion under S. 319 has to be exercised very sparingly and with caution and only when the concerned Court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. The words ‘it appears’ are not to be read lightly.” 9. In Hardeep Singh v. State of Punjab” {AIR 2009 SC 483}, after considering a good number of judicial pronouncements previously rendered by the Supreme Court including the decisions referred to above, expressing a view that the observations made in Mohammed Shafi’s case and Kailash’s case did not appear to be in consonance with the statutory provision or previous decisions, reference was made to a larger bench for considering some questions framed over the applicability and invoking of Section 319 of the Code. One among such questions framed is whether Section 319 of the Code could be invoked of for adding a new accused before the cross-examination of the witness is complete. Reference made in the aforesaid decision awaits to be answered by the larger bench. 10. In Harbhajan Singh v. State of Punjab {AIR 2009 SC (Supp) 1977}, after taking note that a reference has been made in Hardeep Singh’s case, referred to above, it has been held that the decision rendered in Mohammed Shafi’s case is not an authority for the proposition that in each and every case the Court must wait till the cross-examination is over. It has been held that for the exercise of the jurisdiction under Section 319 of the Code in all cases cross-examination of the witness is not a must, and each case must be decided on its own facts in exercise of the judicial discretion of the Court for adding a new accused. 11. In Sarabjit Singh v. State of Punjab {AIR 2009 SC 2792} it has been held that a higher standard for the purpose of forming an opinion than following the test of prima facie case has been made out, is required in adding of a new accused in a pending case for taking cognizance of an offence against him invoking the jurisdiction under Section 319 of the Code. In the above decision, it has been stated thus: “An order under S. 319, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the Court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the Courts are required to apply stringent tests: one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. 12. In Sarojben Ashwinkumar Shah and others v. State of Gujarat and Another {2011(8) SCALE 542}, examining how the judicial discretion is to be exercised in invoking Section 319 of the Code to add a new accused, taking note of the previous decisions rendered by the Supreme Court as well, some broad principles have been laid down. 12. In Sarojben Ashwinkumar Shah and others v. State of Gujarat and Another {2011(8) SCALE 542}, examining how the judicial discretion is to be exercised in invoking Section 319 of the Code to add a new accused, taking note of the previous decisions rendered by the Supreme Court as well, some broad principles have been laid down. The question whether cross-examination of the witness is required before invoking the aforesaid Section for adding a new accused is to be made as such ha not been considered in the above decision. Still, as one among the principles enunciated over the applicability of the Section and exercise of judicial discretion thereunder, it has been stated thus: “….. 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.” 13. The learned counsel for the petitioner has referred to two decisions of this court in Biju Gopalan and another v. State of Kerala and ors. {2009 KHC 421} and James K.Joseph and another v. State of Kerala {Crl.R.P.No.1155/09 order dated 17.6.2009 – unreported}, in both of which the desirability of cross-examination of the witness before invoking Section 319 of the Code has been expressed. After going through those decisions. I find, on the facts and circumstances presented, and also taking note that exercise of judicial discretion under Section 319 of the Code for adding a new accused has to be made sparingly and primary satisfaction that a reasonable chance of conviction of such person in exercise newly added may also be required for such addition, the desirability of cross-examination of the witness in exercise of that power has been pointed out. 14. 14. In the light of the legal principles laid down by the Apex Court in Sarojben Ashwin kumar Shah’s case over the applicability of Section 319 of the Code referred to above, though a reference made on the questions framed in Hardeep Singh’s case is awaited to be answered, and more so, in view of the decision rendered in Harbhajan Singh’s case, whereunder the decision rendered Mohammed Shafi’s case has been explained, no binding and mandatory requirement of cross-examining a witness to use his ‘evidence’ can be insisted upon to invoke the judicial discretion under Section 319 of the Code for adding a new accused in the case. no doubt, the principles enunciated that it should be used sparingly on the basis of the evidence tendered before the court and such evidence should satisfy the court that there is reasonable ground to presume that the person sought to be added is likely to be guilty of the offence imputed in the case, has to be strictly adhered to in exercise of the judicial discretion in adding a new accused. But adherence to such principles is distinct and different from insisting upon a requirement that too mandatorily that the judicial discretion vested with the court in adding a new accused on the basis of evidence of a witness can be done only after it is tested by cross-examination. Such insistence, if made, would place an interdiction on the exercise of judicial discretion and also empowerment of the court to include a person as an additional accused where evidence is tendered to proceed against him with the other accused in the same case. 15. In the present case, the magistrate was satisfied from the evidence of the de facto complainant examined as PW.1, and the first information statement given by her, to exercise his judicial discretion, to add the petitioner as an additional accused in the case invoking Section 319 of the Code. The evidence of the de facto complainant as PW.1 before the court, over the assault made on her person by the petitioner striking her with a deadly weapon and causing her a fracture, which was her previous version in the first information statement also, satisfied the magistrate to invoke the powers under Section 319 of the Code to proceed against the petitioner adding him as an accused in the case. The magistrate should have waited for cross-examination of the witness (PW-1) by the other accused proceeded against, before exercise of the judicial discretion vested with him for adding the new accused – the petitioner, in fact, does not have much significance. PW.1 has not been subjected to cross-examination by the other accused, cannot be given much value where her evidence given in examination-in-chief and also her previous statement on which the crime was registered satisfied the petitioner too has to be proceeded against as a co-accused invoking Section 319 of the Code adding him as an additional accused in the case. 16. I do not find any impropriety in the judicial discretion exercised by the magistrate for invoking Section 319 of the Code, in the given facts and circumstances presented in the case. Challenge against Annexure 2 order invoking the inherent powers of this court under Section 482 of the Code, necessarily, has to fail. Petition is dismissed.