JUDGMENT Hon'ble Karuna Nand Bajpayee,J. This application has been filed on behalf of the applicant Farman for setting aside the impugned order dated 19.8.2014 passed by Addl. Sessions Judge, Hapur, Ghaziabad in S.T. No. 302 of 2011 in Case Crime No. 285 of 2014 u/s 323, 324, 308, 504, 506 IPC P.S. Simbhawali, District Hapur, Ghaziabad. ?Heard learned counsel for the applicant and learned AGA for the State and perused the record. The? learned counsel for the applicant has fairly conceded that during the course of statements which have been given in the trial by the prosecution witnesses, all the four of them have categorically implicated the applicant and have assigned the overt act of using lathi and thereby assaulting the victim. But the submission of the counsel is that during the? investigation the I.O. did not submit charge sheet against the applicant because the applicant according to the finding of the investigation, was found to be not present on the spot. Instead he was found in his office where he works. The submission is that because the Investigating Officer had not submitted the charge sheet against applicant therefore, summoning of the applicant u/s 319 Cr.P.C. is bad in the eyes of law and the court should not have relied or acted upon the evidence given by the prosecution witnesses in the court and should have more appropriately relied upon the favourable findings of the I.O. Learned AGA has opposed the prayer of the applicant and submitted that the powers of the trial court to act u/s 319 Cr.P.C. cannot be restricted by the findings of the I.O. and the trial court is not bound to agree with the inference drawn by him in all cases. The submission is that the evidence with regard to the applicant which has been produced in the course of? trial is overwhelming and it was very much within the power of the court to summon the applicant if it was satisfied about his complicity in the crime, and if in its judicial estimate it was satisfied that the evidence produced makes it desirable to summon him to face trial along with the co-accused. I have considered the rival submissions made at the bar, and have gone through the impugned order as well as the entire record. I have considered the rival submissions made at the bar, and have gone through the impugned order as well as the entire record. It is true that the standard of satisfaction to summon the accused under 319 Cr.P.C. is not the same which is to be applied at the stage of summoning the accused u/s 204 Cr.P.C. The court has to be more circumspect and more vigilant to summon the accused during the course of trial under Sec. 319 Cr.P.C. But this? is not to say that the finding of the I.O. with regard to a particular accused about his complicity in the crime is to be taken as final by the trial court. The accused who are charge sheeted by the I.O. because of his satisfaction that they have committed the crime is also to be adjudicated upon by the trial court and it is only through a proper trial that the finding of guilt or innocence of accused has to be arrived at. Similarly, the submission of final report by the I.O. is also very much subject to the satisfaction of the Magistrate who too has all the rights to agree or dis- agree with the inference drawn by the I.O. It is not unoften that the Magisterial court does not accept the final report and rejects the same and takes cognizance of the matter. So far as the powers u/s 319 Cr.P.C. are concerned the law on the point is trite and too well settled to be reproduced hear at any great length. Even the accused in whose favour the final report is submitted and has also been accepted by the Magistrate can also be very well summoned by the trial court if the same is satisfied that there is sufficient evidence available on the basis of which the said accused should be called up to face the trial along with the co-accused. Therefore, the submission of the applicants counsel that the finding of the I.O. about the non complicity of the accused in the crime should have been taken by the trial court as final does not commend itself to the court. Therefore, the submission of the applicants counsel that the finding of the I.O. about the non complicity of the accused in the crime should have been taken by the trial court as final does not commend itself to the court. As learned counsel for the applicants has laid much emphasis upon the non submission of the charge sheet against the applicants and the findings of the investigating officer in his favour and has assailed the maintainability and illegality of the summoning of such accused, it may be of value to cast a fleeting glance of certain case laws in this regard whereby this aspect of law has been expatiated upon at length. In the case of Jogindar Singh Vs. State of Punjab 1979(1) SCC 345 it was held by the Apex court that the expression " any person not being an accused" used in Section 319 Cr.P.C. does not exclude the person who was named in the FIR or who was not charge sheeted by the police despite his nomination in the FIR. The expression used in the statute covers all those persons who are not being tried by the court and who are not facing the trial as accused at the time when the power u/s 319 Cr.P.C. is being used. Similarly in the case of Lal Suraj Vs. State of Jharkhand 2009(2) SCC 696 the Apex court opined that even if a person had not been charge sheeted he may come within the purview of the description of such a person as has been contemplated u/s 319 Cr.P.C. In fact there are many pronouncements given by Hon'ble Apex Court which reiterated the same view and in the recent constitution bench decision of Apex Court given in Hardeep Singh Vs. State of Punjab 2014(3) SCC 1992. the entire case law on this point has been taken stock of and has been considered and approved confirming the aforesaid view point of law. It shall be very germane to extract and quote the relevant part of Hardeep Singh's judgement which reads as follows: 106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused. Q.(v) In what situations can the power under this section be exercised: Not named in FIR; Named in the FIR but not charge- sheeted or has been discharged? 107. In Joginder Singh & Anr. v. State of Punjab & Anr., AIR 1979 SC 339 , a three-Judge Bench of this Court held that as regards the contention that the phrase "any person not being the accused" occurring in Section 319 Cr.P.C. excludes from its operation an accused who has been released by the police under Section 169 Cr.P.C. and has been shown in Column 2 of the charge-sheet, the contention has merely to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319 (1) Cr.P.C. clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court, are included in the said expression. 108. 108. In Anju Chaudhary v. State of U.P. & Anr., (2013) 6 SCC 384 , a two-Judge Bench of this Court held that even in the cases where report under Section 173(2) Cr.P.C. is filed in the court and investigation records the name of a person in Column?2, or even does not name the person as an accused at all, the court in exercise of its powers vested under Section 319 Cr.P.C. can summon the person as an accused and even at that stage of summoning, no hearing is contemplated under the law. 109. In Suman v. State of Rajasthan & Anr., AIR 2010 SC 518 , a two- Judge Bench of this Court observed that "17. ?....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 an offence for which he could be tried together with the other accused." 110. In Lal Suraj ,a two-Judge Bench held that there is no dispute with the legal proposition that even if a person had not been charge- sheeted, he may come within the purview of the description of such a person as contained in Section 319 Cr.P.C. A similar view had been taken in Lok Ram (Supra), wherein it was held that a person, though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added to face the trial. 111. Even the Constitution Bench in Dharam Pal (CB) has held that the Sessions Court can also exercise its original jurisdiction and summon a person as an accused in case his name appears in Column 2 of the chargesheet, once the case had been committed to it. 111. Even the Constitution Bench in Dharam Pal (CB) has held that the Sessions Court can also exercise its original jurisdiction and summon a person as an accused in case his name appears in Column 2 of the chargesheet, once the case had been committed to it. It means that a person whose name does not appear even in the FIR or in the chargesheet or whose name appears in the FIR and not in the main part of the chargesheet but in Column 2 and has not been summoned as an accused in exercise of the powers under Section 193 Cr.P.C. can still be summoned by the court, provided the court is satisfied that the conditions provided in the said statutory provisions stand fulfilled. 112. However, there is a great difference with regard to a person who has been discharged. A person who has been discharged stands on a different footing than a person who was never subjected to investigation or if subjected to, but not charge-sheeted. Such a person has stood the stage of inquiry before the court and upon judicial examination of the material collected during investigation; the court had come to the conclusion that there is not even a prima facie case to proceed against such person. Generally, the stage of evidence in trial is merely proving the material collected during investigation and therefore, there is not much change as regards the material existing against the person so discharged. Therefore, there must exist compelling circumstances to exercise such power. The Court should keep in mind that the witness when giving evidence against the person so discharged, is not doing so merely to seek revenge or is naming him at the behest of someone or for such other extraneous considerations. The court has to be circumspect in treating such evidence and try to separate the chaff from the grain. If after such careful examination of the evidence, the court is of the opinion that there does exist evidence to proceed against the person so discharged, it may take steps but only in accordance with Section 398 Cr.P.C. without resorting to the provision of Section 319 Cr.P.C. directly. 113. In Sohan Lal & Ors. If after such careful examination of the evidence, the court is of the opinion that there does exist evidence to proceed against the person so discharged, it may take steps but only in accordance with Section 398 Cr.P.C. without resorting to the provision of Section 319 Cr.P.C. directly. 113. In Sohan Lal & Ors. v. State of Rajasthan, (1990) 4 SCC 580 , a two-Judge Bench of this Court held that once an accused has been discharged, the procedure for enquiry envisaged under Section 398 Cr.P.C. cannot be circumvented by prescribing to procedure under Section 319 Cr.P.C. 114. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., AIR 1983 SC 67 , this Court held that: ''19...... if the prosecution can at any stage produce evidence which satisfies the court that those who have not been arraigned as accused or against whom proceedings have been quashed, have also committed the offence, the Court can take cognizance against them [under Section 319 Cr.P.C. ]and try them along with the other accused. 115. Power under Section 398 Cr.P.C. is in the nature of revisional power which can be exercised only by the High Court or the Sessions Judge, as the case may be. According to Section 300 (5) Cr.P.C., a person discharged under Section 258 Cr.P.C. shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate. Further, Section 398 Cr.P.C. provides that the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrate subordinate to him to make an inquiry into the case against any person who has already been discharged, is asked to again face trial if some evidence appears against him. As held earlier Section 319 Cr.P.C. can also be invoked at the stage of inquiry. We do not see any reason why inquiry as contemplated by S. 300(5) Cr.P.C. and Section 398 Cr.P.C. cannot be an inquiry under Section 319 Cr.P.C. Accordingly, a person discharged can also be arraigned again as an accused but only after an inquiry as contemplated by Sections 300(5) and 398 Cr.P.C. If during or after such inquiry, there appears to be an evidence against such person, power under Section 319 Cr.P.C. can be exercised. We may clarify that the word 'trial' under Section 319 Cr.P.C. would be eclipsed by virtue of above provisions and the same cannot be invoked so far as a person discharged is concerned, but no more. 116. Thus, it is evident that power under Section 319 Cr.P.C. can be exercised against a person not subjected to investigation, or a person placed in the Column 2 of the Charge-Sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 Cr.P.C. without taking recourse to provisions of Section 300(5) read with Section 398 Cr.P.C. Thereafter when the Apex Court finally answered the question referred to was pleased to observe as follows:- 117.6 A person not named in the FIR or a person though named in the FIR but has not been charge sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh. The Apex Court's decision in Hardeep Singh case conclusively settles the issue which has been agitated by learned counsel for the applicant and it is so apparent that the aforesaid facet of law is no more res-integra. In fact primarily it is a matter of trial court's discretion which must be exercised judicially after taking into account the whole evidence produced during the course of trial. There is no way by which this court may quantify the amount of evidence which should be taken as sufficient to justify the summoning of an additional accused in a given case. Nor can any straight jacket cut and dried formula be laid down in this regard to guide the court below . The judicial discretion vested in the courts below is given due regard by the higher court and normally this court is loath to intercept and transgress in the same. This court is always slow to substitute such discretionary decision by its own. The judicial discretion vested in the courts below is given due regard by the higher court and normally this court is loath to intercept and transgress in the same. This court is always slow to substitute such discretionary decision by its own. Of course if this court finds that the judicial discretion has been exercised injudiciously or capriciously or if it finds that the impugned order smacks of arbitrariness or if the same lacks the necessary factual basis or that it has been passed in contravention or breach of some law, this court does not hesitate to step in and set it right. Some times the evidence produced in the trial is so flimsy and fragile and is of such nature which on the face of it looks unreliable and so suspect that no man of ordinary prudence can feel persuaded to act upon the same and it appears to the higher court that the impugned order of summoning has been passed as a matter of routine in a mechanical manner. In such circumstances also an interference may be called for. But so far as the facts and circumstances and the nature of evidence produced during the course of trial in the matter under consideration is concerned, even this court is amply satisfied about the appropriateness of the summoning of the applicant as an additional accused to face trial despite the fact that the charge sheet was not submitted by the investigating officer against him. The applicant's counsel has raised many contentions which call upon by the court to adjudge the ultimate testimonial worth of the witnesses but this court is of the considered view that the standard of sufficiency of evidence in order to hold an accused guilty at the time of delivering the final verdict is necessarily different from the standard of sufficiency which is to be applied in order to justify the summoning of an additional accused u/s 319 Cr.P.C. That yardstick or the touch-stone of rigorous evaluation of the veracity of the witnesses is definitely not called forth at this stage and must be reserved to be brought into application at the time of final adjudication upon the guilt of the accused and not earlier. Brief reference to the following case laws may be given in which the law with regard to the summoning of those additional accused u/s 319 Cr.P.C. has been expatiated upon in whose favour final report was submitted by the investigating officer or against whom the charge sheet was not submitted even though they were nominated as an accused in the FIR. This court has also perused the evidence of P.Ws.1, 2, 3 and 4 and also the FIR in which too so far as the role of the applicant is concerned was similar. It is not needed to reproduce the same here again. Suffice it to say that the evidence is overwhelming and it cannot be said that the discretion exercised by the court has been injudiciously exercised or that the summoning is based on the evidence not available on record or that the trial court is guilty of non application of judicial mind. The court does not see any illegality impropriety or any in-correctness in the impugned order, and there is no ground to justify any interference in the matter. The revision being sans merits stands dismissed. ——————