JUDGMENT : J.B. Pardiwala, J. 1. By this writ application under Article 227 of the Constitution of India, the petitioner - original complainant calls in question the legality and validity of the order dated 2nd December, 2013 passed by the 2nd Additional Sessions Judge, Himmatnagar Camp at Idar, below Exhibit: 12 in the Sessions Case No. 43 of 2012, by which, the learned Judge rejected the application filed by the Public Prosecutor under Section 319 of the Code of Criminal Procedure, 1973 to implead the persons named in the application as accused. 2. The facts of this case may be summarized as under: 2.1. On 17th December, 2011, the petitioner herein lodged a First Information Report being I-C.R. No. 0075 of 2011 at Vijaynagar Police Station, District: Sabarkantha for the offence punishable under Sections 302 read with 34 of the Indian Penal Code. In the F.I.R., he named three persons (i) Indrajit Somaji Ninama, (ii) Chirag Manubhai Jadhav, and (iii) Bharatbhai Sukhabhai Rabari, as the suspects. In the F.I.R., the petitioner has not attributed any particular overact to the three suspects named. In fact, he could not have because he is not an eyewitness to the incident in question. The entire case hinges on the circumstantial evidence. 2.2. It appears that at the end of the investigation, chargesheet was filed wherein three persons sought to be impleaded as accused under Section 319 of the Code were not made accused. No chargesheet was filed against those three persons. The trial commenced. The petitioner stepped into the box. In his Examination-in-Chief, he deposed as under: "I am doing labour work. The deceased Mohitbhai is my nephew. The incident in question occurred on 17th December, 2011. On that day, I was at my home and left for work at about 8 O'clock in the morning. When I left for work, I saw five boys standing behind a Shopping Centre situated at Sector - 3. Those were Bharat Rabari, Chirag Jadhav, Indrajit Ninama, my nephew Mohit Parmar and Suraj Rathod @ Bholu. On seeing Mohit, I stopped and inquired with him as to where he was going. He replied that he was going to Bhiloda with his friends to attend a marriage. Thereafter I did not say anything and left for my work. I returned home at about 6 to 7 O'clock in the evening. On seeing Mohit, I stopped and inquired with him as to where he was going. He replied that he was going to Bhiloda with his friends to attend a marriage. Thereafter I did not say anything and left for my work. I returned home at about 6 to 7 O'clock in the evening. While at home, I learnt at about 8.30 in the night that my nephew Mohit, who had gone to Bhiloda to attend the marriage, had a fight and in the said fight, he injured himself and had been admitted at the Bhiloda Civil Hospital. I also learnt that his condition was serious. On receipt of such information, I called for Dilipbhai, who happens to be the son of my Motabhai (Kaka), and Manibhai Bababhai. I also called Mekwanbhai. I reached the Bhiloda Civil Hospital along with all the three named above. On reaching Bhiloda Civil Hospital, I saw my nephew on a stretcher lying in a dead condition. He had sustained injuries on his thigh and was bleeding profusely. At that time, one more dead body was lying in the dressing room. The second person had also sustained injuries in his leg and was bleeding profusely. The dead body was of Suraj. When I came out of the dressing room, 4 boys were sitting over there. They were Bharat Rabari, Chirag Jadhav, Indrajit Ninama and one unidentified person. On the trouser of the unidentified person, there were bloodstains. I inquired with Indrajit as to who was the unidentified person. Indrajit did not give any reply. I once again inquired and at that time, he replied that he was one of our community members and was a good friend. I thereafter inquired with Indrajit as to what had happened. Indrajit did not give reply. Therefore I inquired with Bharat Rabari and Chirag Jadhav. Bharat Rabari took me in one corner and informed that it is the boy sitting next to Indrajit and who is the friend of Indrajit had assaulted both Mohit and Suraj. Thereafter I once again met Indrajit and asked him for whose the marriage they had gone to Bhiloda. He in turn informed that there was no marriage, but on the pretext of attending the marriage, they all had left on 17th December 2011 for my village Jaleti from Gandhinagar. After reaching the village Jaleti, all five of us had food and drinks. He in turn informed that there was no marriage, but on the pretext of attending the marriage, they all had left on 17th December 2011 for my village Jaleti from Gandhinagar. After reaching the village Jaleti, all five of us had food and drinks. Thereafter, we sat and took some rest. At about 6 O'clock in the evening, Mohit, Suraj, Bharat Rabari and Chirag Jadhav left for Gandhinagar. On the way at village Chithoda, a quarrel ensued on account of inquiring about the way to Gandhinagar and in the said quarrel, Suraj and Mohit sustained injuries. This is what Indrajit had conveyed to me. On the next day i.e. on 18th December 2011, I along with my cousin brother Dilipbhai reached at the place of occurrence at about 11 O'clock in the morning. The police had also reached at the place of occurrence along with Chirag and was inquiring with Chirag. The bloodstains were found at the place pointed out by Chirag to the police. Chirag also pointed out one Balmandir, an electric pole, and another Mandir and an agricultural field. All these places were pointed out by Chirag. As we were getting late, we left for Gandhinagar. We collected the dead body of Mohit and performed his cremation. When I was at the village Bhiloda Collage Hospital, one Sanjay Patel of Gandhinagar was present there before I came. Even police was present over there. I had conveyed all this to the police. The police obtained my signature on the complaint" 2.3. The cross-examination of the petitioner is also over. 2.4. The Public Prosecutor, In-charge of the trial, thereafter, preferred the application Exhibit : 12 and prayed that the three persons named therein be impleaded as the accused. The learned Judge rejected the application observing that there was no an iota of the material to suggest even remotely that the three persons named in the application were involved in any manner in the alleged crime. The learned Judge also observed that in the entire Examination-in-Chief of the petitioner, there was no reference of the three persons or to put it in other words, any allegation of their involvement in the murder of the deceased. 2.5. The case seems to be of double murder. Two boys were done to death, namely, Mohitkumar Manilal Parmar and Suraj Anilbhai Rathod. 3. 2.5. The case seems to be of double murder. Two boys were done to death, namely, Mohitkumar Manilal Parmar and Suraj Anilbhai Rathod. 3. As observed by me, the entire case as such hinges on the circumstantial evidence so far as the chargesheet is concerned. The case in hand is one of a perfunctory investigation by the police. But any person is named in the F.I.R. as an accused or even as the suspect and ultimately, if the Investigating Officer decides to drop of that person as an accused and decides not to file chargesheet, then in such circumstances, the Investigating Officer owes a duty to file an appropriate report before the learned Magistrate under Section 169 of the Code explaining why that person was being dropped as an accused. It appears that in the present case, although the three persons who are now sought to be impleaded as the accused named in the F.I.R. as the suspects, yet while dropping them as accused, no such report was filed by the Investigating Officer. 4. It appears that four persons came to be arrested. Out of four, three are juveniles and are being tried by the Juvenile Court. The fourth accused namely, Hemant Damor is being tried by the Sessions Court. 5. I fail to understand that when both the deceased, all through out were in company of the three persons, who are sought to be arrayed as accused, then they would be the best persons to explain as to what had exactly happened. They were also present in the hospital along with the dead bodies of both the deceased. The petitioner herein had some talk with those people and on the basis of the same, he lodged the F.I.R. naming the three persons as the suspects. It is true, as observed by the learned trial Judge that as such there is no evidence against the three persons, except a doubt that they might be involved in the offence. In fact, the Public Prosecutor, instead of filing an application under Section319 of the Code, should have asked for the further investigation in the matter so as to make the picture clear. It can be done even pending the trial, if ultimately the trial Court finds that the investigation was perfunctory. 6. In fact, the Public Prosecutor, instead of filing an application under Section319 of the Code, should have asked for the further investigation in the matter so as to make the picture clear. It can be done even pending the trial, if ultimately the trial Court finds that the investigation was perfunctory. 6. In the aforesaid context, I may refer to and rely upon the decision of the Supreme Court in the case of Hasanbhai Valibhai Qureshi v. State of Gujarat [ AIR 2004 SC 2078 ]. The Supreme Court in paras 11, 12 and 13 observed thus: "11. Coming to the question whether a further investigation is warranted, the hands of the investigating agency or the Court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth. 12. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted. 13. In Om Prakash Narang and Anr. V. State (Delhi Admn.) ( AIR 1979 SC 1791 ) it was observed by this Court that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective investigation comes to light during course of trial, it may be cured by further investigation if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the Courts. In view of the aforesaid position in law if there is necessity for further investigation the same can certainly be done as prescribed by law. In view of the aforesaid position in law if there is necessity for further investigation the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand on the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case." 7. Section 319 of the Cr.P.C. insofar as it is relevant for the purpose of the present case reads as follows:- Section 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. The Section authorizes the Court making any inquiry into or conducting the trial of an offence to proceed against any person (other than the accused facing trial) subject to two conditions (I) that from the evidence it appears to the Court that such a person has committed any offence, and (2) that such a person could be tried together with the accused. 8. In Michael Machado and another v. Central Bureau of Investigation and another ( 2000 (3) SCC 262 ) construing the words "the court may proceed against such person" in Section 319 of the Code, the Supreme Court held that the power is discretionary and should be exercised only to achieve the criminal justice and that the court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. The Supreme Court further held that 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. The Supreme Court further held that 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. The Supreme court, while examining an application under Section 319 of the Code, has also to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell, for exercise of discretion under Section 319 of the Code all relevant factors including those noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused. 9. The above principles were highlighted in Krishnappa v. State of Karnataka ( 2004 (7) SCC 792 ). 10. The scope and ambit of Sec. 319 of the Code have been elucidated in several decisions of the Supreme Court. In Joginder Singh and another v. State of Punjab and another ( AIR 1979 SC 339 ), it was observed: "6. A plain reading of Sec. 319(1) which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power 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 the other accused......... " 11. It was further observed in paragraph 9: "9. As regards the contention that the phrase 'any person not being the accused' occurred in Sec. 319 excludes from its operation an accused who has been released by the police under Sec. 169 of the Code and has been shown in column No. 2 of the charge-sheet, the contention has merely to be stated to be rejected. As regards the contention that the phrase 'any person not being the accused' occurred in Sec. 319 excludes from its operation an accused who has been released by the police under Sec. 169 of the Code and has been shown in column No. 2 of the charge-sheet, the contention has merely to be stated 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 Sec. 319(1) 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." 12. In Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and others (1983 (1) SCC 2) after referring to the decision in Joginder Singh's case (supra), it was observed: "19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. 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. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the Court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against respondent Nos. 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it." 13. I may quote with profit a decision of the Supreme Court in the case of Sarabjeet Singh v. State of Punjab reported in 2009 (16) SCC 46 , the observations made by the Supreme Court in paragraphs Nos. 17 and 18 are important:- 17. I may quote with profit a decision of the Supreme Court in the case of Sarabjeet Singh v. State of Punjab reported in 2009 (16) SCC 46 , the observations made by the Supreme Court in paragraphs Nos. 17 and 18 are important:- 17. The provision of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly. We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr. [JT 2007 (6) SC 460], this Court opined: "...Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates that evidence of witnesses given in Court..." An order under Section 319 of the Code, 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. 18. The observation of this Court in Municipal Corporation of Delhi (supra) and other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. 18. The observation of this Court in Municipal Corporation of Delhi (supra) and other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if un-rebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz., (i) an extraordinary case, and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied. 14. On a careful reading of Section 319 of the Code as well as the decisions of the Supreme Court referred to above, 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 co-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 an accused should face the trial. It is further evident that such person even though had initially been not named in the FIR or 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 the evidence adduced before it and not on the basis of the 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. 15. The Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including the accused already before it. 15. The Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including the accused already before it. If it is satisfied that any person other than the accused had committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Indisputably, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reason exist for taking action against a person against whom action had not been taken earlier. The word 'evidence' in Section 319 contemplates that evidence of the witnesses given in the Court. Under sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that the newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as the newly added accused is concerned. 16. In the aforesaid context, I may quote with profit a recent pronouncement of the Supreme Court delivered by the Constitution Bench in the case of Hardip Singh Vs. State of Punjab and others reported in (2014) 3 SCC 92 . 17. The Constitution Bench of the Supreme Court answered a reference on the scope and extent of the powers of the courts under the criminal justice system to arraign any person as an accused during the course of inquiry or trial as contemplated under Section 319 of the Code. 18. A two-Judge Bench of the Supreme Court in Hardeep Singh, (2009) 16 SCC 785 , noticing the conflict between the judgments in Rakesh, (2001) 6 SCC 248 , and Mohd. Shafi, (2007) 14 SCC 544 expressed a doubt about the correctness of the view in the Mohd. Shafi Case. On consideration of the reference, a three-Judge Bench by order dated 8-12-2011 in Hardeep Singh, (2013) 4 SCC 277 opined that in view of the reference already made in Dharam Pal, (2004) 13 SCC 9 , the issue involved being identical in nature, the same should be resolved by a Bench consisting of at least five Judges. Shafi Case. On consideration of the reference, a three-Judge Bench by order dated 8-12-2011 in Hardeep Singh, (2013) 4 SCC 277 opined that in view of the reference already made in Dharam Pal, (2004) 13 SCC 9 , the issue involved being identical in nature, the same should be resolved by a Bench consisting of at least five Judges. The reference made in Dharam Pal, (2004) 13 SCC 9 came to be answered in relation to the power of a Court of Session to invoke Section 319 CrPC at the stage of committal of the case to a Court of Session. The said reference was answered by a five-Judge Bench in Dharam Pal (2014) 3 SCC 306 wherein it was held that a Court of Session can with the aid of Section 193 CrPC proceed to arraign any other person and summon him for being tried even if the provisions of Section 319 CrPC could not be pressed in service at the stage of committal. 19. The Constitutional Bench answered the following questions:- (i) What is the stage at which power under Section 319 CrPC can be exercised? (ii) Whether the word evidence used in Section 319(1) CrPC could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? (iii) Whether the word evidence used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word evidence is limited to the evidence recorded during trial? (iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted? (v) Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged? 20. In paragraph No. 117 of the judgment, the conclusions were summed up as follows:- Question (i) and (ii) --What is the stage at which power under Section 319 CrPC can be exercised? 20. In paragraph No. 117 of the judgment, the conclusions were summed up as follows:- Question (i) and (ii) --What is the stage at which power under Section 319 CrPC can be exercised? AND --Whether the word evidence used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word evidence is limited to the evidence recorded during trial? Answer 1. In Dharam Pal case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation. Such cognizance can be taken under Section 193 CrPC and the Sessions Judge need not wait till evidence under Section 319 CrPC becomes available for summoning an additional accused. 2. Section 319 CrPC, significantly, uses two expressions that have to be taken note of i.e. (1) inquiry (2) trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200,201, 202 CrPC, and under Section 398 CrPC are species of the inquiry contemplated by Section 319 CrPC. Materials coming before the court in course of such inquires can be used for corroboration of evidence recorded in the court after the trial commences, for the exercise of power under Section 319 CrPC and also to add an accused whose name has been shown in Cromn 2 of the charge-sheet. 3. In view of the above position the word evidence in Section 319CrPC has to be broadly understood and not literally i.e. as evidence brought during a trial. Question (iii)-- Whether the word evidence used in Section319(1) CrPC could only mean evidence tested by cross-examination or the court can exercise the power under the said provisions even on the basis of the statement made in the examination-in-chief of the witness concerned? Answer 4. Considering the fact that under Section 319 CrPC a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) CrPC the proceedings against such person is to commence from the stage of taking of cognizance, the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination. Question (iv)-- What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the Court is satisfied that the accused summoned will in all likelihood be convicted? Answer 5. Though under Section 319(4)(b) CrPC the accused subsequently impleaded is to be treated as if the had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 CrPC would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different. Question (v)-- Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged? Answer 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 CrPC provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 CrPC has to be complied with before he can be summoned afresh. 21. In the present case, I am more concerned with the discussion of the Supreme Court while answering the question No. 4 i.e. the degree of satisfaction required for invoking the power under Section 319 CrPC. 22. The Bench observed as under:- 93. Section 319(1) CrPC empowers the court to proceed against other persons who appear to be guilty of offence, though not an accused before the court. The word appear means clear to the comprehension, or a phrase near to, if not synonymous with proved. It imparts a lesser degree of probability than proof. 94. 22. The Bench observed as under:- 93. Section 319(1) CrPC empowers the court to proceed against other persons who appear to be guilty of offence, though not an accused before the court. The word appear means clear to the comprehension, or a phrase near to, if not synonymous with proved. It imparts a lesser degree of probability than proof. 94. In Pyare Lal Bhargava v. State of Rajasthan, a four-Judge Bench of this Court was concerned with the meaning of the word appear. The Court held that the appropriate meaning of the word appears is seems. It imports a lesser degree of probability than proof. In Ram Singh v. Ram Niwas, a two-Judge Bench of this Court was again required to examine the importance of the word appear as appearing in the section. The Court held that for the fulfillment of the condition that it appears to the court that a person had committed an offence, the court must satisfy itself about the existence of an exceptional circumstance enabling it to exercise an extraordinary jurisdiction. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if un-rebutted, may lead to conviction of the persons sought to be added as the accused in the case. 95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objective satisfaction of the court a person may be arrested or summoned, as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons. 96. In Rajendra Singh, the Court observed: (SCC p. 388, para 16) 16. Be it noted, the Court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Be it noted, the Court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has a discretion not to proceed, since the expression used is 'may' and not 'shall'. The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression 'appear' indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 319 of the Code or not. 97. In Sarabjit Singh V. State of Punjab, while explaining the scope of Section319 CrPC, a two-Judge Bench of this Court observed: (SCC pp. 54-55, paras 21-23) 21. &..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. 22.. &...Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if un-rebutted would lead to a judgment of conviction. 23. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz, (I) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied. (emphasis supplied) 99. In Brindaban Das & Ors. v. State of West Bengal, AIR 2009 SC 1248 , a two-Judge Bench of this Court took a similar view observing that: (SCC p. 335, para 25) 25. ....... (emphasis supplied) 99. In Brindaban Das & Ors. v. State of West Bengal, AIR 2009 SC 1248 , a two-Judge Bench of this Court took a similar view observing that: (SCC p. 335, para 25) 25. ....... the court is required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 Cr.P.C. entails a de novo trial and a large number of witnesses may have been examined and their re-examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity. A similar view has been re-iterated by this Court in Michael Machado & Anr. v. Central Bureau of Investigation & Ors., AIR 2000 SC 1127 . 100. However, there is a series of cases wherein this Court while dealing with the provisions of Sections 227, 228, 239, 240, 241, 242 and 245 Cr.P.C., has consistently held that the court at the stage of framing of the charge has to apply its mind to the question whether or not there is any ground for presuming the commission of an offence by the accused. The court has to see as to whether the material brought on record reasonably connect the accused with the offence. Nothing more is required to be enquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The Court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed against the accused further. (Vide: State of Karnataka v. L. Muniswamy & Ors., AIR 1977 SC 1489 ; All India Bank Officers' Confederation etc. v. Union of India & Ors., AIR 1989 SC 2045 ; Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715 ; State of M.P. v. Dr. Krishna Chandra Saksena, (1996) 11 SCC 439 ; and State of M.P. v. Mohan Lal Soni, AIR 2000 SC 2583 ). 101. v. Union of India & Ors., AIR 1989 SC 2045 ; Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715 ; State of M.P. v. Dr. Krishna Chandra Saksena, (1996) 11 SCC 439 ; and State of M.P. v. Mohan Lal Soni, AIR 2000 SC 2583 ). 101. In Dilawar Babu Kurane v. State of Maharashtra, AIR 2002 SC 564 , this Court while dealing with the provisions of Sections 227and 228 Cr.P.C., placed a very heavy reliance on the earlier judgment of this Court in Union of India v. Prafulla Kumar Samal & Anr., AIR 1979 SC 366 and held that while considering the question of framing the charges, the court may weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and whether the materials placed before this Court disclose grave suspicion against the accused which has not been properly explained. In such an eventuality, the court is justified in framing the charges and proceeding with the trial. The court has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but court should not make a roving enquiry into the pros and cons of the matter and weigh evidence as if it is conducting a trial. 102. In Suresh v. State of Maharashtra, AIR 2001 SC 1375 , this Court after taking note of the earlier judgments in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, AIR 1990 SC 1962 and State of Maharashtra v. Priya Sharan Maharaj, AIR 1997 SC 2041 , held as under: 9. ..... at the stage of Sections 227 and 228 the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. (Emphasis supplied) 103. Similarly in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 , while dealing with the issue, this Court held: "...... If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial &.. 104. In Palanisamy Gounder & Anr. v. State, represented by Inspector of Police, (2005) 12 SCC 327 , this Court deprecated the practice of invoking the power under Section 319 Cr.P.C. just to conduct a fishing inquiry, as in that case, the trial court exercised that power just to find out the real truth, though there was no valid ground to proceed against the person summoned by the court. 105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 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. 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. 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 un-rebutted, 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. 23. While answering question No. 5 as regard the situations, the power under Section 319 of the Code can be exercised:- not named in the 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 (supra), 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 193Cr.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. Both these provisions contemplate an inquiry to be conducted before 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. Both these provisions contemplate an inquiry to be conducted before 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 Section 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. 24. In the case of Babu Bhimbhai Bokhiria and another v. State of Gujarat and others AIR (2014) SC 2228, the Supreme Court in para No. 9 made the following observations:- "9. Section 319 of the Code confers power on the trial court to find out whether a person who ought to have been added as an accused has erroneously been omitted or has deliberately been excluded by the investigating agency and that satisfaction has to be arrived at on the basis of the evidence so led during the trial. On the degree of satisfaction for invoking power under section 319 of the Code, this Court observed that though the test of prima facie case being made out is same as that when the cognizance of the offence is taken and process issued, the degree of satisfaction under Section 319 of the Code is much higher." 25. On the degree of satisfaction for invoking power under section 319 of the Code, this Court observed that though the test of prima facie case being made out is same as that when the cognizance of the offence is taken and process issued, the degree of satisfaction under Section 319 of the Code is much higher." 25. I may also quote with profit a judgment of the Supreme Court in the case of Ragindra Singh v. State of U.P. and another AIR 2007 SC 2786 , more particularly, the observations of His Lordship P.K. Balasubramanyan, J., while concurring with the reasoning and conclusion of His Lordship G.P. Mathur, J. but by way of a separate judgment. "15. Section 319(1), which is relevant for our purpose reads: "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." As I see it, the words are plain and the meaning clear. When in the course of the enquiry or trial, it appears to the Court from the evidence that a person, not arrayed as an accused, appears to have committed any offence for which that person could be tried together with the accused, the Court may proceed against that person. Surely, it must appear to the Court from the evidence that someone not arrayed as an accused, appears to have committed an offence. Be it noted, the Court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under S. 319 of the Code. Even then, it has a discretion not to proceed, since the expression used is 'may' and not 'shall.' The Legislature apparently wanted to leave that discretion to the trial Court so as to enable it to exercise its jurisdiction under this section. Even then, it has a discretion not to proceed, since the expression used is 'may' and not 'shall.' The Legislature apparently wanted to leave that discretion to the trial Court so as to enable it to exercise its jurisdiction under this section. The expression 'appears' indicates an application of mind by the Court to the evidence that has come before it and then taking a decision to proceed under S. 319 of the Code or not. With great respect, I see no reason to describe the power as an extraordinary power or to confine the exercise of it only if compelling reasons exist for taking cognizance against any other person against whom action has not been taken. After all, the section only gives power to the Court to ensure that all those apparently involved in the commission of an offence are tried together and none left out. I see no reason to curtail this power of the Court to do justice to the victim and to the society. It appears to me that it is left to the judicial discretion of the Court, judicially trained, to decide to proceed or not to proceed against a person in terms of S. 319 of the Code. 16. The decision in Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. ( (1983) 1 SCC 1 ) which described the power as an extraordinary power to be exercised very sparingly and only if compelling reasons exist proceeded on its own peculiar facts. The broad statement contained in that decision cannot be understood out of context. That was a case where the very same proceeding against certain persons initially arrayed as accused, had been quashed. But, thereafter from the evidence, it appeared to the Court that some of them have to be tried as accused in exercise of power under S. 319 of the Code. This Court in that context after referring to Joginder Singh v. State of Punjab ( (1979) 2 SCR 306 ) held that if the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed, have also committed the offence, the Court can take cognizance against them and try them along with the other accused. This Court thus upheld the power of the Court to invoke S. 319 of the Code even in such a case. Their Lordships then added: "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." With respect, I understand this sentence as relating to exercise of the power under S. 319 of the Code in a case where the prosecution against the person sought to be arraigned, had earlier been quashed by the Court, but still he is to be roped in, in exercise of power under S. 319 of the Code. 17. These observations have unfortunately led to some decisions using these expressions, even in cases where there has not been a prior quashing of the charge and a proceeding is taken in terms of S. 319 of the Code. With respect, it appears to me that there is no warrant for such narrowing down of the power of the Court. After all, an authority has to be understood in the context of the facts based on which the observations therein are made. The ratio of a decision is generally secundum subjectam materiam. 18. In Quinn v. Leathem (1901) AC 495, Earl of Halsbury L.C. Stated: "......., that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides." The above dictum, as regards the first proposition, was "ed and adopted by the Privy Council in Punjab Co-operative Bank Ltd. v. Commissioner of Income-tax, Lahore ( AIR 1940 PC 230 ). 19. The power under S. 319 of the Code is conferred on the Court to ensure that justice is done to the society by bringing to book all those guilty of an offence. One of the aims and purposes of the Criminal Justice System is to maintain social order. 19. The power under S. 319 of the Code is conferred on the Court to ensure that justice is done to the society by bringing to book all those guilty of an offence. One of the aims and purposes of the Criminal Justice System is to maintain social order. It is necessary in that context to ensure that no one who appears to be guilty escapes a proper trial in relation to that guilt. There is also a duty to render justice to the victim of the offence. It is in recognition of this that the Code has specifically conferred a power in the Court to proceed against others not arrayed as accused in the circumstances set out by this section. It is a salutary power enabling the discharge of a Court's obligation to the society to bring to book all those guilty of a crime. 20. Exercise of power under S. 319 of the Code, in my view, is left to the Court trying the offence based on the evidence that comes before it. The Court must be satisfied of the condition precedent for the exercise of power under S. 319of the Code. There is no reason to assume that a Court trained in law would not exercise the power within the confines of the provision and decide whether it may proceed against such person or not. There is no rationale in fettering that power and the discretion, either by calling it extraordinary or by stating that it will be exercised only in exceptional circumstances. It is intended to be used when the occasion envisaged by the section arises." 26. I may quote a very recent pronouncement of the Supreme Court dated 30 March, 2016 in the case of Hardei v. State of U.P. [Criminal Appeal No. 186 of 2016], in which the Supreme Court observed in para 9 as under: "9. It is well accepted in criminal jurisprudence that F.I.R. may not contain all the details of the occurrence or even the names of all the accused. It is not expected to be an encyclopedia even of facts already known. There are varieties of crimes and by their very nature, details of some crimes can be unfolded only by a detailed and expert investigation. This is more true in crimes involving conspiracy, economic offences or cases not founded on eye witness accounts. It is not expected to be an encyclopedia even of facts already known. There are varieties of crimes and by their very nature, details of some crimes can be unfolded only by a detailed and expert investigation. This is more true in crimes involving conspiracy, economic offences or cases not founded on eye witness accounts. The fact that Police chose not to send up a suspect to face trial does not affect power of the trial court under Section 319 of the Cr.P.C. to summon such a person on account of evidence recorded during trial. This is the factual scenario in the case at hand also." 27. Even if a witness has failed or omitted for any reason to name a particular person as an accused in his statement recorded by the Investigating Officer under Section 161 of the Code, if such person is named in the oral evidence before the trial Court, the Court cannot discard the same on the ground that such person was not named in the police statement. 28. In connection with the aforesaid, I may refer to and rely upon the decision of the Supreme Court in the case of Y. Saraba Reddy v. Puthur Rami Reddy and Ors. 2007 AIR SCW 6258: "8. We find that the High Court has failed to notice the fact that there was in fact no delay in making the application. Though the charge sheet was filed on 7.11.1997, charges were framed on 25.8.2003. The order sheet shows that the delay cannot in any way be attributed to the complainant. There is a basic fallacy in the approach of the High Court. It called for the file to be satisfied as to whether the enquiry conducted was to be preferred to the evidence of PW-1. If the satisfaction of the Investigating Officer or Supervising Officer is to be treated as determinative, then the very purpose of Section 319 of the Code would be frustrated. Though it cannot always be the satisfaction of the Investigating Officer which is to prevail, yet in the instant case the High Court has not found the evidence of PW-1 to be unworthy of acceptance. Whatever be the worth of his evidence for the purposes of Section 319 of the Code it was required to be analysed. The conclusion that the IO's satisfaction should be given primacy is unsustainable. Whatever be the worth of his evidence for the purposes of Section 319 of the Code it was required to be analysed. The conclusion that the IO's satisfaction should be given primacy is unsustainable. The High Court was not justified in holding that there was belated approach." 29. In Mohd. Shafi v. Mohd. Rafiq [(2007) 14 SCC 544], the Supreme Court held that it is evident that before a Court exercises its discretionary jurisdiction in terms of Section 319Cr.P.C., it must arrive at a satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. "105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised and not in a casual and cavalier manner. 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. 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." 30. 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." 30. Having regard to the position of law, as discussed above, and taking into consideration the reasonings assigned by the trial Court, I am of the view that no case is made out at this stage to implead the three persons named in the application Exhibit: 12 as accused. As observed by me earlier that all the three persons were in company of the two deceased till the last and therefore, it would be within their special knowledge as to what had happened to the two deceased exactly. Unfortunately, in the case in hand, there was no proper and effective assistance at the end of the learned counsel appearing for the respective parties. The learned counsel appearing for the respective parties could not even make it clear whether the three persons, who are sought to be arrayed as accused, have been cited as witnesses in the chargesheet or not. I am sure that they must have been cited as witnesses and they would also be examined in the course of the trial. 31. When the application was filed and decided by the trial Court, only one witness was examined i.e. the petitioner herein - original first informant. At least from the oral evidence of the petitioner in his capacity as the first informant, it is difficult to array the three persons named as accused. However, in the course of the trial, more particularly, in the course of the examination of the other witnesses, if any evidence surfaces to prima facie indicate the involvement of the three persons or any other person, then at that stage also, the Public Prosecutor may file a fresh application under Section 319 of the Code and pray for impleadment as accused. 32. In my view, it cannot be said that the trial Court failed to exercise its discretion and committed an error going to the root of the matter. The power of the Court under Section 319 of the Code is discretionary and the High Court ordinarily should not disturb the discretion unless it is found to have been exercised illegally. 33. I have noticed one infirmity in the impugned order. The power of the Court under Section 319 of the Code is discretionary and the High Court ordinarily should not disturb the discretion unless it is found to have been exercised illegally. 33. I have noticed one infirmity in the impugned order. It appears that the trial Judge gave an opportunity to the persons sought to be arrayed as accused to oppose the application filed by the Public Prosecutor under Section 319 of the Code. So far this issue is concerned, I have explained the position of law in the case of Shankrabhai Kalabhai Rabari v. State of Gujarat [Special Criminal Application No. 2272 of 2011 decided on 30th March, 2015]. I may quote observations made in paras 47, 48 and 49 as under: "47 In my view the procedure adopted by the trial Court was not only very unusual but something unprecedented. While deciding an application under Section 319 of the Code filed by the State or the first informant or any other person, the Court is not obliged to give an opportunity of hearing to the person who is sought to be arrayed as an accused. The person sought to be arrayed as an accused has no locus at that stage to appear before the Court and oppose such application. Mr. Bachani, the learned advocate appearing for the respondent No. 2, however, relying on a decision of this Court in the case of R.J. Lakhia v. State of Gujarat, 1982 Cr.L.J. 1687, submitted that the Court committed no error in issuing notice and permitting the respondent No. 2 to file his reply and make oral submissions for the purpose of opposing the application Exhibit-28. 48. 48. I am afraid the decision of this Court in the case of Lakhia (Supra) is no longer a good law in view of the two subsequent decisions of the Supreme Court (i) Raj Kishor Singh v. State of Bihar, AIR (1996) SC 1931, wherein, the apex Cort has observed as under:- "addition of an accused by summoning or resummoning a discharged accused, and that too without hearing the accused, has only been permitted in the manner provided by Section 319, Cr.P.C. on evidence adduced during the course of trial, and in no other way." (ii) Anju Chaudhary v. State of U.P. and another, 2013 (3) G.L.H. 237 (SC) in which the Supreme Court in paragraph No. 33 made the following observations:- Even in the cases where report under Section 173(2) of the Code 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 can summon the person as an accused and even at that stage of summoning, no hearing is contemplated under the law. 49. Thus, in view of the aforesaid two decisions of the Supreme Court, it is manifest that the person who is sought to be arrayed as an accused in exercise of the power under Section 319 of the Code has no right to be heard as he could not be said to be an accused at that stage. The main purpose of Section 319 of the Code appears to be that the whole case against all known suspects should be proceeded with expeditiously. The provision thus intends to serve a laudable purpose. Not only the person who is sought to be arrayed as an accused has no right to be heard but even the person i.e. the accused who is already before the Court has also no say in the matter. The accused already facing the trial has also no right to oppose such application filed either by the State or by the first informant or by any witness." 34. I would like to clarify one more aspect. The accused already facing the trial has also no right to oppose such application filed either by the State or by the first informant or by any witness." 34. I would like to clarify one more aspect. If the application is filed by the Public Prosecutor or by the original complainant under Section 319 of the Code to array a particular person as an accused, then the trial of the other accused should not be get hampered or delayed. It is possible that if the application is rejected or allowed, then either of the parties affected would approach the higher Court and that may consume time. If the accused is an under-trial prisoner, then he may have to languish in the jail till the decision is arrived at. 35. In the aforesaid context, I may quote the observations made by me in the case of Shankrabhai (supra) in paras 50, 51 and 52 as under: "50. It is quite disturbing to note that the incident is of the year 2009. The accused facing trial as on today is languishing in jail past almost six years. The disturbing part of the matter is that the impugned order is of year 2011 and this application remained pending up to 2015 without being heard. 51. In my view the High Court should not grant a blanket stay against the progress of the trial. By granting such a blanket stay while considering the matter arising from the provisions of Section 319 of the Code, the right to speedy trial of the accused already before the trial Court gets infringed. This is exactly what has happened in the present case. I am saying so considering the decision of the Supreme Court in the case of Babhubhai Bokheria (Supra). The Supreme Court has explained the expression could be tried together appearing in Section 319 of the Code. The Supreme Court by relying on its earlier decision in the case of Sashikant Singh v. Tarkeshwar Singh, 2002 (5) SCC 738 , took the view that it is not necessary or mandatory that the person who is sought to be arrayed as an accused under Section 319 should be tried with the accused already facing the trial. 52. I may quote the observations made by the Supreme Court in paragraphs Nos. 12, 13, 14, 16, 17, 18:- 12. Time now to deal with the contention urged by Mr. 52. I may quote the observations made by the Supreme Court in paragraphs Nos. 12, 13, 14, 16, 17, 18:- 12. Time now to deal with the contention urged by Mr. Singhvi, that the expression "could be tried together" appearing in Section319 of the Cr.P.C. means that the newly added accused must be tried along with the accused already sent up for trial. The question is no longer res integra in the light of the judgment of this Court in Shashikant Singh v. Tarkeshwar Singh and Anr. (2002) 5 SCC 738 : AIR 2002 SC 2031 : 2002 AIR SCW 2079), where this Court was examining a similar contention that failed to impress this Court and was rejected in the following words: 9. The intention of the provision here is that where in the course of any enquiry into or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At that stage, the court would consider that such a person could be tried together with the accused who is already before the court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses reheard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination-in-chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words "could be tried together with the accused" in Section 319(1), appear to be only directory. "Could be" cannot under these circumstances be held to be "must be". They have to be examined afresh. Fresh examination-in-chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words "could be tried together with the accused" in Section 319(1), appear to be only directory. "Could be" cannot under these circumstances be held to be "must be". The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded with the result that the newly added person cannot be tried together with the accused who was before the court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the court on the basis of the evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the court." 13. The Court distinguished the earlier decisions rendered in Municipal Corporation of Delhi v. Ram Kishan Rohtagi (1983) 1 SCC 1 : AIR 1983 SC 67 ) and Michael Machado v. Central Bureau of Investigation (2000) 3 SCC 262 : AIR 2000 SC 1127 : 2000 AIR SCW 734) in the following words: "13 Reliance by learned counsel for Respondent 1 has been placed on Municipal Corpn. of Delhi v. Ram Kishan Rohtagi in support of the contention that Respondent could be tried only with Chandra Shekhar Singh and his trial having concluded, Respondent 1 cannot be now tried pursuant to order under Section 319(1) of the Code. This Court in the cited decision was not concerned with the issue which has fallen for consideration before us. The same is the position in respect of Michael Machado v. Central Bureau of Investigation. There this Court considered the scope of the provision as to the circumstances under which the court may proceed to make an order under Section 319 and not the question as to the effect of the conclusion of the trial after passing an order under Section319(1). None of these decisions have any relevance for determining the point in issue." 14. To the same effect is the decision of this Court in Rajendra Singh v. State of U.P. and Anr. ( (2007) 7 SCC 378 : AIR 2007 SC 2786 : 2007 AIR SCW 5034), where too a similar question arose for consideration. None of these decisions have any relevance for determining the point in issue." 14. To the same effect is the decision of this Court in Rajendra Singh v. State of U.P. and Anr. ( (2007) 7 SCC 378 : AIR 2007 SC 2786 : 2007 AIR SCW 5034), where too a similar question arose for consideration. Relying upon the decision of this Court in Shashikant Singh's case ( AIR 2002 SC 2031 : 2002 AIR SCW 2079) (supra) this Court held: "11.... The mere fact that trial of co-accused Daya Singh has concluded cannot have the effect of nullifying or making the order passed by learned Sessions Judge on 26.5.2005 infructuous". 16. There is another angle from which the matter can and must be examined. The prosecution has already examined as many as 134 witnesses at the trial. In terms of the ratio of the direction of this Court in Shashikant Singh's case (supra) with the addition of the petitioner as accused all those witnesses shall have to be recalled for a fresh examination. If that be so, the trial would go on for a few more years having regard to the number of witnesses that have to be examined. This would in turn mean that the right of the accused to a speedy trial, that they have laboured to complete within six years or so, will be in serious jeopardy on account of the entire process being resumed de novo. Such a result is manifestly unjust and unfair and would be perilously close to being in violation of the fundamental rights guaranteed to the accused persons who cannot be subjected to the tyranny of a legal process that goes on endlessly for no fault of theirs. This Court has in several pronouncements emphasised the need for speedy trials in criminal cases and recognised the same as an integral part of the right to life itself. In Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 81 : AIR 1979 SC 1360 ), this Court held that an expeditious trial is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution. In Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 81 : AIR 1979 SC 1360 ), this Court held that an expeditious trial is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution. In A.R. Antulay v. R.S. Nayak (1992) 1 SCC 225 : AIR 1992 SC 1701 : 1992 AIR SCW 1872) this Court declared that speedy trial is not only the right of the accused but is also in public interest and that the right to speedy trial flowing from Article 21encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and retrial. In Sher Singh v. State of Punjab (1983) 2 SCC 344 : AIR 1983 SC 465 ) this Court sounded the following note of caution against delay of criminal trials: "16... The essence of the matter is that all procedure, no matter what the stage, must be fair, just and reasonable...Article 21 stands like a sentinel over human misery... It reverberates through all stages the trial, the sentence, the incarceration and finally, the execution of the sentence." 17. To the same effect are the decisions of this Court in Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra (1985) 1 SCC 275 : AIR 1985 SC 231 ) and Triveni Ben v. State of Gujarat (1989) 1 SCC 678 : AIR 1989 SC 1335 ). Even in cases where the accused had been enlarged on bail the right to a speedy trial was held to be a part of the fundamental right under Article 21 of the Constitution. The decisions of this Court in Biswanath Prasad Singh v. State of Bihar, 1994 Supp.(3) SCC 97 : (1993 AIR SCW 3631) and Mahendra Lal Das v. State of Bihar and Ors. (2002) 1 SCC 149 : AIR 2001 SC 2989 : 2001 AIR SCW 4186) may be referred to in this regard. 18. It is in the light of the settled legal position no longer possible to question the legitimacy of the right to speedy trial as a part of the right to life under Article 21 of the Constitution. (2002) 1 SCC 149 : AIR 2001 SC 2989 : 2001 AIR SCW 4186) may be referred to in this regard. 18. It is in the light of the settled legal position no longer possible to question the legitimacy of the right to speedy trial as a part of the right to life under Article 21 of the Constitution. The essence of Article 21 of the Constitution lies not only in ensuring that no citizen is deprived of his life or personal liberty except according to procedure established by law, but also that such procedure ensures both fairness and an expeditious conclusion of the trial. It is in that backdrop not possible to countenance a situation where addition of Babubhai Bhimabhai Bokhiria as an accused to the case at hand would lead to an indefinite suspension of trial and eventual recall of 134 witnesses already examined against the applicant who has been in jail for over six years now. There is, therefore, no reason for a blanket stay against the progress of the trial before the courts below qua other accused persons." 36. In the overall view of the matter, I have no hesitation in coming to the conclusion that the impugned order passed by the Court below does not warrant any interference. 37. In the result, this application fails and is hereby rejected with the necessary observations. Rule is discharged.