JUDGMENT Deepak Maheshwari, J. - Heard learned counsel for the accused-petitioners as also learned Public Prosecutor. 2. This revision petition has been preferred against the order dated 27.4.2018 whereby the accused-petitioners have been added as additional accused under the provisions of Section 319 Cr.PC by learned trial Court. 3. Counsel for the accused-petitioners submit that in the order impugned learned trial Court has observed that as prima facie case appears to have been made out against the accused- petitioners for the offence under Sections 147, 148, 323, 341 302 read with Section 149 IPC, cognizance has taken against them. Counsel submit that at the stage of taking cognizance under Section 319 Cr.PC only prima facie case is not sufficient to be established but even more cogent and clinching evidence is required than that which is needed at the stage of framing the charges. Without coming to the conclusion that such cogent and clinching evidence is available to call the accused-petitioners as additional accused, the trial Court has ordered to add them as additional accused persons under Section 319 Cr.PC. 4. Learned counsel further contends that the additionally added accused-petitioners have not been afforded an opportunity of hearing prior to adding them as accused persons. Counsel has drawn attention of this Court to the judgment rendered by the Hon'ble Supreme Court in Jogendra Yadav and Ors. V/s State of Bihar and Anr. (2015)9 SCC 244 . On perusal of the aforesaid judgment, the Hon'ble Supreme Court has observed in para 9 as under:- It was, however, urged by the learned counsel for the appellants that in order to avail of the remedies of discharge under Section 227 Cr.PC, the only qualification necessary is that the person should be an accused. The learned counsel submitted that there is no difference between an accused since inception and the accused who has been added as such under Section 319 Cr.PC. It is, however, not possible to accept this submission since there is a material difference between the two. An accused since inception is not necessarily heard before he is added as an accused. However, a person who is added as an accused under Section 319 Cr.PC, is necessarily heard before being so added. Often he gets a further hearing if he challenges the summoning order before the High Court and further.
An accused since inception is not necessarily heard before he is added as an accused. However, a person who is added as an accused under Section 319 Cr.PC, is necessarily heard before being so added. Often he gets a further hearing if he challenges the summoning order before the High Court and further. It seems incongruous and indeed anomalous if the two sections are construed to mean that a person who is added as an accused by the court after considering the evidence against him can avail remedy of discharge on the ground that there is no sufficient material against him. Moreover, it is settled that the extraordinary power under Section 319 Cr.PC can be exercised only if very strong and cogent evidence occurs against a person from the evidence led before the Court. 5. This judgment has also been relied upon by Karnataka High Court in Criminal Revision Petition NO.231/2016 Smt. Asha V/s State of Karnataka. On perusal of the order impugned, it does not appear that such opportunity of hearing was ever provided to the petitioners prior to passing the order. 6. In light of the above judicial pronouncement, the order dated 27.4.2018 is quashed and set aside and direction is given to the learned trial Court to follow the procedure of affording opportunity of hearing to the persons, who are proposed to additionally added as accused person, as laid down in para-9 of the judgment recorded in Jogendra Yadav (Supra). The learned trial Court will also weigh and scrutinize the evidence available against the petitioners to conclude whether it is sufficient to add them as additional accused, in the light of the above referred judgment. 7. The petition stands disposed off accordingly.