JUDGMENT : 1. Whether the accused, who is released under Section 169 of the Code of Criminal Procedure, can be impleaded as the accused under Section 319 of the Code and in what manner the powers under Section 319 of the Code are to be exercised, are the questions involved in the present revision applications. 2. Since both these revision applications are filed challenging the order passed by the learned Sessions Judge on 30.07.2018 below application at Exh.336 in Sessions Case No.23 of 2018, I have heard common arguments and I deem it appropriate to decide both the revision applications by common reasoning. One Criminal Revision Application bearing No.205 of 2018 is filed by original complainant, whereas another Criminal Revision Application No.235 of 2018 is filed by the State. 3. Application at Exh.336 was filed in Sessions Case No.23 of 2018, seeking impleadment of four persons namely Ananda Uttam Potphole, Kailash Baburao Potphole, Shivhar Tukaram Potphole and and Sangram Hanmant Potphole as accused in the aforesaid Sessions case by invoking provisions under Section 319 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). The prosecution filed the aforesaid application on the ground that in the testimony of two witnesses examined by the prosecution namely Ganpati Irappa Potphole and Manika Irappa Potphole, the witnesses have specifically deposed about the involvement of aforesaid four persons in the commission of alleged crime and has attributed specific overt-act against the said accused persons. The application at Exh.336 was opposed by the said persons, who were sought to be impleaded as accused, stating that during the course of investigation, the Investigating Officer has reached to the conclusion that all the four persons were not present on the spot of occurrence of crime and were not having any involvement in commission of alleged crime and as such report under Section 169 of the Code was filed before the Magistrate and the same was accepted by the Magistrate. 4. The learned Sessions Judge, after considering the submissions made on behalf of the prosecution and the accused persons, rejected the said application vide the impugned order. Aggrieved thereby, the aforesaid two revisions applications are filed. 5. 4. The learned Sessions Judge, after considering the submissions made on behalf of the prosecution and the accused persons, rejected the said application vide the impugned order. Aggrieved thereby, the aforesaid two revisions applications are filed. 5. Shri S.M. Godsay, learned Counsel appearing for the original complainant submitted that merely because report under Section 169 of the Code pertaining to the respondents was accepted by the Magistrate, the request made by the prosecution for impleading the said persons as accused, cannot be rejected. The learned Counsel further submitted that since during the course of evidence, the involvement of the respondents was specifically revealed, there was no bar for impleading the said persons as accused by invoking the provisions under Section 319 of the Code. 6. Shri N.B.Suryawanshi, learned Counsel appearing for the respondents i.e. the persons, who were sought to be impleaded as accused, resisted the submissions made on behalf of the revision applicants. Relying on the Judgment of the Hon'ble Apex Court in case of Brijendra Singh and Others vs. State of Rajasthan [(2017) 7 Supreme Court Cases, 706], the learned Counsel submitted that once report under Section 169 of the Code was accepted in the matter and when no more material was subsequently revealed against the persons in respect of whom the report under Section 169 was accepted by the Court, the said persons cannot be impleaded as the accused by invoking the provisions under Section 319 of the Code. The learned Counsel submitted that the learned Sessions Judge has rightly rejected the application filed by the prosecution below Exh.336 under Section 319 of the Code and no interference is warranted in the order so passed. 7. The material on record shows that First Information Report (FIR) was lodged by Ganpati Irappa Potphole in regard to assaults made on deceased Digambar, deceased Narayan and Irappa, who was injured in the said incident. Several persons were alleged to be involved in making assaults on deceased Digambar, deceased Narayan and injured Irappa. Present respondent Nos.1 to 4 were also named as assailants in the said FIR alongwith 24 other. It is the further matter of record that during the course of investigation, the Investigating Officer found that present respondent Nos.1 to 4 were not involved in commission of the alleged crime and were infact not present at the spot of occurrence as was alleged in the FIR. It is the further matter of record that during the course of investigation, the Investigating Officer found that present respondent Nos.1 to 4 were not involved in commission of the alleged crime and were infact not present at the spot of occurrence as was alleged in the FIR. It was revealed in the investigation that respondent Nos.1, 3 and 4 were at Shegaon on the date of incident, whereas respondent No.2 was at Bhadrawati, District Chandrapur. The Investigating Officer, therefore, filed report under Section 169 of the Code in respect of respondent Nos.1 to 4 and it was accepted by the Judicial Magistrate First Class (JMFC), Loha vide his order dated 31.01.2013. 8. The material on record further reveals that informant Ganpati Potphole filed the protest petition before JMFC, Loha, against the order passed by the said Court whereby it has accepted the report under Section 169 of the Code in respect of respondent Nos.1 to 4. The material on record also demonstrates that simultaneously Ganpati Potphole, the original informant preferred the Criminal Revision Application in the Sessions Court at Nanded against the order passed by JMFC, Loha accepting the report under Section 169 of the Code in respect of respondent Nos.1 to 4. It is also revealed that Ganpati Potphole withdrew the said revision application filed before the Sessions Court. 9. The material on record further demonstrates that in the meanwhile period, the charge was framed by the Sessions Court, in Sessions Case No.23 of 2018 and the trial was proceeded further. After oral evidence of Ganpati Irappa Potphole (PW3) and Manika Irappa Potphole (PW5) was recorded, the prosecution filed an application at Exh.336 under Section 319 of the Code with a prayer to implead present respondent Nos.1 to 4 as the accused in the case contending that PW3 and PW5 have specifically deposed about their involvement in making assaults on deceased Digambar, deceased Narayan and injured Irappa. The learned Sessions Judge, after having heard the prosecution and present respondent Nos.1 to 4 rejected the application at Exh.336 vide order passed on 30.07.2018, which is impugned in the present revision applications. 10. The learned Sessions Judge, after having heard the prosecution and present respondent Nos.1 to 4 rejected the application at Exh.336 vide order passed on 30.07.2018, which is impugned in the present revision applications. 10. As noted herein above, it was vehemently contended by Shri Godsay, learned Counsel appearing for the applicant in Criminal Revision Application No.205 of 2018 and the learned APP appearing for the State in Criminal Revision Application No.235 of 2018 that in premise of the facts deposed by PW3 and PW5 to the effect that they both have eye witnessed present respondent Nos.1 to 4 while making assaults on deceased Digambar, deceased Narayan and injured Irappa, the Sessions Court was bound to implead present respondent Nos.1 to 4 as accused in the said pending Sessions case by invoking the powers under Section 319 of the Code. According to the learned Counsel for the revisions applicants, the Sessions Court has wrongly rejected the application filed by the prosecution and has thereby committed a gross mistake. 11. Perusal of the impugned order demonstrates that the Sessions Judge has rejected the application relying upon the Judgment delivered by the Hon'ble Apex Court in the case Brijendra Singh and Others (supra). The learned Counsel appearing for respondent Nos.1 to 4 has also relied upon the said Judgment while opposing argument made on behalf of the revision applicants. In the above cited case facts were thus: Shri Brijendra Singh and two others had filed the aforesaid appeal before the Hon'ble Apex Court against the order passed by the Sessions Court for impleading them as accused under Section 319 of the Code, which was also confirmed by he Hon'ble Rajasthan High Court. The report under Section 169 of the Code pertaining to the appellants therein was earlier filed before the committing Court and the same was accepted by the said Court. However, during the course of the trial, some witnesses deposed about the involvement of the said appellants in the commission of the alleged crime. Based on the evidence of the said witnesses, an application was filed by the prosecution to implead the appellants as the accused and the said application was allowed by the Sessions Court. The appellants challenged the order passed by the Sessions Court before the Rajasthan High Court. The High Court turned down the challenge. The appellants were therefore required to approach the Apex Court. The appellants challenged the order passed by the Sessions Court before the Rajasthan High Court. The High Court turned down the challenge. The appellants were therefore required to approach the Apex Court. The Hon'ble Apex Court allowed the appeal and set aside the order passed by the Sessions Court. 12. I deem it appropriate to reproduce the observations made and conclusion recorded by the Hon'ble Apex Court in paragraph Nos.12 to 16 of the said Judgment, which read thus: “12. The moot question, however, is the degree of satisfaction that is required for invoking the powers under Section 319 CrPC and the related question is as to in what situations this power should be exercised in respect of a person named in the FIR but not charge-sheeted. These two aspects were also specifically dealt with by the Constitution Bench in Hardeep Singh case and answered in the following manner: “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 319 CrPC, 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 Rajastan 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. 105. Power under Section 319 CrPC 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 unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused.” (emphasis supplied) 13. In order to answer the question, some of the principles enunciated in Hardeep Singhs case may be recapitulated: power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some “evidence” against such a person on the basis of which evidence it can be gathered that he appears to be guilty of the offence. The “evidence” herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross-examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity. 14. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct. 15. This record was before the trial court. Notwithstanding the same, the trial court went by the deposition of the complainant and some other persons in their examination-in-chief, with no other material to support their so-called verbal/ocular version. Thus, the “evidence” recorded during trial was nothing more than the statements which were already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. Thus, the “evidence” recorded during trial was nothing more than the statements which were already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny. 16. As a consequence, this appeal is allowed setting aside the order of summoning the appellants under Section 319 Cr.P.C. 13. As has been observed by the learned Sessions Court, the facts in the present matter are identical to the facts in the aforesaid case before the Hon'ble Apex Court. In the present matter also, the names of present respondent Nos.1 to 4 were containing in FIR filed by PW3 – Ganpati Potphole. In the investigation carried out by the Investigating Officer, it was revealed that present respondent Nos.1 to 4 were not present at the spot of occurrence at the time of the said occurrence. It was specifically revealed that respondent Nos. 1, 3 and 4 were at Shegaon on the date of incidence, whereas respondent No.2 was at Bhadrawati, District Chandrapur. In the circumstances, the report was filed by the Investigating Officer under Section 169 of the Code and the same was accepted by the learned Magistrate. It was specifically revealed that respondent Nos. 1, 3 and 4 were at Shegaon on the date of incidence, whereas respondent No.2 was at Bhadrawati, District Chandrapur. In the circumstances, the report was filed by the Investigating Officer under Section 169 of the Code and the same was accepted by the learned Magistrate. The order passed by the learned Magistrate demonstrates that before accepting the report under Section 169 of the Code, the complainant was duly served and was also heard by the learned Sessions Judge. 14. Material on record reveals that after recording of the oral evidence of Ganpati Irappa Potphole (PW3) and Manik Irappa Potphole (PW5), the prosecutor filed an application to implead present respondent Nos.1 to 4 as the accused in the said case under Section 319 of the Code stating that both the aforesaid witnesses in their oral testimony before the Court have specifically deposed about the involvement of respondent Nos.1 to 4 in commission of the alleged crime. The said application was resisted by respondent Nos.1 to 4 as well the accused in the said Sessions case. After hearing the parties, the learned Sessions Judge rejected the said application. As mentioned herein above, the learned APP as well as the learned Counsel for the original complainant whereas have criticized the impugned order to be incorrect and contrary to the evidence on record as well as the law in that regard, the learned Counsel appearing for the respondents has supported the impugned order. As noted earlier “whether the accused, who is released under Section 169 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'), can be impleaded as the accused under Section 319 of the Code and in what manner the powers under Section 319 of the Code are to be exercised, are the questions for my determination. 15. As has been held by the Hon'ble Supreme Court in the case of Hardeep Singh Vs. State of Punjab [ 2014 (3) SCC 92 ] “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. 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.” 16. As held by the Hon'ble Apex Court in the case of Brijendra Singh and others (supra) “At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused whereas under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter.” 17. In the present matter, though, the names of respondent Nos.1 to 4 were named in the FIR and it was alleged that respondent Nos.1 to 4 were involved in making assaults on deceased Digambar, deceased Narayan and injured Irappa by sticks, in the investigation it was revealed to the Investigating Officer that none of these respondents was present at the spot of occurrence at the time of the said occurrence. On the contrary, it was revealed that respondent Nos.1, 3 and 4 were at Shegaon whereas respondent No.2 was at Bhadrawati, District Chandrapur on the date of occurrence. In the circumstances, an application was filed under Section 169 of the Code on the ground that no prima-facie case was made out to proceed against the said accused. As I noted earlier, the learned Magistrate after hearing the prosecution as well as the complainant, accepted the said report under Section 169 of the Code. 18. It is the matter of record that thereafter, the trial was proceeded against the remaining accused. During the course of recording the evidence Ganpati Irappa Potphole (PW3) i.e. the original informant – complainant as we as Manik Irappa Potphole (PW5), both deposed about the involvement of respondent Nos.1 to 4 in making assaults on deceased Digambar, deceased Narayan and injured Irappa. The question is whether the fact, deposed by the aforesaid witnesses as above, was sufficient to add or implead respondent Nos.1 to 4 as accused and to try them in the said Sessions case alongwith the other accused. The question is whether the fact, deposed by the aforesaid witnesses as above, was sufficient to add or implead respondent Nos.1 to 4 as accused and to try them in the said Sessions case alongwith the other accused. The material on record reveals that the evidence recorded of PW3 and PW5 during the trial was nothing more than the statements, which were already there under Section 161 of the Code recorded at the time of investigation of the case. 19. As has been observed by the Hon'ble Apex Court in the case of Brijendra Singh and others (supra) in paragraph No.15 of the said Judgment, no doubt, the Trial Court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. Referring to the facts involved in the said case, it was however, further observed by the Hon'ble Apex Court that in a case before it where plethora of evidence collected by the Investigating Officer during the investigation which suggested otherwise, the Trial Court was duty bound to look into the same while forming prima-facie opinion and to see as to whether much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. In the aforesaid circumstances, the Hon'ble Apex Court had allowed the appeal setting aside the order summoning the appellants under Section 319 of the Code. 20. In the present matter, the learned Sessions Judge has rejected the application filed by the prosecution under Section 319 of the Code observing that in the report filed by the Investigating Officer under Section 169 of the Code, it was clearly mentioned that present respondent Nos.1 to 4 were not at the spot of occurrence on the date of occurrence. The report filed by the Investigating Officer under Section 169 of the Code was accepted by the learned Magistrate after hearing the informant. As noted herein before, the informant filed an application seeking recall of the order passed by the learned Magistrate, whereby he has accepted the report filed by the Investigating Officer under Section 169 of the Code and he also preferred the criminal revision application before the High Court. It is not in dispute that the petitioner withdrew the said criminal revision application. It is not in dispute that the petitioner withdrew the said criminal revision application. It has been contended by the learned Counsel for the revision applicant that the revision application was withdrawn with liberty to pursue the application filed by the revision applicant before the Magistrate seeking recall of the order passed by him accepting the report under Section 169 of the Code. It was the contention of the revision applicant that the learned Sessions Judge should not have rejected the application under Section 319 of the Code on the basis of the order passed by the learned Magistrate accepting the report under Section 169 of the Code, when recall of the said order was sought by the revision applicant and the said application is still pending before the said Court. 21. I am, however, not convinced with the argument so advanced on behalf of the revision applicant. Law is well settled that the Magistrate does not possess any power to recall his own order and the remedy for the aggrieved party is to prefer revision or appeal as the case may be, if dissatisfied with the order passed by the Magistrate. Such remedy was admittedly availed by the present applicant by filing the criminal revision application before this Court. Since the revision applicant withdrew the said criminal revision application, the order passed by the learned Magistrate accepting the report under Section 169 of the Code has thus attained finality. 22. No such case is made out by the applicants in the present revision applications that any more information or any more evidence has come on record through the oral testimonies of Ganpati Irappa Potphole (PW3) and Manik Irappa Potphole (PW5), which was not there when the investigation was carried out by the Investigating Officer. As has been observed by the learned Sessions Judge, nothing more has been stated by Ganpati Irappa Potphole (PW3) and Manik Irappa Potphole (PW5) than the statements recorded of the said witnesses under Section 161 of the Code at the time of investigation of the case. 23. In the above circumstances, it does not appear to me that any error has been committed by the learned Sessions Judge in rejecting the application filed by the prosecution under Section 319 of the Code. I see no substance in both the revision applications; one filed by the original informant and the other filed by the State. 23. In the above circumstances, it does not appear to me that any error has been committed by the learned Sessions Judge in rejecting the application filed by the prosecution under Section 319 of the Code. I see no substance in both the revision applications; one filed by the original informant and the other filed by the State. Both the revision applications are therefore, liable to be dismissed and are accordingly dismissed.