JUDGMENT : 1. Heard Mr. Sachin Kumar, the learned counsel appearing on behalf of the petitioner. 2. Heard Ms. Nitu Sinha, the learned counsel appearing on behalf of the Opposite Parties. 3. The petitioner has filed this criminal revision application with a prayer to quash and cancel the order dated 23.03.2019 passed by Diwakar Pandey, Learned Additional Judicial Commissioner-XVIII-cum-Special Judge, Ranchi, in Misc. Criminal Application No. 391/18 arising out of R.C. 15A/2009 (R) whereby and whereunder the petition filed by the present petitioner under Section 319 of the Criminal Procedure Code with a prayer to summon Laxman Ram (opposite party no. 2), the then Executive Engineer has been rejected . 4. It is submitted that pursuant to the order dated 30.06.2009 passed by this Hon’ble Court in Writ Petition (PIL) No.803/2009, a preliminary enquiry being PE 03(A)/09(R) was conducted and thereafter, the CBI/ACB/Ranchi registered an F.I.R. being R.C. 15A/2009(R) under Sections 120B, 420, 467, 468, 471 of IPC and Sections 13(2) r/w 13(1)(d) of P.C. Act, 1988 against the Opposite Party No.2 who was the then Executive Engineer, and the contractor and unknown others alleging inter-alia that the Opposite Party No.2, during the period 2005-06, entered into criminal conspiracy and the contractor submitted false / bogus invoices showing procurement of Bitumen for execution of the contractual work awarded in its favour, which caused wrongful gain to the Contractor and corresponding wrongful loss to the Government of Jharkhand. The Contractor submitted total 08 invoices showing procurement of Bitumen against the work and 04 invoices were false and fabricated, but the Opposite Party No.2 in abuse of his official position dishonestly and fraudulently certified the bills of the Contractor for payment and the Contractor received payment. After completion of investigation, the C.B.I. submitted Charge-sheet No.09/2010 dated 30-11-2010 and the executive engineer was not charge-sheeted. 5. On 09-04-2018, the petitioner had filed a petition before the learned trial court under Section 319 of Code of Criminal Procedure with a prayer to make the present Opposite Party No.2 namely, Laxman Ram, who was the then Executive Engineer to be made an accused in the case. The petition was dismissed by the learned trial court vide impugned order date 23-03-2019. Arguments of the petitioner 6. The petition was dismissed by the learned trial court vide impugned order date 23-03-2019. Arguments of the petitioner 6. The learned counsel for the petitioner submits that the involvement of the Opposite Party No.2 in the case transpired during trial in the evidences of the witnesses and accordingly sufficient materials have come in their evidence showing the role of the Opposite Party No.2 in the commission of the alleged offences and hence the learned court below ought to have summoned him under section 319 of Cr.P.C to face trial in the case. 7. The learned counsel for the petitioner referred to the evidences of PW-05, PW-8, PW-10, PW-11 and PW-12 and submitted that the Opposite Party No.2 (the then Executive Engineer) was involved in the case right from the date of execution of the agreement for work with the contractor and was the signatory to the agreement with the contractor and was responsible for making payment of the bills to the contractor. He submits that the entire allegation in the case is in relation to payment of bills against forged bitumen invoices alleging that the bitumen was not issued from the concerned Government Oil Companies against such four bitumen invoices. 8. The learned counsel also referred to the deposition of defence witness D.W.-3 and Exhibit-E to submit that in his evidence the role of the Executive Engineer in the matter of payment was fully described which was much more than that of the petitioner. He submits that as on date the learned court below, on one hand has convicted the petitioner, and on the other hand, on the same set of evidences, the learned court below has refused to summon the Opposite Party No.2 to face the trial in the case. 9. The learned counsel for the petitioner also submits that although the opposite party no. 2 was named in the FIR as an accused, but the CBI has shown favour to the opposite party no. 2 in not filing charge-sheet against him. Arguments of the opposite party -CBI 10. The learned counsel for the Opposite Party submitted that admittedly the C.B.I. did not submit charge-sheet against the Opposite Party No.2 on account of absence of any criminality on his part. She submitted that for the purposes of charge-sheeting a person in a criminal case, materials in connection with mens rea and actus reus are required to be present. The learned counsel for the Opposite Party submitted that admittedly the C.B.I. did not submit charge-sheet against the Opposite Party No.2 on account of absence of any criminality on his part. She submitted that for the purposes of charge-sheeting a person in a criminal case, materials in connection with mens rea and actus reus are required to be present. She further submitted that the charge-sheet which was filed by the C.B.I. was not binding on the learned trial court and the learned trial court, upon perusing the materials, was empowered to take cognizance of offence even against those who were not charge-sheeted, but the learned trial court did not make the Opposite Party No.2 an accused and therefore, no malafide can be attributed to the C.B.I. She also submitted that so far as the scope of Section 319 of Cr.P.C. is concerned, the test is not that of a pima-facie case, but the burden is much more and the materials which should come during the evidence at the stage of trial must be much more than prima-facie material and considering the evidences which the petitioner has filed by way of supplementary affidavit and the arguments advanced by the learned counsel for the petitioner, they do not meet the test of summoning the proposed accused (opposite party no. 2) under Section 319 of Cr.P.C.. 11. The learned counsel for the CBI further submitted that the grounds for conviction of the petitioner and also the judgment passed in relation to the petitioner is not on record and therefore, it is not proper for her to make any comment regarding the conviction of the petitioner and the grounds that may be available to the petitioner in the criminal appeal. The criminal appeal has been filed by the petitioner and is bound to be taken up on its own merit on the basis of materials available on record. She also submitted that the entire materials which have been collected during trial is not a part of the present criminal revision and therefore, any observation may not be made in the present case in connection with the petitioner vis-à-vis his conviction in the criminal case and this case should be examined strictly on the basis of the materials which are being relied upon by the petitioner in support of his petition under section 319 Cr.P.C against the proposed accused. Findings of this court 12. Findings of this court 12. It was alleged in the FIR that Sri Laxman Ram (opposite party no. 2), the then Executive Engineer had entered into criminal conspiracy with the contractor and unknown others and in pursuance thereof he submitted false/bogus invoice showing procurement of bitumen for the execution of contract work regarding maintenance and repair of road. The agreement was entered into between the Executive Engineer (opposite party no. 2) and the contractor. As per agreement, the contractor was supposed to procure bitumen from the oil companies and was to submit relevant documents as proof of procurement and supply of bitumen. After execution of agreement, Laxman Ram (opposite party no. 2) issued authority letter in favour of the contractor addressed to Indian Oil Corporation for delivery of 93.22 MT of bitumen. The contractor was paid Rs. 41 lacs and odd through 3 on account bills which included the bitumen works and cost of bitumen. Investigation disclosed that only 56.604 MT of bitumen was lifted instead of 93.22 MT by the contractor from the oil company on the basis of the authority letter. The investigation also disclosed that contractor submitted 8 bitumen invoices showing procurement of 92.912 MT of bitumen purportedly issued by the oil company and out of 8 invoices, 4 were fake and against the fake invoices, the contractor had not even deposited any demand draft showing any payment. In the measurement books, 93.22 MT was shown to have been utilized for the work. Investigation disclosed that the Assistant Engineer and Junior Engineer were looking after the work being executed by the contractor who counter signed on all the bitumen invoices and it is alleged that they committed criminal misconduct while doing so as no bitumen were supplied against 4 out of 8 invoices and they facilitated payment of the fake invoices. 13. Charge-sheet was submitted against the Junior Engineer as well as Assistant Engineer, who were supervising the execution of work on the spot and also against the contractor. The Executive Engineer (opposite party no. 2) was not charge-sheeted as during investigation criminality on his part was not found and observed that he was however found liable for gross misconduct and hence, the matter was referred to his department for initiating Regular Departmental Action for major penalty against him. 14. The learned counsel for the petitioner has argued that the then Executive Engineer (opposite party no. 14. The learned counsel for the petitioner has argued that the then Executive Engineer (opposite party no. 2) should have been charge-sheeted as he was the signatory to the agreement with the contractor, but the Investigating Officer favoured him and the learned court below also did not take cognizance against the Executive engineer. He has submitted that P.W.-10 in his deposition has stated that the Executive Engineer (opposite party no. 2) used to pass the bills of the contractor after scrutiny and P.W.-11 has stated that all the bills used to be submitted in the office of the Executive Engineer (opposite party no. 2) who was responsible for the payment of bills to the contractor; P.W.-8 has stated that the work of Junior Engineer and Assistant Engineer was to get the work executed and payment of bill was being made by the Executive Engineer (opposite party no. 2) and it was his duty to make correspondence with the oil companies. It is submitted that admittedly the letter for delivery of bitumen to the contractor by the oil company was issued by the Executive Engineer (opposite party no. 2). PW-5 has stated that Executive Engineer happens to be the head of the division and all the works in the division are performed in the name of the division. The works of the officers / employees posted in the division are assigned as per the direction of the executive engineer or the PWD Code. The payment of the bill of the contractor is made from the office of the executive engineer after verification of all the documents. The agreement is made between the executive engineer and the contractor and the executive engineer also makes correspondence with the oil companies. PW-12 stated that Exhibit-14 was written by the executive engineer to M/s. Indian Oil Corporation, Haldia by which a request was made to issue 93.22 metric ton packed bitumen. This letter was issued by the then executive engineer Laxman Ram on 25.01.2006. Exhibit-8 is an agreement which was entered between Laxman Ram and the contractor and this agreement was seized from the office of the executive engineer during investigation. All the exhibits i.e. agreement, invoices, bill were seized from the office of the executive engineer, Simdega. This letter was issued by the then executive engineer Laxman Ram on 25.01.2006. Exhibit-8 is an agreement which was entered between Laxman Ram and the contractor and this agreement was seized from the office of the executive engineer during investigation. All the exhibits i.e. agreement, invoices, bill were seized from the office of the executive engineer, Simdega. He has further stated that M.B. Book, Exhibit-09 at Page-30 contains the signature and seal of Laxman Ram which is dated 31.03.2006 and all the payments were made to the contractor after approval by the executive engineer. 15. The learned counsel for the petitioner has also referred to certain paragraphs of Bihar Public Works Department Code to highlight the role of Executive Engineer in the matter of payment of bill to the contractor. The learned counsel for the petitioner has also referred to one certified copy of Exhibit-E said to have been exhibited before the learned trial court during trial which gives the detail information of audited work involved in the case to submit that the role of the Executive Engineer (opposite party no. 2) is there in the matter of payment of the bills. 16. This Court finds that even as per the case of the petitioner, it is not in dispute that the Assistant Engineer and Junior Engineer were the persons who were to supervise the work on the spot. It is not in dispute that the bills were signed by the Assistant Engineer and Junior Engineer and then they were presented before the Executive Engineer (opposite party no. 2) for payment which were paid. Even the certified copy of the information of audited works relied upon by the petitioner reflects the role of Junior Engineer, Assistant Engineer, Executive Engineer, Account Clerk and the Divisional Account Officer in the matter of payment of bills to the contractor. The charge-sheet was submitted against the Assistant Engineer and Junior engineer as apparently they were the persons who were on the spot and were to have first-hand information regarding actual procurement and use of bitumen in the matter of execution of work and they were the persons who had initially signed the bills and the invoices regarding procurement of bitumen. It is not in dispute that the executive engineer (opposite party no. It is not in dispute that the executive engineer (opposite party no. 2) was the signatory to the agreement and was the person who had issued authority letter to the contractor for procurement of bitumen from the oil companies and had also paid the bills including the fake invoices of bitumen after being signed by the two accused on the spot namely, the Assistant Engineer and Junior engineer. This Court also finds that it has come in the evidence of P.W.-5 that the payment was to be made to the Contractor on the basis of total work done and it has also come in the evidence of P.W.-12 that after completion of the road, the riding surface was found in good condition and was being used by the local people. 17. From perusal of the impugned order, it transpires that while rejecting the petition filed under Section 319 of Cr.P.C., the learned trial court found that the evidences on record failed to attribute any mens rea on the part of the opposite party no. 2 and also referred to the judgment passed by the Hon’ble Supreme Court in the case of Hardeep Singh Vs. State of Punjab & Others (2014) 3 SCC 92 wherein it has been held that the power under Section 319 of Cr.P.C. is discretionary and extra ordinary which is to be exercised sparingly and only in those cases where the circumstances of the case so warrant and it requires much stronger evidence than mere probability of 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 those remain unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. It would be useful to quote Paragraph Nos.105 and 106 of the aforesaid judgement with regard to the nature of satisfaction of the court required to invoke the power under Section 319 of Cr.P.C, as follows: “105. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary 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.” 18. This Court is also of the considered view that the evidences which have come up during the trial and relied upon by the petitioner were not sufficient to issue summons to the Opposite Party No.2 (the then Executive Engineer) under section 319 of Cr.P.C as no element of mens rea has been argued or found against the Opposite Party No.2 and there is no question of summoning the opposite party no. 2 under section 319 Cr.P.C on mere suspicion. It is not in dispute that to summon a person as an accused under Section 319 Cr.P.C., much more than mere prima-facie case is required to be made out. 2 under section 319 Cr.P.C on mere suspicion. It is not in dispute that to summon a person as an accused under Section 319 Cr.P.C., much more than mere prima-facie case is required to be made out. After going through the evidences of the witnesses which have been relied upon by the petitioner during the course of arguments, this Court finds that these evidences do not satisfy the requirements of Section 319 Cr.P.C. to summon the proposed accused (Opposite Party No.2). 19. As a cumulative effect of the aforesaid findings, this Court is of the considered view that the learned court below has not committed any illegality or irregularity or error in refusing to summon the proposed accused (opposite party no. 2) and therefore, this Court does not find any reason to interfere with the order refusing to summon the proposed accused passed by the learned trial court. 20. Accordingly, the present criminal revision preferred by the petitioner is hereby dismissed. 21. Interim order, if any, stands vacated. 22. Pending interlocutory applications, if any, are also dismissed as not pressed. 23. Let a copy of this order be immediately communicated to the court concerned through ‘FAX’/e-mail.