ORDER : 1. Rule. Learned APP waives service of notice of Rule on behalf of the respondent-State. 2. By way of present application, the applicant has challenged the order dated 16.01.2020 passed by the Principal District Judge, Rajkot in Sessions Case No.147/2016 passed below Exh.95, wherein the application preferred by the State Government below Exh.95 for impleading the applicant as accused in Sessions Case No.147/2016 came to be granted and the Sessions Court passed an order under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Cr.P.C.” for short) and issued summons to the applicant and impleaded the applicant as accused in Sessions Case No.147 of 2016. 3. Heard learned advocate for the applicant and learned APP for the respondent-State. 4. Learned advocate for the applicant requests that present applicant is arraigned as accused after recording the evidence of the prosecution witnesses without giving an opportunity of hearing to him and he is arrested thereafter. It is requested by him to take up this matter for final hearing. Learned APP for the respondent-State has no objection if the matter is taken up for final hearing. 5. It is submitted by learned advocate for the applicant that the impugned judgment and order passed by the Sessions Court only relying upon the evidence of PWs.11 and 15, who were allegedly present at the time of offence. It is further submitted that learned Sessions Court has committed an error in coming to the conclusion that there is evidence on record to show the involvement of the applicant in the alleged offence as there is a clear contradiction in the statement of Kajal w/o. Bharat @ Ghadi Chandabhai Jakhania and in the FIR, which is also filed by her. It is further submitted that the version of the statements at Exh.72 and Exh.50 by Bhartiben Sanibhai Sadamia cannot be relied upon, which is clear contradictory. It is further submitted that learned Sessions Court has committed an error in appreciating the fact that the name of present applicant was not shown in the FIR as well as in the chargesheet and despite of which, he is made an accused in the trial. It is further submitted that the cross-examination of the Investigating Officer Shri Rajesh Rameschandra Solanki was not appreciated by learned Sessions Judge as he has denied the involvement of present applicant in the alleged offence. It is further submitted that the cross-examination of the Investigating Officer Shri Rajesh Rameschandra Solanki was not appreciated by learned Sessions Judge as he has denied the involvement of present applicant in the alleged offence. It is further submitted that 18 witnesses have been examined by the prosecution and they were given an opportunity for cross-examination these witnesses to original accused. Now, the trial is pending for final adjudication without giving any opportunity of cross-examination of the witnesses examined by the prosecution. It is further submitted that the impugned order passed below Exh.95 in Sessions Case No.147 of 2016 by learned Sessions Court, Rajkot dated 16.01.2020 is illegal and erroneous. Hence, it is requested by him to quash and set aside the order dated 16.01.2020 passed by learned Principal District Judge, Rajkot in Sessions Case No.147/2016 passed below Exh.95. In support of his arguments, learned advocate for the applicant has relied upon the judgment in the case of Periyasami and others Vs. S. Nallasamy in Criminal Appeal No.456 of 2019 of the Hon'ble Apex Court and Criminal Criminal Revision No.3633 of 2017 of Allahabad High Court. 6. From the other side, learned APP for the respondent-State has strongly objected the arguments advanced by learned advocate for the applicant and submitted that learned Sessions Court has committed no error in summoning the applicant to face the trial along with other coaccused. It is further submitted that there is nothing on record whether at any point of time, the complainant was given an opportunity to submit protest application against non-filing of chargesheet against present applicant. It is further submitted that in the deposition before the Court, PW:11 and PW:15 have specifically stated against the applicant and specific role is attributed to present applicant. Thus, statements of PWs:11 and 15 before the Court can be said to be “evidence” during the trial, and therefore, on the basis of the same, the person against whom no chargesheet is filed, or the name of the applicant was not shown in the FIR, can be summoned to face the trial. It is further submitted that no error has been committed by learned Court-below to summon the applicant herein to face the trial in exercise of powers under Section 319 of the Cr.P.C. In support of her arguments, learned APP has relied upon the following judgments: (i) Rajesh and others Vs. It is further submitted that no error has been committed by learned Court-below to summon the applicant herein to face the trial in exercise of powers under Section 319 of the Cr.P.C. In support of her arguments, learned APP has relied upon the following judgments: (i) Rajesh and others Vs. State of Haryana reported in (2019) 6 SCC 368 ; (ii) Saeeda Khatoon Arshi Vs. State of U.P. and another reported in JT 2019 (12) SC 323; Hence, it is requested by her to dismiss this application. 7. Having considered the facts and circumstances of present case and submissions made by learned advocate for the applicant as well as learned APP for the respondent-State, it appears that the complaint was filed before Gandhigram Police Station, Dist.: Surat on 23.05.2016 by Kajal w/o. Bharat @ Ghadi Chanabhai Jakhania. There were three accused shown in Column No.7 of the complaint. The name of present applicant was admittedly not disclosed in the complaint by the complainant. Thereafter, investigation was completed by the Investigating Agency and chargesheet came to be filed on 31.07.2016, wherein at Sr.No.17, the name of present applicant was shown as witness of the prosecution. The trial was proceeded against three accused persons before the Sessions Court, Rajkot. Thereafter, the prosecution has examined 18 witnesses and thereafter, on 16.01.2020, an application was submitted by the prosecution under Section 319 of the Cr.P.C. requesting to arraign prosecution Witness No.17 as accused. It was averred in the application that PW11 and PW:15 have clearly deposited against the present applicant abetting in committing murder of the deceased, and therefore, he would be arraigned as accused as both the witnesses were eye-witnesses and present at the time of committing the offence. The Sessions Judge, after considering the evidence of these two witnesses PW11 and PW15, was pleased to allow the application vide an order dated 16.01.2020. Admittedly, the name of present applicant was not disclosed by the complainant nor any role was attributed against present applicant in the complaint lodged on 22.05.2016. The chargesheet was filed after investigation on 31.07.2016, wherein also present applicant was not shown as an accused nor he was shown as absconded accused. The name of present applicant was shown in the chargesheet as PW17 of the prosecution. No charge was framed against present applicant. Thereafter, trial was proceeded by the prosecution and 18 witnesses were examined. The chargesheet was filed after investigation on 31.07.2016, wherein also present applicant was not shown as an accused nor he was shown as absconded accused. The name of present applicant was shown in the chargesheet as PW17 of the prosecution. No charge was framed against present applicant. Thereafter, trial was proceeded by the prosecution and 18 witnesses were examined. Witness No.11 - Bhartiben Sanibhai Sadamia in her deposition disclosed the name of the applicant along with weapon such as iron pipe and he caused injury to her brother Bharat. Another Witness No.15 – complainant, who is also eye witness, deposed that Witness No.17 was present with weapons along with other co-accused. This Court would like to go through the cross-examination of PW11 at Exh.50. This witness has admitted in her cross-examination in Paragraph-10 that in her statement before the police, she has not given the name of present applicant, who came along with other three co-accused. Now, we examine the evidence of the complainant PW:15 and in chief examination, she has stated that the applicant came with dhoka and given a blow to her husband and she was present at the time of the offence. The complaint was given by her. If we consider the cross-examination in Paragraph-17, she has stated that the present applicant caught the hands of her husband, and thereafter, he assaulted him. She has accepted that there was no weapon such an axe or stick in the hands of the present applicant. She has further denied of giving any blow by the present applicant with a weapon axe to her husband. From the complaint as well as statement of PW:11-Bhartiben before the police, name of present applicant was never disclosed by these two witnesses. For the first time, in their evidence before the Court, they have deposed against present applicant that present applicant was present at the time of committing an offence. Contrary evidence was given before the Court. If we consider the order passed by learned Sessions Court, in Paragraph-9, the Sessions Court has observed that in this case, the prosecution has examined about 18 witnesses. PW:18 – Investigating Officer, in his cross-examination, denied the suggestion that during his investigation, it was disclosed that Rahul @ Talo (present applicant herein) had caused injury to the deceased. He has denied the suggestion that Rahul @ Talo was the accused and he has referred him as witness. PW:18 – Investigating Officer, in his cross-examination, denied the suggestion that during his investigation, it was disclosed that Rahul @ Talo (present applicant herein) had caused injury to the deceased. He has denied the suggestion that Rahul @ Talo was the accused and he has referred him as witness. He has further stated that after receiving the charge of investigation i.e. after one month, he has recorded the statement of present applicant. From the observation of the learned Sessions Judge, it appears that during the course of investigation of this offence, Investigating Officer has not found any incriminating material against the present applicant of committing any offence as alleged by these two witnesses. In Criminal Appeal No.456 of 2019, the Hon'ble Supreme Court has also referred the judgment in the case of Hardeep Singh Vs. State of Punjab and others (supra) as referred by learned Sessions Judge. In this judgment also, statement was recorded under Section 161 of Cr.P.C. during the course of investigation, the complainant and his witnesses have not disclosed any other name except 11 persons named in the FIR. Thereafter, without any primary evidence about the role of other persons, complainant moved an application under Section 319 of the Cr.P.C. to include them as an accused. The Hon'ble Supreme Court held as under: “the additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused.” 8. In another case i.e. Criminal Revision Application No.3633 of 2017, the Hon'ble Allahabad High Court, referring the judgment of Kailash Vs. State of Rajasthan and another reported in AIR 2008 SC 1564 , has observed as under: “It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court. This is apart from the fact that such person against whom such discretion is used, should be a person who could be tried together with the accused against whom the trial is already going on. This is apart from the fact that such person against whom such discretion is used, should be a person who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discretion under Section 319 Cr.P.C. has to be exercised very sparingly and with caution and only when the concerned court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. The words “it appears” are not to be read lightly. In that the court would have to be circumspect while exercising this power and would have to apply the cause which the language of the Section demands” 9. The Hon'ble Supreme Court, in the case of Rajesh and others Vs. State of Haryana (supra), has observed as under: “Neither the trial court nor the High Court have committed any error in summoning the appellants herein to face the trial along with other co-accused. Appellants herein were also named in FIR. However, they were not shown as accused in challan/charge-sheet. Nothing is on record whether at any point of time, the complainant was given an opportunity to submit protest application against non-filing of chargesheet against the appellants. In the deposition before the Court, PWs 1 and 2 have specifically stated against the appellants herein and specific role is attributed to the appellant-accused herein. Thus, the statement of PWs 1 and 2 before the Court can be said to be “evidence” during trial and, therefore, on the basis of the same, the persons against whom no charge-sheet is filed can be summoned to face the trial. No error has been committed by the courts below to summon the appellants herein to face the trial in exercise of power under Section 319 CrPC.” 10. The Hon'ble Supreme Court, in the case of Saeeda Khatoon Arshi Vs. No error has been committed by the courts below to summon the appellants herein to face the trial in exercise of power under Section 319 CrPC.” 10. The Hon'ble Supreme Court, in the case of Saeeda Khatoon Arshi Vs. State of U.P. and another (supra) has held as under : “Section 319 empowers the court to proceed against a person appearing to be guilty of an offence 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.” 11. As per the facts of this case, protest petition was not filed by the complainant when report was submitted under Section 173. It was held that this would not render the Court powerless to exercise its powers under Section 319 of the Cr.P.C. on the basis of the evidence which had emerged during the course of the trial. 12. Power under Section 313 of Cr.P.C. is a discretionary and extraordinary power as held by Hardeep Singh Vs. State of Punjab and others (supra). The Hon'ble Five Judges of the Hon'ble Supreme Court in the case of Hardeep Singh Vs. State of Punjab and others (supra) has observed in Paragraphs-105 and 106 as under: “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. 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.” 13. Considering the fact of this case, the judgment relied upon by the learned APP would not be applicable to present case as the name of accused was clearly shown in the FIR and the Investigating Officer did not incorporate their names in the chargesheet. 14. In view of the above observations and discussions made in Para-7, present Revision Application deserves to be allowed and the same is allowed. 15. The applicant may move an application before the appropriate Court for releasing him on bail. 16. Rule is made absolute to the aforesaid extent. Direct Service is permitted.