JUDGMENT 1. Instant criminal revision is preferred by the petitioner under Section 397/401 of Cr.P.C. against the order dated 12/3/2022 passed by trial Court, whereby, application under Section 319 of Cr.P.C. for summoning the petitioner as accused has been allowed. 2. Precisely stated facts of the case are that on 20/7/2019 one Dehati Nalisi was registered by complainant Pradeep Singh stating that his agricultural field which is adjacent to the field of Vinod, some new saplings were tried to be extirpated by Vinod which led to some dispute and therefore, Police (100 dial vehicle) was called which intervened in the matter and advised both the parties to report the matter to the concerning police station. When complainant Pradeep Singh and his father were going police station on motorcycle then on a culvert accused Vinod, Shailendra, Indra Singh (present petitioner), Jaswant and Rajesh started hurling verbal abuse and threatened to kill them. When they passed the culvert then Vinod and Shailendra opened fire on them. Vinod fired on father of the complainant namely Sitaram, who sustained injury on chest and fell done. All assailants fled while threatening them for dire consequences if they report the incident to police. 3. Father of the complainant namely Sitaram taken to Hospital; where, he succumbed to the injuries. Thereafter, Marg was registered and Dehati Nalisi bearing No. 0/19 was registered. On the basis of Dehati Nalisi, FIR was registered for offence under Sections 302, 307,147, 148, 149, 506-B of IPC. 4. During course of investigation, Investigating Officer as well as higher authorities recorded statements of different witnesses. Statement of Satyanarayan, Anod Singh, Rajendra and Police Constable Kamlesh Sharma and pilot of 100 dial vehicle Madan Shamra were alsorecorded under Section 161 of Cr.P.C. All referred the fact that Indra Singh i.e. present petitioner after initial verbal abuse at agricultural field sat in the vehicle and rode with Police Constable Kamlesh from spot to Police Station. Before reaching to the Police Station, information came to them about said shootout, therefore, all went there directly, therefore, all these witnesses have specifically stated about the presence of present petitioner with them in the vehicle. He was allegedly not present on the spot when alleged offence under Section 302 of IPC has been committed by other accused persons. 5. Before reaching to the Police Station, information came to them about said shootout, therefore, all went there directly, therefore, all these witnesses have specifically stated about the presence of present petitioner with them in the vehicle. He was allegedly not present on the spot when alleged offence under Section 302 of IPC has been committed by other accused persons. 5. Apparently, charge-sheet was filed against other accused persons and since present petitioner was not found on spot in investigation, therefore, charge-sheet was not filed against present petitioner. Charges were framed and trial proceeded. 6. Pradeep Singh as prosecution witness No. 1 appeared before the trial Court and referred the name of present petitioner also at the time of incident when his father was injured at the hands of accused persons. Thereafter, prosecution moved an application under Section 319 of Cr.P.C. for impleadment of present petitioner as accused which vide impugned order dated 12/3/2022 was allowed and trial Court issued summons to the petitioner for appearance. Therefore, petitioner has preferred this petition. 7. It is the submission of learned counsel for the petitioner that Kamlesh Sharma who happens to be the Police Constable who reached on spot when dispute for the first time erupted and gave counseling to aggrieved parties and thereafter, present petitioner sat in the vehicle of police (100 dial vehicle) and was moving towards different direction, therefore, he could not have been present on the spot at the time of incident. Not only Police Constable Kamlesh Sharma but the pilot of the 100 dial vehicle namely Madan Sharma referred the said fact in categorical terms, therefore, Investigating Officer rightly believed them and based upon plea of alibi did not charge-sheet the present petitioner. Other witnesses, Rajendra Singh, Satyanarayan and Anod Singh in their respective statements under Section 161 of Cr.P.C. also supported the contention of Kamlesh Sharma and Madan Sharma. Therefore, there was no ground for prosecution to move such application and trial Court erred in allowing the application and issuing summons to the petitioner. 8. Learned counsel for the respondents opposed the prayer and submit that once name of of petitioner has been referred by Complainant (PW/1)- Pradeep Singh then petitioner ought to be summoned. They prayed for dismissal of the petitioner. 9. Heard. 10. 8. Learned counsel for the respondents opposed the prayer and submit that once name of of petitioner has been referred by Complainant (PW/1)- Pradeep Singh then petitioner ought to be summoned. They prayed for dismissal of the petitioner. 9. Heard. 10. This is a case; where, petitioner is raising plea of alibi mainly and said plea of alibi is supported by statement of Police Constable - Kamlesh Sharma, pilot of 100 dial vehicle - Madan Sharma and other three witnesses, whose statements were taken by police under Section 161 of Cr.P.C. Apparently, Kamlesh Sharma and Madan Sharma are eye witnesses to both the incidents because when dispute erupted for the first time then both these witnesses reached to the spot and advised both the parties accordingly and when allegedly other accused persons killed father of complainant then also both these witnesses reached the spot immediately. They made the statement in specific terms that present petitioner after initial dispute accompanied them in their vehicle for going to Police Station. Enroute, they received message about the shootout and therefore, when they reached culvert, they find that Sitaram was lying injured and his son Pradeep and brother Pratap were standing and both these witnesses made a specific statement that present petitioner accompanied them in the vehicle. Supreme Court in the case of Hardeep Singh Vs. State of Punjab and Ors., (2014) 3 SCC 92 has discussed in detail about true import of Section 319 and thereafter conclusions were drawn in respect of application under Section 319 of Cr.P.C. Relevant discussion is reproduced as under:- 'Question Nos.(i) & (iii) -What is the stage at which power under Section 319 Cr.P.C. can be exercised? AND - Whether the word "evidence" used in Section 319(1) Cr.P.C. 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 117.1. In Dharam Pal Vs. State of Haryana, (2014) 3 SCC 306 , 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 investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused. 117.2. Section 319 Cr.P.C., 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 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet. 117.3. In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial. Question No. (ii)- Whether the word "evidence" used in Section 319(1) Cr.P.C. 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 ? Answer 117.4.Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding 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 No. (iv)- What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted? Answer 117.5.Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he 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 Cr.P.C. would be the same as for ?framing a charge. Answer 117.5.Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he 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 Cr.P.C. 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 No.(v)- Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not chargesheeted or who have been discharged? Answer 117.6. A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of ?Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh.' Therefore, it is abundantly clear that for invocation of Section 319 of Cr.P.C. there must be a strong and cogent evidence against a person from the evidence led before the Court and such power should be exercised taking into consideration the material available on record. 11. Court must satisfy that sufficient material exists to summon accused. Further the power under Section 319 of Cr.P.C. is discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. (See: Sagar Vs. State of U.P. And Anr., (2022) AIR (SC) 1420). 12. Similarly, in the case of Ramesh Chandra Srivastava Vs. State of U.P. & Anr., (2021) AIR (SC) 5107, Apex Court reiterated the same principle. 13. (See: Sagar Vs. State of U.P. And Anr., (2022) AIR (SC) 1420). 12. Similarly, in the case of Ramesh Chandra Srivastava Vs. State of U.P. & Anr., (2021) AIR (SC) 5107, Apex Court reiterated the same principle. 13. In the present case also, apparently no protest petition has been filed by complainant at the time when charge-sheet not was filed and other accused were charge-sheeted. 14. Here in the present case when specific statements were made about the presence of petitioner with them then it would be too early to conclude about the role of present petitioner in the incident so far as allegation of offence under Section 302/307 of IPC is concerned. 15. Trial Court could have waited for the testimony of Kamlesh Sharma, Madan Sharma and other prosecution witnesses as referred above who can depose about the course of events and if some incriminating material and statement comes in their statement then only the test as laid down by Apex Court so far as invocation of Section 319 of Cr.P.C. is concerned, is fulfilled, otherwise not. 16. Here when five witnesses specifically making mention of the fact that present petitioner was accompanying Police Constable Kamlesh Sharma in 100 dial vehicle when incident happened, then; only on the basis of statement of complainant (specially in absence of any protest petition) trial Court erred in issuing summons to the petitioner. 17. It would not be proper to call petitioner just because complainant as prosecution witness before the trial Court referred his name in same fashion as he mentioned in FIR and statement under Section 161 of Cr.P.C., because that aspect has been investigated by the Investigating Officer and thereafter found in all facts and circumstances of the case not to file charge-sheet against present petitioner, therefore, more cogent material or narration in Court statement is required to invoke provisions of Section 319 of Cr.P.C., therefore, in peculiar facts and circumstances of the case, it requires further affirmation from the evidence of other witnesses. 18. Resultantly, criminal revision stands allowed and impugned order dated 12/3/2022 passed by VI Sessions Judge, Bhind stands quashed. However, prosecution and trial Court are at liberty to renew the prayer if the statement of other prosecution witnesses including Kamlesh and Madan Sharma who were Police Constable and Driver of the 100 dial vehicle respectively disclose any incriminating material against petitioner. Resultantly, criminal revision stands allowed and impugned order dated 12/3/2022 passed by VI Sessions Judge, Bhind stands quashed. However, prosecution and trial Court are at liberty to renew the prayer if the statement of other prosecution witnesses including Kamlesh and Madan Sharma who were Police Constable and Driver of the 100 dial vehicle respectively disclose any incriminating material against petitioner. Then trial Court shall be at liberty to issue summons to the petitioners, otherwise not. Trial Court shall consider the whole controversy in accordance with law and pronouncements of Apex Court including the judgment referred by Apex Court in the case of Hardeep Singh (supra) and would form an opinion thereafter. 19. Petition stands allowed and disposed of in above terms.