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2023 DIGILAW 2097 (ALL)

Padmashri Dr. Usha Sharma v. State of U. P.

2023-09-05

SHIV SHANKER PRASAD

body2023
JUDGMENT : 1. Heard Mr. Manish Tewary, learned Senior Advocate assisted by Mr. Ashwini Kumar Awasthi, learned counsel for the revisionist, Mr. Vinay Saran, learned Senior Advocate assisted by Mr. Pradeep Kumar Mishra, learned counsel for the opposite party no.2 and Mr. R.N. Singh, learned A.G.A. for the State as well as perused the entire material available on record. CHALLENGE TO THE PRESENT CRIMINAL REVISION 2. This revision under Section 397/401 Cr.P.C. has been filed on behalf of the revisionist, namely, Padamshri Dr. Usha Sharma with a prayer to quash/set aside the judgment and order dated 12th December, 2019 passed by Additional Sessions Judge, Court no.1, Meerut in Sessions Trial No.1057 of 2008 (State of U.P. Vs. Sachin Malik & Others), arising out of Case Crime No. 269 of 2004, under Sections 302 and 34 I.P.C., Police Station Medical, District Meerut whereby the revisionist has been summoned by the trial judge to face trial under Section 319 Cr.P.C. 3. GENESIS OF THE CASE One Siddhartha Chaudhary (for short “deceased”) was a second year student of Meerut Medical College and was found dead in room no. 38 of L.J.B. Hostel which was allotted to Sachin Malik on 06-07-2004. The warden informed the Police as well as his parents who reached Meerut from Muzaffarnagar. The dead body was sealed and removed from the room even before the parents of the deceased arrived, who both are doctors. The parents on enquiry from the warden and the Principal were told that report had been lodged to the police, which in fact was not lodged as per information received by them (parents). 4. As per the report lodged by Dr. Surendra Singh Grewal (informant/opposite party no.2) i.e. father of the deceased on 6th July, 2004, on reaching the mortuary they (parents of the deceased) asked the doctors who were to conduct the postmortem examination to show the dead body and after looking at the body they found swelling and blueness on the face of the deceased. The deceased had an injury on the lip and one tooth was also broken, which showed that the deceased was asphyxiated by blocking the air passage and it was a case of murder, so they requested the doctors who were to conduct the postmortem examination to mention these things in the report, but on receiving the copy of the post mortem report, they did not found it mentioned. Instead of death by strangulation, the postmortem report mentioned that "cause of death could not be ascertained" under pressure from the Principal Dr. Usha Sharma (revisionist herein). It was a clear case of murder of deceased Siddhartha, in which Principal Dr Usha Sharma, Sachin Malik, Amandeep Singh and Yashpal Rang were involved and the aforesaid persons along with others were trying to manifest it as suicide. Dr. Usha Sharma i.e. Principal was protecting the accused persons as she had misrepresented that case as registered whereas it wasn’t, and therefore the informant approached S.S.P. to get the case registered and investigated, who vide his endorsement STC-256-A/04 sent it for registration of F.I.R. and on the basis of which Case Crime No.269/2004 under Section 302 IPC was registered vide F.I.R. No. 199/2004 dated 9th August, 2004. 5. After investigation, the Police filed closure report on 15th February, 2006 against which the informant filed objections. On considering the material available on record like the statements of witnesses recorded under Section 161 Cr.P.C., the observations made by the Human Rights Commission, etc., the Special Chief Judicial Magistrate Meerut vide detailed order dated 6th December, 2006 while rejecting the closure report submitted by the Investigating Officer, had summoned the accused persons, namely, Sachin Malik, Amandeep Singh and Yashpal Rana to face trial, but partly accepted the closure report submitted against the revisionist Dr. Usha Sharma. Thus, case against only three accused namely Sachin Malik, Amandeep Singh and Yashpal Rana had been committed for trial on 8th August, 2008. Charges were framed by the trial court against accused persons, namely, Sachin Malik, Amandeep Singh and Yashpal Rana on 29th August, 2014 under Section 302/34 I.P.C. to which all three accused persons pleaded not guilty and claimed trial, As many as twenty witnesses have been examined by the prosecution whereas one witness has been examined by the accused persons in defence. The incriminating circumstances were put before the accused persons. In their statements under Section 313 Cr.P.C. all three accused persons denied the allegations levelled against them and stated that final report is correctly filed by the Investigating Officer and they had no enmity with the deceased. 6. The incriminating circumstances were put before the accused persons. In their statements under Section 313 Cr.P.C. all three accused persons denied the allegations levelled against them and stated that final report is correctly filed by the Investigating Officer and they had no enmity with the deceased. 6. Vide judgment and order dated 12th December, 2019, the trial court, namely, Additional Sessions Judge, Court No.1, Meerut, after considering the arguments of ADGC (Criminal) and that of defence counsel and going through the written arguments filed on behalf of accused persons on 22-5-2019, including the rulings cited therein and also perusing the entire material available on record during the course of trial has convicted the three accused persons, namely, Sachin Malik, Yashpal Rana, and Amandeep Singh for the offence punishable under Section 302 I.P.C. and sentenced them to undergo rigorous imprisonment for life along with fine of Rs. 1,00,000/-each. 7. It is pertinent to mention here that after passing final judgment of conviction, the concerned Sessions Judge has passed an order to summon the revisionist for facing trial under Section 319 Cr.P.C. at such a belated stage. It is against this part of the judgment and order dated 12th December, 2019 that the present criminal revision has been preferred by the revisionist. CASE OF THE REVISIONIST 8. The revisionist is wholly innocent and in no way she was connected with the aforesaid criminal case, which was initiated after lodging of a very belated FIR by opposite party no.2/first informant, namely, Dr. Surendra Singh for the death of his son Siddhartha Chaudhaury, who was a student of Medical College Meerut, at police station Medical, District Meerut on 09.08.2004 at 2015 hours with respect to an incident which occurred on 06.07.2004. It was on the strength of completely baseless and frivolous allegations qua the alleged actions taken by the revisionist after the death of Siddhartha Chaudhary, in order to cover up the same that the revisionist, who was the then Principal of Medical College Meerut, has also been arrayed as an accused along with other co-accused persons, namely, Sachin Malik, Yashpal Rana and Amandeep Singh, who were students of Medical College Meerut at that time. 9. The revisionist is a highly qualified and decorated doctor having a renowned career. She is also a Padmashri Awardee. Her qualifications and accomplishments have been given in paragraph-7 of the affidavit accompanying the present criminal revision. 10. 9. The revisionist is a highly qualified and decorated doctor having a renowned career. She is also a Padmashri Awardee. Her qualifications and accomplishments have been given in paragraph-7 of the affidavit accompanying the present criminal revision. 10. According to the allegations as set out in the first information report it has been claimed by the first informant that on 06.07.2004 he was informed by the warden of Medical College Meerut regarding the death of his son Sidharth Chaudhary, whereafter the first informant and his wife travelled from Muzaffarnagar to Medical College Meerut. However the inquest proceedings had been concluded only after information of the present incident was given to the police by the college through Dr. Vinay Agrawal and it is completely on vague/baseless suspicion that the present FIR has been lodged against the revisionist and the co-accused persons. The co-accused Sachin Malik along with the deceased Sidharth Chaudhary were both 2nd year students of Medical College Meerut and co-accused Yashpal Rana and Amandeep Singh were their seniors at Medical College Meerut at the time of the occurrence of the present incident and the revisionist was the Principal of the college. After information regarding the unfortunate demise of the son of the first informant was given by the hospital’s authorities to the police, inquest proceeding took place on 06.07.2004 at 3.30 p.m. Perusal of the postmortem examination report dated 06.07.2004 prepared by Dr. Harpal Singh and Dr. M.K. Gulati reveals that no ante-mortem injury was seen on the body of the deceased and the cause of death could not be ascertained, hence viscera was preserved. The same opinion also emanates from the inquest report, wherein no visible injuries were found on the corpse of the deceased and the opinion regarding cause of death was suggested as consumption of some kind of poison. Subsequently the viscera report was also submitted by the forensic science laboratory Agra on 06.10.2004 with the finding that ethyl alcohol poison was found in the visceral organs of the deceased. However, the first informant Dr. Surendra Singh Grewal, after lapse of a month from the date of incident, filed a very malicious application the basis of which the present first information report came to be lodged on 09.08.2004. However, the first informant Dr. Surendra Singh Grewal, after lapse of a month from the date of incident, filed a very malicious application the basis of which the present first information report came to be lodged on 09.08.2004. During the course of trial, the inquest report along with postmortem report and viscera report have duly been proved by P.W.5 Rajeev Kumar Kaushik (who prepared the inquest report) and P.W.6 M.K. Gulati (Doctor who conducted postmortem report). Allegations levied in the first information report are completely in teeth of the postmortem report and viscera report 11. From the testimonies of P.W.1 first informant Dr. Surendra Singh Grewal and P.W.2 Smt. Surendarjeet Kaur (wife of first informant), it is evident that the FIR was lodged after due consultation, hence the veracity of the contents of the same is completely doubtful and the delay incurred in the lodging of the same would also demolish the very essence of the prosecution case. 12. After the lodging of the present FIR the investigation of the present case commenced and the initial investigating officer P.W.19 Mahesh Chandra Yadav could not find any cogent evidence to fortify the allegations levied by the first informant. Thereafter upon a representation made by the first informant, the investigation of the present case was transferred to the C.B.C.I.D. and the Deputy S.P. C.I.D. B.S. Chauhan (P.W.18) by the order of zonal officer dated 17.02.2005 and both the investigating officers after recording statements of material witnesses arrived at the same conclusion that the deceased Sidharth Chaudhary habitually consumed alcohol and drugs and would often be in an inebriated state injuring himself and also that he had no enmity with either of the accused persons, as such a final report was filed in the present matter on 15.02.2006. Against aforesaid final report the first informant filed a protest petition and subsequently vide order dated 06.12.2006 the court of learned Special C.J.M. Meerut, rejected the final report as far as the co-accused Sachin Malik, Yashpal Rana and Amandeep Singh are concerned and they were summoned to face trial, however, the final report against Dr. Usha Sharma i.e. revisionist was accepted with the observation that not even a prima-facie offence appears to be made out against her. Usha Sharma i.e. revisionist was accepted with the observation that not even a prima-facie offence appears to be made out against her. Thereafter the matter was committed to the court of sessions on 08.08.2008 and after the framing of charges against co-accused Sachin Malik, Yashpal Rana and Amandeep Singh on 29.08.2014 under section 302 and 34 I.P.C., the trial of the present case commenced. During the course of trial the testimonies of P.W.1 Dr. Surendra Singh and P.W.2 Smt. Surendarjeet Kaur were recorded and both the first informant and his wife, who are accomplished doctors, having depth knowledge in the field of medical science, have accordingly forwarded a very tutored and concocted version in their depositions, however their testimonies are in stark contrast with the medical evidence on record and hence no reliance ought to have been placed upon the testimonies of both these highly partisan and interested witnesses. In any case both P.W.1 and P.W.2 have failed to give any direct evidence in the present matter and their testimonies pertaining to the cause of death of their son is completely conjectural in nature and a very feeble attempt has been made of foisting a motive behind the commission of the present offence, which no man of ordinary prudence would be tempted even in the slightest to believe or place reliance upon. 13. So far as the co-accused persons, namely, Sachin Malik, Yashpal Rana and Amandeep Singh are concerned, it is clear that co-accused Sachin Malik was the batch-mate of deceased Sidharth Chaudhary at Medical College, Meerut and co-accused namely, Yashpal Rana and Amandeep Singh were his seniors and there were some financial disputes between them and the deceased, as claimed by P.W.1 and P.W.2 in their testimonies. However, the same has no concern with the revisionist and a very far-fetched conspiracy has been insinuated by P.W.1 and P.W.2 with the sole oblique motive of roping the revisionist in the present case without any viable basis for the same, apart from mere oral allegations made by P.W. 1 and P.W. 2, without any supporting or corroborating material or evidence. 14. 14. The trial court has erringly placed over reliance upon the testimonies of P.W.1 and P.W.2 and has drawn his conclusion, which is completely against the record of the present case, hence the summoning of the revisionist in the present case is completely bad in the eyes of law and hence, the same deserves to be set aside. The trial court has completely disregarded the testimonies of various prosecution witnesses who were studying along with the co-accused persons and deceased Sidhartha Chaudhary at Medical College, Meerut, all of them have stated that the deceased habitually consumed drugs and alcohol, would often injure himself in an inebriated state, his attendance in medical college was falling short, on the night of the fateful incident he was seen staggering in the corridors of the hostel and was then taken to the room of co-accused Sachin Mallik where possibly on account of excessive consumption of alcohol/drugs he was found dead in the morning and a completely nonplussed Sachin Malik informed college authorities regarding the death of the deceased. None of the said witnesses made any mention of any tension or dispute between either of the accused persons with the deceased and there is not even a whisper regarding the complicity or involvement of the revisionist by any of the witnesses. P.W.10 Dr. Bharat Singh who was a batch-mate of co-accused Amandeep and Yashpal had, a day before the incident, found the son of the first informant lying out in the open in an intoxicated condition, when said witness took him to the hostel and the other students informed him that this was daily occurrence. 15. Collective perusal of all the aforesaid testimonies of the prosecution witnesses, in addition to the findings of the postmortem report and viscera report would unequivocally and without any shadow of doubt exculpate the revisionist and the other accused persons of any criminal liability in the present case, however the learned trial court has not appreciated the testimonies of the prosecution witnesses in its right perspective and has in a very arbitrary manner disbelieved the postmortem examination report and the viscera report terming it as incongruent and has formed its own opinion regarding the cause of death of the deceased to be probably as a result of asphyxia. The learned court below has termed P.W.17 Dr. The learned court below has termed P.W.17 Dr. Amar Singh, who is working as the assistant medico legal expert Lucknow, as the star witness of the prosecution and though this witness has submitted a report, based on a mere perusal of the medical reports and inquest report, that prima-facie the present case appears to be one of murder as the symptoms noted in the postmortem report and viscera report appear to be that of asphyxia, however while placing reliance on said testimony the learned trial court has failed to appreciate the fact that said perfunctory opinion was arrived at without admittedly perusing all requisite documents and in any case his opinion is based on assumptions and presumptions, hence the same should have more cautiously been read into by the learned trial court. 16. The learned trial court has also arrived at a very precarious finding that there is no documentary evidence regarding the fact that the deceased was a habitual drunkard, inspite of acknowledging the fact that various witnesses have claimed that the deceased was a regular drinker and was also seen staggering on the night of the incident and has erroneous arrived at the finding that the deceased had not consumed liquor. The impugned judgment and order passed by the learned trial court, particularly to the extent of the summoning of the revisionist u/s 319 Cr.P.C. in the present case, is entirely perverse and has been passed without any application of its judicial mind by the learned trial court and the same is nothing but a product of wild conjecturing and unsubstantiated surmises drawn by the learned trial court. 17. Perusal of the entire record of the present case would establish that there is no direct evidence whatsoever as far as the revisionist is concerned and neither has any cogent motive for the revisionist to have been complicit or have any hand in the unfortunate death of Siddhartha Chaudhary. In fact the prosecution case as far as the accused persons under trial is also, at best, reliant upon circumstantial evidence, that to of a nonexistent nature, which fails to even link the chain of circumstances leading up to the death of deceased Sidhartha Chaudhary, is much less complete such chain. In fact the prosecution case as far as the accused persons under trial is also, at best, reliant upon circumstantial evidence, that to of a nonexistent nature, which fails to even link the chain of circumstances leading up to the death of deceased Sidhartha Chaudhary, is much less complete such chain. However, inspite of the facts and circumstances mentioned above, the Trial Court has in an unprecedented, irregular and illegal manner, while convicting the co-accused persons in the present case, vide the same impugned order, summoned the Principal of Medical College Meerut Dr. Usha Sharma to face trial in the present case. The summoning of the revisionist in the present case, erroneously exercising the powers under section 319 Cr.P.C., after becoming Functus Officio of the matter at hand, is completely bad in the eyes of law and hence the same deserves to be set aside. In any case, upon sifting the entire material and evidence on record of the present case, there is no iota of cogent or even credible evidence to justify the summoning of the revisionist in the present case. The revisionist is a 76 year old lady, having a very decorated career in the medical field and commands the utmost respect in society. She has no criminal history and as such it would be a travesty of justice if she would have to go through the rigours of trial, that to when there is no evidence or material on record warranting the same. 18. SUBMISSIONS ADVANCED ON BEHALF OF THE REVISIONIST (i) The revisionist has been summoned to face trial under the provisions of Section 319 Cr.P.C. at the time of the delivery of judgment. Section 319 Cr.P.C. clearly stipulates that 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, the Court may proceed against such person for the offence which he appears to have committed, meaning thereby that the Court may not proceed against such person by issuing summon to face trial under Section 319 Cr.P.C. at the time of delivery of judgment. Therefore, such orders clearly hit the statutory provision. Therefore, such orders clearly hit the statutory provision. In support of such plea, learned counsel for the revisionist has relied upon the judgment of the Constitution Bench of the Apex Court in the case of Hardeep Singh V. State Of Punjab, reported in (2014) 3 SCC 92 . (ii) It is discernible from Section 319 Cr.P.C. that the evidence that can be used to summon a person to face trial by using the provisions of Section 319 Cr.P.C. is the "evidence" collected during trial. (iii) From perusal of entire records of the case, it is evident that no prima facie case is made out against the revisionist and also there is no direct allegation or evidence found against the revisionist. From the testimonies of P.W.1 Dr. Surendra Singh Grewal, P.W.2 Smt. Surendra Jeet Kaur Grewal, P.W.3 Mrinal Rathi, P.W.4 Dr. Ajeet Singh, P.W.9 Md. Gayas, P.W.10. Dr. Bharat Singh, P.W.11 Kunwar Pal Singh and P.W.12 Anil Kumar, it is also apparently clear that except P.W.1 and P.W.2, the rest of the witnesses have not even made a reference of the revisionist, insofar as P.W.1 and P.W.2 are concerned they only expressed their apprehension which has not been supported by either any evidence or any reasoning in the light of such situation there is no earthly reason to justify the summoning of the revisionist. From the testimony of P.W.-1 i.e. informant/opposite party no.2, it also apparent that the same is nothing but apprehension/suspicion without any basis. There is no other circumstance indicating any culpability. The said deposition given by P.W.-1 is nothing but a delusional quote given by the first informant. Apart from the above there is no other evidence of any nature. Thus, in the absence of any material the summoning is unjustified and perverse. In support of such plea, the constitution bench judgment of the Apex Court in the case of Hardeep Singh V. State Of Punjab, reported in (2014) 3 SCC 92 has been relied upon. The following observations laid down by the Apex Court has also been referred: “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 following observations laid down by the Apex Court has also been referred: “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 view of the above law laid down by the Apex Court, it has been submitted that in the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. And thus the summoning of the revisionist in the present case deserves to be set aside. (iv) Findings recorded by the trial court while passing the impugned judgment and order are based merely on conjectures and surmises and there is no mention of any direct role of the revisionist in the present case. Perusal of the testimonies and the findings of the post mortem as well as the viscera report would exculpate the revisionist of any criminal liability. (v) There is no injury mentioned in the inquest or the post mortem examination report. It is not to be forgotten that P.W.1 and P.W.2 are by profession doctors and as such they have deposed obliquely in respect of signs of post mortem in an attempt to somehow foster a case. As per the post mortem report, no injury was seen on the body of the deceased and even in the inquest report there is no mentioning of any visible injury. The viscera report mentioned the cause of death to be the presence of Ethyl Alcohol poison. (vi) The arguments advanced from the side of the prosecution regarding the smell of alcohol is purely dependent on the time period elapsed between the death and the post mortem examination report as such there can be no consideration of the same. (vii) Even if such a dichotomy exists, there is no occasion to assume the culpability of the revisionist. (vi) The arguments advanced from the side of the prosecution regarding the smell of alcohol is purely dependent on the time period elapsed between the death and the post mortem examination report as such there can be no consideration of the same. (vii) Even if such a dichotomy exists, there is no occasion to assume the culpability of the revisionist. The deposition of P.W.1 and P.W.2 is in terms of casting aspersions and allegations in air against the revisionist which are not supported by any reasoning or evidence, thus, there is no reason to even be suspicious regarding the culpability of the revisionist. (viii) In the absence of any cogent material which may constitute any sought of evidence, the summoning of the revisionist is totally unjustified. The trial court while passing the impugned judgment and order, has not even recorded any finding qua the existence of material but has merely summoned the revisionist on apprehension /presumption /conjectures /surmises in the internal page number 32 of the judgment. The reasons assigned for such summoning are totally unjustified and perverse. (ix) The allegations were levelled in an unjustifiably delayed first information report. Investigation as per Chapter XII CR.P.C. took place in respect of the alleged offence, ultimately resulting in filing of a final report in favour of all the accused persons including the revisionist under the provisions of Section 173(2) Cr.P.C. Subsequently after filing of the protest petition vide order dated 06.12.2006 the court of Special CJM Meerut rejected the final report qua the other accused but the final report in respect of the revisionist was accepted by the same order. The first informant thereafter has not challenged the order dated 06.12.2006 before any forum/court of law, as such the order of acceptance of the final report in respect of the revisionist became absolute. Thus, taking a cumulative view of the facts and circumstances, there is no earthly reason to summon the revisionist to face trial by using the provisions under Section 319 Cr.P.C. and the order dated 07.12.2019 and 12.12.2019 summoning the revisionist is perverse, unjustified and patently illegal. Thus, taking a cumulative view of the facts and circumstances, there is no earthly reason to summon the revisionist to face trial by using the provisions under Section 319 Cr.P.C. and the order dated 07.12.2019 and 12.12.2019 summoning the revisionist is perverse, unjustified and patently illegal. (x) The prevalent proponent of law quintessentially enshrined by the Hon'ble Apex Court in the case of Hardeep Singh (2014) 3 SCC 1992 would lend support to the aforesaid averment on behalf of the revisionist and would bar summoning her in the present case under section 319 Cr.P.C. On the cumulative strength of the aforesaid, learned counsel for the revisionist submits that the order impugned passed by the trial court summoning the revisionist to face trial under Section 319 Cr.P.C. being contrary, arbitrary and illegal is liable to be quashed. SUBMISSIONS OF THE LEARNED COUNSEL FOR THE OPPOSITE PARTIES 19. Per contra, learned counsel for opposite party no.2 and the learned A.G.A. for the State have disputed the submissions made by the learned counsel for the revisionists by contending that there is no illegality or infirmity in the order passed by the trial judge summoning the revisionist under Section 319 Cr.P.C. for facing trial in the case in hand. 20. Apart from the above, Mr. Vinay Saran, learned Senior Counsel appearing for opposite party no.2 has contended as follows: (I) The deceased Siddhartha Chaudhary was a second year student of Meerut Medical College raised his voice against the corrupt practices prevailed in the Medical Collage including the Principal Usha Sharma (the Revisionist) in the admission of students in various courses and moved several complaint against the higher authorities. In support of the same, a copy of the complaint dated 3.4.2004 has been enclosed as -SCA-XIII to the supplementary counter affidavit. (II) PW-1 Surendra Singh Grewal and PW-2 Smt. Surendra Jeet Grewal have clearly deposed before the trial Court about the motive for the murder, that the revisionist Usha Sharma, the Principal of the Medical College, often used to threaten Siddhartha (deceased) that she would not allow him to become a leader like Dr. Mahipal Chaudhary (who earlier exposed her corrupt practices) and thus, she conspired with other co-accused to get him killed in a pre-planned manner. Mahipal Chaudhary (who earlier exposed her corrupt practices) and thus, she conspired with other co-accused to get him killed in a pre-planned manner. (III) Admittedly, the deceased Siddhartha Chaudhary, who was a second year student of Meerut Medical College was allotted Room No. 42 at L.J.B. Hostel, but strangely he was found dead in room No. 38 of L.J.B. Hostel, which was allotted to the co accused Sachin Malik on 6th July, 2004 in unnatural circumstance with visible injuries on his body. (IV) The revisionist from the very beginning misled the Police and the parents of the deceased including the first informant and no immediate information of the unnatural death was promptly given to the parents of the deceased and they were informed quite late at about 10:30 am about the incident and further before the parents could reach the college, the body of the deceased was shifted to mortuary by manipulating the place of occurrence so that the parents could not see the actual situation and their only son. (V) The revisionist Dr. Usha Sharma shielded the co-accused persons by misleading the investigation and the information of unnatural death was communicated to the Police Station-Medical on 6th July, 2004 at 11:00 a.m. recorded in G.D. no. 24 which is apparent from the statement of PW-7, Sub-Inspector Sohanveer Singh. (VI) P.W.-5, Sub-Inspector Rajeev Kumar Kaushik who conducted the panchayatnama (inquest report) of the deceased, has categorically stated that he conducted the inquest at Room No. 38 of LJB Hostel and also noticed blueness on the face and the chest of the deceased and he has further stated that it was not a normal death. (VII). P.W.-1 Dr. Surendra Singh has stated before the trial judge that on visible inspection of the body of his son, he noticed that the face, eyes, chest, hands and nails of hands were deeply cyanosed. He also found froth coming out from his mouth and nose. He further noticed that the lower lip of the deceased had a cut mark on the right side and one incisor tooth of upper jaw was broken. (Indicating use of force to administer something soon before the death). Further when he opened his eyes, he found pin head size blood spots in both eyes (another typical symptom of strangulation). He further noticed that the lower lip of the deceased had a cut mark on the right side and one incisor tooth of upper jaw was broken. (Indicating use of force to administer something soon before the death). Further when he opened his eyes, he found pin head size blood spots in both eyes (another typical symptom of strangulation). On turning the body of the deceased by him, on the mortuary table, the back, chest and neck were blue in colour. He also did not find smell of urine or stool etc. which showed that his clothes had been changed after death. P.W.-2 Smt Surendra Jeet Singh Greval, mother of the deceased also noticed aforesaid injuries on the body of the deceased which is apparent from her statement recorded before the trial Court. (VIII). P.W.-6 Dr. M.K. Gulathi who conduct the postmortem examination on the dead body of the deceased Siddhartha Chaudhary, has stated that though no external injures were found but nails and lips were blue and further he has stated that there was no sign of injury on the chest or on the face. There was no urine or excreta on the clothes and since the cause of death was not ascertained therefore viscera was preserved. Dr. Amar Singh, PW-17 who was examined as Medico Legal Expert, has stated that his report was based on documents sent by the S.S.P. i.e. Postmortem Report, Panchayatnama, on the basis of which he gave the report that prima facie it was case of murder. (IX.) The parents of the deceased, who were also medical doctors by profession and were running a nursing home in Muzaffarnagar, complained that the police was not properly investigating the case under pressure of the revisionist Principal Usha Sharma and she was trying to give it a colour of suicide and the witnesses were also under her pressure as she being the Principal of Medical College and the witness being students and staff of Medical College could not dare to speak against her. (X.) The judgment and order dated 07.12.2019 and also the order dated 12.12.2019 are wholly legal and have been passed after giving full opportunity of hearing and discussion on merits. (X.) The judgment and order dated 07.12.2019 and also the order dated 12.12.2019 are wholly legal and have been passed after giving full opportunity of hearing and discussion on merits. While holding the accused Sachin Malik, Yashpal Rana and Amandeep Singh guilty, the trial judge, on the same day rightly summoned the Revisionist Usha Sharma to face the trial after rightly holding that there was sufficient material on record to proceed against her, while exercising the power under Section 319 Cr.P.C. and thereafter fixed 12.12.2019 for hearing the matter on the point of sentence for the convicted accused person. (XI). The proposition of exercising the power under Section 319 Cr.P.C. before pronouncing the sentence has been justified and upheld by the Constitutional Bench of the Hon'ble Supreme Court in the case of Sukhpal Singh Khaira Vs State of Punjab reported in 2023 (1) SCC 289 . (XII).The Revisionist Usha Sharma, who being a "Padmashree awardee' was extremely influential and she left no stone unturned to mislead the investigation in order to save the accused persons (now convicted) and herself and also to save the reputation of the medical college. Because of the influence of revisionist Usha Sharma, the family of the deceased were misled on the pretext that the FIR had already been lodged by the College/ University/ Administration, although no such first information report was registered by them hence the delay in lodging the FIR was fully explained. (XIII). The records of the case i.e. statements of the witnesses recorded under section 161 Cr.P.C., inquest report, Post mortem report as well as the evidence of the prosecution witnesses especially P.W.-1-Surendra Singh Greval and P.W.-2-Surender Jeet Singh Greval, P.W.-5 Sub-Inspector Rajiv Singh Kausik and P.W.-17-Dr. Amar Singh clearly go to show that there appears to be enough strong and cogent evidence which was more than prima-facie against the revisionist which was sufficient to summon her by exercising the power under Section 319 Cr.P.C. (XIV). The material/evidence on record against the revisionist was found to be more than prima facie to show that the revisionist indulged actively in misleading the prosecution and influenced the investigation so as to save the accused persons for causing disappearance of evidence of offence and to screen the offender from legal punishment by using the influence and superior position being 'Padamashree' awardee and highly qualified doctor and principal of a medical college. (XV). (XV). The trial judge, while passing the impugned order, has taken all the precautions and waited till the end of trial and did not hurriedly summon the revisionist exercising its powers under Section 319 Cr.P.C. While summoning the revisionist the trial Judge has followed all the precautions and guidelines as framed by the Apex Court in the case of Hardeep Singh Vs. State of Punjab, reported in (2014) 3 SCC 92 . (XVI). The revisionist from the very beginning, by misusing her influence and clout, has misled the police during the investigation and for this very reason no first information report was promptly lodged by medical college administration as also the family members of the first informant were also misled which resulted in delay of lodging of the actual FIR by the first Informant who bonafidely believed that the correct report of the incident was already lodged by the College. (XVII). There is ample material on record collected during the investigation as well as during the trial against the revisionist which goes to show that because of her interference, homicidal death of deceased Siddhartha Chaudhary was tried giving a colour of a suicide or death caused by excessive alcohol drinking by the deceased. (XVIII). The trial Judge has rightly considered the entire material collected during the course of investigation as well as the material brought on record during the trial and thereafter finding that there was more than prima facie case against the revisionist summoned her by exercising the power under section 319 Cr.P.C., the order on the protest petition cast no bar upon the powers exercised under 319 Cr.P.C. as in the present case the material brought on record during the course of trial was also taken on record. In support of the said submission, reliance upon the judgment of the Madras High Court in the case of S. Jayaraj vs. State of Tamilnadu reported in 2015 SCC OnLine Mad 14197/(2015)2LW(Cri)574, has been placed. On the cumulative strength of the aforesaid, learned counsel for opposite party no.2 submits that the trial judge has summoned the revisionist on 7.12.2019 i.e. before sentencing the accused persons and he was well within his jurisdiction to exercise the powers under section 319 Cr.P.C. as has been held by the constitutional bench of the Apex Court in the case of Sukhpal Singh Khaira Vs State of Punjab reported in 2023 (1) SCC 289 . 21. This Court has considered the submissions made by the learned counsel for the parties and gone through the records of the present criminal revision spastically the order impugned along with judgment and order of conviction passed against the co-accused persons. LEGAL ISSUES 22. Two legal issues, which are up for consideration before this Court are: (a) Whether the trial judge has recorded his prima facie satisfaction for summoning the revisionist to face trial while passing the impugned order under Section 319 Cr.P.C.? (b) Whether the trial judge has rightly/legally exercised its powers under Section 319 for summoning the revisionist to face trial by the order impugned after passing the judgment and order of conviction against the co-accused persons and at the time of passing the order of sentence against the co-accused persons? 23. Before considering the first issue, it is necessary for this Court to reproduce Section 319 Cr.P.C., which is being quoted herein below: “319. Power to proceed against other persons appearing to be guilty of offence.---(1) 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, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1), then- (a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses reheard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” EXPLANATION OF SECTION 319 CR.P.C. 24. From bare reading of Section 319 Cr.P.C. this Court is of the view that the language used in Sec. 319 Cr.P.C. is plain, simple and unambiguous. From bare reading of Section 319 Cr.P.C. this Court is of the view that the language used in Sec. 319 Cr.P.C. is plain, simple and unambiguous. However, there are some grey areas which sometimes deviate the Court for the established principles of law. 25. Before going to analyze Section 319 Cr.P.C., it would be necessary to understand the principles highlighting the Section and the nature of power vested with the Court including the court of sessions. Section 319 Cr.P.C. springs out of the doctrine “Judges condemned when guilty is acquitted”. This doctrine must be used as beacon light while explaining the ambit and spirit underlying the enactment of Section 319 Cr.P.C. It is also based on the principle that innocent should not be punished, at the same time, real culprit should not be allowed to escape. 26. The power under Section 319 Cr.P.C. is the really an extraordinary power which is conferred upon the court and it should be used sparingly only if compelling reasons/circumstances exist for taking cognizance against other person against whom action has not been taken. Section 319 Cr.P.C. is a special provision and it seeks to meet an extraordinary situation. It although confers of vide amplitude but is required to be exercised sparingly. 27. Power under Section 319 Cr.P.C.. is a discretionary and an extra ordinary power which 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 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 the person from the evidence led before the court that such power should be exercised and not in a casual or cavalier manner. 28. A scrutiny of Section 319 Cr.P.C.. would show the Section has four parts from sub-Sections (1) to (4). The first part deals about when and how the power under the section can be exercised. The second part speaks about how to secure the presence of the newly added accused, if he is not attending the court. The third part depicts how the presence of the newly added accused can be secured if he is not attending the court. The fourth part speaks about how the court should proceed and try against the said accused. 29. The third part depicts how the presence of the newly added accused can be secured if he is not attending the court. The fourth part speaks about how the court should proceed and try against the said accused. 29. Qua when and how the power can be exercised, Sec. 319 (1) Cr.P.C.. says that there are three ingredients must be satisfied: (i) Firstly, there is any enquiry or trial of an offence. (ii) Secondly, it appears from the evidence the any person not being an accused has committed any offence. (iii) Thirdly, for which, the person to be tried together with the accused. If the above ingredients are satisfied, any new accused can be added. Moreover, the words used in section 319(1) Cr.P.C., namely 'enquiry' or ' trial’, ' appear', ' evidence', 'any person’ assume greater importance. 30. Section 319 Cr.P.C. empowers only to the ' court’ proceeds against such person. The word court includes court of Sessions (Sec.9 Cr.P.C.), Court of Judicial Magistrate (11 Cr.P.C.) and Court of Metropolitan Magistrate (16 Cr.P.C.). [Ref.: Hardeep Singh (Supra)]. 31. Power under section 319 of the code can be exercised by the court suo moto or on an application by someone including accused already before it, if it is satisfied that any person other than an accused has committed an offence and he is to be tried together with the accused. 32. Section 319 Cr.P.C. allows the court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has necessarily not to be an accused already facing trial. The very purpose invoking Section 319(1) Cr.P.C. clearly shows that even persons who have been dropped by police during investigation, but against whom evidence showing their involvement of the offence comes before the court are included in the expression 'any person not being accused'. 33. If a person had not been charge-sheeted he may come within the purview of the description of such a person has contained in Section 319 Cr.P.C. of the Court. Although, he is not named in the charge sheet or he has been discharged from the case, which would warrant in prosecution thereafter with a good chance of his conviction. 33. If a person had not been charge-sheeted he may come within the purview of the description of such a person has contained in Section 319 Cr.P.C. of the Court. Although, he is not named in the charge sheet or he has been discharged from the case, which would warrant in prosecution thereafter with a good chance of his conviction. However, concerning a person who has been discharged no proceedings can be commenced against him directly under Section 319 Cr.P.C. without recourse to provision of Section 300(5) read with Section 398 Cr.P.C. A person not named in FIR and not charge sheeted can be summoned under Section 319 Cr.P.C. Even though, any person initially be named in the FIR as an accused, but not charge sheeted can also be added to face trial. Where a person was not summoned by the Magistrate under Section 204 Cr.P.C. but his name surfaced in the statement recorded under Section 244 Cr.P.C. a person can be summoned as accused under Section 319 Cr.P.C. Power under Section 319 Cr.PC can be exercised against the person not to subjected to investigation or a person placed in column 2 of charge sheet against whom cognizance had not been taken or a person who has been discharged. The accused against whom proceeding has been quashed can also be added under Section 319 Cr.P.C. FINDINGS RECORDED BY THE TRIAL COURT 34. This Court now comes to the legality or otherwise of the order impugned. The court below by means of the order impugned has recorded following finding for summoning the revisionist to face trial under Section 319 Cr.P.C.: “Before parting with the case, it is observed that every effort was made to twist the fact and give colour of suicide or natural death to the homicidal 'death of the deceased and even non- cooperation with the CID and medico-legal expert of the State. The documents demanded by them, were also withheld and even Viscera was destroyed to avoid 2nd examination as the Forensics Science Laboratory report mentions death by Ethyl Alcohol poisoning, which is not even remotely proved on record by other evidence, and it is quite divergent to the facts proved on record. The documents demanded by them, were also withheld and even Viscera was destroyed to avoid 2nd examination as the Forensics Science Laboratory report mentions death by Ethyl Alcohol poisoning, which is not even remotely proved on record by other evidence, and it is quite divergent to the facts proved on record. The name of Usha Sharma, Principal of Medical College where all the 3 accused and the deceased were studying and the post mortem examination report, also remains silent on the violence part of the incident speaks volumes against Usha Sharma, who seems to have kept the steering of the case in her hand, and even concealed the fact of death from the parents, did not report homicidal death and her complicity is very vocally pointed out by PW-1 and PW-2, the parents of deceased, but she has not been charge- sheeted. In fact, none of the accused was charge-sheeted and the case saw the light of the day on the basis of objections to the closure report having been filed. Although name of Usha Sharma cropped up as an accomplice during investigation, and during trial using powers under Section 319 would have delayed the case, for another couple of years, which was already delayed for a decade, and therefore, this power is exercised at a belated stage and Usha Sharma is hereby ordered to be summoned to face trial. Copy of statements of witnesses, and relevant documents along with the committal file be separated so that the trial of newly summoned accused is not delayed. Let Dr. Usha Sharma, the then Principal of Medical College, Meerut be summoned for facing trial on 16-01-2020.” FINDING ALONG WITH ANSWER OF THIS COURT TO ISSUE NO.1 SUPPORTED BY CASE LAWS 35. From the records it is an admitted position that the trial judge has passed the judgment and order convicting the co- accused persons, namely, Sachin Malik, Yashpal Rana and Amandeep Singh on 7th December, 2019, whereas the order sentencing them under Section 302 I.P.C. read with Section 34 I.P.C. to undergo life imprisonment along with fine of Rs. 1,00,000/-each has been passed on 12th December, 2019 and after passing the order of sentence, the order impugned has been passed summoning the revisionist to face trial under Section 319 Cr.P.C. 36. 1,00,000/-each has been passed on 12th December, 2019 and after passing the order of sentence, the order impugned has been passed summoning the revisionist to face trial under Section 319 Cr.P.C. 36. It necessary for this Court to answer the question as to when or which stage, any court like Magistrate or Sessions Judge can pass order for summoning any person to face trial under Section 319 Cr.P.C. for examining the legality or otherwise of the order impugned. 37. The answer of such question crops up from bare reading of first part of Section 319 Cr.P.C. in which it has clearly been provided that during the course of inquiry or trial, any court can pass such order for summoning any person as an accused to face trial, meaning thereby that no Court can pass such order after ending/conclusion of trial. 38. The Five Judges’ of a Constitution Bench of the Apex Court in the case of Hardeep Singh Vs. State of Punjab & Others reported in (2014) 3 SCC 92 while dealing with the provisions of Section 319 Cr.P.C. has framed following questions: “6.1. (i) What is the stage at which power under Section 319 Cr.P.C. can be exercised? (ii) Whether the word "evidence" used in Section 319 (1) Cr.P.C. could only mean evidence tested by crossexamination 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? (iii) 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? (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 convicted? (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 charged or who have been discharged?” 39. On the basis of aforesaid questions, the Apex Court has considered the said case in three stages i.e. the stage at which such powers can be invoked and, secondly, the material on the basis whereof the invoking of such powers can be justified. On the basis of aforesaid questions, the Apex Court has considered the said case in three stages i.e. the stage at which such powers can be invoked and, secondly, the material on the basis whereof the invoking of such powers can be justified. To add as a corollary to the same, thirdly, the manner in which such power has to be exercised, also has to be considered. 40. To the first question i.e. what is the stage at which power under Section 319 Cr.P.C. can be exercised?, the Apex Court after highlighting and taking into consideration certain earlier judgments of the Apex Court from paragraph 25 onwards has opined in paragraph no.40, 47, 53 and 54 which read as follows: “40.. Even the word “course” occurring in Section 319 Cr.P.C., clearly indicates that the power can be exercised only during the period when the inquiry has been commenced and is going on or the trial which has commenced and is going on. It covers the entire wide range of the process of the pre-trial and the trial stage. The word “course” therefore, allows the court to invoke this power to proceed against any person from the initial stage of inquiry upto the stage of the conclusion of the trial. The court does not become functus officio even if cognizance is taken so far as it is looking into the material qua any other person who is not an accused. The word “course” ordinarily conveys a meaning of a continuous progress from one point to the next in time and conveys the idea of a period of time; duration and not a fixed point of time. (See: Commissioner of Income-tax, New Delhi (Now Rajasthan) Vs. M/s East West Import & Export (P) Ltd. (now known as Asian Distributors Ltd.) Jaipur, AIR 1989 SC 836 ). .. 47. Since after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319 (1) Cr.P.C. can be exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Section 207/208 Cr.P.C., committal etc., which is only a pre-trial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. At this pre-trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance of Sections 207 and 208 Cr.P.C., and committing the matter if it is exclusively triable by Sessions Court. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Sections 207 and 209 Cr.P.C. is forbidden, by express provision of Section 319 Cr.P.C., to apply his mind to the merits of the case and determine as to whether any accused needs to be added or subtracted to face trial before the Court of Sessions. … 53. It is thus aptly clear that until and unless the case reaches the stage of inquiry or trial by the court, the power under Section 319 Cr.P.C. cannot be exercised. In fact, this proposition does not seem to have been disturbed by the Constitution Bench in Dharam Pal (CB). The dispute therein was resolved visualizing a situation wherein the court was concerned with procedural delay and was of the opinion that the Sessions Court should not necessarily wait till the stage of Section 319 Cr.P.C. is reached to direct a person, not facing trial, to appear and face trial as an accused. We are in full agreement with the interpretation given by the Constitution Bench that Section 193 Cr.P.C. confers power of original jurisdiction upon the Sessions Court to add an accused once the case has been committed to it. 54. In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor the legislature could have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 Cr.P.C.” (Emphasis supplied) 41. On the basis of such finding, the Apex Court has answered the said question in paragraph no.55, which is being quoted herein below: “55. Accordingly, we hold that the court can exercise the power under Section 319 Cr.P.C. only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained herein above.” (Emphasis supplied) 42. Recently, considering the same issue the Five Judges’ of Constitution Bench of the Apex Court in the case of Sukhpal Singh Khaira Vs. State of Punjab reported in (2023)1SCC 289, has firstly framed one of the following issues: “I. Whether the trial court has the power under Section 319 of Cr.P.C. for summoning additional accused when the trial with respect to other co- accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order?” 43. For answering the said issue, the Constitution Bench of the Apex Court has recorded its finding in paragraph nos. 32 to 38, which are being quoted herein below: “32. For answering the said issue, the Constitution Bench of the Apex Court has recorded its finding in paragraph nos. 32 to 38, which are being quoted herein below: “32. Therefore, from a perusal of the provisions and decisions of this Court, it is clear that the conclusion of the trial in a criminal prosecution if it ends in conviction, a judgment is considered to be complete in all respects only when the sentence is imposed on the convict, if the convict is not given the benefit of Section 360 of Cr.P.C. Similarly, in a case where there are more than one accused and if one or more among them are acquitted and the others are convicted, the trial would stand concluded as against the accused who are acquitted and the trial will have to be concluded against the convicted accused with the imposition of sentence. When considered in the context of Section 319 of Cr.P.C., there would be no dichotomy as argued, since what becomes relevant here is only the decision to summon a new accused based on the evidence available on record which would not prejudice the existing accused since in any event they are convicted. 33. In that view of the matter, if the Court finds from the evidence recorded in the process of trial that any other person is involved, such power to summon the accused under Section 319 of Cr.P.C. can be exercised by passing an order to that effect before the sentence is imposed and the judgment is complete in all respects bringing the trial to a conclusion. While arriving at such conclusion what is also to be kept in view is the requirement of sub-section (4) to Section 319 of Cr.P.C. . From the said provision it is clear that if the learned Sessions Judge exercises the power to summon the additional accused, the proceedings in respect of such person shall be commenced afresh and the witnesses will have to be re-examined in the presence of the additional accused. From the said provision it is clear that if the learned Sessions Judge exercises the power to summon the additional accused, the proceedings in respect of such person shall be commenced afresh and the witnesses will have to be re-examined in the presence of the additional accused. In a case where the learned Sessions Judge exercises the power under Section 319 of Cr.P.C. after recording the evidence of the witnesses or after pronouncing the judgment of conviction but before sentence being imposed, the very same evidence which is available on record cannot be used against the newly added accused in view of Section 273 of Cr.P.C. As against the accused who has been summoned subsequently a fresh trial is to be held. However while considering the application under Section 319 of Cr.P.C., if the decision by the learned Sessions Judge is to summon the additional accused before passing the judgment of conviction or passing an order on sentence, the conclusion of the trial by pronouncing the judgment is required to be withheld and the application under Section 319 of Cr.P.C. is required to be disposed of and only then the conclusion of the judgment, either to convict the other accused who were before the Court and to sentence them can be proceeded with. This is so since the power under Section 319 of Cr.P.C. can be exercised only before the conclusion of the trial by passing the judgment of conviction and sentence. 34. Though Section 319 of Cr.P.C. provides that such person summoned as per sub-section (1) thereto could be jointly tried together with the other accused, keeping in view the power available to the Court under Section 223 of Cr.P.C. to hold a joint trial, it would also be open to the learned Sessions Judge at the point of considering the application under Section 319 of Cr.P.C. and deciding to summon the additional accused, to also take a decision as to whether a joint trial is to be held after summoning such accused by deferring the judgment being passed against the tried accused. If a conclusion is reached that the fresh trial to be conducted against the newly added accused could be separately tried, in such event it would be open for the learned Sessions Judge to order so and proceed to pass the judgment and conclude the trial insofar as the accused against whom it had originally proceeded and thereafter proceed in the case of the newly added accused. However, what is important is that the decision to summon an additional accused either suo-moto by the Court or on an application under Section 319 of Cr.P.C. shall in all eventuality be considered and disposed of before the judgment of conviction and sentence is pronounced, as otherwise, the trial would get concluded and the Court will get divested of the power under Section 319 of Cr.P.C. Since a power is available to the Court to decide as to whether a joint trial is required to be held or not, this Court was justified in holding the phrase, “could be tried together with the accused” as contained in Section 319 of Cr.P.C. , to be directory as held in Shashikant Singh (supra) which in our opinion is the correct view. 35. One other aspect which is necessary to be clarified is that if the trial against the absconding accused is split up (bifurcated) and is pending, that by itself will not provide validity to an application filed under Section 319 of Cr.P.C. or the order of Court to summon an additional accused in the earlier main trial if such summoning order is made in the earlier concluded trial against the other accused. This is so, since such power is to be exercised by the Court based on the evidence recorded in that case pointing to the involvement of the accused who is sought to be summoned. If in the split up (bifurcated) case, on securing the presence of the absconding accused the trial is commenced and if in the evidence recorded therein it points to the involvement of any other person as contemplated in Section 319 of Cr.P.C. , such power to summon the accused can certainly be invoked in the split up (bifurcated) case before conclusion of the trial therein. 36. In analysing the issue and making the above conclusion on all aspects, we are also persuaded by the view taken by this Court, among others, in the case of Rajendra Singh Vs. 36. In analysing the issue and making the above conclusion on all aspects, we are also persuaded by the view taken by this Court, among others, in the case of Rajendra Singh Vs. State of U.P. & Another , (2007) 7 SCC 378 wherein it is concluded with regard to the object of Section 319 of Cr.P.C. as hereunder:- “20. The power under Section 319 of the Code is conferred on the court to ensure that justice is done to the society by bringing to book all those guilty of an offence. One of the aims and purposes of the criminal justice system is to maintain social order. It is necessary in that context to ensure that no one who appears to be guilty escapes a proper trial in relation to that guilt. There is also a duty to render justice to the victim of the offence. It is in recognition of this that the Code has specifically conferred a power on the court to proceed against others not arrayed as accused in the circumstances set out by this section. It is a salutary power enabling the discharge of a court's obligation to the society to bring to book all those guilty of a crime. 21. Exercise of power under Section 319 of the Code, in my view, is left to the court trying the offence based on the evidence that comes before it. The court must be satisfied of the condition precedent for the exercise of power under Section 319 of the Code. There is no reason to assume that a court trained in law would not exercise the power within the confines of the provision and decide whether it may proceed against such person or not. There is no rationale in fettering that power and the discretion, either by calling it extraordinary or by stating that it will be exercised only in exceptional circumstances. It is intended to be used when the occasion envisaged by the section arises.” 37. We have also kept in view the point by point analysis of the object and power to be exercised under Section 319 of Cr.P.C., as has been indicated in para 34 of Manjit Singh Vs. State of Haryana and Others, (2021) SCC Online SC 632.” 44. On the basis of such finding, the Apex Court has answered the said issue in paragraph no. State of Haryana and Others, (2021) SCC Online SC 632.” 44. On the basis of such finding, the Apex Court has answered the said issue in paragraph no. 39 (I), which reads as follows: “The power under Section 319 of Cr.P.C. is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable.” (Emphasise supplied) 45. From deeper scrutiny of the provisions of Section 319 Cr.P.C., two Constitution Benches of Five Judges’ of the Apex Court in the cases of Hardeep Singh and Sukhpal Singh Khaira (Supras), this Court is of the firm opinion that as per first part of Section 319 Cr.P.C., any Magistrate or Court of Sessions can invoke or exercise powers under Section 319 Cr.P.C. during the course of inquiry or trial, as per the opinion expressed in the case of Hardeep Singh (Supra), any Magistrate or Court of Sessions can pass any order under Section 319 Cr.P.C. only after the trial proceeds and commences i.e. before pronouncement of judgment of conviction or acquittal, whereas in accordance with the law settled in the case of Sukhpal Singh Khaira (Supra), the power under Section 319 Cr.P.C. is to be invoked and exercised before the pronouncement of order of sentence where there is a judgment of conviction of the accused. However, in the present case, judgment of conviction of co-accused has been passed on 7th December, 20 and the order of sentence has been passed on 12th December, whereas the order impugned summoning the revisionist to face trial as an accused has been passed after passing the order of sentence of co-accused. However, in the present case, judgment of conviction of co-accused has been passed on 7th December, 20 and the order of sentence has been passed on 12th December, whereas the order impugned summoning the revisionist to face trial as an accused has been passed after passing the order of sentence of co-accused. In such circumstances, this Court finds that the order impugned clearly hits the provisions of Section 319 Cr.P.C. as well as the settled proposition of laws settled by the Constitution Bench of the Apex Court in the cases of Hardeep Singh and Sukhpal Singh Khaira (Supras). FINDING ALONG WITH ANSWER OF THIS COURT TO ISSUE NO.2 SUPPORTED BY CASE LAWS 46. Now this Court deals with the evidence or prima satisfaction on the basis of which the trial judge has passed the order impugned summoning the revisions under Section 319 Cr.P.C. to face trial as an accused. 47. From the provisions of Section 319 Cr.P.C. as well as the judgments of the Apex Court including the above Constitution Benches’ Judgment of the Apex Court in the case of Hardeep Singh (Supra) and Sukhpal Singh Khaira, this Court finds in a nutshell for the exercise of discretion under Section 319 Cr.P.C. that all the relevant factors have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating any person. 48. Since issue of summons under Section 319 Cr.P.C. entitles a denovo trial and large number of witnesses have been examined and their re-examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity [Ref.: Brindavan Das and others Vs. State of West Bengal reported in (2009) 3 SCC 329 /AIR 20091248(SC)/(2009)SARCrl.117]. 49. In the case of Periayasamy and others Vs. Nallasamy reported in (2019)4SCC342/AIR2019SC1426 the Apex Court has held that Summoning of additional accused u/s. 319 Cr PC without evidence held to be improper. The test that has to be applied under Section 319 Cr.P.C. is one which is more than prima facie case as exercised at the time of taking the charge but short of satisfaction to an extend that the evidence if goes unrebutted would lead to conviction [ Ref.:Hardeep Singh (Supra)]. 50. The test that has to be applied under Section 319 Cr.P.C. is one which is more than prima facie case as exercised at the time of taking the charge but short of satisfaction to an extend that the evidence if goes unrebutted would lead to conviction [ Ref.:Hardeep Singh (Supra)]. 50. In the present case while passing the impugned order, the trial judge has only relied upon the evidence of P.W.1 and P.W.-2 who only suspected the revisionist in helping the co-accused and also in diverting and influencing the investigation so as to colour the homicidal death into suicidal death in order to safe guard the prestige of the medical college and he has also recorded that the post-mortem report, medico legal report and other documents have been withheld even Viscera was destroyed to avoid 2nd examination as the Forensics Science Laboratory report mentions death by Ethyl Alcohol poisoning, which is not even remotely proved on record by other evidence, and it is quite divergent to the facts proved on record. He has further doubted the post mortem report which is silent on the injury of the deceased. It is on the basis of such suspicion that the impugned order has been passed. Apart from the above, the trial judge has not recorded his prima facie satisfaction on the evidence available on record on the date of judgment of conviction and sentence against the revisionist as has been observed by the Constitution Bench of the Apex Court in the case of Hardeep Singh (Supra) as well as other judgments of the Apex Court on the same issue referred to above. This Court also finds that the trial judge while passing the order impugned for summoning of the revisionist has relied upon the same evidence on the basis of which, final report has been submitted by the Investigating Agency against the revisionist and the co-accused persons, whereas the final report has been accepted qua revisionist only and the same has been rejected against the co-accused. At the time of framing of charge as well as during the course of trial, the revisionist has not been named as an accused except in the testimonies of P.W.-1 and P.W.-2, who have not filed any protest petition during the course of investigation or any application under Section 319 Cr.P.C. 51. At the time of framing of charge as well as during the course of trial, the revisionist has not been named as an accused except in the testimonies of P.W.-1 and P.W.-2, who have not filed any protest petition during the course of investigation or any application under Section 319 Cr.P.C. 51. Since there was no evidence against the accused-revisionist to be guilty of offence, but only witnesses i.e. P.W.-1 and P.W.-2 giving opinion that the revisionist might have committed offence, hence order of trial judge for addition of revisionist as accused on such evidence would be unjustified, because adding of a person as an accused on the basis of some suspicion created by a witnesses would be travesty of justice (Ref.: G. Palanisamy Vs. State reported in 2003(2)MWN(C r)]. When there is no direct evidence, Hearsay evidence cannot be the basis for issue of summons [Ref.: Brindaban Dass (Supra) & Labhuji Amratji Thakor Vs. State of Gujarat reported in (2019) 12 SCC 644 /2018(4)MLJ(Crl)739(SC)]. 52. In the present case also, before passing the order impugned by the trial judge for summoning the revisionist to face trial as an accused, neither any opportunity of hearing nor any notice has been issued to the revisionist to have her say. 53. The point raised in the case of Asha Vs. State of Karnataka reported in 2016 SCC OnLine Kar 9030 is that whether the trial court is justified in summoning the petitioners as accused in terms of Section 319 Cr.P.C. without giving them an opportunity of being heard? Whenever a person is sought to be summoned as an additional accused in terms of Section 319 Cr.P.C., not only prior notice calling upon him to show cause is to be issued, but also the judge dealing with the case has to take extra caution to satisfy himself/herself that stronger evidence exists as the basis for taking such action. 54. It is always incumbent upon criminal courts to issue prior notice to a person calling upon him or her to show cause as to why he/she should not be made an additional accused. Only on giving an opportunity of being heard, a suitable order should be passed. If the order is passed summoning a particular person in terms of Section 319 Cr.P.C. without giving prior notice, such an order would not withstand the legal scrutiny. Only on giving an opportunity of being heard, a suitable order should be passed. If the order is passed summoning a particular person in terms of Section 319 Cr.P.C. without giving prior notice, such an order would not withstand the legal scrutiny. Hence all criminal courts are expected to keep in mind this aspect of the matter as explained by the Hon'ble apex court in the case of Jogendra Yadav Vs. State of Bihar reported in (2015) 9 SCC 244 . CONCLUSIONS 55. From perusal of the finding recorded by the court below while passing the order impugned including its conclusion as well as the provisions of Section 319 Cr.P.C. and the laws laid down by the Apex Court in the cases, on the subject which have been detailed above, it is crystal clear that the court below has not recorded any finding qua the ingredients provided in Section 319 Cr.P.C. with regard to the evidence for coming to the strong suspicion and his prima facie satisfaction to summon the revisionsit to face trial under Section 319 Cr.P.C. as also he has not examined the law laid down by the Apex Court in the cases of Hardeep Singh and Sukhpal Singh Khaira (Supras) on the issue as to when such power under Section 319 Cr.P.C. can be invoked and be exercised by any Magistrate or Court. In absence of such finding and examination, such an order like the impugned order is an absurd order, which may warrant interference by this Court exercising its revisional power under Section 397/401 Cr.P.C. 56. On overall scrutiny and evolutional of the aforesaid observations and submissions made by the learned counsels for the parties as also the finding recorded in the order impugned, this Court holds that the judgment and order dated 7th/12th December, 2019 passed by Additional Sessions Judge, Court no.1, Meerut in Sessions Trial No.1057 of 2008 (State of U.P. Vs. Sachin Malik & Others), arising out of Case Crime No. 269 of 2004, under Sections 302 and 34 I.P.C., Police Station Medical, District Meerut cannot be legally sustained and is hereby quashed. Sachin Malik & Others), arising out of Case Crime No. 269 of 2004, under Sections 302 and 34 I.P.C., Police Station Medical, District Meerut cannot be legally sustained and is hereby quashed. Since no Magistrate or any court of law can invoke or exercise powers under Section 319 Cr.P.C. for summoning any person to face trial as an accused after passing of order of sentence qua co-accused, no further orders are required to be passed by this Court in that regard at such a belated stage. 57. The present criminal revision succeeds and is allowed. 58. There shall be no orders as to costs.