ORDER : 1. This Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C for short) and the prayer herein is to quash the process issued against the petitioner and to set aside order dated 09.02.2012 in S.C.No. 70/2009 on the files of the Additional Sessions Ad-hoc-II Court, Kollam. 2. Heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor. 3. As per order dated 09.02.2012, the learned Additional Sessions Judge, by invoking the power under Section 319 Cr.P.C. arrayed the revision petitioner as co-accused in S.C. No. 70/2009. In S.C. No. 70/2009, the prosecution case is that at 7.45 p.m. on 30.10.2005, the accused was found transporting 1750 litres of spirit in a pick-up van bearing Reg. No. KL2 R 9725. The same was taken into custody and Krishna Pillai S/o Gopinatha Pillai, the driver of the vehicle got arrayed as the accused therein. Thereafter the Investigating Officer filed report alleging commission of offence punishable under Section 55(a) of the Kerala Abkari Act, by the said Krishna Pillai. 4. The learned Additional Sessions Judge started trial and recorded evidence confined to that of PW-1 to PW-7. Thereafter, the learned Additional Sessions Judge put questions to PW-6 and PW-7 and found that they deliberately omitted to implead the registered owner of the vehicle as the accused and added as a witness in this case with intention to harm him and his brother, who is the 1st accused. Accordingly, the revision petitioner also got arrayed as the 2nd accused. 5. While impugning the said order, the learned Senior Counsel argued that the procedure adopted by the learned Additional Sessions Judge is wrong and the power of this Court under Section 319 of Cr.P.C. shall be invoked on the basis of the evidence adduced. In the case on hand, after examination of PW-6 and PW-7, the learned Additional Sessions Judge himself prepared a questionnaire as in the form of questions to be put under Section 313 of Cr.P.C. and put the same to PW-6 and PW-7. Based on the answers given to the said questionnaire, the learned Additional Sessions Judge impleaded the revision petitioner as the 2nd accused. 6. Based on the answers given to the said questionnaire, the learned Additional Sessions Judge impleaded the revision petitioner as the 2nd accused. 6. The learned Senior Counsel has placed decision of the Apex Court reported in Rajender Singh Pathania and Others vs. State (NCT of Delhi) and Others, (2012) 1 SCC (Cri) 873 : (2011) 13 SCC 329 where the Apex Court laid down principles dealing with power of court under Section 319 of Cr.P.C. to proceed against other persons as an accused. As per the above decision in Para-16, the Apex Court held the principle as under: “16. The legal position that can be culled out from the material provisions 19 of the Code and the decided cases of this Court is this: (i) The court can exercise the power conferred on it under Section 319 of the Code suo moto or on an application by someone. (ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court. (iii) The phrase “any person not being the accused occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court. (iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word “evidence” in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the charge-sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on additional evidence let in before it. (v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on additional evidence let in before it. (v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The court must also be satisfied that circumstances justify and warrant that the other person be tried with the already arraigned accused. (vi) The court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then. (vii) Regard must also be had by the court to the constraints imposed in Section 319(4) that proceedings in respect of newly added persons shall be commenced afresh from the beginning of the trial. (viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion. 7. Another decision of the Apex Court reported in Guriya @ Tabassum Tauquir and Others vs. State of Bihar and Another, 2007 KHC 2010 : 2007 (8) SCC 224 : AIR 2008 SC 95 , is also placed with particular reference to paragraphs 7, 9 and 12 to contend that the power under Section 319 should be exercised only when there are sufficient evidence to implead an accused. 8. The learned counsel for the petitioner placed the following decisions reported in Lal Suraj alias Suraj Singh and Another vs. State of Jharkhand, (2009) 1 SCC (Cri) 844, Shiv Prakash Mishra vs. State of Uttar Pradesh and Another, 2019 KHC 6701 : AIR 2019 SC 3477 : 2019 (7) SCC 806 and Mani Pushpak Joshi vs. State of Uttarakhand and Another, 2019 KHC 7062 : 2019 (9) SCC 805 : AIR 2019 SC 5263 also, to buttress the above point. 9. 9. Whereas it is submitted by the learned Public Prosecutor that the Court has power under Section 165 of the Indian Evidence Act to put questions to the witnesses and the answers given by the witnesses to court questions also is evidence. Therefore, as per the mandate of Section 319 of Cr.P.C. based on such evidence also, an additional accused can be impleaded. Therefore, the order impugned is justifiable. 10. In this connection it is relevant to refer Section 319 of Cr.P.C. for effective discussion. Section 319 reads as under: “Section 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 afresh, and 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.” 11. Before proceeding further, indubitably, the legal question as to power of the Court under Section 319 of the Cr.P.C. is well settled. (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.” 11. Before proceeding further, indubitably, the legal question as to power of the Court under Section 319 of the Cr.P.C. is well settled. In the larger Bench decision of the Apex Court reported in Sukhpal Singh Khaira vs. State of Punjab, 2022 (7) KHC 593 (SC) : 2022 SCC Online SC 1679 the Apex Court issued guidelines to be followed while exercising power under Section 319 of Cr.P.C. as under: “(i) If the competent Court finds evidence or if application under Section 319 of CRPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage. (ii) The Court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon. (iii) If the decision of the Court is to exercise the power under Section 319 of Cr.P.C. and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case. (iv) If the summoning order of additional accused is passed, depending on the stage at which it is passed, the Court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately. (v) If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused. (vi) If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the Court to continue and conclude the trial against the accused who were being proceeded with. (vii) If the proceeding paused as in (i) above is in a case where the accused who were tried are to be acquitted and the decision is that the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case. (vii) If the proceeding paused as in (i) above is in a case where the accused who were tried are to be acquitted and the decision is that the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case. (viii) If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319 of Cr.P.C. can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split up (bifurcated) trial. (ix) If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319 of Cr.P.C. the appropriate course for the Court is to set it down for rehearing. (x) On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly. (xi) Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held. (xii) If, in that circumstance, the decision is to hold a separate trial in case of the summoned accused as indicated earlier: (a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused. (b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused.” 12. Therefore, when there is evidence to show that any other accused also involved in the crime, the Court can very well implead him as an additional accused. In this case, on perusal of the evidence relied on by the learned Additional Sessions Judge to implead the petitioner as additional 2nd accused, it could be gathered that after completion of the evidence of PW-6 and PW-7, the learned Additional Sessions Judge recalled them and put certain questions and got the answers of PW-6 and PW-7 to the said questionnaire. Following the said procedure, the petitioner was impleaded as the 2nd accused. 13. Following the said procedure, the petitioner was impleaded as the 2nd accused. 13. It is pointed out by the learned Senior Counsel that at the time of getting answers by putting questions by the learned Additional Sessions Judge, not even administered oath to the witnesses as could be read out from the questions and answers recorded by the learned Additional Sessions Judge, and, therefore, the said questions and the answers thereto cannot be equated with the evidence contemplated under Section 319 of the Cr.P.C. 14. In this connection, on perusal of the deposition of PW-6 and PW-7, no oath of aforementioned is seen administered before putting the questions and getting the answers referred to herein, as pointed out by the learned Senior Counsel. Further, under Section 154 of the Evidence Act, a discretionary power has been conferred on the court to permit a person, who calls a witness, to put any questions to him which might be put in cross examination by the adverse party. In such instances also, the court certainly in exercise of discretion should permit the adverse party to cross examine the witness on the answers elicited by questions put under Section 154 of the Evidence Act, as provided under Section 137 of the Evidence Act. It is the well settled law that wide discretion is available for a Judge to put questions or for production of documents, as provided under Section 165 of the Evidence Act. Section 165 of the Evidence Act provides as under: “165. It is the well settled law that wide discretion is available for a Judge to put questions or for production of documents, as provided under Section 165 of the Evidence Act. Section 165 of the Evidence Act provides as under: “165. Judge’s power to put questions or order production - The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question: Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.” 15. The second part of Section 165 of the Evidence Act makes it clear that neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question. So, the right of the parties or their counsel to cross examine any witness upon any answer given in reply to any such question, can be exercised with leave of the Court. But it is the settled law that in granting or refusing permission, the Court's discretion will have to be exercised judicially, and ordinarily the Judge would give requisite permission if the answers given are adverse to the party, who seeks the said permission. But it is the settled law that in granting or refusing permission, the Court's discretion will have to be exercised judicially, and ordinarily the Judge would give requisite permission if the answers given are adverse to the party, who seeks the said permission. The evidence that comes on record pursuant to the question put by the Court in exercise of the powers under Section 165 of the Evidence Act decides scheme for recording evidence under Sections 137 and 154 of the Evidence Act. Therefore, law permits an adverse party, against whom the witness had given evidence pursuant to Court's questions, to cross examine witnesses with leave of the Court, on the matters referred to in answers given in reply to any such Court's question. Going by the depositions, the witnesses were not cross examined. Whether leave was sought for by the petitioner herein or the Public Prosecutor to cross examine the witnesses and what view taken by the Court on such request, could not be gathered from the depositions of PW-6 and PW-7. 16. Coming back, the vital aspect is as to whether convincing evidence has been let in or available in this case to implicate the petitioner as an additional accused on the finding that he also committed the said offence, based on the said evidence. 17. On perusal of the order impugned, the learned Additional Sessions Judge, found that the evidence on record showed that Anandakrishna Pillai S/o Gopinatha Pillai of Krishna Vihar, Cherisseribhagam Muriyil Chavara Village, the registered owner of the Mahindra Pickup van Reg. No. KL2 R 9727 in which the contraband spirit was transported who is also the licencee of the toddy shop bearing No. 17/Patharam in the area during the relevant period and also the direct brother of the present accused, had also committed the offence u/s. 55(a) of the Abkari Act 1 of 1077 for which he was to be tried together with the accused for the offence which he appears to have been committed. Accordingly, the said Anandakrishna Pillai was also included as accused No. 2 in the case. 18. Accordingly, the said Anandakrishna Pillai was also included as accused No. 2 in the case. 18. The learned Additional Sessions Judge repeatedly observed that PW-6 and PW-7, the Investigating Officers, deliberately omitted to include Anandakrishna Pillai (the petitioner herein), the registered owner of the vehicle, who was the toddy shop contractor of the area during relevant period, either as an accused or at least as a witness in this case and therefore, PW-6 and PW-7 were recalled and further examined. In paragraph 13 of the order, the learned Additional Sessions Judge also observed that simply because of the reason that a person is the registered owner of the vehicle in which spirit was transported, in the absence of evidence, it could not be presumed that he was liable for the offence. But in the present case, the position was different, since Anandakrishna Pillai was not only the registered owner of the vehicle in which the spirit was unauthorisedly transported, but also the licencee of the toddy shop of the area during the relevant period and the contraband was seized only about 350 meters away from the toddy shop of Anandakrishna Pillai. Further, the sole accused was none other than the brother of the Anandakrishna Pillai. Further it was observed by the learned Additional Sessions Judge that the accused had no case that he was transporting the spirit for his purpose. 19. It is true that there should have been an investigation against the present petitioner also since he was found to be the registered owner of the vehicle and also licencee of the nearby toddy shop where from the contraband was seized. The learned Additional Sessions Judge found that this is a fit case for reinvestigation (intention may be ‘further investigation’) and the court could not order the same suo motu, since already cognizance was taken. It is relevant to note that the learned Sessions Judge could very well recommend disciplinary action against PW-6 and PW-7, if they failed in conducting proper investigation, with ulterior motives. 20. The relevant question while considering impleadment of an accused is availability of evidence against him and not anything else. In the present case, as per the answers given by PW-6 and PW-7 in the context of circumstances described herein above, the same also did not in any way suggest that the petitioner had involved in commission of the offence. 20. The relevant question while considering impleadment of an accused is availability of evidence against him and not anything else. In the present case, as per the answers given by PW-6 and PW-7 in the context of circumstances described herein above, the same also did not in any way suggest that the petitioner had involved in commission of the offence. Therefore, the learned Additional Sessions Judge wrongly invoked the power under Section 319 of Cr.P.C. added the petitioner as an additional accused. Therefore, the order shall not sustain in the eye of law and the same deserves interference. 21. In view of the above, this petition stands allowed and the order impugned stands set aside. 22. Therefore, the Additional Sessions Court is directed to dispose of the case against the sole accused at the earliest, at any rate, within two months from the date of receipt or production of a copy of this order. 23. It is specifically ordered that the power of the learned Additional Sessions Judge to proceed against the investigating officers on finding wilfull reluctance in properly investigating the case is left open. 24. Registry is directed to forward a copy of this order to the court below concerned for information and compliance.