ORDER : Manoj Kumar Garg, J. 1. Instant criminal revision petition has been filed by the petitioners against the order dated 22.02.2023 passed by the learned Additional Sessions Judge (WA Act Cases) Bikaner by which the trial court took cognizance against the petitioner for offence under Sections 498A, 406, 304B/302 IPC. 2. Brief facts of the case are that the complainant respondent no.2 lodged a FIR against the accused persons including the petitioner for demand of dowry and cruelty for offence under Sections 498A, 406, 304B and 302 IPC. The police after investigation submitted chargesheeted only against the husband and other accused persons were not arrayed as an accused. The investigation against the present petition was kept pending under Section 173(8) Cr.P.C. but later on investigation was completed and a closure report was submitted before the trial court. 3. During course of trial, the brother of deceased was examined as PW/1, mother of deceased Geeta Kanwar as PW/2. Thereafter, the complainant filed an application under Section 319 Cr.P.C. for taking cognizance against the present petitioner. The said application was allowed by the trial court vide order dated 22.02.2023 and the trial court took cognizance against the petitioner for offence under Sections 498A, 406, 304B/302 IPC. 4. Learned counsel for the petitioner submits that the court below has committed grave error of law in taking cognizance against the petitioner as the police after thorough investigation had not arrayed the petitioner as an accused. It is submitted that the daughter of petitioner was married to brother of deceased and deceased was married to son of the petitioner. Therefore, there was no possibility of any cruelty, nor there was any demand made by the petitioner. It is argued that the police after taking into consideration the entire evidence and statement of witnesses, had filed negative FR against the petitioner, therefore, the order of the Court below taking cognizance against the petitioner is bad in the eye of law and deserves to be set aside. 5. Per contra, counsel for the respondent no.2 submits that the witnesses in their statement have levelled against the present petitioner who is mother-in-law of deceased with regard to demand of dowry and cruelty, therefore, the court below has rightly allowed the application filed by the respondent no.2 under Section 319.P.C and taken cognizance against the petitioner. 6. 5. Per contra, counsel for the respondent no.2 submits that the witnesses in their statement have levelled against the present petitioner who is mother-in-law of deceased with regard to demand of dowry and cruelty, therefore, the court below has rightly allowed the application filed by the respondent no.2 under Section 319.P.C and taken cognizance against the petitioner. 6. I have heard rival contention of the parties and carefully gone through the record. 7. Admittedly, the police after thorough investigation had submitted negative FR against the present petitioner. In the FR filed by the police, the police had referred to the ten grounds for exonerating the petitioner. It has been stated by the police that since the daughter of petitioner was married to brother of deceased and deceased was married to son of the petitioner, therefore, had there been any cruelty or demand of dowry to the deceased, same treatment would have been given to daughter of petitioner. Further, there was gross delay in lodging the FIR as the FIR was lodged after a period of nine days of death of deceased. The police in the closure report has also mentioned that as per postmortem report the death of deceased was caused by asphyxia due to antemortum drowning in water and there were no injury marks on the body deceased. The panchnama and other documents bear the signature of complainant Indradan and no allegation with regard to cruelty or demand of dowry was made by the complainant. It has been further mentioned that earlier altercations took place between the deceased and her husband number of time and the relationship between them was not cordial. Thus, no overt act has been assigned to present petitioner. In the opinion of this Court, the court below has fallen into an error in allowing the application filed by the complainant under Section 319 Cr.P.C. and taking cognizance against the petitioner. 8. The constitutional Bench of Hon’ble Supreme Court in the case of Hardeep Singh Vs. State of Punjab reported in (2014) 1 Crl.L.R (SC) 310 while discussing the powers of the Court concurred with the view taken in the case of Dharam Pal Vs. State of Haryana reported in (2014) 3 SCC 306 concluded as under: “110. We accordingly sum up our conclusions as follows: Question Nos. State of Punjab reported in (2014) 1 Crl.L.R (SC) 310 while discussing the powers of the Court concurred with the view taken in the case of Dharam Pal Vs. State of Haryana reported in (2014) 3 SCC 306 concluded as under: “110. We accordingly sum up our conclusions as follows: Question Nos. 1 & III Q.1 What is the stage at which power under Section 319 Code of Criminal Procedure can be exercised? AND Q. III Whether the word "evidence" used in Section 319(1) Code of Criminal Procedure 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? A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Code of Criminal Procedure and the Sessions Judge need not wait till 'evidence' under Section 319 Code of Criminal Procedure becomes available for summoning an additional accused. Section 319 Code of Criminal Procedure, significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Code of Criminal Procedure; and under Section 398 Code of Criminal Procedure are species of the inquiry contemplated by Section 319 Code of Criminal Procedure Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Code of Criminal Procedure, and also to add an accused whose name has been shown in Column 2 of the chargesheet. In view of the above position the word 'evidence' in Section 319 Code of Criminal Procedure has to be broadly understood and not literally i.e. as evidence brought during a trial. In view of the above position the word 'evidence' in Section 319 Code of Criminal Procedure has to be broadly understood and not literally i.e. as evidence brought during a trial. Question No. II Q. II Whether the word "evidence" used in Section 319(1) Code of Criminal Procedure could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? A. Considering the fact that under Section 319 Code of Criminal Procedure a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Code of Criminal Procedure the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination. Question No. IV Q. IV What is the nature of the satisfaction required to invoke the power under Section 319 Code of Criminal Procedure to arraign an accused? Whether the power under Section 319(1) Code of Criminal Procedure can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted? A. Though under Section 319(4)(b) Code of Criminal Procedure the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Code of Criminal Procedure would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial-therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different. Question No. V Q. V Does the power under Section 319 Code of Criminal Procedure extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged? Question No. V Q. V Does the power under Section 319 Code of Criminal Procedure extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged? A. A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Code of Criminal Procedure provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Code of Criminal Procedure has to be complied with before he can be summoned afresh.” Recently, Hon’ble Apex Court in the case of Shiv Prakash Mishra Vs. State of Uttar Pradesh and Ors reported in AIR 2019 SC 3477 has held as under :- “9.The standard of proof employed for summoning a person as an Accused person Under Section 319 Code of Criminal Procedure is higher than the standard of proof employed for framing a charge against the Accused person. The power Under Section 319 Code of Criminal Procedure should be exercised sparingly. As held in Kailash v. State of Rajasthan and Anr. : (2008) 14 SCC 51 , "the power of summoning an additional Accused Under Section 319 Code of Criminal Procedure should be exercised sparingly. The key words in Section are "it appears from the evidence"."any person"."has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion Under Section 319 Code of Criminal Procedure would be used by the court." 10. As held by the Constitution Bench in para (105) in Hardeep Singh, the power Under Section 319 Code of Criminal Procedure is discretionary and is to be exercised sparingly which reads as under: 105. Power Under Section 319 Code of Criminal Procedure is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power Under Section 319 Code of Criminal Procedure In Section 319 Code of Criminal Procedure the purpose of providing if "it appears from the evidence that any person not being the Accused has committed any offence" is clear from the words "for which such person could be tried together with the Accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting Under Section 319 Code of Criminal Procedure to form any opinion as to the guilt of the Accused. 11. The above view was followed in Brijendra Singh as under: 13. In order to answer the question, some of the principles enunciated in Hardeep Singh case : (2014) 3 SCC 92 may be recapitulated: .. However, since it is a discretionary power given to the court Under Section 319 Code of Criminal Procedure and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity. 12. In the light of the above principles, considering the present case, having regard to the contradictory statements of the witnesses and other circumstances, in our view, the trial court and the High Court rightly held that Respondent No. 2 cannot be summoned as an Accused. The FIR in Case Crime No. 328A/2013 was registered on 06.09.2013 at 18.15 hours. The name of second Respondent is no doubt mentioned in the FIR and overt act is attributed to him. It is clear from the record that during the course of investigation, the Investigating Officer recorded the statements of witnesses namely Rajesh Kumar, Nizamuddin, Nand Kishore, Tribhuwan Singh, Bintu Rai and Nageshwar Kumar and other seven witnesses who have stated that Respondent No. 2 was not present at the place of occurrence at the time of the incident. The Investigating Officer has also recorded the statement of one Shiv Kumar Gupta and Sandeep Gupta who are working in the same office in which Respondent No. 2 was employed who had stated that Respondent No. 2 was in the office at the time of incident. Based on the statements recorded from the witnesses, the Investigating Officer found that the second Respondent was posted on the post of Junior Engineer in the Bridge Construction Unit of Bridge Corporation, Lucknow and he usually resided there and on 06.09.2013, he was present at his workplace and discharging his official duties. Based on the materials collected during the investigation, the Investigating Officer recorded the finding that on the date and time of incident, Subhash Chandra Shukla was not present at the place of occurrence. Accordingly, the name of Subhash Chandra Shukla was dropped when the first charge sheet was filed on 19.09.2014. The supplementary charge sheet was filed against Rahul Shukla on 15.10.2014. Accordingly, the name of Subhash Chandra Shukla was dropped when the first charge sheet was filed on 19.09.2014. The supplementary charge sheet was filed against Rahul Shukla on 15.10.2014. Though the name of second Respondent was mentioned in the FIR, during investigation, it was thus found that the second Respondent was not present in the place of incident and on the basis of the findings of the Investigating Officer, he was not charge sheeted. Be it noted that the Appellant-complainant has not filed any protest petition then and there. During investigation, when it was found that the Accused was not present at the place of incident, the courts below were right in refusing to summon Respondent No. 2 as an Accused.” 9. Accordingly, this revision petition is allowed. The impugned order dated 22.02.2023 passed by the learned Additional Sessions Judge (Women Atrocities Cases), Bikaner in Sessions Case No. 70/2020 taking cognizance against the petitioner for offence under Sections 498A, 406, 304B/302 IPC is hereby quashed and set aside.