Full Judgment
B.K. Behera, J.
1. In a Sessions Trial in which the opposite party Nos. 2 and 3 have been standing their trial being charged Under Section 302 read with Section 34 of the Indian Penal Code, one of them also being charged Under Section 302 read with Section 109 and Section 294 of the Indian Penal Code, evidence was led by the prosecution and two witnesses to the occurrence (P. Ws. 1 and 2) were examined in the Court' of the learned Sessions Judge, Cuttack. On the prayer made by the counsel for the two accused persons, their cross-examination was deferred. On the basis of the statements made by P. Ws. l and 2, the learned Sessions Judge has allowed an application made by the State to summon the petitioners as the accused persons Under Section 319 of the Code of Criminal Procedure (for short, the 'Code') for abetment of the commission of murder.
2. We have heard the learned counsel for the petitioners and the learned Additional Standing Counsel. Mr. Mund has contended for the petitioners that the power Under Section 319 of the Code is to be exercised sparingly and in exceptional cases and that the impugned order has been passed without justifiable grounds and without sufficient evidence against the petitioners.
3. As has been laid down by the Supreme Court in AIR 1983 S. C. 67 Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others. Section 319 of the Code gives ample power to a criminal Court to take cognisance and add any person not being an accused before it and try him along with the other accused, if the prosecution satisfies by its evidence that the other persons have also committed the offence. But this is an extraordinary power given to the Court which should be exercised sparingly and only if compelling reasons exist.
4. On the completion of investigation, the investigating agency did not consider it to be justifiable to include the petitioners as the accused persons. P. Ws. 1 and 2 have, no doubt, testified about investigation by the petitioners. But our attention has been invited to the contents of the first information report lodged by P. W. 2 wherein it had not specifically been stated that the murderous assault took place after the instigation by the petitioners. We have been taken through the statement of P. W. 1 recorded Under Section 161 of the Code and he had not named all the petitioners as the persons who had allegedly instigated for the commission of the offence. The trial Court did not test the evidence of P. Ws. 1 and 2 by putting some questions to get at the truth before taking recourse to Section 319 of the Code against the petitioners. The evidence of these two witnesses had not been tested in cross-examination as the trial Court had allowed their cross-examination to be deferred. It has been submitted on behalf of the petitioners that a number of independent witnesses, examined in the course of investigation, have not spoken about the complicity of the petitioners. Regard being had to these features, the learned Additional Standing Counsel has fairly submitted that the trial Court ought to have considered the question of summoning the petitioners as the accused persons after the examination and crossexamination of the witnesses to the occurrence.
5. Before taking recourse to Section 319 of the Code, the Court must properly apply its mind and judge the evidence against the persons to be added as the accused persons. In our view, this had not been done.
6. In view of the submissions made at the Bar and for the reasons aforesaid, we would allow the revision and set aside the impugned order and direct the trial Court to proceed with the trial, record the evidence of the witnesses to the occurrence and then carefully consider the evidence and decide the question as to whether the petitioners are also to be arrayed as the accused persons at the trial.