RANJANA PANDYA, J. - (1.) THIS revision has been preferred against the Judgment and order dated 14.5.2002 passed by the Additional Sessions Judge, Ghaziabad in Sessions Trial No. 710 of 1997, State Vs. Anwar and others, under Sections 307, 323, 504 I.P.C. summoning the revisionist under Section 319 Cr.P.C.
(2.) PERUSAL of the record shows that while the sessions trial was in progress one witness Mohd. Yamin (P.W.1) was produced in the court whose statement was recorded, who in his examination -in -chief has specifically stated that accused Anwar called his brothers at which Aslam and Ambar came. Ambar was armed with lathi -danda and Aslam was armed with gun. After the evidence of this witness was recorded, the prosecution moved an application for summoning accused Aslam under Section 319 Cr.P.C. which was allowed, vide order dated 14.5.2002. Feeling aggrieved the accused has come up in the present revision.
(3.) I have heard Sri Rajeev Chaddha, counsel for the revisionist and learned A.G.A. for the State. A perusal of the copy of the F.I.R. shows that the present accused Mohd. Aslam was named in the F.I.R. Perusal of the order under revision shows that P.W. 1 has specifically stated that with intention to kill Sahroj, Aslam fired at Sahroj. If, during the trial, it appears from the evidence that a person not being an accused has committed any offence for which such person should be tried along with the accused who has been tried that person can be summoned under Section 319 Cr.P.C. Although the provision of Section 319 Cr.P.C. have to be exercised sparingly with caution and when the concerned court is satisfied that some offence has been committed by such person, only then he can be summoned. The provisions have to be used only after the legal evidence comes on record and from that evidence, it appears that the concerned person has committed an offence. Powers under Section 319 Cr.P.C. is a discretionary power and also is an extraordinary power which has also to be exercised sparingly and only in those cases where the circumstances of the case so warrant. Thus, only a prima facie case has to be established from the evidence led before the court not necessarily tested on the anvil of the cross -examination. It requires much stronger evidence than mere probability of the complicity of the accused. 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. Thus, if a person, who ought to have been added as an accused has wrongly been omitted or deliberately been excluded by the investigating agency then that satisfaction has to be arrived on the basis of evidence so led during the trial. However, the Court considering the evidence for the purpose of section 319 Cr.P.C. is not legally required to evaluate the evidence as it is ordinarily done while rendering the final judgment but the court has to see whether or not, the evidence on record appeals to the reason for the purposes of section 319 Cr.P.C. and the story narrated by the witnesses against the person sought to be summoned is not improbable and absurd and a conviction is possible on such statements, if un -controverted.;