B. R. ARORA, J. - (1.) THIS miscellaneous petition is directed against the order dated November 21, 1990, passed by the Additional Sessions Judge, Nagaur, by which the learned Additional Sessions Judge rejected the application under Section 319 Cr. P. C. filed by the accused-petitioner,
(2.) THE petitioner, alongwith co-accused Meh Ram, Sukh Ram, Ganga Ram and Seeta Ram, is facing trial for the offences under Sections 147, 148, 302/149 and 342 I. P. C. THE case of the prosecution is that on March 18, 1986, deceased Chain Singh alongwith Madho Singh, and Arjun Singh was going from village Mordi to Kharda. At about 7. 30 p. m. , all the five accused attacked Chain Singh near the house of Laluram. Madho Singh and Arjun Singh were escaped while Chain Singh was belaboured by the accused persons, who died after receiving the injuries caused by the accused-persons. THE prosecution, in support of its case, examined twenty witnesses. THE accused were examined under Section 313 Cr. P. C. and they produced nine witnesses in their defence, When the case was fixed for arguments, at that time an application under Section 319 Cr. P. C. was moved by the accused-petitioner Ram Karan. It was averred in the application that from the statement of PW 14 Badri Ram, a case for taking cognizance against Roopa Ram has been made out and he should be summoned and tried alongwith the petitioner and other -co-accused. THE learned trial Court considered the application of the accused-petitioner and by its order dated November 21,1990, dismissed the application filed by the petitioner. It is against this order that the petitioner-accused has preferred this miscellaneous petition. Section 319 Cr,p. C, which deals with the power of the Court to proceed against the other persons appearing to be guilty of offence, is fairly comprehensive and covers the summoning of a person other than the accused, who is concerned in the offenoe but not present in the Court. The Legislature itself has taken care in enacting Section 319 Cr. P. C, and has couched it in such a way that the real offender may be summoned and tried. These powers are extraordinary in nature and should be used by the Court very sparingly and only if the compelling reasons exist for taking cognizance against a person who is not an accused but against whom there is sufficient evidence to show his involvement in an offence as an accused. The evidence which shows, the involvement of the person concerned, must be positive and unambiguous and should point-out the specific guilt of the person to be proceeded against. At this stage, only a prima facie case of involvement of the person in the offence is sufficient and it is not necessary to see that the evidence is sufficient to convict such person because that wiil amount pre-judging the issue which is required to be done at the conclusion of the trial. Sufficiency of the evidence has to be looked-into for framing the charge only. Now it has to be seen whether from the facts emerging from the evidence of PW 14 Badri Ram, taken at its face value and the surrounding circumstances, discose the existence of the ingredients of constituting the offence and involving the accused and warrant the impleading of accused Roopa Ram. PW 14 Badri Ram Was not an eye-witness of the occurrence. He was a witness to the arrest of accused Seeta Ram, Sukh Ram, Meh Ram and Ganga Ram, This witness was examined in the Court on 20-7-1989,, and for the first time, in the cross-examination, he deposed before the Court that Roopa Ram, who is related to him, came to him after four-five days of the occurrence and stated that in the matter of a theft committed at the house of Men Ram, he and two more persons were involved. At that time deceased Chain Singh threatened him that he will tell regarding the theft to Meh Ram, whereupon they all killed Chain Singh and threw his deadbody in the water-pond. His foot-prints were there near the water-pond which were taken by the police and he may be saved. The version given by this witness in the cross-examination, for the first time after three years of the incident, does not tally with the prosecution case and, also, does not point - out any of the attending circumstances. At the time of framing the charge, though meticulous evaluation of the evidence is not necessary, but at the same time it may have to be taken into consideration that framing the charge is not merely a formality, but is a judicial act which the Court has to perform in a judicious way and after taking into consideration the evidence on record. Before summoning a person as an accused, the Court will have to objectively satisfy itself that the evidence on record, by itself, warrant a person be made to face the trial, which has already not brought for trial. Powers under Section 319 Cr. P. C. can be exercised by the Court only if from the evidence recorded by the Court it appears that any person has committed an offence, for which he should be tried together with other accused. Before setting the criminal law in motion, the Courts are expected to exercise great care and caution and only after satisfying itself that there is a reasonable foundation to proceed against the accused to be tried alongwith other accused that the cognizance can be taken. The learned lower Court has properly considered the evidence on record and rightly came to the conclusion that there exists no evidence sufficiently showing the involvement of the alleged accused Roopa Ram and rightly rejected the application filed by the accused-petitioner Ram Karan. After consideration of the evidence on record, produced by the prosecution, I am of the opinion that no case for summoning Roopa Ram as an accused to be tried alongwith the petitioner and other co-accused, has been made-out. The present petition has been filed by the accused-petitioner Ram Karan to implicate Roopa Ram as a co-accused and be tried alongwith him and other co-accused. Section 319 Cr. P. C. does not give any power to the accused to insist that some one else be joined with him in the trial. The discretion under Section 319 Cr. P. C. is entirely with the Court, which has to be exercised judiciously having regard to the facts of each case. The High Court can interfere in the order passed by the Court below in such matters only when there is a fundamental legal defect going to the root of the proceedings or there is an abuse of the process of the Court or the exercise of the discretion being, in any way, capricious or arbitrary. In the present case, the order passed by the learned lower Court does not suffer from any of these infirmities. The evidence does not show the involvement of Roopa Ram as a co-accused and the learned trial Court has rightly rejected the application filed by the petitioner-accused- In the result, I do not find any merit in the miscellaneous petition and the same is hereby dismissed. . ;