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"No doubt, it might have been a probable defence which the court could not consider at the time of proceeding under Section 319 Cr.P.C. but as the power has to be exercised sparingly, the Court should have examined all the aspects of the case."

Observing as above, the High Court allowed the petition under Section 482 Cr.P.C. and quashed the order dated 26.5.2005 passed by the learned Sessions Judge under Section 319 Cr.P.C. summoning the respondent No. 2 to face the trial.

5. We have heard Shri Manoj Goel, learned counsel for the petitioner, Shri S.R. Singh, learned senior counsel for respondent No. 2 and have perused the record. Sub-section (1) of Section 319 says that where in the course of any enquiry 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. The scope of power under Section 319 Cr.P.C. was explained in Municipal Corporation of Delhi v. Ram Kishan Rohtagi (1983) 1 SCC 1 and it was held as under :

In Joginder Singh v. State of Punjab (1979) 1 SCC 345 it was held as under :

"The summoning of additional persons by the Sessions Court under Section 319 of those who appear to be involved in the crime from the evidence led during the trial and directing them to stand their trial along with those who have been committed, must be regarded as incidental to the cognizance under Section 193 and part of the normal process that follows it. Section 319(4)(b) enacts a deeming provision in that behalf dispensing with the formal committal order against the newly added accused.
The phrase "any person not being the accused" in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169."

In Kishun Singh v. State of Bihar (1993) 2 SCC 16, it was observed:

"11. On a plain reading of Sub-section (1) of Section 319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub-section contemplates existence of some evidence appearing in the course of trial wherefrom the Court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police. Even a person who has earlier been discharged would fall within the sweep of the power conferred by Section 319 of the Code. ........................"

738. and it was held as under in para 9 of the report :

"9. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At the stage, the court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses re-heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words 'could be tried together with the accused' in Section 319(1), appear to be only directory. 'Could be' cannot under these circumstances be held to be 'must be'. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court."