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7. Aggrieved, the petitioner is before this Court. This Court by order dated 14-09-2004 had issued notice and had stayed the operation of the order dated 29-03-2004 as well as the subsequent order. On 28-09-2004, rule was issued and the LCR was called for.

8. I have heard Mr. K.H. Choudhury, learned Senior Counsel for the petitioner as well as Mr. K. Munir, learned Additional Public Prosecutor, Assam for the respondent state.

9. Learned counsel for the petitioner submits that though u/s 319 of the Code of Criminal Procedure, 1973 (Cr.P.C.), the Court has the power to proceed against a person, not being the accused, for the offence which he appears to have committed, in the present case, the exercise of the said power is not justified. He contends that the materials on record does not warrant addition of the petitioner as an accused in the case. He also submits that the petitioner is an old man of about 80 years of age now and, therefore, the Court should interfere in the matter by quashing the order dated 29-03- 2004.

10. The learned Public Prosecutor on the other hand submits that the learned trial Court has exercised its discretion on examination of the evidence adduced and, therefore, this Court should not interfere in the matter at this stage in exercise of its revisional powers.

11. I have considered the submissions made by the learned counsel for the parties.

12. Since the learned Court below had exercised power u/s 319 Cr. P. C. and added the petitioner as an accused in the case, the said provision may be examined. The said section empowers the Court to proceed against person(s) other than the accused person(s), who appear to be guilty of the offence. For ready reference, the said section is extracted below :-

13. The said provision was examined by the Apex Court in the case of Joginder Singh -Vs- State of Punjab; reported in AIR 1979 SC 339 wherein their Lordships observed that u/s 319(1) Cr.P.C. the Court has the power to add any person, not being the accused before it, as an accused and direct him to be tried alongwith the other accused provided there appears against him during the trial sufficient evidence indicating his involvement in the offence.

14. In Municipal Corporation of Delhi -vs- Ram Kishan Rohtagi and others; reported in AIR 1983 SC 67, the Hon'ble Supreme Court while acknowledging that this provision of section 319 Cr.P.C. gives ample power to any Court to take cognizance and add any person, not being an accused before it, as an accused and try him alongwith the other accused, however, struck a word of caution by stating that this is really an extra- ordinary power and should be used very sparingly and only if compelling reasons exist.

15. Again in Michael Machado and another -vs- Central Bureau of Investigation and another; reported in (2000) 3 SCC 262, the Apex Court on a close scrutiny of the said provision observed that the basic requirement for invoking section 319 Cr.P.C. is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, other than the person(s) arraigned as accused in that case, has committed an offence for which that person could be tried together with the accused already on record. As against some doubt or suspicion, the Court must have reasonable satisfaction from the evidence on record that the other person has committed an offence and that for such offence, the other person could as well be tried alongwith the already arraigned accused. Their Lordships have held that the power conferred on the Court u/s 319 Cr.P.C. is only discretionary which should be exercised only to achieve criminal justice and that before exercising that power, a judicial exercise is called for keeping in mind that there is no compelling duty on the Court to proceed against such other person(s).