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6. By the impugned order dated 14/6/2022 the application has been allowed and the applicant-Mukesh Rawat has been summoned as an additional accused.

7. Challenging the order passed by the Court below, it is submitted by the counsel for the applicant that once the closure report was pending consideration before the Court of jurisdictional Magistrate, then the Trial Court should not have exercised its power under Section 319 of Cr.P.C. and should have waited for the out come of the closure report. It is further submitted by the counsel for the applicant that the Supreme Court in the case of Brijendra Singh and Others Vs. State of Rajasthan reported in (2017) 7 SCC 706 has held that where the police after concluding the investigation has come to a conclusion that the suspected accused was not present on the spot and he was present at a place which is about 175 km. away from the place of occurrence, then he should not have been summoned as an additional accused and the power under Section 319 of Cr.P.C. should not have been exercised. It is submitted that in the present case also the police after concluding the investigation has given a specific finding that at the time of the incident the applicant was in his house and had also withdrawn certain amount from the ATM and on the basis of the report of the Forensic Science, it was opined by the Investigating Officer that the applicant has been falsely implicated. The said aspect of the matter has not been taken into consideration by the Trial Court while exercising its power under Section 319 of Cr.P.C. It is further submitted by the counsel for the applicant that for exercising power under Section 319 of Cr.P.C. the material has to be something more than which is required for framing of charge and if the material collected by the police is considered, then it is clear that the applicant was not at all present on the place of incident.

16. So far as the present revision is concerned, it arises out of an order passed under Section 319 of Cr.P.C. The power under Section 319 of Cr.P.C. has to be exercised on the basis of evidence, which has come on record during the trial. Section 319 of Cr.P.C. reads as under:-

319. Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry 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.
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. 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. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused."

18. In order to find out as to whether the evidence which has come on record is more than what is required for framing of charge and less than what is required for recording conviction, this Court will be required to consider the material collected by the police during the investigation. Therefore, while deciding the present revision this Court is to primarily look into the evidence which has come on record before the Trial Court and in order to appreciate the same in the light of the judgment passed in the case of Hardeep Singh (supra), this Court can look into the material collected by the police. Furthermore, in the light of the judgment passed in the case of Brijendra Singh (Supra), this Court is also required to look into the closure report filed by the Police. Under these circumstances, this Court is of the considered opinion that the jurisdiction of this Court in the present case is completely different from that of the revision filed against the order refusing to take cognizance under Section 193 of Cr.P.C. The scope of power under Section 319 of Cr.P.C. is completely different from the scope of framing of charges. The basic material required for exercising power under Section 319 of Cr.P.C. is the evidence recorded before the Trial Court and not the material collected by the police, although the same can be considered for appreciating the evidence which has already come on record. Under these circumstances, this Court is of the considered opinion that the Trial Court was not required to wait for the outcome of the closure report and there is no provision of law which prohibits the Trial Court from exercising its power under Section 319 of Cr.P.C. only because of the fact that the closure report is pending consideration before the jurisdictional Magistrate. Furthermore, in the case of Brijendra Singh (supra) the Supreme Court has set aside the order passed under Section 319 of Cr.P.C. on the ground that the material collected by the police in support of the plea of alibi of the accused is reliable and it has not been held that the Trial Court should not have exercised its power under Section 319 of Cr.P.C. Furthermore, in the case of Brijendra Singh (supra) it has been held that no doubt the Trial Court would be competent to exercise its power even on basis of such statements recorded before it in examination-in-chief, but in a case where plethora of evidence was collected by IO during investigation, which suggested otherwise, the Trial Court was at least duty-bound to look into the same while forming prima faice opinion and to see as to whether much stronger evidence than mere possibility of their complicity has come on record. It has also been held that what is more troubling is that even when this material was specifically brought to the notice of the High Court in the revision, the High Court too blissfully ignored the said material. Thus, it is clear that even if the Trial Court did not consider the material collected by the police along with closure report, still the High Court has a duty to look into that aspect to find out as to whether much stronger evidence other than mere possibility of their complexity has come on record or not.