The scope and ambit of Section 319 CrPC has been well settled by the Constitution Bench of this Court in Hardeep Singh v. State of Punjab and others1 and paras 105 and 106 which are relevant for the purpose are reproduced hereunder:
“105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
- 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 1 (2014) 3 SCC 92 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.”
After we have examined the material on record, in our considered view, the evidence recorded during the course of prosecution, if remains unrebutted, will not be sufficient to lead the conviction so far as the present appellant is concerned and accordingly the order passed by the High Court dated 6th January, 2022 is not sustainable in law and deserves to be set aside. Para 14
[Naveen v. State of Haryana, (2022) 10 SCC 537]