ORDER
L. Rath, J.
1. The petitioner, twenty-eight in number, assail the order passed in S.T. Case No. 21-D/83 of 1990 by the Assistant Sessions Judge on 13-9-1990 directing, under Section 319 of the Code of Criminal Procedure, their arraying as accused in a trial under Sections 147, 148, 332, 307, 395, 337, 427 read with 149 of IPC. Originally the trial was going on against sixteen accused, but the learned Judge after examination of P.W. 2, the informant, found prima facie case to have been disclosed against the present petitioners and directed their addition as accused. The prosecution case arose out of the facts that P.W. 2 lodged information with the police that when he as the Forest Range Officer along with his staff was checking illegal transportation of timber and charcoal, he found nine accused, all of whom are accused in the case, removing charcoal in gunny bags. They seized the charcoal and the cycles in which it was being transported, but the accused persons fled away. While the patrol party was returning in a van, they found about three hundred people gathered near the Dasahara Padia of village Nihalprasad armed with lathis, Farsas, etc. The mob detained him and his vehicle, surrounded it, pelted stones at them, assaulted them with lathis and abused in obscene words. The nine accused persons took away the nine cycles and eighteen gunny bags forcibly and also assaulted them breaking the front glass of the vehicle. He also recognised thirtyeight persons including the present petitioners in the mob who had pelted stones. After investigation chargesheet was submitted against sixteen persons but the petitioners were not charge-sheeted. During the trial P.W. 2 as informant disclosed the names of the petitioners as the persons who had pelted brickbats whom he had recognised. On a petition being filed by the defence counsel and in view of the evidence of P.W. 2 as also on perusal of the evidence and the FIR the learned Assistant Sessions Judge passed the impugned order. The order impugned is not supportable in law. It has been repeatedly pointed out that the power available under Section 399, Cr. P. C. is not to be exercised in a routine and mechanical manner and is only to be invoked when on a consideration of all the materials available on record the Court feels compelling necessity to implead some persons as accused. Reference may be made to (1993) 6 OCR 564 (Alok v. State) and (1993) 6 OCR 602 (R. Gopal v. State). The power by its very nature is to be used sparingly. In a decision reported in 1984 (1) OLR 328 : (1984 Cri LJ NOC 195) (Gagan Bihari Patnaik v. State of Orissa), it was held that the power is extraordinary and is to be used sparingly and that from a solitary statement of a single witness it cannot be said that there is prima facie material against other persons satisfying the ingredients of Section 319, Cr. P. C. In spite of such law having been laid down, exercise of power by the learned Assistant Sessions Judge in the manner it has been done is rather extraordinary. The learned Judge also does not appear to have properly sifted the materials before directing addition of the petitioners as accused. It is seen that though in the FIR the informant said of having recognised thirtyeight persons who had taken part in pelting stones, and he also stated the same before the police when he was first examined, yet when the investigation was again carried on by the Superintendent of Police and he was re-examined, he made the statement that these twentynine persons (probably a mistake for thirtyeight persons) had not exhibited any lawless activities at the spot. This statement has been completely lost sight of by the learned Assistant Sessions Judge. It has hence to be held that on the materials that existed before the learned Judge, no case was made out for proceeding under Section 319, Cr. P. C. against the petitioners. If the trial proceeds and in furture sufficient materials come in to prosecute them, the question has to be considered by the learned Magistrate on the materials as would be available then.
2. In the result, the revision succeeds. The impugned order dated 13-9-1990 is set aside.