"The test to be applied is the one which is more than a prime facie case as examined at the time of framing charge but not of satisfaction to the extent that the evidence, if goes uncontroverted, would lead to the conviction of the accused.”

The Supreme court has reiterated that to add a person as additional accused under Section 319 of the Code of Criminal Procedure, stronger evidence is required than mere probability of complicity of that person.

The court, while setting aside an order observed that Courts, while invoking Section 319 CrPC, should not proceed as if an infallible case is required to be shown by the prosecution in order to proceed against the proposed accused persons.

Referring to Constitution bench judgment in Hardeep Singh, the bench said that the objective of the provisions is that the real culprit should not get away unpunished, and therefore a Court is empowered to proceed against any person not shown as an accused, if it appears from evidence that such person has committed any offence for which, he could be tried together with the other accused persons. The bench then briefly explained the test to be applied while considering an application to add a person as additional accused. It said:

"The provisions contained in Section 319 CrPC sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one, is to be exercised sparingly and only when cogent evidence is available. The prime facie opinion which is to be formed for exercise of this power requires stronger evidence than mere probability of complicity of a person. The test to be applied is the one which is more than a prime facie case as examined at the time of framing charge but not of satisfaction to the extent that the evidence, if goes uncontroverted, would lead to the conviction of the accused."

Setting aside the orders of Trial court, the Apex Court said:

"We are of the view that the consideration of the application under Section 319 CrPC in the orders impugned had been as if the existence of a case beyond reasonable doubt was being examined against the proposed accused persons. In other words, the Trial Court and the High Court have proceeded as if an infallible case was required to be shown by the prosecution in order to proceed against the proposed accused persons. That had clearly been an erroneous approach towards the prayer for proceeding against a person with reference to the evidence available on record."

The court then directed the Trial Court to reconsider the prayer of prosecution for proceeding against the proposed accused persons afresh.