MCRC 6462/11 23/09/2011. Shri Pawan Pathak and Shri Sunil Soni, Advocates for the petitioner. Shri Prabal Solanki, Public Prosecutor for respondent /State. Heard counsels for the parties for final disposal of this petition. O r d e r ( oral ) The petitioner is an accused before the Trial Court and is facing the trial on charge for offences under sections 406 and 409 IPC. The prosecution in the said case against him has examined Devi Singh, Sunil Kumar Soni, Devendra Tiwari, Harishankar Shukla and Mahesh Prasad Nigam as witnesses to prove its charges against the petitioner. In the course of trial, the petitioner filed an application under section 319 Cr.P.C. and prayed to the Trial Court to summon Bireshwar Singh as an accused in the case. It was contended by the petitioner in his application under section 319 Cr.P.C. that a case against Bireshwar Singh sought to be summoned was clearly made out from the testimony of the prosecution witnesses named herein above. Said application under section 319 Cr.P.C. of the petitioner was rejected by the Trial Court vide its order dated 12th April, 2010 on the ground that said Bireshwar Singh cannot be summoned after the evidence in the case was closed even if it is assumed that involvement of Bireshwar Singh sought to be summoned is made out from the testimony of the prosecution witnesses. This view of the Trial Court contained in its order dated 12th April, 2010 has been affirmed by the revisional court vide order dated 10th August, 2011 in Criminal Revision No.343/10. The revisional court in the impugned order has referred to a judgment of the Hon'ble Supreme Court in Kailash Dwivedi vs. State of M.P., (2005)11 SCC 182 in support of its view that application under section 319 Cr.P.C. cannot be granted after the evidence is closed. This Court has gone through the judgment of the Hon'ble Supreme Court in Kailash Dwivedi's case ( supra ) and upon going through the same, it is found that in the said case it was not held by the Hon'ble Supreme Court that application under section 319 Cr.P.C. would not lie after close of evidence of the prosecution or even after examination of defence witnesses. In that case, the Hon'ble Supreme Court had examined the request for summoning person not sent for trial as an accused person on the basis of evidence of prosecution witnesses on merits. Upon considering the merits of the case, it was found that the case for summoning of person not sent for trial was not made out. It appears that the revisional court has not correctly appreciated the ratio laid down by the Hon'ble Supreme Court in Kailash Dwivedi's case ( supra ). Since neither the trial Court nor the revisional court has examined the case on merits as to whether from the testimony of prosecution witnesses a case for summoning of Bireshwar Singh as prayed by the petitioner in his application under section 319 Cr.P.C. is made out or not, this Court considers it appropriate to remand the case back to the Trial Court for passing a fresh order on petitioner's application under section 319 Cr.P.C. on merits after scrutinising the evidence of prosecution witnesses as to whether a case for summoning Bireshwar Singh is made out or not. In view of the foregoing, the impugned order of the trial court as well as that of the revisional court is hereby set aside. The case is remanded back to the Trial Court for passing a fresh order on the petitioner's application under section 319 of Cr.P.C. on merits. This petition is disposed of accordingly. ( S.N.Aggarwal ) Judge ppg