IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34409 of 2007 1. Nitesh Kumar Singh 2. Ranjit Kumar Singh 3. Randhir Singh All sons of Panna Lal Singh, resident of Village- Raton, P.S. Gogri, District- Khagaria --- Petitioners Versus 1. The State of Bihar 2. Mahesh Prasad Keshri, Son of Late Mahabir Prasad Keshri Resident of Village- Raton, P.S. Gogri, District-Khagaria ----------- Opp.Parties. ________ For the Petitioners : Mr. P.N.Kumar Singh, Advocate For the State : Mr.Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2: Mr.Basant Kumar Tripathy, Advocate. __________ O R D E R The three petitioners herein , although named as accused along with two others in the First Information Report of Gogri P.S. Case No.208 of 1995 registered under Sections 147,149,323,341 and 379 I.P.C., however, were not sent up for trial as they were not chargesheeted. Nevertheless, after two prosecution witnesses had been examined at the trial who purportedly deposed regarding the participation of these petitioners also in the crime, the informant filed a petition on 3.9.1998 under Section 319 Cr.P.C. with a prayer to summon these petitioners also to face the trial along with the two others already facing the trial which was finally allowed by order dated 1.2.2007 by Sri R.L.Sharma, Judicial Magistrate, First Class, Khagaria, after nine years. Aggrieved thereby the instant application for quashing of the said order. Admittedly, in sharp contradistinction to the provisions of - 2 - Section 190 Cr.P.C. Section 319 Cr.P.C. deals with a matter arising in course of a proceeding which has already been initiated. This situation is created when a court hearing a case against certain accused finds from the evidence adduced therein that some other persons, other than the accused before it, are also connected with that very offence. On the happening of such eventuality the court is empowered to proceed against such persons by summoning them to face the trial as additional accused along with those already facing the trial. In considering the scope and ambit of the expression “ the court may proceed against such person” as employed in Section 319 Cr.P.C. the Apex Court in Michael Machado Vrs. Central Bureau of Investigation, reported in (2000) 3 SCC 262 observed that the power is discretionary and should be exercised only to achieve criminal justice and that the court should not turn against another person whenever it comes across evidence showing connectivity of that other person with the offence. The Apex Court further observed that a judicial exercise is called for , keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then and also the time which the court had spent for collecting such evidence. In other words, while exercising the discretionary powers under Section 319 Cr.P.C. all relevant factors including the ones noticed in Michael Machado’s case (supra) have to be kept in mind and an order thereunder is not required to be made mechanically merely because some evidence had come on record implicating the - 3 - person sought to be added as an accused. It has to be kept in mind that there is no compelling duty on the court to proceed against other persons. Now coming to the merit of the instant case. Admittedly, the petition under Section 319 Cr.P.C. was filed by the informant and not the Public Prosecutor, on 3.9.1998 when only two prosecution witnesses had been examined and the said petition was disposed of after nine years on 1.2.2007 by which time, as would be evident from the impugned order, as many as five prosecution witnesses had been examined. Admittedly, the trial was proceeding on a police report and was being conducted by the State Prosecutor where the informant or his counsel had no role to perform save to assist the prosecutor. He could adopt the role of the prosecutor only after seeking his permission or misdemeanor on the part of the prosecutor was alleged. There is nothing in the petition filed by the informant to indicate that the prosecutor’s permission had been obtained before filing of the petition or that the prosecutor was guilty of misdemeanor or had misconducted himself. There is also nothing on record to show that a protest petition had been filed by the informant against the final form submitted by the police in respect of the petitioners herein. There is another aspect of the matter. Although the petition under Section 319 Cr.P.C. was filed only after the examination of two prosecution witness, the same was kept pending for various reasons. In the meantime the prosecution examined some more witnesses,i.e. - 4 - P.Ws 3 to 5 including the informant (P.W.5). Thereafter, the impugned order was passed after nine years. The reason for non- disposal of the petition for such a long period and proceeding with the recording of evidence has not been revealed. The Apex Court taking note of a similar situation observed in paragraph 14 in Michael Michado’s case ( supra) thus: “14. The court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4) that proceedings in respect of newly-added persons shall be commenced afresh and the witnesses re- examined. The whole proceedings must be recommenced from the beginning of the trial, summon the witnesses once against and examine them, cross examine them in order to reach the stage where it has reached earlier. If the witnesses already examined are quite large in number the court must seriously consider whether the objects sought to be achieved by such exercise are worth wasting the whole labour already undertaken. Unless the court is hopeful that there is a reasonable prospect of the case as against the newly brought accused ending in being convicted of the offence concerned we would say that the court should refrain from adopting such a course of action.” In the present case the exercise of examination of prosecution witnesses commenced from 7.6.1998. The charges framed were under Sections 323 and 341 I.P.C. The trial had dragged on for almost nine years before the impugned order was passed. - 5 - The learned court below, in my estimation, does not appear to have been alive to the guidelines laid down by the Apex Court and this Court while exercising powers under Section 319 Cr.P.C. In the aforesaid circumstances I am constrained to quash the impugned order and accordingly I allow the application. ( Abhijit Sinha, J ) Patna High Court,Patna Dated: the 16th April,2009 Nawal Kishore Singh/ A.F.R.