IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.45256 of 2007 1. MANKESHWAR PRASAD BARNAWAL 2. Sanjay @ Sanjay Prasad Barnawal 3. Ramchandra Prasad 4. Bacha Prasad @ Bacha Prasad Barnawal 5. Chati Lal Prasad @ Tuntun Prasad Barnawal 6. Binay Kumar Barnawal @ Munna Prasad Barnawal ……… Petitioners Versus STATE OF BIHAR ----------- For the Petitioners : M/s Binod Kumar Singh and Niraj Kumar Sinha, Advocatres For the State : Mr Rajendra Nath Jha, APP ------- 2. 22.01.2009 Heard leaned Counsel for the petitioners and the learned Counsel for the State. The petitioners are aggrieved by the order dated 6.9.2007 passed in Sessions Trial No. 317 of 2003 pending before the Additional Sessions Judge (F.T.C. III) Siwan summoning them to face trial under section 319 Cr.P.C. Learned Counsel submits that the petitioners were one of the eight named accused in the FIR. The Police submitted chargesheet against two persons only, the other six persons not being sent up for trial. During deposition, the witnesses named the petitioners leading to their being summoned. It was lastly emphasized that the allegations are not corroborated by the injury report. With reference to the impugned order learned Counsel submits that the court below has recorded materials in the deposition with regard to the present petitioner no. 4 alone. In so far as the others are concerned there is no discussion of even any tentative material for the satisfaction of the magistrate based on deposition of their involvement in the episode when earlier they had not been sent up for trial. The submission was that summoning an accused under Section 319 Cr.P.C. was a serious matter not to be done mechanically but a power to be exercised with caution on basis of tangible materials on record. The impugned order does not record the material in the deposition of a prima facie finding of the reasons to summon other five petitioners. It only says that they are named in the FIR and all the witnesses have clearly stated the name of the accused persons in the alleged occurrence. This, according to the learned Counsel, shall not suffice. Counsel for the State opposed the application to submit that the Sessions Judge has adequately referred that other prosecution witnesses had also deposed with regard to the other petitioners. This Court finds no merit in this application in so far as petitioner no. 4 is concerned. The application is dismissed with regard to him. In so far as the other five petitioners are concerned this Court is in concurrence with the submissions of the counsel for the petitioners that the impugned order is required to record a prima facie finding of the nature of the materials against them in the deposition of witnesses leading to the requirement of summoning them under section 319 Cr.P.C. to face trial. In absence of the same this Court finds it difficult to sustain the impugned order in its present form. The application is therefore allowed with regard to petitioners 1 to 3 and 5 and 6. The matter is remanded to the court of Additional Sessions Judge (F.T.C. III) Siwan to pass fresh orders under Section 319 Cr.P.C. with regard to them. Let it be so done expeditiously. Snkumar/- (Navin Sinha,J.)