IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.44540 of 2006 1. Md. Kamaluddin khan son of Late Ahmedi, resident of village- Motha, P.S. Arwal district Jehanabad posted as Assistant Teacher, Urdu Primary School, Pyari, Jehanabad. 2. Jajjan Malik son of Late Azimul Haq, resident of village Kanasua, P.S. Kurtha, District Jehanabad at present residing at Mohalla Sheikh Alam Chak, Jehanabad. 3. Anwar Malik son of late Jamaluddin resident of mohalla Sheikh Alam Chak in town and district Jehanabad. 4. Nanhu Malik son of late Md. Naqui, resident of Mohalla Panchmahala in the town and district Jehanabad. 5. Md. Farooj Alam Malik son of late Azimul Haq, resident of village Kansua, P. S. Kurtha, District Jehanabad. 6. Akbar Hussain Malik son of late Wahidul Haq, resident of village- Bagwar, P.S. Telta, District Jehanabad. 7. Ebrar Malik son of late Shamshul Haq, resident of village Chikisi, P.S. Paliganj, district Patna. 8. Nadeem Malik son of Ebrar Malik, resident of village Chikisi, P.S. Paliganj district Patna at present residing at Mohalla Sheikh Alam Chak, P.S. and District Jehanabad. 9. Pappu son of Yunus Mian, resident of mohalla Sheikh Alam Chak, P.S. and district Jehanabad. … Petitioners Versus 1. STATE OF BIHAR 2. Md. Mojibuddin s/o late Imam Ali, resident of village + P.S. Shakurabad, District Jehanabad. .. Opp. parties. ----------- 10. 19.02.2010 Heard learned counsel for the petitioners and learned counsel for the State. Despite service of notice to opposite party no.2, the complainant-cum- informant, no one has appeared on his behalf. Counsel for the petitioner while assailing the impugned order dated 3.8.2006 passed by the court below in exercise of power under Section 319 Cr.P.C. has submitted that no evidence was adduced prior to passing of 2 the impugned order and in fact such order came to be passed only on the basis of a petition filed by the informant. Counsel for the State after perusing the record is not in a position to controvert this position on fact. Once this position has become clear that no evidence was adduced and the court below had exercised its power under Section 319 Cr.P.C. only on an application of the informant, it has to be held that the order cannot be sustained inasmuch as section 319 Cr.P.C. itself provides inter alia: “…..in the course of any enquiry into, or trial of, an offence when it would appear from the evidence that any person not being the accused has committed any offence, he could be tried with other accused and for that he may be summoned to the court to face trial ….” As noted above, in this case no such evidence had ever come into existence and the application filed by the informant can definitely not be held to be evidence. That being so, the impugned order is 3 wholly unsustainable in law and is hereby set aside. The application is, accordingly, allowed. kanchan (Mihir Kumar Jha, J.)