1 IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.10815 of 2008 BINA KUMARI @ BINA DEVI Versus STATE OF BIHAR ----------- 02 23.04.2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is aggrieved by the order dated 31.1.2008 of the Judicial Magistrate, Sitamarhi in T.R. No. 30 of 2007/213 of 2008, summoning her to face trial under Section 319 Cr.P.C. The petitioner was an accused along with her husband and 15-20 unknown. No overt role except her presence was alleged. During trial four prosecution witnesses deposed that she had a digging instrument (khanti) in hand and was exhorting others to break the drainage. This has led to the impugned order. The submission is that the deposition was but only an embellishment. No overt act is attributed to her. The power under Section 319 Cr.P.C. was to be exercised with caution and not for the asking. The power under Section 319 Cr.P.C. is very wide. But it is required to be exercised with the same amount of circumspection and carefulness. The object of Section 319 Cr.P.C. is to ensure that no guilty is 2 allowed to go free. But it shall not be interpreted in a manner to summon one and all for purposes of facing trial, specially when they were not sent up by the Police, which came to be accepted by the court. To invoke Section 319 Cr.P.C. There has to be a something more tangible and positive attributing a positive role, only supplementing the original allegations, nothwithstanding which the Police may not have sent up the accused for trial. Each case shall therefore depend on its own facts. In the present case the petitioner was named in the First Information Report. There was no allegation of her being possessed with any instrument much less of having spoken any words. On the contrary, the allegations were that she was simply one of the three named accused along with 15 to 20 unknown, who broke the drain in presence of the Chowkidar. The impugned order does not even contain any discussion of the nature of the evidence deposed by the Chowkidar, a witness different from the parties to the dispute. This Court is, therefore, satisfied that the impugned order dated 31.1.2008 summoning the petitioner under Section 319 Cr.P.C. is not sustainable, it is accordingly set aside. 3 The application stands allowed. P.K. ( Navin Sinha, J.)