IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.687 of 2007 1. Braj Nandan Singh, son of Late Mahabir Singh 2. Kameshwar Singh, son of Late Satya Narayan Singh. 3. Tunna Singh, son of Kameshwar Singh (All residents of village-Kurwa, Jahangirpursam, P.S.- Desari, District-Vaishali) Versus 1. The State Of Bihar. 2. Raghunath Sah, son of late Heera Sah, resident of village- Jahangirpursam, P.S.-Desari, District- Vaishali. ----------- 7. 12.09.2011 The accused petitioners have preferred this revision application against the order dated 12.01.2007 passed by the learned Additional Sessions Judge, F.T.C.III, Hajipur in S.Tr.No.314/05 by which the petition under Section 319 Cr.P.C. has been allowed and the petitioners have been summoned for facing trial. The prosecution case, in brief, is that on 21.08.2001 Dipak Kumar, nephew of the informant has gone to collect the dues of cement and iron rod. He did not return till evening, even after search, he could not be traced out. Thereafter the informant gave written information to the police and Bidupur P.S. Case No.201/01 was instituted against the accused under Sections 364A, 379 and 120B of the I.P.C. During investigation, the petitioners were arrested and they were allowed bail. After investigation, 2 the police submitted final form exonerating the accused petitioners from the case saying that the petitioners have been falsely implicated in the case by the informant due to previous enmity. The final form was accepted by the learned Magistrate. Cognizance was taken and the charge- sheet was submitted against the other accused not the petitioners. The case was committed to the Court of Sessions. Later on, it was transferred to the court of Additional Sessions Judge, FTC III as S.Tr.No.314/05. During trial, four witnesses have been examined and thereafter a petition was filed on behalf of the prosecution under Section 319 Cr.P.C. that there is evidence against the accused petitioners. As such, they may be summoned for facing trial, which has been allowed vide the impugned order and these petitioners have been summoned. The learned counsel for the petitioners submits that the petitioners were named in the FIR. After investigation, final form was submitted by the police holding the accused petitioners innocent and other accused were charge sheeted. The learned C.J.M accepted the final form and took cognizance against the charge-sheeted accused not the petitioners and the case was committed to the Court of 3 Sessions. Since the petitioners were discharged by the learned Chief Judicial Magistrate, the petitioners cannot be summoned under Section 319 Cr.P.C. In support of his contention, he has relied upon a decision in the case of Shambhu Singh Versus State of Bihar and anr. reported in 2000(2) PLJR 784. The learned counsel for the State as well as opposite party no.2 has submitted that under the provisions of Section 319 (1) Cr.P.C., the learned Magistrate is empowered to issue summons to the persons against whom evidence has been adduced to show that they have committed offence. In this case during the trial of other accused, four witnesses have been examined. During their examination, it has come to the notice of the learned trial court that the accused petitioners have also participated in abducting the victim Dipak Kumar and for asking the ransom. The victim Dipak Kumar also named the accused Tuna Singh for abducting and demanding the ransom. The learned trial court has found sufficient material on the record to issue summons against the accused petitioners for the offence punishable under Sections 364A/120B of the I.P.C. As such, no interference is required by this 4 Court. After hearing the learned counsels for both the parties and on perusal of the materials on record, it appears that the contention of the opposite parties is correct. It further appears that the petitioners were named in the FIR. They were no sent up for trial, whereas, other accused were sent up for trial. During trial, four witnesses have been examined. From their evidence, the learned trial court has found that the accused petitioners have also participated in the offence. As such, they have been summoned under Section 319 Cr.P.C. In the case of Shambhu Singh (Supra), it appears that he was named in the FIR as one of the accused. After investigation, charge- sheet was submitted against the other accused and the Shambhu Singh was not sent up for trial. Charge-sheet was placed before the learned C.J.M, who took cognizance of the offence against the persons named in column 4 of the charge-sheet and after perusal of the charge-sheet; he discharged the accused Shambhu Singh named in column 2 of the charge-sheet. Since he found that the charge-sheet was not submitted against him and he was not sent up for trial. After the cognizance, case was committed to the 5 Court of Sessions, which was transferred to the Court of 2nd Additional Sessions Judge, Saran at Chapra as S.Tr.NO.486/92. The Public Prosecutor filed a petition under Section 319 Cr.P.C. before the learned trial court to summon the accused to stand his trial with other accused, but summoned the accused after perusing the case diary and the FIR although till the date of passing of the order by the learned Additional Sessions Judge no evidence at all of the prosecution was recorded before the learned trial court, whereas, in the case in hand, four witnesses have been examined and after considering a prima-facie evidence that the accused petitioners are also involved in this case and therefore, the summons have been issued against them under Section 319 Cr.P.C. It is better to quote the paragraph 12 of the aforesaid judgment. “I will next proceed to discuss the contention raised on behalf of the petitioner that the impugned order could not have passed without recording any evidence by the trial court. In this connection a reference may be made to Section 319 of the Code itself whose sub-section (1) runs as follows:- 6 “319(1)- Where in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed”. A bare reading of this sub-section will clearly show that before the order under section 319 of the Code can be passed some evidence during the enquiry or trial has to be adduced before the trial court without which no such order summoning any person under section 319 of the Code can be passed. In this connection a reference may be made to the case of Ranjit Singh vs. State of Punjab (1998)7 SCC 149). In this case it was held that the session court cannot summon any person under section 319 of the Code prior to evidence collection stage. Before any person can be summoned under section 319 of the Code there must be some evidence adduced before the Sessions Court. Thus, the law on this point has 7 been very clearly laid down by the Hon’ble Supreme Court in this decision in which a reference has also been made to another case from Patna, namely, Raj Kishore Prasad vs. State of Bihar & another (1996)4 SCC 495 : 1996 (2) PLJR (SC) 123) in which it has been held that the court of session can exercise the jurisdiction under section 319 of the Code only on the basis of the evidence recorded by it”. This judgment does not help the petitioner rather it supports the impugned order. Considering the facts and circumstances stated above, I do not find any ground to interfere with the impugned order. This petition is dismissed. I.A.No.970/07 also stands disposed of. V.K. Pandey ( Amaresh Kumar Lal, J.)