IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.36495 of 2008 ***** 1. Jitendra Prasad @ Jittan, Son of Deonandan Prasad 2. Ashok Prasad, Son of Late Lal Bihari Prasad 3. Awadh Prasad, Son of Late Chhotan Mahto 4. Nagmani Prasad, Son of Deonandan Prasad 5. Madan Prasad, Son of Late Kailash Prasad All resident of village- Bhauar, P.S. Kashichak, District-Nawada. …. …. Petitioners Versus The State of Bihar …. …. Opposite party ----------- 3. 6.5.2009. Petitioners want quashing of the order dated 21.5.2008 passed by the learned Additional Sessions Judge, F.T.C.-I, Nawada in Sessions Trial No.204 of 05/229 of 2005. By virtue of the powers conferred under Section 319 of Code of Criminal Procedure, the petitioners have been made accused and summoned to face trial. The short story of the prosecution is that on 26.7.2002 informant was on his way to the village Bhauar with his father. He asked his father to proceed to the village as he had to attend to a call of nature. When the father of the informant reached near what is known as Chuharmal Temple the persons named in the F.I.R. surrounded his father, started firing indiscriminately, which caused injuries and he fell down and later passed away. Based on the above statement Kashichak P.S. Case No.38/02 dated 26.7.2002 came to be registered under Section 302/34 of the Indian Penal Code read with Section 27 Arms Act. After investigation and based on the statement of the witnesses made to the investigating officer, final form no. 66/05 came to be submitted on 15.12.2005 against the petitioners. The final form has been brought on record as Annexure-3. Large numbers of other person - 2 - were sent-up for trial as would be evident from Annexure-3. As the trial was proceeding and many witnesses came to be examined a petition dated 9.1.2008 came to be filed on behalf of informant under Section 319 of the Code of Criminal Procedure, wherein he prayed before the Court that the present petitioners also needed to be tried for various substantive offences along with the other accused persons. Five of the witnesses examined by the Court have stated that all the six persons named in the petition had taken part in the incident which led to murder of Shailendra Mahto, father of the informant. The petition was taken-up by the Court of learned Additional Sessions Judge, F.T.C. and an order dated 21.5.2008 came to be passed after hearing the informant, the prosecution as well as the present petitioners. The order dated 21.5.2008 has been challenged under Section 482 of the Code of Criminal Procedure. Submission made at the Bar on behalf of learned counsel for the petitioners is that summoning these petitioners to face trial under Section 319 Code of Criminal Procedure is an abuse since most of the witnesses who have named six petitioners are basically hearsay witnesses and have contradicted themselves, in that view of the matter, there is hardly any material or evidence worth credence, based on which these petitioners need to be summoned under Section 319 Code of Criminal Procedure. Learned A.P.P. representing the State, however, submits that the power given to the Court under Section 319 Code of Criminal Procedure has been rightly exercised in the present case since evidence - 3 - has come during the course of trial where complicity of these petitioners in the crime is apparent therefrom. The primary object underlying Section 319 is that the whole case against all the accused should be tried and disposed of not only expeditiously but also simultaneously. Since the learned trial Court has stated the materials based on which its satisfaction exists about complicity of these petitioners to the crime then he has committed no wrong in summoning these petitioners to face trial. Learned counsel for the petitioners thereafter relies on two decisions rendered in the case of Awadhesh Kumar v. State of Bihar, 2007(1) )LJR 669 as well as the case of Anju Pathak v. State of Bihar, 2007(2) PLJR 832 for the proposition that the power under Section 319 should be exercised sparingly and primarily to advance the cause of criminal justice in absence of sufficiency of material. Person should not be casually summoned to face trial. There is no dispute with regard to the proposition laid down in the two decisions but the present case is not one of those cases where trial Court has examined the power in absence of any material or on the mere asking of the informant or the prosecution. When the trial has proceeded in the matter for a while witness after witness have come and stated about the complicity and participation of these petitioners and, therefore, there is primary material which has emerged. After all if the accused persons had been let off by the police for many a reasons they cannot enjoy its benefit based on the final form, even after evidence persistent and consistent have come on record during trial. The Court is of the opinion that there is no legal infirmity in - 4 - the impugned order and the application stands dismissed. Pawan/- (Ajay Kumar Tripathi, J.)