IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.19067 of 2007 SHIV SARAN SAH, S/o Yotendra Sah, R/o Lalbandi Tola, Hanuman Nagar, P.S. Sonbarsa, District – Sitamarhi …….. Petitioner Versus 1. STATE OF BIHAR 2. Dashrath Pandit, S/o Gena Pandit, R/o Lalbandi Tola, Hanuman Nagar, P.S. Sonbarsa, District – Sitamarhi ……. Opp. Parties ----- For the petitioner : Mr. Dinesh Jha, Advocate For the State : Dr. Maya Nand Jha, A.P.P. ----------- O R D E R This application by one of the F.I.R . named accused of Sessions Trial No. 102 of 2000 arising out of Sonbarsa P.S. Case No. 46 of 1997 against whom no chargesheet was submitted for ten years even as the Sessions as against the others was proceeding, is for the quashing of the order dated 21.11.2006 passed in the said Sessions Trial by the learned Presiding Judge, Fast Track Court No. IV, Sitamarhi, whereby he has summoned the petitioner and two others as additional accused to face the trial along with that other already facing the trial under the provisions of section 319 Cr.P.C. It appears that the aforesaid Sonbarsa P.S. Case was registered under sections 302, 201, 420, 467, 468, 471 and 120B IPC against the four F.I.R. named accused including the petitioner on the basis of a written report dated 4.8.1997 submitted by one Dasrath Pandit, impleaded herein as O.P. No. 2, which was in respect of an occurrence which purportedly took place on 29.7.1997. - 2 - It appears that police after due investigation submitted a chargesheet only against accused Brij Kishore Sah showing investigation pending against others named in the FIR and even after a lapse of 10 years no chargesheet appears to have been submitted against the petitioner. The accused against whom chargesheet had been submitted was put on trial wherein the witnesses named the petitioner as having participated in the occurrence and on the basis thereof a petition under section 319 Cr.P.C. was filed by the prosecution to summon this petitioner and two others to face the trial which was allowed by the impugned order. The improbability and impossibilities of the prosecution story as sought to be propounded by the learned counsel for the petitioner unfortunately is his defence and the veracity or otherwise thereof cannot be tested at this stage. From the impugned order of the Sessions Court it appears that P.W 1 Ram Pratap Pandit , P.W. 3 Laldeo Rai, P.W. 4 Bindeshwar Rai, P.W. 9 Nagendra Pandit, P.W. 10 Ram Bilas Baitha and P.W. 12 Dasrath Pandit have stated about the involvement of all the FIR named accused in the commission of the offences and the learned Trail Court for the ends of justice summoned three remaining accused including the petitioners under section 319 Cr.P.C. to face the trial separately after their appearance. The provisions of Section 319 Cr.P.C. comes into - 3 - operation at the post cognizance stage when it appears to the court from the evidence recorded at the trial that any person other than those named as offenders appears to have committed any offence in relation to the incident for which the co-accused are on trial. The basic requirement for invoking the provisions of Section 319 Cr.P.C. is that it should appear to the court from the evidence collected during trial or in the inquiry that some other person who is not arraigned as an accused in that case has committed an offence for which that person could be tried together with the accused already arraigned. The court is required to have reasonable satisfaction from the evidence already collected regarding two aspects, namely, that the other person has committed an offence and that for such offence that other person could be tried along with already arraigned accused. Gainful reference for the purpose may be made to the decision of Michael Machadeo Vs. The Central Bureau of Investigation, reported in (2000)3 SCC 262. Sub sections (1) and (2) of Section 319 Cr.P.C. provides for a situation when a court hearing a case against a certain accused person finds from the evidence that some person or persons other than accused before it, is/are also connected in the very offence or any connected offence; and empowers the court to proceed against such person or persons for the offence which he or they appears to have committed and to issue process for the purpose. For the purpose it is not necessary for the court to wait till the entire evidence is collected for exercising the said powers. - 4 - In the instant case even as the investigation was pending in respect of the petitioner and two others the trial of Brij Kishore Sah was taken up and as many as 12 witnesses had been examined out of whom six witnesses have deposed in respect of the participation of the petitioner and two others in the said crime. In Jogender Singh Vs. State (AIR 1979 SC 339) it was held that he expression “any person not being an accused” includes a person who has been dropped by the police during investigation and against whom the evidence comes before the court that he is also involved in the offence. Then again in Municipal Corporation Vs. R.K.Rohtagi (AIR 1983 SC 67), it was held by the Apex Court that the accused person against whom proceedings have been quashed is also a person “not being the accused” and the court can take cognizance against him and try him along with the other accused if the prosecution produces evidence and the court is satisfied about his involvement in the alleged offence. In view of the categoric findings of the Apex Court, referred to above, I find no apparent illegality or impropriety in the impugned order passed by the learned Presiding Judge, Fast Track Court No.IV, Sitmarhi, summoning the petitioners under Section 319 Cr.P.C. Accordingly, there being no merit in this application, the same is dismissed. Patna High Court, Patna. Dated : The 6th of May, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)