IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3090 of 2010 RAM NARAYAN SAH & ORS Versus THE STATE OF BIHAR & ANR ----------- 3. 19.7.2010 Heard Shri Farooque Ahmad Khan, learned counsel for the petitioner, Shri Kanhaiya Prasad Singh, learned Senior counsel appearing for the informant and also Shri Binod Kumar No.2, learned A.P.P. for the State. The petitioners are aggrieved by the order dated 2.12.2009 passed by the Fast Track Court No. 7,Sitamarhi, in Sessions Trial No.550 of 2007 by which they have been summoned under Section 319 Cr. P.C. after examination of five witnesses, as may appear from the impugned order which discusses the evidence at its page 3. While assailing the order, a decision of the Supreme Court rendered in Brindaban Das and Ors. Vs. State of West Bengal reported in (2009) 2 S.C.C. 79 was cited before me which judgment appeared passed after considering other decisions rendered by the Supreme Court right from Municipal Corporation of Delhi Vs. Ram 2 Kishan Rohtagi and Ors. reported in A.I.R. (1983)1 S.C.C.1 to Michael Machado V. C.B.I. reported in (2000) 3 S.C.C. 262. Stress has been laid, specially, on the observations of the Apex Court in paragraph 27 of the decision which I am tempted to quote which is as under: “The fulcrum on which the invocation of Section 319 Cr. P.C. rests is whether the summoning of persons other than the named accused would make such a difference to the prosecution as would enable it not only to prove its case but to also secure the conviction of the persons summoned.” Learned Senior counsel for the informant has placed the facts of the case by referring to the part of the discussions in the impugned order on the evidence which was adduced before the trial court and as per the submission and as per the order impugned herein, the lady was subjected repeatedly not only to mental torture but physical also as a result of which she got aborted. It was contended that the materials were sufficient indicating not only the complicity of the accused persons, like, the petitioners and others, but also the quality of evidence indicated as if 3 they had also committed the offence and they may be guilty of that. This Court does not want to go into the question as to when and under what circumstances the trial court may act under Section 319 Cr.P.C. That discussion appears already made in extenso in the decision cited before me which was rendered in Brindaban Das and ors. It is true that in the case of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi & ors. the Supreme Court, for the first time, after considering the issue before them, pointed out that it was an extraordinary provision to empower the court to summon the person and the same provision be used very sparingly. As regards the material on which jurisdiction could be exercised by a court, it is too well known to be pointed out that no other material than the evidence which has been recorded during the trial could be looked to for basing an order under Section 319 Cr.P.C. The court which is required to act under Section 319 Cr.P.C. has not to consider as to how to marshal the facts as also not to consider the defence, it has 4 simply to consider the evidence recorded during the trial for summoning a person under Section 319 Cr. P.C. The learned trial Jude has read the evidence and has discussed it for the purpose, as is desired to be discussed, at page 3 of the impugned order and considering that I find that the order could not be such as could be giving rise to any inference that it could be a sheer abuse of the process of the court. I do not find any merit in the present petition. It is dismissed. Kanth ( Dharnidhar Jha, J.)