IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2938 of 2011 1. Ram Krishna Duvedi son of Sidh Nath Duvedi. 2. Sri Bhagwan Duvedi son of Sidh Nath Duvedi. 3. Shashi Kant Duvedi son of Sidh Nath Duvedi. Petitioner 1 to 3 are resident of village Dihpura P.S. Nawanagar District- Buxar. 4. Gupteshwar Upadhayay son of Late Jag Narayan Upadhayay resident of Village Kamdharpur. P.S. Koran Sarai, District-Buxar. 5 Mohan Ojha son of Bansh Ropan Ojha, resident of Village Civil Line Buxar P.S. Buxar(T) District Buxar Versus 1. The State of Bihar. 2. Vijay Shankar Tiwary Son of Sri Ganesh Tiwary, resident of village Bairee, P.S. Itarhi District-Buxar. ----------- For the Petitioner:- Mr. Anil Kumar Roy, Advocate. For the State:-Mr. Jharkhandi Upadhaya, Advocte. ------------------------------ 2 30.03.2011 The present Miscellaneous petition seeks the setting aside of order passed by the learned Sessions Judge, Buxar in Criminal Revision No. 67 of 2010 on 02.11.2010 by which the order passed by Shri A.K. Pandey, Judicial Magistrate 1st Class in Complaint Case No. 586(c) of 2006, Trial No. 149 of 2009 was set aside and a direction was issued to the Magistrate to re- hear the petition filed before him under Section 319 Cr. P.C for summoning the petitioners by the complainant. On perusal of the two orders, i.e., the first passed by the learned Sessions Judge and the other passed by the learned Magistrate in the above noted complaint case on 17.2.2010, what appears to this Court is that the Magistrate requires some guidance as is simply appears not having consulted the provisions of Section 319 Cr. P.C so as to rejecting the petition 2 filed before him on 3.7.2009 by the complainant for summoning the petitioners. On perusal of the order passed by the learned Magistrate, it appears that he has passed an unnecessarily long order running into nine handwritten pages and that order takes into account the individual evidence of the witnesses, the contradictions appearing in the evidence of both the witnesses and further the defence, which could be set up by the accused at the appropriate stage of trial. It may be pointed out that the order which is required to be passed on a petition under Section 319 Cr. P.C never allows the Court to go beyond the evidence of witnesses which indicates that some persons other than the accused on trial also appears to have committed some offence. There is no further material to be considered and the evidence of witnesses who have been examined during the trial of the case is only the material to be considered. No defence has to be considered and no marshaling of facts has to be done so as to reading the contradictions and then judging the probabilities so as to drawing the inference on proof of charges. It is an enabling provisions to summon an accused who might not have been sent up for trial who during the course of the trial on the basis of the evidence recorded therein, appears also having committed an offence. It might be true that on summoning an accused under Section 319 Cr. P.C the consideration may be sometime different 3 from that which is at the stage of passing an order under Section 204 Cr. P.C on concluding the enquiry under Section 202 Cr. P.C but the basis could not be otherwise than the evidence of witnesses who have been examined during the trial of persons other than the one who is sought to be summoned as an additional accused. The learned Magistrate has considered the defence also and he was recording that one of the accused who was sought to be summoned by the petition filed on 7.3.2009 under Section 319 Cr. P.C had filed a criminal case one month prior to the filing of the application and, as such, the intent and purpose of filing the petition under Section 319 Cr. P.C was malicious. I have already indicated that the prospective defence and the accusation has no relevance as regards hearing and disposing of the petition under Section 319 Cr.P.C. The Court has only to consider the evidence of the witnesses recorded during the trial to find out whether on that basis the persons sought to be summoned also appears to have committed the offence. However, if the Court finds that the summon is sought after inordinate delay, especially when the trial has traveled almost to conclusion, then in that case the court may be justified in not acting on the petition and, thus, to refuse summoning such an accused. On consideration of the orders passed by the learned Magistrate as also by the learned Sessions Judge, this Court 4 finds that the order passed by the learned Sessions Judge was perfectly within the four walls of law and, as such, there is no merit in the present petition, which is dismissed. Anand Kr. /Prakash ( Dharnidhar Jha, J.)