IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.18122 of 2008 MD.EHSAN AHMAD, SON OF LATE S.M. KAMALUDDIN, R/O MOHALLA- HAJISUJAN, P.S.KOTWALI, DISTRICT- MUNGER. …PETITIONER. Versus 1. THE STATE OF BIHAR. 2. BANO KHATOON, WIFE OF MD. SAMEED, R/O MOHALLA- HAJISUJAN, P.S. KOTWALI. DISTRICT- MUNGER, ….OPPOSITE PARTIES. ----------- For the Petitioner:- Mr. Shakil Ahmad Khan, Sr. Adv. Mr. Sajit Kalim, Khan, Adv. For the State: Mr. M. Dayal, A.P.P. 3/ 11.04.2011 Heard learned counsel for the petitioner, learned counsel for the State and also the learned counsel appearing on behalf of opposite Party No. 2. The petitioner challenges the order dated 9th of April, 2008 passed in Criminal Revision No. 63 of 2007, whereby the revision application filed by the petitioner was dismissed affirming the order dated 22nd of June, 2004 passed in G.R. Case No. 797 of 2003 issuing summons to the petitioner under Section 319 of the Code of Criminal Procedure. It is submitted on behalf of the petitioner that the aforesaid order dated 22nd of June, 2004 as contained in Annexure- 3, although it was against the petitioner however same was assailed by two other accused persons, namely, Md. Ekbal and Md. Wahab in a Criminal Revision No. 255 of 2004 before the Ist Additional Sessions Judge, Munger, whereby revision application was allowed and the aforesaid order dated 22nd of June, 2004 was set aside (Annexure 4). The complainant, namely, Bano Khatoon, assailed the aforesaid order passed in the aforesaid revision by filing a quashing application, vide Criminal Misc. No. 4808 of 2007 in this Court which was allowed by its order dated 28.02.2007 (Annexure-5) and the aforesaid order in Criminal Revision No. 255 of 2004 as contained in Annexure 4 was set aside with liberty to the petitioner to challenge the aforesaid order of the learned Magistrate issuing summons under Section 319 of the Code of Criminal Procedure as per its order dated 22nd of June, 2004 vide Annexure 3. Petitioner accordingly filed a Criminal Revision No. 63 of 2007, the same was dismissed by the Ist Additional Sessions Judge, Munger vide order dated 9th of April, 2008 the petitioner accordingly has assailed the aforesaid order by filing the present quashing application. It is submitted on behalf of the petitioner that in absence of any cogent evidence the person who was not charge sheeted could not be subjected to face trial. In fact resorting to the exercise of power under Section 319 of the Code of Criminal Procedure could be taken when cogent evidence has come on record warranting issuance of summons to any person for being tried together with the accused for the offence he appears to have committed. Learned counsel further submits that on perusal of the very initial order issuing summon vide order dated 22nd of June 2004, it would appear that the order does not show as to what was the evidences of the prosecution witnesses which necessitated the issuance of summons to this petitioner. Learned counsel appearing for the opposite party no. 2 has supported the aforesaid order, however, learned counsel appearing for the State submits that although the order dated 22nd of June, 2004 is not discussing the evidence which necessitated issuance of summon, however, there must be a evidence on the record for such recourse. Before appreciating the rival submission of the parties in order to consider the provision of Section 319 of the Code of Criminal Procedure, it is fruitful to quote below the said provision of law. “319. Power to proceed against other persons appearing to be guilty of offence- (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.” (2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. Considering the submissions of the parties and the above provision of law, I find that the submissions of the petitioner to the effect that the summons under Section 319 of the Code of Criminal Procedure could be issued provided there must be sufficient and cogent evidence on record justifying issuance of summons is well founded. In similar circumstances the Apex Court in a case of Krishnappa versus State of Karnataka as reported in 2005(1)PLJR-50 (SC) has held to the effect that the exercise of power for issuance of summons under Section 319 of the Code of Criminal Procedure code could be exercised sparingly and that too for very compelling reasons and not mechanically. Considering the discussion as above, in my opinion the order dated 22nd of June, 2004, as contained in Annexure 3, issuing of summons to the petitioner under Section 319 of the Code of Criminal Procedure could not be sustained in law. Accordingly, the aforesaid order as also the order dated 9th of April, 2008 passed in Criminal Revision 63 of 2007 affirming the order as contained in Annexure-3 stands quashed. The Criminal Miscellaneous application is accordingly allowed as above. Bhardwaj/- ( Shailesh Kumar Sinha,J.)