IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.500 of 2009 MD. SHAMSE ALAM, SON OF LATE SIRAJUL HAQUE, RESIDENT OF VILLAGE JOKHA TIHA, P.S. MANJHOULIA, EAST CHAMPARAN …PETITIONER Versus STATE OF BIHAR …OPPOSITE PARTY ----------- 04. 14.07.2010 Heard both sides. The petitioner who is facing the charge of committing an offence punishable under diverse sections of the Penal Code including section 302, made an application before the trial court (S.Tr.No.523/2004/918/2004) on 10.11.2008 for summoning another police personnel, namely, Abhay Kumr Singh to stand trial. The aforesaid Abhay Kumar Singh during the relevant time was posted as officer-in-charge of Digha police station. Learned trial court, on a consideration of materials placed before it and after hearing both sides, declined to allow the said application. The petitioner is aggrieved by the aforesaid order. It appears that the present trial was taken up in the year 2004. As many as 32 prosecution witnesses have already been examined on behalf of the prosecution. Thereafter defence witnesses are being examined. Learned counsel for the petitioner submits that 15 defence witnesses have also been examined in this case. According to him, the last prosecution witness was examined in the present case on 25.04.2008. There is no dispute that an application under section 319 Cr.P.C. can be maintained by another accused who is facing the trial. - 2 - The submission is whether there is sufficient evidence on record justifying summoning of the aforesaid person to stand trial in the present case. It is to be noted here that aforementioned Abhay Kumar Singh was duly produced by the prosecution (C.B.I.) as P.W.17 and earlier examined. Law is settled that order on an application u/s 319 of the Code has to be passed with great care and circumspection and in a very sparing manner. The delay involved in seeking such order under section 319 Cr.P.C. is also a relevant consideration. It appears from the record that on 25.04.2008, the last prosecution witness was examined. Seven months thereafter the present application was filed by the petitioner who is facing trial. Learned trial court on a consideration of materials on record, has found as under in the last paragraph of the impugned order: “I have gone through the record including the evidence. Abhay Kumar Singh is not named in the F.I.R. nor has any allegation been attributed against him in the written report. The only allegation is against the other accused persons and the police of Shastrinagar p.s. None of the witnesses has specifically named Abhay Kumar Singh to have participated or abetted the commission of offence. The prosecution has examined Abhay kumar as P.W.17. The power u/s 319 Cr.P.C. should be used sparingly and only if compelling reasons exist. Thus on considering the evidence I find no ground to summon Abhay Kumar Singh as an accused u/s 319 Cr.P.C. Accordingly the prayer for summoning him u/s 319 Cr. P.C. is refused.” Regard being had to the findings of the trial court and also keeping in view the fact that such an application was - 3 - filed at a very belated stage, this Court is not inclined to interfere with the order impugned. The application is accordingly dismissed. hr ( Kishore K. Mandal )