IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20402 of 2009 1. KHUSDIL KUMARI. 2. NITU KUMARI BOTH DAUGHTER OF GAURI SHANKAR SINGH. 3. REENA DEVI, WIFE OF SANJAY SINGH 4. SHARDA DEVI, WIFE OF GAURI SHANKAR SINGH 5. SANJAY SINGH @ SANJAY KUMAR SINGH, SON OF GAURI SHANKAR SINGH ALL RESIDENT OF VILLAGE BARI SAIDRA, P.O. DARAULI, P.S. BHABHUA, DISTRICT KAIMUR.----- PETITIONERS Versus 1. THE STATE OF BIHAR. 2. KRISHNA DEVI @ KRISHNAWATI DEVI, DAUGHTER OF JAGDISH PRASAD SINGH, RESIDENT OF DHARAMPIPRA, P.S. JAGDISHPUR, DISTRICT BHOJPUR (ARA) ----- OPPOSITE PARTIES ----------- 2 5.10.2009 This application has been filed against the order dated 4.5.2009 by which the Sessions Judge, Bhojpur, Ara has summoned the petitioners to face trial under Section 319 of the Code of Criminal Procedure. The Sub-Divisional Judicial Magistrate, Ara by order dated 16.12.2008 rejected the application filed on behalf of the complainant to summon the petitioners under Section 319 of the Code of Criminal Procedure on the ground that the P.Ws. 1 and 5 who have named the petitioners, did so on the proxy of the advocate concerned. The other ground taken by the petitioners, which, in my opinion, is equally relevant is that although the petitioners were made accused in this case, no cognizance was taken against them and they were not sent up for trial whereas the husband and the father-in-law of the complainant were sent up to face trial. As per the order dated 16.12.2008 it appears that these five witnesses referred to by the Court below were examined before charge. However, it appears from the order of the Revisional Court that the witnesses were examined during the trial. Either way the 2 provisions of Section 319 of the Code of Criminal Procedure have to be read and understood by the Court before summoning the persons concerned to face the trial. The facts would reveal that the petitioners who are the sister-in-law, mother-in-law and brother-in-law of the complainant were made accused in the complaint case subsequently and as stated earlier cognizance was not taken against them. Later five witnesses were examined in this case out of which P.Ws. 1 and 5 have alleged that these petitioners have also made a demand of a motorcycle. P.W. 1 is a co-villager whereas P.W. 5 is the complainant herself. It would appear from the orders passed by the Court below and also from the evidence placed by the counsel appearing on behalf of the opposite party no. 2, which was read out in the Court, the names of the petitioners were taken on proxy by the counsel for the complainant. Section 319 provides and envisages that 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. The petitioners being named accused persons would not be liable to be summoned under Section 319 of the Code of Criminal Procedure which does not mean that they cannot be asked to face trial under any other provision of the Code of Criminal Procedure. Section 319 has been interpreted time and again by the Supreme Court, 3 wherein the Apex Court has held that a person who is named accused but has not been chargesheeted or against whom no cognizance has been taken would not come within the mischief of Section 319 of the Code of Criminal Procedure. Apart from the law which is clear on this issue, this Court also finds that the provisions of Section 319 of the Code of Crmininal Procedure have to be used sparingly and with discretion. In this case when the names have been instigated at the instance of the counsel, it cannot be said that it is the case in which the Court ought to have considered passing an order asking the petitioners to appear to face trial. In the result the order dated 4.5.2009 passed by the Sessions Judge, Bhojpur, Ara in Criminal Revision No. 17 of 2009 is quashed. This application is allowed. Sanjay (Sheema Ali Khan, J.)