IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.32989 of 2008 1. ONKAR SHARMA son of Prakash Singh 2. Chandan umar alias karu son of Ram Kishore Sharma both residents of village Auray Tola Beldariya, P.S. Lakhisarai,, Dist.Lakhisarai …….Petitioners. Versus STATE OF BIHAR & ANR ----------- 5 09.11.2009 Heard Mr. Gourang Chaterjee learned counsel appearing for the petitioners, Mr. Deepak Sahay Jamuar learned counsel appearing on behalf of O.P. no.2 and Mr. Jharkhandi Upadhayay A.P.P .appearing for the State. Petitioners have assailed the order dated 21.01.08 by which Karu Singh and Onkar Singh have been summoned under section 319 of the Code of Criminal Procedure to face trial under sections 307, 324 of the Indian Penal Code and 27 of the Arms Act. These two persons were named in the first information report and it was alleged that they along with accused Manish Kumar were equally involved in committing the said crime. Learned counsel for the petitioners submits that the application has been filed after much delay and there is no fresh material on record to summon the accused persons to face trial in this case. Learned counsel for the petitioners relied upon a decision in the case of Michel Machado V. C B I reported in 2000(3) SCC, 262. The facts of this case are that a criminal trial against four accused persons had reached the stage where 49 witnesses were examined by the Metropolitan Magistrate, when a prayer was made to add two more persons as accused in the case. It would mean that a denovo trial would commence. Metropolitan Magistrate held that the two newly added accused persons should also be tried in the case. Against the order of the - 2 - Metropolitan Magistrate the petitioner, that is, Michel Machado filed a case before the Bombay High Court. Bombay High Court did not interfere with the order and directed that the affected person could approach the trial court and pray for discharging them from the case. The matter thus went up to the Supreme Court. The Supreme Court held that 49 witnesses who were examined in the case did not utter a single word against any of the newly added accused persons. It was only the last three witnesses examined in the case who referred to the role played by the petitioner during the occurrence to make out a case under section 120 (B) of the Indian Penal Code against the newly added accused. The Apex Court held that the basic requirement for invoking section 319 of the Code is that it should appear to the court from the evidence collected during trial or any enquiry, that a person who is not arrayed as an accused in that case, has committed an offence for which that persons could be tried together with the accused already arrayed. The court while deciding whether to invoke power under section 319 of the Code must consider the other condition imposed by sub-section 4 of section 319 Cr.P.C. which could require that the trial would commence afresh as witnesses would need to be re-examined. The Court held that if witnesses already examined are quite large in number the court should consider whether “the objects sought to be achieved by such exercise are worth wasting the whole labour already undertaken. Unless the court is hopeful that there is reasonable prospect that the newly added accused would be convicted it should refrain from adopting such a course” - 3 - In the present case P.W.1 was examined on 29.3.2001, P.W.2 was examined on 1.6.2001, P.W.7 was examined on 13.3.2001 and P.W.9 was examined on 5.7.07. The application under section 319 Cr.P.C. was filed shortly after examination of P.W.9 on 14.10.07. All the aforesaid witnesses have stated that the petitioners were present along with Manish who fired on the informant. Therefore, when all the witnesses have consistently stated the involvement of the newly added accused persons in the occurrence, the court below was quite justified in issuing summons under section 319 to Karu Singh and Onkar Singh . All that is required to be done by the court is to give an opportunity to newly added accused to cross-examine the witnesses. Therefore, power under section 319 Cr.P.C. is to be exercised considering the facts of the case, the stage when the application was made and consider whether there is any chance of conviction of the person sought to be summoned. In the circumstances I find that the petitioner’s case is distinguishable to the case cited by the counsel for the petitioners. I do not find any merit in the case filed before this Court and any anomaly in the impugned order; as such this application is dismissed. (Sheema Ali Khan, J) M.Rahman (AFR) - 4 -