IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.38326 of 2009 KESHO YADAV . Versus STATE OF BIHAR . For the Petitioner : Mr. Zeyaul Hoda, Adv. For the State: Parmeshwar Mehta (A.P.P.) For O.P. No.2 : Mr. Ashawani Kr. Sinha, Adv. ----------- 5/ 30/03/2010 Heard learned counsel for the petitioner and learned counsel for the State as also for O.P. No.2. The petitioner is aggrieved by the order dated 15.10.2009 summoning him to face trial under Section-319 Cr.P.C. Learned counsel for the petitioner submits that though the petitioner was named as one of the eleven accused in the F.I.R., no overt act of assault was attributed to him. The police submitted charge- sheet against others when the petitioner was not sent up for trial which came to be accepted. There is no justification for summoning him under Section-319 Cr.P.C. as the petitioner was only a member of the mob and there is no overt act attributed to him. Learned counsel for the opposite parties opposed the application. What may or may not have been recorded under Section-161 Cr.P.C. during investigation is not relevant when the court exercises its powers under 2 Section-319 Cr.P.C. during trial after consideration of the statement of witnesses made in court. True it is that the power under Section-319 Cr.P.C. has been described as an extra ordinary power not to be exercised lightly, but the exercise of this power shall necessarily depend on the facts and circumstances of each case and the nature of materials that transpire. The petitioner is alleged to have been a member of an unlawful assembly. That is not being denied by the petitioner. His defence is of no overt act. When a person is a member of an unlawful assembly or commits an act with common intention, he may not be convicted under the principal section, but may at the same time be convicted with the aid of the latter section of his involvement with common intention or as a member of an unlawful assembly. The impugned order notices from the deposition of P.W.No.2 to P.W.No.7 the overt act attributed to the petitioner of assault also observing as follows:- “ The prayer of summon against the accused Kesho Yadav is also considered and it was admitted by the learned counsel of the defence that P.W.2 to P.W.7 have deposed his named in their examination-in-chief with specific allegation against him that he also 3 caused assault with piece of brick at the time of occurrence on informant and his brothers and, therefore, both the learned counsel appearing on behalf of defence did not oppose seriously to this prayer of the prosecution that accused Kesho Yadav be also summoned to face the trial in this case.” In that view of the matter, this Court finds no merit in this application. It is accordingly dismissed. KC/ ( Navin Sinha, J.)