IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.51645 of 2007 1. BALESHWAR MANDAL, son of Late Govind Mandal 2. Devendra Mandal, son of Basudeo Mandal 3. Parmanand Mandal, sonof Shambhu Mandal 4. Kailash Mandal, son of Baleshwar Mandal All resident of village – Tilkari, P.S. – Sangrampur, District – Munger. 5. Ram Bilash Mandal, son of Biro Mandal, resident of village – Tetiya, P.S. – Sangrampur, District – Munger. ------------------------- Petitioners. Versus 1. THE STATE OF BIHAR 2. Kamleshwari Mandal, son of Late Bhikhari Mandal, resident of village – Tilkari, P.S Sangrampur, District – Munger. ------------------- Opposite Parties. ******** 7 28.04.2010 This application has been filed for quashing of the order dated 9th October, 2007 passed by learned Additional Sessions Judge, 1st, Munger, in Sessions Trial No. 215 of 2001, summoning all the five applicants in exercise of the powers under Section 319 of the Criminal Procedure Code. The short fact giving rise to this application is that on the fardbeyan dated 11.11.2000 of the opposite party no. 2, Sangrampur P.S. Case No. 91/2000 was instituted for the offences under Sections 302/307 of the Indian Penal Code with allied Sections against 17 persons including all the five applicants. As per case of the informant he along with Navin Mandal, Shamsher Mandal and Bhagwat Mandal was plowing his field suddenly 15 to 16 persons came out of their heeding 2 place starting assaulting them with deadly weapons having in their hands. Two persons Navin Mandal and Shamsher Mandal lost their lives and others including informant and his wife etc. were brutally assaulted. Informant has named miscreants including all the applicants one of whom applicant no. 5 Ram Bilash Mandal acted as ring leader and directed his associates to commit such wrong. After investigation police submitted charge sheet against some of the accused persons but kept investigation pending against the petitioners. After taking cognizance case was committed to the court of session where trial commenced and prosecution after examining two witnesses filed petition under Section 319 of the Criminal Procedure Code to summon the applicants also. The court below found materials against the applicants accepted the prayer simultaneously order issuing warrant of arrest against the applicants giving rise to the present application. Learned counsel for the applicant by assailing the impugned order submitted that powers under Section 319 Cr.P.C. is to be exercised with due care and caution and only having substantive materials against the proposed accused persons. In support of his contentions learned counsel placed his reliance on two Supreme Court decisions in cases of 3 Krishnappa Vs. State of Karnataka reported in 2005(1) PLJR SC 50 and Michael Machado and Another Vs. Central Bureau of Investigation and Another reported in 2000(3) Supreme Court Cases 262 besides three decisions of this court in (I) Mrigendra Prasasd Singh Vs. The State of Bihar and Ors. reported in 2006(1) PLJR 502 (II) Jagdish Yadav and Anr. Vs. The State of Bihar reported in 2007(2) PLJR 54 and (III) Anju Pathak Vs. State of Bihar reported in 2007(2) PLJR 832. There is no dispute in legal position that power to summon to an accused is an extra ordinary power conferred on the court and was to be used sparingly only if compelling reason exists to summon other accused persons not facing trial in judicial exercise. Keeping in mind, the entire conspectus of the case including the stage as with trial as to reach such power cannot be exercised merely on the ground that some evidence has come on record indicating the persons sought to be arraigned as an accused but, the entire conspectus of the case has to be seen. In the cases before the Apex Court and this court referred to above, the trial court refused to summon to persons proposed to be committed as an additional accused in the case before the Supreme Court in case of Michael Machado and Anr. Vs. Central Bureau of Investigation and Anr. Reported 4 in 2003(3) Supreme Court Cases 262 . The Application was filed after examining 49 witnesses on going trial had already arrived almost its fag end. Whereas in another case Krishnappa Vs. State of Karnataka reported in 2005(1) PLJR SC 50 before the Apex Court. Prayer was made after examining 17 witnesses. Prosecution witnesses and even statement of the accused persons facing trial under Section 313 of the Criminal Procedure Code. Almost similar was the position in the cases referred to above before this court. Wherein the prayer was made to summon some of the additional accused persons was ultimately turned down. But, so far as the instant case is concerned, the applicants are the persons named since beginning but, keeping the investigation pending against them charge sheet was submitted against reminders but case was committed to the court of session where trial commenced. The Sessions Judge is not empowered to summon any person other than the persons charge sheeted and committed to this court unless the trial commenced and some evidence is adduced and stage of Section 319 of the Criminal Procedure Code arrived. Section 319 of the Criminal Procedure Code reads as follows: Power to proceed against other persons appearing to be guilty of offence – (1) 5 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. In the instant case such stage arrived, two witnesses were not only examined but also cross examined by the accused facing trial. And as appears from the impugned order stated about the complicity of these five applicants one of whom is order giver also. The Apex Court in a case of Rakesh Vs. State of Haryana reported in 2001(3) Criminal Law Journal 3511 has clearly held that it cannot be said that the term ‘evidence’ as used in Section 319 Cr. P.C. would mean ‘evidence’ which is tested by cross examination. The question of testing the evidence by cross examination would arise only after addition of the accused and there cannot be a dispute that power under Section 319 Cr. P.C. is to be sparingly used. But, that would not mean that when a prosecution names three persons who were involved in such a serious crime are not to be added as accused by exercise of such power. 6 In the facts and circumstances of the aforementioned case, I find that there is no error in the order passed by the court below. Accordingly, this application stands dismissed. Rajeev/ (Akhilesh Chandra, J.)