IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.40222 OF 2009 HARENDRA RAI, SON OF LATE BHUPNARAIN RAI, RESIDENT OF VILLAGE SIKATI, POLICE STATION MASHRAKH, DISTRICT SARAN VERSUS THE STATE OF BIHAR ********** 2 23/02/2010 Heard learned Counsel for the petitioner, the informant and the A.P.P. appearing on behalf of the State. The petitioner is aggrieved by the order dated 17.01.2009 passed in Criminal Revision No. 221 of 2005 by which the 1st Additional Sessions Judge, Chapra had reversed the order dated 20.08.2005 passed by the Judicial Magistrate, 1st Class, Chapra in Trial No. 646 of 2005/204 of 2009. An application was filed under Section 319 of the Code of Criminal Procedure to ask the petitioner to appear and to face the trial as it has come in the evidence of PWs 1, 2 and 3 that he had also participated in the alleged offences. Learned Counsel for the petitioner submits that PW 1 is not the eye-witness of the alleged occurrence and he relies on the evidence of several other persons including one Bachcha Mal. PW 2 Bachcha Mal has stated that Harendra Rai was present at the time of the occurrence and he was responsible for cutting the 2 tree. However, he has also stated that Harendra Rai is the GOTIA of the informant, although it appears that both of them belong to a different caste. Secondly, he had stated that he had not seen the occurrence. In the cross-examination, PW 3 does not state anything with respect to the petitioner. The power under Section 319 of the Code of Criminal Procedure has to be exercised only if the Court is convinced that a prima facie case is made out against the person who has to face trial. In a case of this nature and considering the evidence that has come on record, there appears to be absolutely no possibility that the petitioner can be convicted on the evidence which has come on record. In such a case, it is not proper that the Court should exercise its power us 319 of the Code of Criminal Procedure. I therefore, quash the impugned order dated 17.01.2009 and direct the Trial Court to expedite the trial. This application is allowed. Anand ( Sheema Ali Khan, J.)