IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.41424 of 2007 RAJENDRA YADAV, SON OF DEOLAL YADAV, RESIDENT OF VILLAGE-NADIYAWAN, POLICE STATION-GURUA, DISTRICT- GAYA………………………………………………………...PETITIONER. Versus THE STATE OF BIHAR……………………………OPPOSITE PARTY. ----------- 5. 18.12.2008. Heard Mr. Ashraf Anjum, the learned counsel for the petitioner and Sri Jharkhandi Upadhyay, the learned A.P.P. for the State. The petitioner has prayed for the quashing of the order dated 26.7.2007 passed by the learned Presiding Judge, Fast Track Court No.I, Gaya, in Sessions Trial No.367 of 2007/364 of 2004, whereby he has been summoned under the provisions of Section 319 Cr.P.C. to face the trial alongwith the other accused already facing the trial. It has been submitted by the learned counsel for the petitioner that although he was named in the F.I.R. , police did not submit a chargesheet against him and even the learned Chief Judicial Magistrate while taking cognizance did not take any cognizance against him. It has further been submitted that although there are 28 chargesheet witnesses, the learned trial court only after recording the evidence of three prosecution witnesses who apparently are interested witnesses, has summoned the petitioner under Section 319 Cr.P.C. The suggestion was that the court ought to have waited to record the evidence of some more witnesses before summoning this petitioner. Section 319 Cr.P.C. provides for the court to summon any - 2 - person not being the accused but whose name crops up in course of the trial as one of the participants in the occurrence to face the trial alongwith the others who are already facing the trial. However, the Section is required to be used very sparingly and as laid down in the case of Kishun Singh Versus State, reported in (1993) 2 SCC page 16, Raj Kishore Prasad Vs. The State of Bihar, reported in (1996) 4 SCC 495, the summoning of a proposed accused under Section 319 Cr.P.C. should be spared till such time that sufficient materials come on record so as to weigh with the court to come to a reasonable conclusion that there is grave and serious probability/possibility of such accused to have participated in the crime. In the instant case, the court has had the occasion to examine only three of 28 witnesses of the prosecution whose name has been recorded in chargesheet and all the three witnesses, as argued by the learned counsel for the petitioner, are interested witnesses. However, not considering whether the witnesses examined are interested or not , the court ought to have waited for such examination of some more witnesses before summoning the petitioner under Section 319 Cr.P.C. In the result, this application is allowed and the impugned order is hereby quashed. P.S. (Abhijit Sinha,J)