ORDER

1. Heard learned counsel for the parties.

2. Leave granted.

3. From the incident which led to sessions trial ST No. 269 of 2001 on the file of learned Sessions Judge, Chatarpur three persons, after investigation, were sent for trial for offences punishable under Sections 302 read with 34 IPC. It is also stated that one other accused named Om Prakash was absconding hence trial against him was separated. During the pendency of the trial and after the material witnesses were examined an application under Section 319 of the Code of Criminal Procedure was filed by the complainant, the 2nd respondent herein, to include the appellant herein as accused on the ground that during the course of trial the appellants participation in the crime has been established. The learned Sessions Judge who entertained the said application came to the conclusion, after considering the material on record, all that was mentioned in the FIR did not show anything more than the presence of the appellant and no other overt act was attributed to him. He also came to the conclusion that the evidence recorded at the time of trial also did not implicate the appellant so as to invoke his jurisdiction under Section 319 of the Code. Learned Sessions Judge also observed that the main witnesses in the trial have all been examined and from the same nothing implicating the appellant was noticed. The trial court thereafter relying upon the judgment of this Court in the case of Michael Machado v. CBI1 the learned Sessions Judge rejected the said application.

4. In a revision filed by the aggrieved complainant before the High Court of Judicature at Jabalpur, the High Court wrongly recorded the fact that in the FIR it was mentioned that the appellant herein along with four others was standing at the time of the attack armed with guns. It is not denied and cannot be denied that the appellant was so present is an incorrect statement because we have noticed in the FIR that there is no such statement that the appellant was armed with any weapon. It is also clear from the statements recorded that no active part whatever has been attributed to this appellant hence most likely the prosecution after investigation did not find any material against this appellant. Hence the prosecution has not sent the appellant for trial, and therefore, Section 149 IPC was not relied on. The High Court without noticing the above factor by reappreciating the material which was considered by the trial court and distinguishing the judgment of this Court in the case of Michael Machadol came to the conclusion that there is material to come to the conclusion that the appellant was also involved in the incident, and, therefore, held that the application under Section 319 of the Act ought to have been allowed. It also noticed the fact that only five witnesses in the trial have been examined, therefore, the trial court was in error in coming to the conclusion that the trial was at a concluding stage.

5. We have heard the learned counsel for the parties and we have been taken through the records. We find from the material on record that the High Court did not properly take into consideration the absence of overt act attributed to the appellant in the FIR. It also did not take into consideration the fact that the prosecution did not send him for trial after investigation and it also did not take into consideration the fact that the only one witness of all the five witnesses examined has said that the appellant was carrying a gun and at the same time, he has not attributed any overt act to the appellant. In this background in our opinion the High Court was not justified in taking a different view on facts.

6. In the case of Krishnappa v. State of Karnataka2 this Court, considering the appeal on almost similar factual background, held that: (SCC pp. 794-95, paras 6-7 & 9-10)

"6[A]. It has been repeatedly held that the power to summon an accused is an extraordinary power conferred on the court and should