The discretionary jurisdiction under Section 319 of the Criminal Procedure Code must be judicially exercised, and the court must arrive at its satisfaction based on the fulfillment of requisite ingredients and compelling reasons to take cognizance against a person not facing trial.

JUDGMENT

S.B. SINHA, J.

1. Leave granted.

2. A First Information Report was lodged against the appellant herein by one Rafiq on 10.11.2005 alleging commission of an offence under Section 307/324 IPC. In view of the death of the injured, the case was converted to one under Section 302 IPC. The police submitted a chargesheet only against one Karimullah @ Aarif. No chargesheet was submitted as against the appellant herein. After the matter was taken up for hearing before the learned Trial Judge, respondent No. 1 examined himself as P.W. 1. In his examination-in-chief, he alleged that the incident had taken place in his presence and the appellant had taken part in the incident. An application was filed for summoning the appellant herein under Section 319 of the Code of Criminal Procedure only on the basis thereof. The learned Sessions Judge refused to accede to the said prayer stating:-

"File is taken up. Statement has been perused in regard to the application under Section 319 CrPC. On perusal of the statement of the witness PW1 Rafiq, until now, witnesss chief examination is only done. The witness had stated the incident has taken place in his presence and has further stated to reach the spot on hearing the noise. On going through statement given under Section 161 CrPC of the witness, it is found to be recorded in Paper NO.1 dated 10.11.2005 that he reached the spot after the incident as stated by this witness. And accused Karimullah is said to be the incident doer. Hence, the application is not acceptable at this stage. The application under Section 319 CrPC is being dismissed at this stage."

3. Respondent No. 1 filed an application before the High Court of Judicature at Allahabad under Section 482 CrPC against the said order and by reason of the impugned order, the same has been allowed. The appellant is, thus, before us.

4. Contention of the learned counsel appearing for the appellant before us is that keeping in view the fact that the learned Sessions Judge had refused to exercise his discretionary jurisdiction at that stage of the trial, the impugned judgment cannot be sustained.

5. Learned counsel appearing on behalf of the respondent, on the other hand, submitted that in view of the fact that the appellant was named in the FIR and the witnesses in their examination before the police under Section 161 of CrPC alleged some overt act against him, the impugned judgment should not be interfered with.

6. Section 319 of the Code of Criminal Procedure reads thus:-

"319. Power to proceed against other persons appearing to be guilty of offence.- (1) 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.

(2) Where such person is not attending the court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the court although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed,

(4) Where the court proceeds against any person under sub-section (1) then-

(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;

(b) subject to the provisions of clause (a) the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced."

7. Before, thus, a trial court seeks to taker course to the said provision, the requisite ingredients therefore must be fulfilled. Commission of an offence by a person not facing trial must, therefore, appears to the court concerned. It cannot be ipse dixit on the part the court. Discretion in this behalf must judicially exercised. It is incumbent that court must