IMPORTANT POINT
Scope and ambit of section 319 CrPC discussed.

Judgment :-

S.B. Sinha, J.

1.1. Leave granted.

2.2. Scope and application of Section 319 of the Code of Criminal Procedure, 1973 (for short, `the Code) is in question in this appeal which arises out of a judgment and order dated 16th November 2005 passed by a learned Single Judge of the High Court of Rajasthan whereby and whereunder the order dated 29th May 2003 passed by the learned Upper District & Sessions Judge (Fast Track), Sikar, refusing to summon the appellants herein as accused, was set aside.

3.3. A First Information Report (FIR) was lodged by the 1st respondent alleging that his wife was attacked by nine persons including the five appellants herein. His mother was also assaulted. When his father rushed to their rescue, he was also surrounded by them and was assaulted as a result whereof, he expired. Upon investigation, a final form was submitted in favour of the appellants. A charge-sheet was filed only against four persons, viz., Kishori, Jagdish, Sarjit and Sheo.

4.4. Indisputably, a counter case had been filed.

5.5. An application was filed on or about 01st April 1998 in terms of Section 319 of the Code for summoning the appellants herein as accused.

Before the learned Upper Distt. & Sessions Judge, a large number of witnesses were examined and cross-examined on behalf of the accused persons. By reason of an order dated 29th May 2003, the learned Upper Distt. & Sessions Judge rejected the said application filed by the 1st respondent herein opining that no case has been made out therefor. A criminal miscellaneous petition filed by the 1st respondent before the High Court against the order of the learned Upper Distt. & Sessions Judge, however, has been allowed by reason of the impugned judgment, stating:

"The very ambit of section 319 Cr.P.C. is to empower the trial court to take cognizance against those persons who are alleged to have been involved in an offence, but who have not been arrayed as accused by the investigating agency while filing the charge sheet. Section 319 Cr.P.C. comes into effect once the evidence comes trickling in during the course of trial against the alleged offender. In case there is prima facie case against the alleged offenders, the Court should take cognizance against them. At the juncture of taking cognizance, the court should not critically analyze the evidence. For the purpose of taking cognizance, the existence of a prima facie case is sufficient. It is only at a later stage that the trial court is called upon to appreciate the evidence in proper perspective. Moreover, the duty of the court is not only to protect the innocent, but also to punish the guilty. In case the jurisdiction under section 319 Cr.P.C. is not exercised properly by the trial Court, chances are that those who are alleged in the offence might go scot free. The society cannot be exposed to the dangers created by those who take law in their own hands.

Considering the fact that the large number of witnesses have deposed against the respondents No.2 to 6, a prima-facie case does not (sic) exist against them for their involvement in the alleged offence. Thus, in our opinion, the learned Magistrate should have exercised the jurisdiction vested in him under section 319 Cr.P.C.

We allow this petition and direct the learned Addl. Sessions Judge to rehear the arguments of the learned counsel for the petitioner and the learned counsel for the State and pass the necessary orders in accordance with section 319 Cr.P.C. within a period of two weeks from the date of the receipt of the certified copy of this order and to expeditiously complete the trial as the trial has been hanging fire since 1996."

1.6. Dr. Sushil Balwada, learned counsel appearing on behalf of the appellants would submit that the involvement of the appellants having not been found by the learned Upper Sessions Judge, the High Court committed a serious error in passing the impugned judgment.

.7. Mr. Sushil Kumar Jain, the learned counsel appearing on behalf of