The main legal point established is that Section 319(4) of the Cr. P. C. stipulates a denovo trial for newly added accused, and the interpretation of 'could be tried together with the accused' in Section 319(1) as directory, not mandatory.

1. Heard learned Counsel for the applicants and the learned P. P for the respondent No.1-State.

2. By this application, the applicants have impugned the order dated 2nd August, 2016 passed by the learned Sessions Judge, Vasai, by which, an application (Exhibit 53) preferred by the prosecution under Section 319 Cr. P. C. came to be allowed and the applicants came to be arraigned as accused in Sessions Case No. 31 of 2007.

3. Mr. Marwadi, learned Counsel for the applicants has impugned the aforesaid order essentially on three counts-

(1) - that the basic requirement of Section 319 Cr. P. C. is that if 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. He submitted that the case had abated against some of the accused who were charge-sheeted and one accused was acquitted and hence, the basic and essential requirement of Section 319, that there has to be other accused with whom the applicants could be tried with, is not fulfilled;

(2) - that since the applicants (accused) were discharged from the said case under Section 169 of the Cr. P. C, Section 319 could not be directly invoked. According to the learned Counsel an inquiry under Section 300(5) r/w Section 398 Cr.P.C was necessary, in view of the Constitution Bench judgment rendered in the case of Hardeep Singh vs. State of Punjab & Ors.[ (2014) 3 SCC 92];

(3) - the procedure which will now have to be adopted, is that the prosecution will have to file a charge-sheet again in the Court of the Magistrate, after which, the Magistrate will commit the case to the Court of Sessions.

4. Mr. Shinde, the learned Public Prosecutor for the State of Maharashtra opposed the application. He submitted that the submission advanced by the learned Counsel for the applicants is contrary to the law and the judgments of the Apex Court. He submitted that the words “could be tried together” under Section 319(1) are only directory and not mandatory. He relied on the judgment of the Apex Court in the case of Shashikant Singh v. Tarkeshwar Singh & Anr.[AIR 2002 SC 2031] in support of his submission. According to Mr. Shinde, no inquiry is required to be conducted/directed, inasmuch as, the applicants have been discharged under Section 169 of the Cr. P. C. and not under Section 227 of the Cr. P. C. He submitted that there is a distinction between the two and that the judgment rendered by the Constitution Bench in the case of Hardeep Singh vs. State of Punjab & Ors. (supra) clearly shows the distinction between the two. Mr. Shinde further submitted that as far as the procedural aspect is concerned, it is well settled that the learned Sessions Judge will have to follow the mandatory provisions of Section 319(4) of Cr.P.C i. e. there shall be a denovo trial. According to Mr. Shinde, no infirmity can be found in the impugned order passed by the learned Sessions Judge.

5. Perused the papers. The case has a chequered history. The respondent No. 2 in the aforesaid application is the original complainant. According to the respondent No. 2 (original complainant), one Buwa Samant was a great social worker and was interested in the welfare of the Aadivasis and that his brother Yadav Mhatre (deceased) was working with the said Buwa Samant and that both were working for the welfare of the Aadivasis. According to the respondent No. 2 (original complainant), Buwa Samant was shot down on 17th October, 1973 when he was asleep. In the police inquiry, the respondent No. 2's brother, Yadav Mhatre (deceased) had given a statement to the police and disclosed, that he suspected that Govind Patil (now deceased), Baban Gharat and Atmaram Jadhav were responsible for shooting Buwa Samant. He has alleged that from the said day, Govind Patil and his associates were on inimical t