A person who has been discharged earlier can be summoned as an additional accused during the trial under Section 319 of the CrPC, provided that the evidence on record shows their complicity in the crime.

Nagendra Rai, J.

1. The petioners, four in number, have filed the present application for quashing the order dated 1-9-1992, passed by the 1st Addl. Sessions Judge, Rohtas at Sasaram, in Sessions Trial No. 234/87, arising out of Sheosagar P.S. Case No. 77/86, by which he has summoned the petitioners under Sec. 319 of the Code of Criminal Procedure (herein-after referred to as the Code) to face the trial for the offences under Secs. 147, 148, 149, 307, 380 of the Indian Penal Code and Sec. 27 of the Arms Act. At the time of admission, the learned Single Judge of this Court ordered that the application be heard by a Division Bench and that is how the matter has been placed before us for disposal.

2. The facts giving rise to the present application are as follows. One Kapildeo Tato village Gajawandha lodged a fardbeyan on 8-10-1986 at about 3.10. a. m. before the Officer-in charge, Dehri Police Station, alleging, inter alia,t that in the same night after taking his meal he was sleeping at his Dalan along with his son Madan Mohan Prasad At about 10. p.m. he heard some sound of whispering out side the Dalan. He flashed the torch and in the light of the same he saw accused Baban Dusadh, Kishun Dusadh, Lalsaheb Dusadh, these petitioners and other unknown persons, Petitioner Bishwanath Tato and accused. Baban Dusadh were armed with big guns and the others were armed with small guns and Bhala. Petitioner Bishwanath Tato fired towards the informant causing injury on his chest, as a result of which he fell down. After the informant fell down, the petitioner Bishwanath Tato and other accused persons entered into his Dalan and took away Radio-cum-tape recorder and one wrist watch and fled away towards the west.

3. On the basis of the said Fardbeyan Sheosagar police, within whose Jurisdiction the place of occurrence fell, lodged the first information report against these four petitioners and the other named accused persons for the offence under Secs. 147, 148, 149, 307, 380 of the Indian Penal Code and Sec. 27 of the Arras Act being Sheosagar P.S. Case. No. 77/88.

4. The police after investigation submitted chargesheet against accused Babban Dusadh, Lal Saheb Dusadh and Satyanarain Dusadh only and did not send up these petitioners. The Judicial Magistrate, 1st Class, Saran, by order dated 23-6-87 took cognizance of the offence under Secs. 147,148,149, 307 and 380 of the Indian Penal Code and Sec. 27 of the Arms Act and ordered for issuance of summons against those accused persons who have been charge-sheeted and discharged the petitioners on the ground that they were not sent up by the police.

5. On 9-8-1987, the case was committed to the court of session and thereafter the case was transferred to the court of 1st Addl. Sessions Judge, Sasaram for trial, where it was numbered as Sessions Trial No 234/87. Before the trial court the prosecution examined two witnesses, namely, Lallan Dusadh and Madan Mohan Prasad, both sons of Kapildeo Tato, the informant, and in their evidence both the witnesses named these petitioners as persons who participated in the crime. Thereafter, the Addl. Public Prosecutor made a prayer before the trial court to summon the petitioners to free the trial as there was evidence on the record to show that they have committed crime along with the accused already facing trial. The 1st Addl. Sessions Judge after perusal of the evidence of the witnesses and the case diary found that these petitioners have also committed the offence and, accordingly, summoned them under Sec. 319 of the Code to face the trial by the impugned order.

6. Learned Counsel appearing for the petitioners submitted that the petitioners were accused in this case at the stage of the investigation and once they have been discharged by the learned Judicial Magistrate by order dated 23-6-87 they cannot be summoned to face the trial in exercise of power under Sec. 319 of the Code. The learned Counsel in support of his submission relied on a judgment