Sec.319 of the Code can be applied even in a case where an accused person was discharged by the police.

N. Pandey, J.

1. Both the revision applications are directed against a common order dated 26-6-1992 passed by the Judicial Magistrate, IInd Class, jehanabad, in Tr. No.186 of 1992, whereby in exercise of his power conferred under Sec.319 of the Code of criminal Procedure (hereinafter called the Code) he has summoned the petitioners to face trial under Section 376 I. P. C.

2. It appears, previously the Police had submitted charge-sheet under Sections 144, 323, 504 I. P. C. against petitioners Ram Bachan Bind, Munarik bind, Chanrik Bind, Sarju Bind, Sri kishun Bind, Gad Gad Bind, Nawal bind, Awadhesh Kumar and Jugeshwar bind but no charge-sheet was submitted against petitioner Lallan Bind. The chief Judicial Magistrate accordingly took cognizance of the offence and summoned only those accused persons to face trial under Sections 144, 323 and 504 I. P. C. against whom Police had submitted charge-sheet. No summons was issued against petitioner Lallan Bind.

3. It appears, during hearing of the trial and after examination of certain witnesses, the learned Magistrate was of the view that a case under Section 376 I. P. C. was made out against the petitioners and also against petitioner lallan Bind against whom no summons was issued. Since the offence under section 376 I. P. C. was triable by a court of Sessions, therefore, the learned Magistrate transmitted the records to the Chief Judicial Magistrate for necessary orders on commitment.

4. Learned Magistrate while contending on behalf of petitioner Lallan bind (Cr. Rev. No.265 of 1992) submitted that the learned Magistrate had no jurisdiction to decide the matter for issuance of summons under Sec.376 i. P. C. since he was already discharged by the Chief Judicial Magistrate. According to him, provisions under section 319 of the Code cannot be applied with respect to an accused who was discharged at the time of taking cognizance of the case.

5. In view of the facts noticed above, solitary question thus emerges for consideration is whether in a case of this nature, where the accused was discharged the learned Magistrate can have jurisdiction under Sec.319 Cr. P. C. to summon. There is no dispute that during course of hearing and examination of witnesses, the learned Magistrate has found certain materials on the basis of which the court was of the opinion that it was necessary to summon the accused to face trial. This cannot be disputed that the scope of Sec.319 of the Code is only limited to post cognizance stage when complicity of persons other than the persons named as accused is distinguished. Reference in this regard can usefully be made to the case of Bishwanath Tato and Ors. V/s. The state of Bihar, 1993 (2) PLJR 602; 1994 (1) BLJ 210. That apart, it has also to be remembered that if an accused is not sent up by the Police to face trial then the order not issuing summons against such persons does not amount to discharge, in the eye of law. I am reminded to a decision of the Apex court in the case of Raghubans Dubey V/s. State of Bihar, AIR 1967 SC 1167, where it has been held that there cannot be any question of discharge when the accused was not named in the charge-sheet by the Police. Apart from the aforesaid authoritative pronouncement, this Court has also while examining the case of Bishwanath Tato and Ors. V/s. The state of Bihar (supra) has held that Sec.319 of the Code has got full application even in a case where accused person was discharged.

6. Therefore, for the reasons stated above, in my view, there cannot be any justification to interfere with such an order.

7. So far as the petitioner of Cr. Rev. No.265 of 1992 is concerned, learned Counsel submitted that even the learned Magistrate had found certain materials to summon him to face trial under Sec.376 I. P. C. , it was not cx open to him to pass an order of commitment because he was exercising only power of a 2nd Class Magistrate.

8. In my view, this submission has also got no substance because from a bare re