I.P.Singh, J.

1. This is an application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 2.6.1994 passed by the second Additional Sessions Judge, Saran at Chapra in S.T. No. 486/92 by which the learned Additional Sessions Judge ordered for the issue of summons to the petitioner to face his trial in the said sessions case in exercise of the powers under Section 319 of the Code of Criminal Procedure.

2. From the prosecution case, it appears that the informant (opposite party No. 2) gave his fardbeyan to police on 29.6.1991 alleging therein that while his father was sitting on Chauki at his house all on a sudden, Sambhu Singh (the present petitioner) along with others came there. There was an exchange of hot words between the present petitioner and the father of opposite party No. 2. The present petitioner went back and returned with other accused-persons of this case and fired his pistol hitting at the neck of the father of the informant as a result of which he died.

3. On the basis of the fardbeyan of opposite party No. 2, the police registered the FIR and after completing the investigation submitted charge-sheet under Sections 302/34 of the Indian Penal Code and also under Section 27 of the Arms Act against three persons, namely, Ram Janam Singh, Ram Ekbal Singh and Ganesh Singh. However, the police did not submit the charge-sheet against the present petitioner and did not send him up for trial. This charge-sheet was placed before the learned Chief Judicial Magistrate, Chapra who by his order dated 24.10.1991 took cognizance of the offence against the persons named in column No. 4 of the charge-sheet. However, after perusing the charge-sheet he discharged the present petitioner named in column No. 2 of the charge-sheet since he found that the charge-sheet was not submitted against him and he was not sent up for trial. After the cognizance and necessary commitment proceedings the case was transferred to the Court of 2nd Additional Sessions Judge, Saran at Chapra where it was registered as Sessions Trial No. 486/92/61/93

4. The further case of the petitioner is that before the Additional Sessions Judge who was holding the trial, the Additional Public Prosecutor filed a petition on 17.7,1993 under Section 319 of the Code praying to summon the present petitioner to stand his trial with other accused-persons. Subsequently this petitioner was not pressed and in its place another petition dated 17.5.1994 was filed with similar prayer. The learned trial Judge (2nd Additional Sessions Judge, Saran at Chapra) by the impugned order summoned the present petitioner under the purported exercise of the power under Section 319 of the Code after perusing the case diary and the FIR, although till the date of the passing of this order no evidence at all of any prosecution witness was recorded before the learned trial Court.

5. It has been submitted that the petitioner was a named accused in the FIR and after investigation the police did not submit the charge-sheet against him. Under the circumstances, he could not have been put on trial by the impugned order in exercise of the powers under Section 319 of the Code, as has seen held in the case of Sohan Lal and others V/s. State of Rajasthan, 1991 (1) PLJR 41 (SC), in which it was clearly held that the powers under Section 319 of the Code could only be exercised if a person did not figure at any stage as an accused in the case and that only after evidence was adduced before the trial Court showing complicity of that person in the alleged offence. In the present case, the petitioner was named as an accused in the FIR but the police did not sent him up for trial at the time of submitting the charge-sheet. The learned Chief Judicial Magistrate while taking cognizance of the offence discharged the petitioner by his order dated 24.10.1991. Under the circumstances, it was not open to the learned Additional Sessions Jud