Once the accused have been discharged by the Magistrate, they cannot be summoned under Sec. 319, Cr. P.C.

1. In this application under Sec. 489 of the Code of Criminal Procedure the petitioners have prayed for quashing the order dated 16-1-1996 including the entire criminal proceeding initiated against the petitioners by which the petitioners have been ordered to be summoned in terms of Sec. 319, Cr. P. C.

2. The opposite party, namely, Nandu Singh, lodged a first information report being Bihar P. S. Case No. 344/93 for an offence punishable under Secs. 341, 323 and 504/34, I.P.C. against one Krishna Singh, his wife and two sons including 2-3 unknown persons alleging therein that the informant is living in his own house and on 1-8-1993 at about 7.15 a.m. the accused Krishna Singh, his wife and children along with 2-4 unknown persons entered into his house and there had been some altercation with respect to opening of the drain. It is alleged that in course of altercation the accused persons have assaulted the informant. The police, after usual investigation, submitted chargesheet only against Krishna Singh, at it appears from Annexure-2 to this petition and the learned Magistrate issued process only against the accused Krishna Singh and discharged the petitioners, which is apparent from the order dated 20th August, 1993, copy of which is made Annexure-3 to this petition. Thereafter, a petition in terms of Sec. 319, Cr. P.C. was filed by the informant stating therein that there are sufficient materials on record to summon the petitioners. The learned Magistrate by order dated 16-1-1996 has issued the summons to the petitioners, which is under challenge in this application.

3. Learned counsel for the petitioners has challenged the order on the ground that once accused having been discharged he cannot be put on trial under Sec. 319, Cr. P.C. and in support of his contention learned counsel has relied upon a decision in the case of Sohan Lal V/s. State of Rajasthan, reported in 1991 BBCJ 10 : (AIR 1990 SC 2158) (SC), wherein it has been held that the word discharge within the meaning of Secs. 227, 239, 245 and 249 has to be interpreted to mean that the discharge in any form. It is further held that Sec. 319 will not come into play when the accused have been discharged by the Magistrate. It is admitted position in this case is that neither protest petition has been filed challenged the final form nor the order discharging the petitioners has been filed at any point of time. The order of discharge, therefore, has become final.

4. The question arises for consideration as to whether at this stage Sec. 319 can be revoked so as to put the petitioners on trial. As has been held by the Apex Court, as stated above, once the accused having been discharged he/they cannot be summoned in terms of Sec. 319, Cr. P.C. Admittedly, the petitioners have been discharged by the Magistrate. In that view of the matter, the petitioners cannot be summoned in exercise of power conferred under Sec. 319, Cr. P.C.

5. In the result, the order dated 16-1-1996 is, hereby, quashed and this application is allowed. Petition allowed.