The discretionary power under Sec.319 Cr.P.C. should be exercised to achieve criminal justice and requires a judicial exercise considering all relevant factors, including the stage of the trial, the evidence collected, and the time spent on collecting such evidence.

1. The two petitioners who have been summoned under Sec.319 Cr.P.C. to face Sessions Trial No. 218 of 2003 pending in the Court of learned 1st Additional Sessions Judge, Katihar, are aggrieved by order dated 7.10.2006.

2. It appears that one Kishan Lal Rai gave his fardbeyan at about 1 P.M. on 29.9.2002 in respect of an occurrence which took place earlier at about 3 P.M. on 28.9.2002 and on the basis thereof Kadwa P.S. Case No. 139 of 2002 was registered under Sections 147, 323, 324, 341, 447, 379 and 504 I.P.C. against six persons named therein. It is said that when the informant alongwith his wife and brother Raju Rai went to the Parlia Haat and enroute return home when they reached near the Flour Mill of co-villager, Prem Lal Sharma, all the six F.I.R. named accused variously armed with Farsa, Kulhari and Lathi alongwith three unknown others surrounded them and on the orders of accused Arjun Rai to kill and to do away the informant, Arjun Rai himself dealt 3-4 Farsa blows on the head of the informant and accused Baijnath Rai gave a Kulhari blow on his head whereas accused Sheo Nath Rai and Darshan Rai assaulted him with means of lathi and accused Rajesh Rai with an intention to kill pointed his gun at the informant. It is said that seeing the situation the wife and brother of the informant attempted to save him from assault but they too were assaulted and sustained injuries. It is further said that upon the alarm raised by the informant several persons of the locality arrived and saved the situation. The accused persons are said to have decamped with the items purchased at the Haat, the informants silver chain, ear rings of the wife and cash worth Rs. 19,000/-. The injured were removed to the hospital and it is said that the said attack was in consequences of premeditated plan to cause injuries to the informant and his wife, as a result of a dispute which had taken place earlier between his brother Ramu and Dropati Devi.

3. After due investigation a charge-sheet was submitted and on the basis thereof cognizance was also taken. It appears that in course of trial in the court of sessions charge was framed against six F.I.R. named accused and while deposing P.W. 1, Lalita Devi, the wife of the informant, P.W. 2, Raju Rai, the brother of the informant and P.W. 3, the informant himself named these petitioners as also having participated at the occurrence and that too when they had not named the petitioners in their statements under Sec.161 Cr.P.C. It further appears that on the basis of this evidence a petition was filed by the informant to summon the two petitioners as additional accused under Sec.319 Cr.P.C. and the trial court having been satisfied therewith summoned the two petitioners herein under Sec.319 Cr.P.C. to face the trial alongwith other accused already sent up.

4. It has been submitted on behalf of the petitioners that the impugned order has been passed mechanically and without application of the mind inasmuch as the court was guided only by the depositions of the three witnesses in court and did not pay any heed to their statements under Sec.161 Cr.P.C. and the fardbeyan of the informant where these petitioners were not named. It has also been submitted that these three witnesses though naming the petitioners in their depositions in court, however, do not attribute any overt act to them. It has further been submitted that the petitioners happen to be the co-villagers of the informant and are on inimical terms with the informant and presumably that may have led to false implication of these petitioners in the situation narrated above.

5. In Michael Machado vs. Central Bureau of Investigation, (2000)3 SCC 262, the Supreme Court has interpreted the words "the court may proceed against such person" as used in Sec.319 Cr.P.C. The Apex Court held that the power is discretionary and should be exercised only to achieve criminal justice and that the court should not turn against another person whenever it comes ac