Abhijit Sinha, J.

1. All the seven F.I.R. named accused of Shambhuganj P.S. Case No. 41 of 2007 who had not been chargesheeted have filed this application for quashing of the order dated 23.7.2007 passed by the learned Presiding Judge, Fast Track Court No. IV, Banka, whereby he has summoned them under Section 319 Cr.P.C. to face the trial alongwith already arraigned accused in the resultant Sessions Trial No. 1287 of 2005.

2. Briefly stated, the prosecution story as has been culled out from the written report submitted by one Amrendra Kumar Jha, a lawyer of Civil Court, Bhagalpur, is that at about 12 in the midnight of 22.5.2004 while the informant alongwith others was sleeping on the roof, four armed persons came and pointed their muskets at him and asked him to handover his gun failing which he would be killed. Thereafter the informant was taken to his room and accused Sharandeo Paswan took his gun and cartridges whereas accused Kunjay Paswan and Sharandeo Paswan demanded money and on refusal they extended threats and took away utensils, watch, radio and clock alongwith two V.I.P. briefcases containing Rs. 60,000/-, saree, golden ornaments and other articles from the uncle of the informant who identified Brahmdeo Paswan, Pramod Paswan, Saheb Paswan and Pramod Choudhary in the crowd. It is alleged that some time ago Brahmdeo Paswan had threatened to kill and loot the informant and on account of enmity dacoity had been committed in his house where the gun alongwith other articles, as mentioned, had been looted away.

3. It appears that police after due investigation did not submit any chargesheet against the petitioners and instead submitted a charge sheet against several other persons whose names cropped up in course of investigation and by order dated 12.4.2005 the learned Chief Judicial Magistrate, Bhagalpur, took cognizance of offence under Section 395 I.P.C. against those persons who had figured in the chargesheet, namely, Kapildeo Pawan and Fakira Paswan.

4. Subsequently, the aforesaid Shambhuganj P.S. case was committed to the court of Sessions on 31.8.2005 where it was numbered as Sessions Trial No. 1287 of 2005.

5. It appears that in course of the trial some of the witnesses on behalf of the prosecution named these petitioners as participants in the crime of dacoity and accordingly on the basis of an application filed by the prosecution summons were issued to the petitioners and others under Section 319 Cr.P.C. to face the trial along with the other accused who are already facing the trial for commission of the offences under Section 395 I.P.C.

6. It has been submitted on behalf of the petitioners that they are innocent and have been falsely implicated in this case on account of enmity over land dispute. In this connection, it was sought to be submitted that in course of investigation the Investigating Officer and Supervising Officer had found that the petitioners and other named accused were not involved in the alleged offence and that they have been falsely implicated and on the basis thereof the Superintendent of Police by Report No. 3 had directed the Investigating Officer to submit final report against them for lack of evidence. It was also submitted that none of the witnesses on behalf of the prosecution had identified the petitioners and only few of them have been named by some of the witnesses. In this connection, it was submitted that whereas P.W. 1, Anandi Prasad Jha, had claimed to have identified Brahmdeo Paswan, Saheb Paswan, Pramod Paswan and Pramod Choudhary only, P.W. 8, the informant, had named Sharandeo Paswan, Kunjo Paswan, Brahmdeo Paswan and Jyotish Paswan and P.Ws. 1 and 2 who were allegedly present in the house at the time of the occurrence have not said anything about Sharandeo Paswan and Kunjo Paswan. On this premise, it was submitted that the learned Presiding Judge, had summoned all these petitioners mechanically without applying his mind judiciously.

7. The basic requirement for inv