By the Court.:- Question that falls for consideration in this case is that in the context of jurisdiction exercised under Section 319 of the Code of Criminal Procedure, what would be the contour of the consideration while framing of charge(s) against the accused(s) who have been summoned and put on trial along With other accused(s) already facing the trial. This issue/question has crystallized in the following circumstances:

2. Petitioner/informant lodged an F.I.R alleging therein that four accused persons, namely. Jogendra Yadav. Kailash Yadav. Bhaskar Yadav and Kushum Pahalwan armed with rifle, whereas accuseds Dinesh Yadav, Raju Yadav, Suro Yadav, Brij Bihari Yadav, Birje Yadav and others armed with lathi(s) arrived at the scene of occurrence and pulled Ram Bali in order to assault him. Others intervened to rescue him where after they were assaulted. It is the prosecution case that in the meanwhile the deceased Saryug Yadav, who was working in the nearby field also came there to rescue them and made protest at which all the accused persons started assaulting him with lathi(s) and butt of the rifle. Accused Jogendra Yadav assaulted him with butt of the rifle at his right eye-causing injury to him. It is the prosecution case that on receiving assault at the hands of the accused(s), the victim died on the spot where after all the accused persons fled away, On the strength of the fardbayan. Pandarak P.S. Case No. 48/2000 was registered under diverse sections including Section 302 of the Penal Code and Section 27 of the Arms Act. Recording of the FIR ignited investigation which was carried out where after charge-sheet was submitted on 23.4.2001 only against four accused persons (those who are facing trial). So far O.P. Nos. 2 to 5 are concerned they were not sent up for trial as the materials collected in course of investigation were not found sufficient, On submission of charge-sheet cognizance was taken and the case was committed to the Court of Sessions and the trial was taken up being Sessions Trial No. 446/02.

3. At the trial three witnesses were examined on behalf of prosecution including the informant Thereafter, an application under Section 319 of the Code of Criminal Procedure (for short 'the Code') was filed by the prosecution through the informant for proceeding against those persons who were not sent up for trial as there was sufficient evidence on record to summon them for facing the trial together with the accused s who were already facing the trial, Said application was heard in which the proposed accused s also appeared and filed their rejoinder. On a consideration of submissions advanced on behalf of the parties and after going through the evidence on record, learned trial Court found as under:

"Aforesaid evidence in the record shows active participation of the accused person also in the commission of murder of Sarju Prasad and assaulted to.

On careful consideration of the aforesaid evidence discussed above. I came to the conclusion' that there is prima facie material on the record to summon the aforesaid proposed accuseds namely Jogendra Yadav. Kailash Yadav. Kushum Pahalwan and Birje @ Bijendra Yadav to face trial for the offence punishable under Sections 302/149, 323. I.P.C. and 27 of the Arms Act along with the accused persons who are facing trial in the instant case Accordingly the aforesaid 4 accused persons whose detail has been given in the petition under Section 319. Cr PC rued by the prosecution be summoned under Sections 319. Cr PC. Put up on 5.3.2005 for their appearance. The o/c is directed to issue summons against the accuseds Jogendra Yadav. Kailash Yadav. Kushum Pahalwan and Birje alias Bijendra Yadav."

4. Aforesaid order was passed in presence of the opposite parties, but the same was not challenged and was allowed to become final, Subsequent thereto an application was rued on 22.09.2006 on behalf of the opposite parties herein who were summoned to face the trial seeking discharge on the ground