1. Heard.

2. The present petition seeks quashing of order dated 16.6.2006 passed by the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court No.4, Rohtas at Sasaram in Sessions Trial No. 322 of 2000 under Section 307 etc. of the I.P.C. arid Section 27 of the Arms Act. By the impugned order the learned Judge while disposing of the petition dated 19.6.2004 filed by the prosecution summoned an additional accused Gupteshar Singh alongwith other accused persons. It appears from the impugned order that the above petition dated 19.6.2004 was allowed by the Court on 3.9.2004 and that order was questioned in Cr. Misc. No. 31289/04 and the order of summoning the said additional accused under Section 319 Cr. P.C. was decided by this Court by order passed on 1.12.2005 and the matter was remanded back to the Court concerned for hearing and passing a fresh order in accordance with the provisions of law. The said order passed by this Court has been annexed as Annexure-1. While disposing of the above noted Criminal Misc. Petition the Court had passed order on 1.12.2005 in the light of 1991 (1) P.L.J.R. 41 (S.C.). The matter was as such, re-heard by the learned Judge and by the impugned order dated 16.6.2006 the petition filed by the prosecution was again allowed and as such, the present petition has been filed by the said accused Gupteshwar Singh to quash the summoning by the learned Trial Judge.

3. Learned counsel appearing on behalf of the petitioner has again placed before me 1991 (1) P.L.J.R. 41 (S.C.) Sohan Lal Vs. State of Rajasthan and has submitted that once the accused who had not been sent up or who had been discharged by the Court taking cognizance even if he was figuring as an accused in the F.I.R. he could not be summoned as held by the Apex Court in the case of Sohan Lal It was contended as such that the impugned order is against the ratio of the above noted decision of the Apex Court and as such, is bad requiring interference from this Court.

4. I have gone through the above decision of the Apex Court and I find that the words "any person not being an accused" has been explained to mean that such a person could be a person who even if, being named in the F.I.R. as an accused was either not sent up or against whom the cognizance was not taken and as such, he was discharged. This could appear after going through the decision noted above in Sohan Lal's case and specially in para 14 and onwards of the report. It was as such, held that once an accused is discharged he does not come within the scope of Section 319 Cr.P.C. and if all there was any remedy it could have been availed of by taking resort to Section 398 Cr.P.C. This appears in para 33 of the report.

5. Thus, what appears from the above is as to what exactly could be the meaning of the term "any person not being an accused."

Section 319 Cr.P.C. requires to be perused.

"319. Power to proceed against other persons appearing to be guilty of offence-(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which Such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid

(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed

(4) There the Court proceeds against any person under sub-section (1) then- (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard.

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inqui