A person discharged under Section 227 of the CrPC cannot be summoned under Section 319 of the CrPC, as the discharge under Section 227 is final and cannot be reviewed.

Partha Sakha Datta, J.: On the FIR of one Smt. Rita Halder alleging ill treatment, cruelty and dowry death of her daughter Rupa Mitra, a case was registered being Barasat P. S. Case No. 533 dated 1st September, 1995 under section 498A/304B against the husband of the victim Tapan Mitra, Tapan's brother Biplab Mitra and Biplab's wife Itu Mitra. The case ended in chargesheet against the three persons under the aforesaid sections of the law. The case was committed to the Sessions and the Additional Sessions Judge, 2nd Court, Barasat was in seisin of the case. At the time of consideration of charge learned Trial Court found that on careful perusal of the case diary there were sufficient materials against the husband Tapan Mitra but observed that no material could be found against other two persons, namely, Biplab Mitra and Itu Mitra on account of the said charges accordingly. On perusal of the materials made available before the learned Trial Court the two accused persons, namely, Biplab Mitra and Itu Mitra who are the petitioners herein were discharged from the case. Charges were framed against Tapan Mitra. In trial during examination-in-chief of the de facto complainant she made allegations against the Biplab Mitra and Itu Mitra. After examination-in-chief was over another witness, namely, Alokananda Halder, wife of P.W.1 also examined-in-chief. Cross examination of both the witnesses was deferred on the prayer of the defence. Now after examination-in- chief of P.W.1, a petition was filed by the prosecution for summoning under section 319 of the Cr.P.C. Biplab Mitra and Itu Mitra on the ground that evidence of P.W.1 has implicated the said two persons. Learned Trial Court upon hearing the prosecution and the defence allowed the petition observing that if in evidence tendered in course of enquiry of trial any person not being the accused is found to have committed an offence for which he could be tried together with the accused he can be summoned to face trial even though he may not have been chargesheeted by investigating agency or may have been discharged at an earlier stage.

2. It is this order of the learned Trial Court dated 22nd July, 2008 which is the subject matter of this application under section 482 of the Cr.P.C. It is contended by the petitioners that the learned Trial Court misconstrued the provision of law and section 319 of the Cr.P.C. does not contemplate summoning a person who has been discharged by the order of the of the Court under section 227 of the Cr.P.C.

3. Learned Counsel for the de facto complainant, Mr. Biplab Mitra submitted that provision of section 319 of the Cr.P.C. is wide enough to be resorted to for summoning any person even when he has been discharged earlier, evidence being there learned Trial Court did not commit any illegality in summoning the petitioners. Mr. Mitra refers to Rajendra Singh vs. State of Uttar Pradesh, reported in 2007(3) SCC (Cri) 375. In Rajendra Singh (supra) an observation was there at paragraph 6 which is as follows:

"Even a person who has earlier been discharged would fall within the sweep of the power conferred by section 319 of the Code.

It is therefore, clear that if the evidence tendered in the course of any enquiry or trial shows that any person not being the accused has committed any offence for which he could be tried together with the accused, he can be summoned to face trial even though he may not have been chargesheeted by the investigating agency or may have been discharged at an earlier stage."

4. In fact, this decision refers to Kishun Singh vs. State of Bihar, reported in 1993(2) SCC 16, where an observation was made at paragraph 11 of the judgment which reads as follows:-

"Even a person who has earlier being discharged would fall within the sweep of the power conferred by section 319 of the Code."

It is on the basis of these decision that the learned Trial Court allowed the prayer of the prosecution.

5. Mr. Sekhar Basu, learned Advocate for the petitioner