This Cr. Revision application under section 397 and 401 of the Code of Criminal Procedure (hereafter referred to as ‘the Code’) has been filed by the petitioners against the order dated 07.08.2009 passed by Additional Sessions Judge, FTC, II, Seraikella in Sessions Trial No. 114 of 2007, whereby and whereunder the petition filed on behalf of the prosecution under section 319 of the Code to issue summons to the petitioners has been allowed.

2. The prosecution case, as it appears from the fardbeyan of the informant Bhola Nath Mahto, in short, is that at about 7.00 A.M. on 08.05.2007 five persons including the petitioners surrounded his father and the petitioners assaulted his father by fists and slaps and one Basudeo Mahto inflicted injury on the head of his father by an axe. Thereafter, another accused Prajapati Mahato assaulted him and instigated others also to assault the father of the informant.

3. After investigation, as it appears from the record that the police submitted charge sheet against Basudeo Mahato and Prajapati Mahato only and the investigation with respect to three petitioners was kept pending and final form was submitted against these petitioners. It further appears that after framing of charge, under section 302/ 34 of the Indian Penal Code against Basudeo Mahato and Prajapati Mahato, the prosecution produced 17 witnesses. After completion of the prosecution evidence, a petition was filed by prosecution under section 319 of the Code to issue summons to the three petitioners relying upon the evidence of PW1 and PW4 (informant). The court below after hearing both the sides, by impugned order dated 07.08.2009 allowed the petition and directed to issue summons against the three accused persons i.e. the present petitioners, for facing the trial. Being aggrieved by the said order, three petitioners moved this court as indicated above.

4. The moot question which has come up before this Court relates to the interpretation and / or application of the provisions of section 319 of the Code.

5. Learned counsel appearing for the petitioners submitted that though PW1 and PW4 were examined on 17.03.2008 and 29.08.2008 respectively but no petition under section 319 of the Code was filed and when all the prosecution witnesses i.e. 17 in numbers, were examined, the petition under section 319 was filed at the fag end of the trial. It was also submitted that only evidence which has come in the deposition of PWs 1 and 4 is that, three petitioners were also surrounding the deceased but there is no allegation of assault against these petitioners and the main allegation is against Basudeo Mahato who inflicted injury with the help of an axe on the head of the deceased. Even during cross-examination in para-13, the PW1 has nowhere testified any overt act against the petitioners. Similarly, PW4 who is the informant has only stated in para-1 that he found his father being surrounded by the petitioners and Basudeo Mahato and they were assaulting his father with fists and slaps. In para-11, the witness has testified that while he was going on a bicycle, he found his father surrounded by petitioners and no other witness has whispered against the petitioners.

6. Contrary to the aforesaid submission, learned counsel appearing for the opposite party no. 2 and learned Addl. PP submitted that there is ample evidence against these three petitioners and there is a clear allegation of assault by the above three petitioners and also from the evidence in paragraph 13 of PW1 and paragraph 1 of PW4, showing the common intention of the three petitioners.

7. It is well settled that if the prosecution at any stage produce evidence which satisfies the Court that those who have not been arrayed as accused or if made accused but after investigation final form has been submitted, have also committed the offence, the trial court can take cognizance against them and try them along with the other accused but it is also well settled that the power under s