The discretionary power under Section 319 Cr.P.C. to summon additional accused should be exercised sparingly and only when cogent evidence is available, and the trial court is expected to elicit all necessary materials by playing an active role in the evidence collecting process.

JUDGMENT :

Heard Mr. Md. Razaullah Ansari, learned counsel for the petitioners, Mr. Vijoy Kumar Sinha, learned counsel for the State and Mr. Anurag Kumar, learned counsel for opposite party no.2.

2. This petition has been filed for quashing the order dated 17.06.2014, whereby, the petitioner has been summoned as additional accused under Section 319 Cr.P.C. for facing trial in connection with Sessions Trial Case No.324 of 2009 arising out of Rehala P.S. Case No.31 of 2008, corresponding to G.R. Case No. 937 of 2008, pending in the court of the learned 1st Additional Sessions Judge, Palamau at Daltonganj.

3. On the Fardbayan of Anand Kumar Dubey (P.W.3), the minor son of the deceased, the FIR was lodged alleging therein that on 04.06.2008 at about 07:30 p.m., he had gone to the hotel premises of his father. His father had gone out to purchase some articles for the hotel. The informant heard the sound of firing of two gun shots. He ran to his shop and saw that his motorcycle and another motorcycle was burning. Girdhar Singh, Kripa Singh, Mrityunjay Singh, Pappu Singh, Tutu Singh and Sheru Singh boarded the father of the informant in Commander Jeep and went towards Garhwa. After sometime, uncle of the informant Ruchan Pandey (P.W.8) came there and the informant along with Ruchan Pandey went towards Garhwa Hospital. On reaching Garhwa Hospital, he found the aforesaid persons along with 3-4 others were assaulting his father Shyamdeo Dubey. As a result of which he sustained injuries due to which his father died.

4. Learned counsel for the petitioners submits that final form has been submitted by the I.O. only against two accused namely Tutu Singh and Pappu Singh and the police during investigation found no sufficient evidence against accused Kripa Singh, Mrityunjay Singh, Girdhar Singh and Sheru Singh. They were found innocent after investigation as such their case was not sent up for trial. He further submits that the learned Magistrate on receipt of charge-sheet, took cognizance of the offence and sent the case of the aforesaid two accused only for trial before the Court of Sessions in Sessions Trial Case No.324 of 2009. The evidence in the case started on 23.04.2010 and the examination of the witnesses of the Prosecution Witnesses was conducted on 23.01.2012 and in all 9 witnesses were examined. He submits that on 30.07.2013, an application under Section 319 Cr.P.C. was filed in the Court to summon the petitioners as additional accused. The learned Sessions Judge found the statements of P.W.1 to 5 to be consistent and allowed the prayer of the prosecution, thereby summoning the petitioners to face the trial along with others. In this background, he submits that the learned court has not appreciated this aspect of the matter that earlier no petition was filed under Section 319 Cr.P.C. and later on the petition under Section 319 Cr.P.C. was filed, which was allowed by the learned Sessions Judge, which is against the mandate of law and the impugned order is fit to be dismissed on account of delay itself. He further submits that Section 319 Cr.P.C. can be applied only in reasonable cases and if cogent case is made out. He also submits that at the time of framing of charge, the learned court has not found sufficient material to call upon the petitioners. He submits that the finding of the learned trial court with regard to evidence of P.W.1 to 5 are not in accordance with law. On these grounds, he submits that summoning the petitioners under Section 319 Cr.P.C. is bad in law.

5. On the other hand, learned counsel for opposite party no.2 submits that the learned court has passed the reasoned order and he has considered that P.W.1 to 5 have taken the name of these petitioners and that is why, they have been called upon to face the trial.

6. Learned counsel for the State submits that sufficient reason and evidence have come before the learned trial court and that is why, the learned court has exercised its power under Section 319 Cr.P.C.

7. In v