The court clarified that Section 319(1) of the Cr.P.C. allows the court to summon persons who have not already been tried by the court, even if they were named as accused in the FIR and the charge sheet, provided that there is sufficient evidence to establish a prima facie case against them.

This revision has been directed against the order ( dated 19-4-1984 passed by the then IV Addl. Sessions Judge, Gorakhpur in Sessions Trial No. 579 of 1987 under Sections 147, 148, 302/149, I P. C. , P. S. Chaurichaura, Gorakhpur, summoning the revisionists under Section 319 of Cr. P. C.

2. From the record it appears that the first informant in his statement before the trial Court stated that at the exhortation of the two revisionists the co-accused inflicted injuries causing the death of Ram Narain. In the F. I. R. also the first informant had made this allegation. From the order of trial Court it further appears that the same statement was given by him under Section 161, Cr. P. C. The statement of the first informant is consistent in the F. I. R. in statement under Section 161, Cr. P. C. and in the statement made before the trial Court. The trial court was of the opinion that the offence appears to have been committed at the exhortation of the two revi sionists and therefore summoned them under Section 319 (1) of Cr. P. C. Aggrieved by it they have filed this revision.

3. I have beard the learned counsel for the revisionists and the learned A. G. A.

4. Section 319 (1) of Cr. P. C. says that "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. " The argument is that the two revisionist were cited in the F. I. R. as accused, the Investigat ing Officer did not submit any charge-sheet against them that the committing court did not take any action against them and since they were the accused in the case they could not have been summoned under Section 319 (1) of Cr. P. C. The contention is that only those persons could be summoned under this provision who were not accused and since the revisionists were named in the F. I. R. as accused, they could not have been summoned under Section 319 (1), Cr. P. C. Reliance in this connection has been placed upon Sahan Lal v. State of Rajasthan, AIR 1990 SC 2158, in which it was held that the provi sions of Section 319 have to be read in consonance with the provisions of Section 398. Once a person is found to have been the accused in the case he goes out of the reach of Section 319. Whether he can be dealt with under any other provision, of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under Section 393 may not be lost sight of. Once a person was an accused in the case he would be out of reach of Sec tion 319. The crucial words in Section 319 are any person not being the accused. In that case appellants 4 and 5 were discharged vide order, dated 3-10-1980 passed by Judicial Magistrate, Bikaner after taking cognizance and after hearing the arguments. The Magistrate after recording evidence and on the basis of the application moved by A. P. P. summoned the discharged accused under Section 319, Cr. P. C. In these circumstances the Supreme Court held that the provisions of Section 319, Cr. P. C. were not applicable. It is not the case. There is nothing on record to show that appellants were accused before the court and were discharged or not proceeded with the injury. It cannot, therefore, be said that the above ruling would help the revisionists in any way.

5. Joginder Singh v. State of Punjab, AIR 1979 SC 339 is an authority for the proposition that expression "any person not being the accused clearly covers any person who is not being already tried by the Court. A criminal complaint was registered against five persons including the two appellants. The police having found that the two appellants were innocent charge-sheeted the