Hon'ble Sudhir Kumar Saxena,J.—

1. This petition under Section 482 Cr.P.C. is directed against the order dated 09.10.2002 passed by Additional Sessions Judge/FTC-II, Sultanpur, summoning the petitioner to face the trial in exercise of the power under Section 319 Cr.P.C.

2. Briefly stated facts are that an FIR was lodged by Smt. Anwari Begam against 11 accused persons including the petitioner, alleging therein that these persons opened fire causing death of her husband Jamaluddin on 26.04.2002. FIR was registered as Crime No. 149 of 2002 (Sessions Trial No. 235A of 2002), under Sections 147,148,149,504,506,302 IPC, P.S. Amethi, District Sultanpur. Police after investigation submitted charge-sheet against 8 accused persons. Petitioner was not charge-sheeted. It further appears that during the trial P.W.-1, Anwari Begam was examined and after her examination an application under Section 319 Cr.P.C. was moved which has been allowed by the trial court on 09.10.2002. This very order has been challenged in this petition.

3. It has further been informed at bar by the counsel for the petitioner that trial has concluded and conviction has been recorded, but trial could not proceed against the petitioner owing to his non-appearance as he was not aware about the proceedings and he came to know about the same when the proceedings under Section 82/83 Cr.P.C. were initiated. Learned counsel for the petitioner further informs that the application to surrender was moved whereupon report of the police was called, which reported that no charge-sheet has been submitted against petitioner. This report was correct as the petitioner Imran was summoned subsequently after examination of P.W.-1 by the trial court in exercise of the power under Section 319 Cr.P.C.

4. I have heard Sri R.P. Mishra, learned counsel for the petitioner and Sri Rishad Murtza, learned Government Advocate.

5. Submission of Sri Mishra is that order is cryptic and non-speaking, as such, it suffers from vice of non-application of mind. Trial court has relied upon the case-diary which was not permissible. No satisfaction has been recorded regarding possibility of conviction. The testimony of Anwari Begam who was not cross-examined, could not be the basis for summoning the petitioner and that trial having concluded there remained nobody to be tried together, as court had become funtus officio. Sri Rishad Murtza defended the order.

6. Sri R.P. Mishra has relied upon various judgments of this Court and Supreme Court to buttress his submission. Section 319 Cr.P.C. is being reproduced below:

"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)Where 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 inquiry or trial was commenced."

7. This provision confers a discretion upon the Court to summon a person as accused, who is not charge-sheeted, to be tried along with other accused persons. Sub-section (4) is very relevant which says that during trial all the witnesses will be re-examined, so far as newly summoned accused is concern

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