1. Leave granted.

2. The appellants have challenged the impugned judgment of the High Court whereby the Sessions Court has been directed to try the appellants afresh. The facts relevant for the present purpose lie in a narrow compass.

3. In respect of an incident dated 14.4.1990 various persons were charged for offence under Sections 302/149 of the Indian Penal Code and other offences. The appellants in this appeal were not made accused. They were however, summoned u/s 319 of the Code of Criminal Procedure and were arrayed as accused after the entire evidence had been recorded and also after the statements of the accused u/s 313 had been recorded, arguments heard and the judgment had been reserved. Not only that, after the appellants were summoned u/s 319 Cr.P.C. the prosecution did not examine again all prosecution witnesses. Out of 16 witnesses, six witnesses were examined and police papers were also not supplied to them.

4. The appellants and four others were, however, convicted for offence under Sections 302/149 IPC and other offences and rigorous imprisonment for life besides fine of Rs. 10,000/- was imposed in terms of the judgment and order of the Court of Session dated 29.6.1998.

5. Insofar as the two appellants are concerned, the High Court, by the impugned judgment, after noticing the aforesaid facts and coming to the conclusion that serious prejudice has been caused to them, setting aside the conviction and sentence insofar as they were concerned, directed their retrial. The High Court, it seems, considering that at such distant point of time many witnesses may not be available directed that all witnesses examined earlier, if available, shall be re-examined after police papers are supplied to the appellants.

6. As noticed earlier, the incident relates to the year 19909. The four accused have been convicted. Their conviction has attained finality. Section 319 Cr.P.C. has been construed by this Court in Shashikant Singh Vs. Tarkeshwar Singh and Another, and in Michael Machado and Another Vs. Central Bureau of Investigation and Another, Applying the ratio of these decisions on facts aforesaid the appellants could not have been directed to be retried. Under these circumstances, we set aside the impugned judgment of the High Court to the extent it directs the retrial of the appellants and uphold it to the extent it set aside the judgment and order of the Court of Session convicting the appellants.

7. The appeal is allowed in the above terms.