Amareshwar Sahay, J.

1. Heard the parties.

2. The petitioners being aggrieved by the order dated 04.07.2005, passed by the Additional Sessions Judge, Rajmahal, in S.C. No. 187 of 2004, have filed this application for quashing the said order whereby, the learned Trial Court, in exercise of the powers under Section 319 of the Cr.P.C, after considering the evidence on records, directed to issue summons against the petitioners abovenamed to face trial in the said Sessions Case.

3. The F.I.R. being Radha Nagar. P.S. Case No. 164 of 2002 was registered against seven named accused persons, by the Police on 24.12.2002 on the basis of the Fard Bayan of one Mahabir Mandal. It was alleged therein that on 23.12.2002, at about 11:30 A.M., at village -Nauhariya, Fudkipur, within Radhanagar P.S., in the district of - Sahibganj, a Gram Panchayat Sabha was held for the purpose of selection of contractor for construction, under Sunischit Rojgar Yogna. Various persons of the village, in two parties, assembled in the meeting, one party was headed by Swadhin Mandal and the other was headed by Subhash Mandal. The informant Mahabir Mandal was in the party of Subhash Mandal. In the said meeting, some disputes arose between the parties and then the accused Bhubesh Mandal, Kailash Mandal, Yugal Mandal, Jyotin Mandal, Dukhu Mandal and Sunil Mandal caught hold of the informant and assaulted him with feast and blow on different parts of his body. The accused Rupen Mandal came having a Danda in his hands and assaulted on the abdomen of the informant as a result of which, the informant felt pain, Seeing this situation, Subhash Mandal, Amarnath Mandal and Gopal Mandal of the village came and intervened in the matter and brought the informant to the Hospital where Fardbayan of the informant was recorded.

In course of investigation, the informant Mahabir Mandal died and as such Section 302 of the Indian Penal Code was added. Subsequently, the Police, after completion of the investigation, submitted chargesheet against the accused persons were facing trial.

4. In course of trial, after eight prosecution witnesses were examined and cross examined, an application under Section 319 of the Cr.P.C. was filed on behalf of the prosecution stating therein that in view of the evidence of the P.W.-1 Rajendra Prasad Gupta, P.W.-2 Dhananjay Pandit, P.W.-3 Ratan Mandal, P.W.-4 Manoranjan Mandal, P.W.-5 Sudershan Mandal and P.W.-6 Amarnath Mandal wherein those witnesses clearly stated in their evidence about the participation of present petitioners in the said occurrence and therefore, the prayer was made that the non F.I.R. accused persons against whom evidence had come during trial (petitioners) be also summoned to face trial in exercise of the powers under Section 319 Cr.P.C.

5. Learned Trial Court, by the impugned order, after a detailed discussion of the evidence, adduced in course of trial, held that on the basis of the evidence available on record and in view of the statement of all the prosecution witnesses wherein they have the involvement of these petitioners in the offence and therefore, in such situation, directed to issue summons to those five persons i.e. the petitioners herein namely Swadhin Mandal @ Swadhin Chandra Mandal, Sanjeev Mandal, Madan Mandal, Ram Prasad Pandit @ Ram Prakash Pandit and Sukesh Mandal to face trial.

6. Mr. Rajeeva Sharma, learned Sr. counsel appearing for the petitioners, submitted that no doubt it is the settled principle of law that in course of enquiry or trial of an offence, when it appears from the evidence adduced during trial that any person not being the accused has committed the offence then such person can be tried together with the accused but in fact the Court can proceed against such persons only if he is satisfied that there is likelihood of conviction of the accused then only he can exercise the powers under Section 319 of Cr.P.C. By relying on a recent decision of the Supreme Court in the case of Mohd. Shafi v. Mohd. Rafiq and Anr. reported in 2007(3) JLJR 55 (SC) he submitted that the Supreme Court has held that before exercising its discretionary jurisdiction in terms of Section 319 Cr.P.C, the Court must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted but in the present case, learned Trial Court has not come to such a conclusion as to whether from the evidence adduced by the prosecution during trial; it appeared to the Trial Court that there is likelihood that these petitioners may be convicted in the said case and therefore, the impugned order summoning the petitioners to face trial, cannot be sustained in the eyes of law.

7. In order to test the submissions of the learned Counsel for the petitioner, let us examine Section 319 of Cr.P.C. first and thereafter, the law laid down by the Supreme Court on the said point.

319. 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 the witnesses reheard;

(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 cognisance of the offence upon which the inquiry or trial was commenced.

8. From a plain reading of the aforesaid provisions of Section 319 Cr.P.C. quoted above, it is clear that for exercising powers under the said Section, the Trial Court has to come to the conclusion that the evidence adduced during the trial indicate that the non chargesheeted accused persons also are involved in commission of the alleged offence.

9. Now let us examine the relevant decisions of the Supreme Court on the point in issue.

In the case of Lok Ram v. Nihal Singh reported in , the Supreme Court has held as follows

The trial court has undoubted jurisdiction under Section 319 Cr.P.C. to add any person not being the accused before it to fact the trial along with the other accused persons, if the court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. Power under Section 319 of the Code can be exercised by the court suo motu or on an application by someone including the accused already before it. It if it is satisfied that any person other than the accused has committed an offence he is to be tried together with the accused. Such person, even though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added to face the trial.

[Emphasis is mine].

In the case of Palanisamy Gounder v. State reported in : (2005) 12 SCC 327 , the Supreme Court has held that

A fishing inquiry is not contemplated. It is not enough that it might be necessary to implead such accused to find out the real truth, even though there is no solid foundation of a case against them.

In the case of Jarnail Singh v. State of Haryana reported in , the Supreme Court has held that

It is the duty of the court to bring before it any person who appears to have committed an offence and to convict and pass an appropriate order of sentence on proof of such person having committed the offence.

10. Therefore, from the above decisions of the Supreme Court, it appears that the consistent view of the Supreme Court on this point is that the powers under Section 319 Cr.P.C, can be exercised by the Trial Court, if it comes to the conclusion on the basis of the evidence adduced by the prosecution, that some other accused who was not before it, also appears to have committed the offence, then it has the power to summon them to face trial with other accused persons.

11. In the case of Mohd. Shafi v. Mohd. Rafiq and Anr. (Supra), no doubt the Supreme Court has used the language that the Court must arrive at the conclusion that there exists possibility that the accused so summoned is in all likelihood would be convicted, clearly indicates that from the evidence it appears that other non chargesheeted accused has also committed the offence. Unless an accused in found to have committed the offence, he cannot be convicted and for coming to the said conclusion, the trial court has to scrutinise the evidence adduced before it. It may be that the language used in Mohd. Shafi v. Mohd. Rafiq and Anr. (Supra) case is a bit different. Purport of decisions of the Supreme Court is in my view the same thing.

12. I have also minutely gone through the impugned order of the trial Court from which it appears that the learned Trial Court has taken pains in discussing in details the evidence adduced by the prosecution one by one and then has arrived at a conclusion that there is involvement of the petitioners in the said offence and therefore, in my view, the Trial Court has not committed any illegality in summoning the petitioner to face trial.

Accordingly, in view of the discussions and findings above, do not find any merit in this application. It is accordingly dismissed.