Judgment:
ORDER
Abhijit Sinha, J.
1. This application by the two petitioners, who though named in the F.I.R. but were not sent up for trial, have prayed for the quashing of the order dated 6.11.2006 passed by the learned Presiding Judge, Fast Track Court No. V, Kishanganj, in Sessions Trial No. 319 of 2005, arising out of Kishanganj P.S. Case No. 123 of 2004, whereby they have been summoned under Section 319 Cr.P.C. to face the trial along with the other accused as additional accused.
2. The admitted position of the case is that both the petitioners along with others were named in the F.I.R. lodged on 10.7.2004 on which date the occurrence is said to have taken place. On the basis of the F.I.R. Kishanganj P.S. Case No. 123 of 2004 was registered against the six F.I.R. named accused under Sections 307, 379 and other allied Sections of the Penal Code. The police after due investigation submitted a chargesheet only against Md. Salehin and Md. Jainul Abedin and the two petitioners were not sent up for trial for want of sufficient materials, even as the investigation remained pending against Lal Babu and Manzoor.
3. By order dated 30.9.2004 the Chief Judicial Magistrate took cognizance against Md. Salehin and Md. Jainul Abedin and accepted the final form against the petitioners and exonerated them.
4. The grievance of the petitioners is that although they were named in the F.I.R., they were not sent up for trial, and as such, they had gone out of reach of Section 319 Cr.P.C. and the court below had failed to appreciate the fact that in their case there was no evidence before the court to summon them under Section 319 Cr.P.C. It was also submitted that apart from the informant (P.W.5) only four other witnesses other then the Officer Incharge, the doctor and a formal witness, were examined as prosecution witnesses and all of them happen to be tutored and their deposition in court as would appear is contradictory to each other as also to the fardbeyan and also not in consonance with the injury report.
5. I have had the occasion to peruse the impugned order. The submission of a person discharged going out of the ambit of Section 319 Cr.P.C. is a fallacious one. A person who is dropped by the police during investigation and the court accepted the same will definitely come within the ambit of the expression 'any person not being the accused'. It was held in Mahanth Amarnath : AIR 1983 SC 288, and Yogendra Singh v. State : AIR 1979 SC 339 that the expression 'any person not being the accused ' includes a person who has been dropped by the police during the investigation and against whom the evidence comes before the Court that he is also involved in the offence.
6. Admittedly, the informant has named the two petitioners in the F.I.R. and five witnesses, namely, P.Ws 1 to 5 including the informant have named the petitioners as accused and assailant also. P.W.8, the doctor, has proved the injury report. There is, admittedly, no bar to issue of summons under Section 319 Cr.P.C. against any person against whom the police has submitted Final Form, for want of evidence and the same is accepted by the court at the time of taking cognizance.
7. It appears from the impugned order that five prosecution witnesses have named the petitioners as members of the mob and as assailants of the injured.
8. In view of the facts stated above, I am of the opinion that there is no illegality in the impugned order. I also find no merit in this application which is dismissed.