JUDGMENT
A.H. Saikia, J
1. Heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. M.U Mandal, learned counsel for the petitioner. Also heard Mr. P. Bora, learned PP, Assam.
2. This criminal revision petition has been directed against the order dated 10.8.2004 passed by the learned Addl. Sessions Judge, Nagaon in Sessions Case No. 138 (N)/03 by which the petition preferred by the informants/petitioners under Section 319 Cr.P.C. praying for issuance of summons to certain persons named in the petition itself alleged to have been involved in the commission of the offence in question, was rejected for the time being.
3. For the sake of convenience, the impugned order dated 10.8.2004 may be extracted as under :
“ORDER
10.8.2004
Both accused are present. Summon to N/O and I/O have been received back without service. Issue summon to them as per the report of police.
Seen the petition No. 439 filed by Ramjan Ali praying to issue summon to Khairul, Forjul, Jalil Munchi, Jahirul, Habibullah, Abdul Matin, Abdul Man, Ganesh Saikia Under Section 319 as they are involved in commission of alleged offence. This petition is not filed by Addl. PP. The provisions of Section 319 Cr.P.C. is to be considered by court on the basis of evidence on record and the aforecited persons may be summoned after perusal of evidence on record. At this stage the prayer is rejected.
Fix 1.9.2004
For M/O and I/O
Sd/-”
4. It would also be necessary and apposite to refer to the provision of Section 319 Cr. P.C. which is quoted below :
“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, said witnesses re-heard;
(b) subject to the provisions of Clause (a), the case may proceed as if such persons had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.”
5. A bare reading of the above provision explicitly shows that the power of proceeding against other persons appearing to be guilty of offence is an exclusive power of the court concerned and the same can be exercised only by the Court in the course of inquiry into or triable of an offence, if from the evidence it appears that any person, not being accused has committed such offence for which such person could be tried along with the accused person. It is really an extraordinary power which, is conferred on the court and should be to be exercised sparingly. From the language of the above provision, it can be said that the court can exercise such power suo motu or on, an application of some one including the accused provided, of course, the Court is satisfied from the evidence or statement made before the Court that any person other than the accused has committed any offence for which he can be tried together.
6. From the close perusal of the impugned order, as already noticed hereinabove, it appears that the learned Magistrate, while observing that the petition was not filed, by the Addl. Public Prosecutor, held that the provisions of 319 Cr.P.C. was to be considered by the court on the basis of evidence on record and the aforesaid persons may be summoned after perusal of evidence on record and rejected the prayer recording as “At this stage the prayer is rejected”.
7. Such order exclusively shows that the order was of interlocutory in nature. That being the position, this court is not inclined to interfere with the same. I leave the entire matter to the discretion of the Court concerned so that it may act according to law if it is fully satisfied that a case for taking cognizance against those persons named in the petition mentioned above, has been made out on the basis of evidence led before it.
8. In the result, this petition stands dismissed. Interim order passed earlier shall also stand vacated.