JUDGMENT Poonam Srivastav, J.
1. Heard Sri Arvind Srivastava, learned Counsel for the petitioner and learned A.G.A. for the State.
2. The order passed by the learned Additional Session Judge (Fast Track Court No. 2) Mahrajganj dated 24.11.2006 summoning the petitioner under Section 319 Cr.P.C. is impugned in the instant writ petition. Written argument has been submitted by the counsel for the petitioner.
3. The facts giving rise to the dispute is that a first information report was registered under Sections 147, 148, 149, 307, 325, 504 I.P.C. on 3.10.2003 regarding an incident that had taken place on 27.9.2003. The petitioner was arrayed as accused No. 5 in the aforesaid first information report which was registered at Case Crime No. 288 of 2003. The police after completing the investigation, submitted a charge sheet against the accused Dharmendra, Sudhakar, Tejman and Ram Awadh Yadav. However, the petitioner's name was omitted in the charge sheet, cognizance was taken against those accused who were charge sheeted. The trial commenced and the statements of PW-1 Devendra Pathak, and PW-2 Yogendra Pathak were recorded during the trial on the basis of the statements annexed with the writ petition, an application was moved under Section 319 Cr.P.C. on 9.10.2006 and the same was allowed. The learned Sessions Judge summoned the petitioner to stand trial along with the other accused by means of the impugned order.
4. The grounds of challenge are, (1) the application under Section 319 Cr.P.C. can not be allowed in respect of an 'accused'. Since the name of the petitioner figured in the first information report, he can not be termed as 'any' person not being the accused and, therefore, the order impugned is illegal, (2) the court could not make roving inquiry before summoning a person to face the trail along with other accused, and (3) the impugned order has been passed in a routine and mechanical manner and there are bleak and remote chances of conviction of the petitioner. Thus the impugned order suffers from material illegality.
5. Reliance has been placed by the counsel for the petitioner on a number of decisions. The first decision is, Sohan Lal and Ors. v. State of Rajasthan . The submission is that the persons who has been discharged under Section 245 Cr.P.C. of all or some of the charges is an 'accused' hence can not be summoned in exercise of powers under Section 319 Cr.P.C. It is true that in the event, the court, at the commencement of the trial discharges an 'accused' of certain offences, he can not be summoned under Section 319 Cr.P.C. but the conclusion of the Investigating Officer can not be said to be an order of discharge. It is only a conclusion of the Investigating Officer after completing the investigation that he chose not to charge sheet the person against whom allegations were made in the first information report. The role of Investigating Officer is only to arrive at a conclusion after completing investigation and submit a report under Section 173 Cr.P.C. In the event, he arrives at a conclusion that a person named in the first information report does not appear to have committed the offence alleged on the basis of material collected he submits his conclusion. The Magistrate is not bound to accept it. The powers under Section 319 Cr.P.C. depends absolutely on the discretion of the court and on his conclusion after recording some evidence during the trial. In the event, the court finds that some other persons also appears to be involved in the court, he is well within his right to summon such a person to face the trial along with other accused. Not being charge sheeted is not equivalent to a discharge as in Section 227, 239 or 245 of the Code, and, therefore, the decision relied upon by the counsel for the petitioner is not applicable to the facts of the present case. The second decision relied upon by the counsel is, Palanisamy Gounder and Anr. v. State Represented by Inspector of Police (2005) 12 Supreme Court Cases, 327. It is argued that there are no reasonable prospect against the petitioner ending in conviction.
6. I am not in agreement with the submission of the learned Counsel that summoning of the petitioner has been done in a mechanical manner and only a fishing inquiry. In fact the petitioner was named in the first information report and subsequently one of the witness, who appeared during the trial, has also mentioned his name as a participant in the offences and, therefore, the court was well within its rights in summoning the petitioner. No doubt, the provisions of Section 319 Cr.P.C. has to be exercised sparingly and with great caution and to achieve criminal justice but it can not be expected the learned Judge to agree with the conclusions of the Investigating Officer. In the instant case, the name of the petitioner figured as one of the participant in the offences right at the beginning when the first information report was lodged. The trial commenced and subsequently after the two evidence was recorded, the court came to a conclusion regarding involvement of the petitioner along with other accused who are facing trial. Learned Counsel could not show that the exercise of discretion by the court below was without taking all relevant factors into consideration. It can not be said that the order has been passed mechanically. In the circumstances, I am of the considered view that the order passed by the Additional Sessions Judge (Fast Track Court No. 2), Mahrajganj does not call for any interference by this Court. The writ petition lacks merit and is accordingly dismissed.