- (1.) This is an appeal by four persons who have been added as accused under Section 319 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') in Sessions Trial No.446/2002 for an offence under Section 302 read with Sections 149 and 323 of the Indian Penal Code, 1860 (for short 'the IPC') and Section 27 of the Arms Act, 1959. The trial is being held in respect of the murder of one Saryug Yadav. On 04.06.2000, FIR was lodged by an informant under Sections 149, 302 and 323 of the IPC against 8 accused. A charge-sheet was submitted on 23.04.2001 only against four persons. Later on, a supplementary charge-sheet was submitted on 31.01.2003 by which one Bhankhar Yadav was included. A final form was submitted excluding the four appellants herein viz. Jogendra Yadav, Kailash Yadav, Kusum Pahalwan, Brijendra Yadav from the array of parties. On 18.02.2003, the Magistrate accepted the charge-sheet and the final form while taking cognizance of the offence. The case was committed to the Court of Sessions.
(2.) In the course of the trial, the evidence of the widow and two sons of the deceased were recorded. On the basis of the evidence the Additional Sessions Judge on 05.02.2005 under Section 319 of the Cr.P.C. issued notice to the appellants asking them to show cause as to why they should not be added as accused. After giving an opportunity to the appellants to file a reply, the learned Additional Sessions Judge summoned the appellants as accused for being added to the proceedings. It is nobody's case that they were not heard before such summon. In any case after the appellants were added, they preferred an application under Section 482 of the Cr.P.C. before the High Court, which was pending for a long time. They finally withdrew this application since they had got relief by way of discharge under Section 227 of the Cr.P.C. The respondent State preferred a Criminal Revision Application before the High Court. The High Court set aside the Order dated 23.09.2006 in Criminal Revision Application passed by the Additional Sessions Judge by which the appellants were discharged. While setting aside the order, the High Court made several observations on the merits of the case as well as on the material that was taken into account before discharging the appellants accused. The High Court also observed that the order by which the appellants were added under Section 319 of the Cr.P.C. was not challenged and was allowed to become final. This may not actually be accurate since, as noted above, the appellants had in fact challenged the order but had withdrawn the application under Section 482 of the Cr.P.C.
(3.) The High Court also observed that the order of discharge virtually nullifies the order under Section 319 of the Cr.P.C. made earlier by which the accused were added. It is this last observation which has been put in issue before us.;