Mahendra Dayal, J. - (1.) I have heard learned counsel for the petitioners and the learned counsel appearing on behalf of opposite party No. 2 as well as learned A.G.A. for the State and have also perused the impugned order.
(2.) THE petitioners have filed this petition under Section 482 Cr.P.C. challenging the order dated 27.11.2012, passed by the Additional Sessions/Special Judge, E.C. Act Gonda, in S.T. No. 303/2012, arising out of Crime No. 182/2010, under Sections 147, 148, 149, 323, 307, 302 IPC, relating to P.S. Colonelganj, District Gonda, whereby the learned trial court has allowed the application under Section 319 Cr.P.C. and has summoned the petitioners as additional accused. The brief facts are that the opposite party No. 2 lodged an FIR against six persons including the petitioners alleging therein that on 7.4.2010 about 7.00 P.M. the accused persons including the present petitioners on account of previous enmity assaulted the opposite party No. 2 and one of the accused persons, namely, Shyamu opened fire at Avadh Raj, as a result of which he died. On the basis of written application of opposite party No. 2 the police registered the case against the six persons including the petitioners and after completion of investigation submitted charge sheet but exonerated the petitioners. When the trial commenced after framing of the charges and the statement of three prosecution witnesses were recorded, an application under Section 319 Cr.P.C. was moved on behalf of the prosecution and the learned trial court by means of the impugned order allowed the aforesaid application and summoned the petitioners to face trial.
(3.) THE learned counsel for the petitioners has submitted that after the lodging of FIR the Investigating Officer conducted a detailed investigation and recorded the statement of several witnesses but when no material was found against the petitioners, he did not file charge sheet against them. The learned trial court while considering the application under Section 319 Cr.P.C. in a very mechanical manner, passed the impugned order directing the petitioners to appear and face trial, although there was no evidence on record to have exercised the power under Section 319 Cr.P.C. It has also been submitted on behalf of the petitioners that it is a settled law that while invoking the power under Section 319 Cr.P.C. an additional accused can be summoned only if there is material evidence against him and there are fair chance to convict him. The impugned order does not reflect that the learned trial court has considered the evidence on record before passing the impugned order.;