- (1.) HEARD learned counsel for the petitioners and learned counsel for the State.
(2.) THE petitioners have been made accused for the offence under Section 302/34 of the Indian Penal Code in connection with Godda (T) P.S. Case No.201 of 2009, corresponding to G.R. No.634 of 2009 and have been summoned to face the trial in S.T. No. 79/2010 by the learned Sessions Judge, Godda. It appears that the petitioners are named accused in the FIR and there is allegation against the petitioners also. However, upon investigation of the case, the police had submitted charge -sheet under Section 306/34 of the IPC against the co -accused, but so far as the petitioners are concerned, the police had submitted final form. It appears that on the basis of the charge -sheet submitted by the police, the Court below took cognizance against all the accused persons including these petitioners, which was challenged by the petitioners in Cr. M.P. No.1296 of 2009. The said Cr. M.P. was allowed so far as these petitioners are concerned, by the order dated 27.7.2010 in the following terms : - "Under Such circumstances, as per the settled principle of law laid down by the Supreme Court in the case of Kishori Singhs case (supra), the Magistrate, while taking cognizance of the offence, could have taken cognizance of the offence against such of the accused, who has been chargesheeted, but not against those who were not chargesheeted nor recommended for trial, though at a later stage, under Section 319 of the Cr.P.C, the trial court may be called upon to take an appropriate decision, whether to implead such persons as accused in the trial. In the light of the facts and circumstances and the discussions made, I find that the impugned order of the court below directing issuance of summons against petitioner Nos. 1 to 6, is contrary to the settled law and, therefore, cannot be sustained. Accordingly, the portion of the impugned order, whereby summons were issued to the petitioner Nos. 1 to 6, namely Narayan Prasad Jha @ Narayan Jha, Bamshankar Thakur @ Bholi Thakur, Sgar Jha @ Sagar Kumar Jha, Ghanshyam Thakur, Amit Kumar Jha and Ravikant Jha, is hereby set aside. 
(3.) HOWEVER , it appears that armed with this order the petitioners filed application for discharge in the Court below, as in the meantime the charge had also been framed in the case and the witnesses were being examined. The prayer of the petitioners was refused by the Court below, stating that the trial against the petitioners had already commenced and directed the petitioners to swear an affidavit to inform as to whether the petitioners had informed this Court that the charge had already been framed and the witnesses were examined in the sessions trial during the pendency of the matter before the High Court. The petitioners again filed I.A. No.2061 of 2010 in the said Cr. M.P. 1296 of 2009 for clarification of the order which was again disposed of by this Court by order dated 26.8.2010 in the following terms : - "The Sessions Judge should have been therefore advised to consider the effect of the order passed by this Court and to discharge the accused persons from the trial of the case at this stage. The Sessions Judge ought to have also observed from the order passed by this Court that under the provisions of Section 319 of the Cr.P.C. the trial court would be competent to take appropriate decision, if the materials and circumstances placed before it would necessitate to implead the petitioners as accused in course of the same trial. But, before such decision is taken under Section 319 of the Cr.P.C., the Sessions Judges has no other option but to act in the light of the order passed by this Court and discharge the accused persons.  ;