Section 319 Cr.P.C., which reads thus:-
"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, and witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
As would appear from Section 319 Cr.P.C., if in the course of any enquiry into or trial of any offence, it appears to the court that from the evidence any person not being the accused has committed any offence for which such person should be tried together with the accused who are facing trial, the court may proceed against such person for the offence which he appears to have committed. There is no provision in Section 319 or any other section of the Code of Criminal Procedure, which empowers the court to issue notice to proposed accused before passing the summoning order. The prospective accused has no right to participate in the proceedings prior to passing the summoning order and he is not required to show cause as to why summoning order be not passed against him. The prospective accused comes in picture after he has been summoned to face the trial after taking cognizance on the charge-sheet, or passing order under Section 204 or 319 Cr.P.C. The prospective accused has no right to oppose the summoning order. Therefore, in present case also, the court below was not empowered to issue notice to the applicant to appear and show cause as to why he should not be tried with other accused. If there was evidence showing the involvement of the applicant in the alleged incident, then the court below ought to have passed summoning order to summon the applicant to face the trial, but prior to passing the summoning order, there is no provision in Cr.P.C. or any other statute to issue notice to the prospective accused to appear and show cause against the proposed summoning order.
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