JUDGMENT This Rule arises on an application under Ss. 481/482 of the Code and is directed against order dated 6th February, 1979, passed by Shri S.N. Maity, Judicial Magistrate, 4th Court, Alipore in C.R. Case No. 1157 of 1976 under Ss. 323/324/448 I.P.C. rejecting an application under S. 319 of the Code of Criminal Procedure, 1973, filed on behalf of the prosecution. 2. The learned Sub-Divisional Magistrate directed the O.C. Tollygunge P.S. under S. 156 of the Code to treat the complaint of the petitioner against Opposite Parties as the F.I.R. The police, on receipt of the complaints, started a case. After, investigation, the police submitted challan against the accused Himangshu Chatterjee under S. 324 I.P.C. The I.O. prayed for discharged of the two other accused Arunangsu Chatterji and Biswwanath Chatterji. On behalf of the prosecution, an application was filed on behalf of the State for summoning two other accused. After hearing the parties, the learned Magistrate held that there was prima facie evidence against two other accused under S. 324 I.P.C. and issued summons. After hearing the parties and perusing all papers and considering the materials on record the learned Magistrate framed a charge under S.324 I.P.C. against accused Himanshu and a charge under S.323 I.P.C. against accused Arunagsu. The learned Magistrate considered the charge against accused Biswanath as groundless and discharged him under S.239 of the Code by his order dated 25.8.77. On 8.8.78 the de facto complainant was examined as P.W. 1. The case was adjourned for cross examination of P.W.1 and for examination of P.W.2. On 22.11.78 on behalf of the State, an application was filed under S.319 of the Code for impleading the accused Biswanath on the basis of the evidence of P.W.1. The learned Magistrate, after hearing the parties, rejected the said application. Hence, the present Rule. It may be mentioned that the State has not come up to this Court. It is only the de facto complainant who has challenged the order passed by the learned Magistrate on the 6th February, 1979. Mr. Promode Ranjan Roy, learned advocate appearing on behalf of the de facto complainant, contends that the learned Magistrate was wrong to think that as the accused was discharged he cannot again be brought as an accused. Mr. Roy refers to the provision of S.319 of the Code. Mr. Promode Ranjan Roy, learned advocate appearing on behalf of the de facto complainant, contends that the learned Magistrate was wrong to think that as the accused was discharged he cannot again be brought as an accused. Mr. Roy refers to the provision of S.319 of the Code. Sub-clause (1) of the said section reads as follows:- “Where in the course of any inquiry into or trial or, and offence. It appears from the evidence that any person not being the accused has committed an 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.” Mr. Roy submits with much emphasis that the words “any person not being the accused” include even a person who has been discharged in the very same proceeding. There is noting in this sub-section, Mr. Roy contends providing that a person discharged cannot be brought again even it transpires from the evidence of a witness about his complicity in the alleged offence. In support of his contention, Mr. Roy first refers to a decision reported in AIR 1979 Supreme Court 359 (Joginder Singh & anr Vs. State of Punjab & anr) in this case it has been held “the expression any person not being the accused’ occuring in S.319 clearly covers any person who is not being tried already by the court and the very purpose of enacting such a provision like S. 319(1) clearly shows that even persons who have been dropped by the police during investigation....................comes before the criminal Court are included in the said expression”. Relying on this decision, Mr. Roy submits that a person who has been discharged, cannot be called an accused and he is included in the expression any person not being the accused.’ In this connection. Mr. Roy also refers to a decision reported in 1975 (1) CLJ 119 (Indra Nath Guha Vs. The State of West Bengal). In paragraph 91 of the said decision, their Lordships quoted the observations of the Supreme Court about the effect of discharge under S.227 of the Code. The provisions of S.227 are almost similar to the provision of S.239 of the Code. Before the Supreme Court, it was contended that since the effect of the High Courts’ order was only on decision under S.227 of the Code. The provisions of S.227 are almost similar to the provision of S.239 of the Code. Before the Supreme Court, it was contended that since the effect of the High Courts’ order was only on decision under S.227 of the Code. It was within the jurisdiction of the Sessions Court to frame charges against the discharged accused in the event of fresh additional material coming in the course of trial. The Supreme Court observed “we are not called upon to investigate and do not pronounce upon the soundness of this position. If the Sessions Court does frame charges on this basis, it will be open to the parties to have the point of law canvassed and decided ...............”. This decision, in my opinion, does not help the petitioner as the Supreme Court refrained from expressing any opinion on this issue as it was not necessary in that case. It is true that in the decision reported in AIR 1979 Supreme Court 339 their Lordships have laid down that a person who has been dropped by the police during investigation is included in the expression ‘any person not being the accused.” But the present case is different. In the present case the police dropped this person on the prayer of the prosecution. This person was summoned. The learned Magistrate, on being satisfied on the statements made under S.161 of the Code and other materials on record, found the charge against this accused as groundless and as such discharged him. The leaned Magistrate, however, by the same order framed charges against other two accused. It was after P.W.1 was examined in chief an application was filed by the learned A.P.P. under S.319 of the Code for including Biswanath as an accused. As has been stated earlier in this very case the accused was discharged, That order has never been challenged. Order passed by a Court must have some sanctity. The allegations against accused Biswanath were found groundless and as such, the accused was discharged. This being the position, in my opinion, a person who is discharged under S.239 of the Code cannot be included in the expression ‘any persons not being the accused’. In the Supreme Court case, the person concerned was dropped by the police. He was never summoned by the Magistrate and that is the distinction on facts between the Supreme Court and the present case. In the Supreme Court case, the person concerned was dropped by the police. He was never summoned by the Magistrate and that is the distinction on facts between the Supreme Court and the present case. This being the position, I am of opinion that the learned Magistrate was right in rejecting the application. 3. In the result, the application fails and the Rule is discharged. Let the records go down immediately. The learned Magistrate is directed to proceed with the case in accordance with law. Rule discharged.