JUDGMENT Mr. N.L. Ganguly, J. - This application under Section 482 Criminal Procedure Code has been filed against the order dated 15.1.91 passed by the Vth Addl. District & Sessions Judge, Etawah issue notice to the applicant under Section 319 Criminal Procedure Code to face trial in S.l No. 208 of 1990 under Sections 147, 323, 149, 324/149, 304 and 506 Indian Penal Code alongwith co-accused persons of the said Sessions Trials. 2. An application was sent by the informant Gambhir Singh to the Senior Superintendent of Police about the incident in which he had named Than Singh, Srawan Singh, Ramesh Singh, Ashok Singh and Smt. Chandan Kunwaras accused persons. The investigation was done by the Investigating Officer and charge -sheet was submitted against the four accused persons namely Than Singh, Ashok Singh,Swaran Kumar and Ramesh Singh under the Sections, mentioned above. No charge-sheet was submitted against Smt. Chandan Kunwar. After submission of the charge-sheet before the Court, an application on 15.1.91 was moved by the complainant informant Gambhir Singh in which it was prayed that notices be issued to Smt. Chandan Kunwar under Section 319 Cr. P.C. for facing the trial alongwith other co-accused. The Court was pleased to issue notice under Section 319 Criminal Procedure Code by the impugned order. In the order, the learned Judge observed that in the F.I.R. five accused persons including Smt. Chandan Kunwar were named and according to affidavit of complainant-informant all the five accused persons were named in the statement of witnesses recorded under Section 361 Cr.P.C. Contrary to it, it was pointed out to the Court that in statement under Section 161 Criminal Procedure Code all eye-witnesses of the incident present of Chandan Kunwar in the mar-pit was denied. The learned Sessions Judge in view of the aforesaid facts issued notice summoning Chandan Kunwar as an accused in the case. 3. The learned Counsel for the applicant challenged the order of summoning on the ground that once Smt. Chandan Kunwar, who was an accused named in the F.I.R. was found not to be an accused involved in the crime and no charge-sheet was submitted against her amounts to her discharge and she once being an accused in the case cannot legally be summoned for facing trial for the offence for which she has been absolved. The learned Counsel for the applicants placed the provision of Section 319(1) of Cr. The learned Counsel for the applicants placed the provision of Section 319(1) of Cr. P.C. quoted as under the tried to interpret the same to support his arguments : "319 (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". 4. It was submitted that the moment a person is named in the FIR, an accusation is made against the person such person is to be termed as accused. It is submitted that once Smt. Chandan Kunwar was accused of committing offence along with the other co-accused persons, the accusation was made against herein the F.I.R. and affidavit and statement of witnesses under Section 161 Cr.P.C. She has to be included in the term accused. Once she was not charge-sheeted after investigation, the Court could not summon her under Section 319(1) Criminal Procedure Code for facing the trial. The learned Counsel paid emphasise on the words in the section "any person not being the accused". The submission of the learned Counsel is misconceived. It is not all the person against whom accusation is made in the F.I.R. or in the application or affidavit becomes accused against whom enquiry or investigation is made. The submission that non-submission of the charge-sheet against Smt. Chandan Kunwar amounts to her discharge is also incorrect. The Supreme Court in AIR 1967 SC 1167 (Reghubansh Dubey v. State of Bihar) categorically held : "....Judicial refusal to summon amounts to discharge. There is no force in this contention, because there cannot by any question of discharge when the appellant was not sent upon the charge-sheet submitted by the police." The Supreme Court in AIR 1979 SC 339 (Jogender Singh & Another v. State of Punjab) observed : "The appellant was one of the 15 persons mentioned as assailants in the First Information Report. During the investigation, the police accepted the appellant's plea of alibi and filed a charge-sheet against others for offences under Sections 302, 201 and 149 Indian Penal Code before the Sub-Divisional Magistrate. During the investigation, the police accepted the appellant's plea of alibi and filed a charge-sheet against others for offences under Sections 302, 201 and 149 Indian Penal Code before the Sub-Divisional Magistrate. The Sub-Divisional Magistrate recorded that the appellant was discharged and transferred the case for enquiry to another Magistrate who after examining two witnesses, ordered the issue of non-bailable warrant against the appellant for proceedings against him alongwith the other co-accused III. The order was confirmed by the Sessions Court and the High Court and in further appeal to this Court, it was held first, that there could be no discharge of the appellant as he was not included in the charge-sheet submitted before the Magistrate by the police and, second that the appellant could be proceeded against the alongwith the other accused under Section 207A, Cr. P.C. (old code). and this Court confirmed the order of the Magistrate." In the same reported case, the Supreme Court was pleased to observe at para 9. "As regards the contention that the phrase any person not being the accused occurring in Section 319 excludes from its operation and accused should has been released by the police under Section 169 of the Code and has thus in column No. 2 of the charge-sheet the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319-A clearly shows that even person who have been dropped by the police during the investigation but against whom evidence showing their involvement in the offence comes before the criminal Court are included in the said expression." 5. The above observation of the Hon'ble Supreme Court clearly negatived the submission advanced by the learned Counsel for the applicant. 6. There was, thus, no illegality or error committed by the Court below in summoning the applicant as an accused under Section 319, Criminal Procedure Code. 7. The learned Counsel further pointed out that the learned Court below exercised the power under Section 319 on the basis of the application of the complain on informant and passed orders summoning the applicant without any fresh evidence or material on record to justify summoning of the applicant to face the trial. 7. The learned Counsel further pointed out that the learned Court below exercised the power under Section 319 on the basis of the application of the complain on informant and passed orders summoning the applicant without any fresh evidence or material on record to justify summoning of the applicant to face the trial. It appears that from perusal of the order of the Court below that while passing the order it was referred by the Court that eye-witnesses in statement under Section 161 Criminal Procedure Code had not named the applicant Smt. Chandan Kunwar as an accused assailant participating in the mar-pit. This was pointed out by the other co-accused persons of the case. The informant-complainant's Counsel in his application and affidavit stated that witnesses under Section 161 Criminal Procedure Code had stated that all the five accused persons had participated in the incident of mar-pit. The Court without recording any evidence in the case or independent finding about his satisfaction that it was necessary to summon Smt. Chandan Kunwar as an accused passed the order impugned. The learned Counsel for the applicant cited 1981 ALJ 959 (Rajiv Yadav v. State and 1931 ALJ 522 (Doodh Nath Lal v. State of U.P.) in support of his contention. Both the judgments are Single Judge decision of our Court in which the decision of 1979 AIR SC 339 was relied and it was held that no evidence at all has been recorded in the Court. The learned Magistrate summoned the applicant obviously on the basis of the case diary alone. It was held that the Court could not have summoned the applicant under Section 319 Criminal Procedure Code in absence of any evidence, the Court below could not have taken cognizance and issued notice to the accused under Section 319 merely on the basis of the application of complainant-informant without recording any evidence in the case. The law on the point is clear. Thus, the order of the Court below issuing notice under Sections 147, 323, 149, 324/149, 304 and 506 Indian Penal Code passed under Section 319, Criminal Procedure Code against the applicant Smt. Chandan Kunwar is liable to be quashed. The order dated 15.1.91 is thus set aside. I have heard the learned Counsel for the applicant and learned Addl. Govt. Advocates. The order dated 15.1.91 is thus set aside. I have heard the learned Counsel for the applicant and learned Addl. Govt. Advocates. He has no objection in finally deciding the petition at this stage without calling for a counter affidavit in the case. However, it is made clear that in case the learned Court below after recording evidence of the case is of the opinion that orders under Section 319 Criminal Procedure Code are necessary for issuing notice to the applicant. He shall be free to pass such an order if he satisfied at a later stage after record evidence in the case. 8. Application under Section 482 CrP.C. is allowed.