Judgment : ( 1 ) THIS application under Section 482 of Cr. P. C. has been preferred by the petitioner against the order dated 13th February, 2001 passed by the learned Chief judicial Magistrate, Dumka, whereby cognizance of offence under Sections 147, 148, 448, 341, 323, 324, 307 and 379 of the Indian Penal Code has been taken against the accused persons including the petitioner. ( 2 ) IT appears that on the basis of the fardbeyan of Smt. Sati Devi recorded on 16th October, 2000 at 9. 30 p. m. at Dumka (T) Police Station, Ramgarh P. S. Case No. 89/2000 corresponding to G. R. No. 984/ 2000 dated 18th October, 2000 was instituted under Sections 147, 148, 448, 341, 323, 324, 307 and 379 of the Indian Penal code against several accused persons including the petitioner. In the said Fardbeyan, the informant alleged that on 16th October, 2000 at 1-30 p. m. she along with her sister-in-laws (Gotni) Paro Devi; (Nanad) Sabni mosmat and her daughter-in-law (Phool kumari) were in the house. All of a sudden, her relatives (Gotiyas), the accused persons including the petitioner entered into her house and started abusing and assaulted with fists and slaps, lathi, danda and rod, as a result of which, her sister-in-laws, namely, Paro Devi, Sabri Mosmat and daughter-in-law, Phool Kumari came for her rescue, but they were also assaulted. Accused Satan Mandal ordered to kill them, whereupon Paro Devi was attempted to kill and Ghanshyam shot an arrow which injured Paro Devi on her left hand and she fell down. On raising alarm, the people of the locality gathered. While fleeing away, accused persons also took away some of the utensils and silver chain. ( 3 ) ACCORDING to the petitioner, after investigation, charge sheet was submitted and all the accused persons were forwarded for trial under the aforesaid sections excluding petitioner Radhey Shyam Mandal @ Bablu mandal who was not sent up as per the charge sheet. Thereafter, the learned Chief judicial Magistrate, Dumka took cognizance by order dated 13th February, 2001 under sections 147, 148, 448, 341, 323, 324, 307 and 379 of the Indian Penal Code against the accused persons including the petitioner. Thereafter, the learned Chief judicial Magistrate, Dumka took cognizance by order dated 13th February, 2001 under sections 147, 148, 448, 341, 323, 324, 307 and 379 of the Indian Penal Code against the accused persons including the petitioner. ( 4 ) COUNSEL for the petitioner submitted that there was no material against the petitioner and thereby, there was no occasion to take cognizance against him nor the c. J. M. had jurisdiction to take cognizance, he having not sent up for trial. It was also submitted that the petitioner, a military personnel in the Border Security Force was posted at Jalpaiguri at the relevant date of alleged occurrence and he has been falsely implicated in the case. ( 5 ) IT is settled law that if an accused is not sent up by the police for trial on the ground that no case is made out against him only sessions Court can summon the person left by the I. O. in the charge sheet, if! the sessions Court finds that a prima facie case is made out against such person as enunciated under Section 193 Cr. P. C. The trial Court can also take steps under Section 319 Cr. P. C. to summon such person if there is evidence collected during trial. ( 6 ) IN the present case, admittedly, the petitioner was not sent up for trial as I. O. found no case made out against him. In such circumstances, it was incumbent upon the magistrate before taking cognizance for the offence alleged against him to notice him and also give him opportunity to be heard. But it has not been complied in the present case, as alleged by the petitioner and in that view of the matter, the Court below having committed error in taking cognizance, the impugned order dated 13th February, 2001 passed by the Chief Judicial Magistrate, dumka cannot be sustained. The said order so far as it relates to petitioner is, accordingly quashed. ( 7 ) HOWEVER, it is made clear that if an accused is not sent up by the Police for trial, such person does not amount to discharge, in the eye of law, but can be summoned to face trial if his involvement/indulgence is found during trial by the Court as laid down under Section 319 Cr. P. C. This application is, accordingly, allowed. Application allowed. --- *** --- .