P. N. SINHA ( 1 ) THIS revisional application under Section 401 read with Section 482 of cr. P. C. is directed against order No. 14 dated 27. 7. 04 passed by the learned additional Sessions Judge, Fast Track Court No. 4, Alipore in Sessions Trial no. 11 (4) of 2004 directing issue of summons against this petitioner under section 319 of Cr. P. C. for facing trial in the said sessions case along with four other accused persons. ( 2 ) MR. Dipak Kumar Sengupta, learned senior Advocate appearing for the petitioner submitted that the petitioner was named as an accused in the First Information Report (FIR) lodged by ote facto complainant Babla Das on the basis of which South Port Police Station Case No. 123 dated 12. 11. 02 under Sections 307/34/109 of the Indian Penal Code (in short I. PC.) read with Sections 25 (1b) (a)/27 of the Arms Act was started against this petitioner and four others. After completing investigation the police submitted charge-sheet against the four other accused persons and submitted prayer for discharging the petitioner. The de facto complainant was appearing in the lower Court proceeding before the learned Magistrate but the de facto complainant did not file any 'naraji' application against discharge of the petitioner. The de facto complainant did not also file any revision against the order of the learned Magistrate taking cognizance against four accused persons and discharging the petitioner. Failure of the de facto complainant to file any 'naraji' application against the final report of Investigating Officer (I. O.) praying for discharging this petitioner and his inaction to prefer any revision against the order of the learned Magistrate accepting the police report bears great significance. It establishes that the de facto complainant accepted the final report submitted by I. O. so far as it relates to the present petitioner that there is want of evidence against this petitioner for which his discharge was justified. ( 3 ) MR. Sengupta further submitted that charge-sheet submitted by i. O. would reveal that there is want of evidence against the petitioner. After commitment of the case to the Court of Sessions it was transferred to the learned Additional Sessions Judge for trial and in the trial only P. W. 1 has been examined in chief. ( 3 ) MR. Sengupta further submitted that charge-sheet submitted by i. O. would reveal that there is want of evidence against the petitioner. After commitment of the case to the Court of Sessions it was transferred to the learned Additional Sessions Judge for trial and in the trial only P. W. 1 has been examined in chief. Thereafter, on the basis of an application filed by the learned Public Prosecutor in charge of the case dated 22. 6. 04, the learned judge on the basis of such examination in chief of P. W. 1 passed the order dated 27. 7. 04 exercising jurisdiction under Section 319 of Cr. P. C. issuing summons against this petitioner. The de facto complainant himself by issuing a letter to his Advocate Mrs. Baby Ghosh on 5. 2. 03 stated that due to mistaken identity he mentioned name of the petitioner in the FIR and this petitioner have no nexus in the commission of the offence. This letter of de facto complainant and the power of police to investigate starting from registration of FIR till submission of report in final form passing through different stages (from Sections 154 to 173 of Cr. P. C.), and the investigation done made it clear that there was no such foundation of alleged offence or any elements of offence against the petitioner. The stages traversed for investigation by I. O. to verify the allegations of FIR made it clear that the I. O. did not collect any material against the petitioner. There was no corroboration of allegations also and accordingly the I. O. submitted a report correctly. ( 4 ) MR. Sengupta further submitted that exercise of jurisdiction by the learned Judge or Magistrate under Section 319 of Cr. P. C. must be with very caution and care and the learned Judge must be circumspect. The order of the learned Judge exercising jurisdiction under Section 319 of Cr. P. C. cannot be a routine affair. The learned Judge must express his satisfaction on consideration of relevant factors before taking action under Section 319 of cr. P. C. by issuing summons upon a person as an accused who was earlier discharged by learned Magistrate when police submitted report in final form stating that there was no material against such person. The learned Judge must express his satisfaction on consideration of relevant factors before taking action under Section 319 of cr. P. C. by issuing summons upon a person as an accused who was earlier discharged by learned Magistrate when police submitted report in final form stating that there was no material against such person. It is a very extra ordinary power and, it should be exercised very sparingly after considering all relevant factors including materials collected during investigation and the evidence transpired before the Court. The evidence of one witness, that too, as examination in chief is not sufficient to exercise this extraordinary power to summon a person as an accused to face trial who was earlier discharged, though was named in FIR. The propriety and jurisdiction of the order passed by the learned Judge is questioned in this revisional application, and it is clear from the 161 statements and other materials collected during investigation as well as the examination in chief of P. W. 1 that, the learned Judge made great error by exercising this extraordinary power by issuing summons against the petitioner. Under Section 398 of Cr. P. C. after discharge there cannot be issue of summons without making enquiry and without issuing notice to such person for hearing. The order passed by the learned Judge is absolutely bad in law, premature and without any authority and accordingly the said order should be set aside. In support of his contention Mr. Sengupta submitted that the decision of the Hon'ble Supreme Court in Sohan Lal v. State of Rajasthan, reported in 1990 Cr LJ 2302 is the authority on the power of Court to exercise jurisdiction under Section 319 of Cr. P. C. Mr. Sengupta also referred to the decisions in Naser All Mirza v. The State of West Bengal, reported in 1999 c Cr LR (Cal) 302 and Shahid and Ors. v. Afsar AH and Anr. , reported in 2004 c Cr LR (SC) 427 and Michael Machado and Anr. v. Central Bureau of investigation and Anr. , reported in 2000 Cr LJ 1706 : 2000 C Cr LR (SC) 203. ( 5 ) MR. v. Afsar AH and Anr. , reported in 2004 c Cr LR (SC) 427 and Michael Machado and Anr. v. Central Bureau of investigation and Anr. , reported in 2000 Cr LJ 1706 : 2000 C Cr LR (SC) 203. ( 5 ) MR. Ashim Kumar Roy, learned Advocate appearing for the State of West Bengal submitted that after submission of report in final form by the i. O. praying for discharging this accused petitioner, the learned Magistrate did not issue any notice to the de facto complainant which was an obligation on the part of the learned Magistrate according to the direction of the Hon'ble supreme Court. The de facto complainant was not present in Court when the charge-sheet was submitted by I. O. with a prayer for discharge of this petitioner. The alleged letter written by the de facto complainant dated 5. 2. 03 cannot be considered at this stage and the said letter may be considered in the trial. Moreover, the said letter was addressed to the Advocate and not to the officer who was in charge of investigation of the case. It would be a matter of fact in the trial itself whether the de facto complainant actually wrote such a letter to his Advocate and what is the value of such letter when he earlier lodged fir mentioning specifically name of the petitioner as the main person or the main conspirator behind the incident of attack on him by fire arm through the men engaged by this petitioner. It may be a matter of defence evidence in trial when the accused would cross examine P. W. 1 on that letter and during cross examination the accused may take advantage, if any, if such advantage transpires during trial. ( 6 ) MR. Roy further submitted that Section 319 of Cr. P. C. does not depend upon prayer of complainant or Public Prosecutor. If on the basis of evidence the Court finds that elements of offence has been transpired against the person who was previously not an accused or was not charge-sheeted by police, the Court itself can issue summons against such accused whose name transpired in evidence. The petitioner was an accused and was named in FIR but the I. O. did not submit charge-sheet against him. In the final report submitted by I. O. under Section 173 (2) of Cr. The petitioner was an accused and was named in FIR but the I. O. did not submit charge-sheet against him. In the final report submitted by I. O. under Section 173 (2) of Cr. P. C. the I. O. prayed for discharge of this petitioner. Thereafter, during evidence of P. W. 1 the name of this accused petitioner transpired as main person who formed the conspiracy of attack on him. The Court may issue summons against the accused on the basis of evidence at the stage of examination in chief and cross examination of witness is not necessary to exercise jurisdiction under Section 319 of cr. P. C. The Supreme Court made it clear in several decisions under which circumstances the Court can exercise the power of issuing summons under section 319 of Cr. P. C. In support of his contention Mr. Roy cited the decisions reported in (2004)4 Cal HN 89 (Shyamali Sinha v. Pradlp Kumar Sinha and anr.), 2004 SCC (Cr) 1136 (Geeta Ram v. Vedi Ram and Ors.), 2004 SCC (Cr)1153 [rukhsana Khatoon (Smt.) v. Sakhawat Hussain and Ors. ] and 2001 SCC (Cr) 1090 (Rakesh v. State of Haryana ). ( 7 ) I have heard the submissions of the learned Advocates of the parties and perused the revisional application and considered the entire matter and the point of law involved in this revisional application. Before I proceed into the legal point as to whether in the instant case the learned Judge was right in exercising his discretion and jurisdiction under Section 319 of Cr. P. C. to summon this petitioner as an accused to face the sessions trial, it would be fruitful to mention, in short, the facts of the case. ( 8 ) THE facts of the case can be gathered from the FIR. The formal fir reveals that South Port P. S. Case No. 123 dated 12. 11. 02 under Sections 307/34/109 of I. P. C. read with Sections 25 (1b) (a)/27 of the Arms Act was started after recording the statement of the informed-cum-ofe facto complainant babla Das at Calcutta Medical Research Institute as the informant-cum-injured was then struggling for life and death in the said hospital after being injured by gun shot injury on his abdomen. 02 under Sections 307/34/109 of I. P. C. read with Sections 25 (1b) (a)/27 of the Arms Act was started after recording the statement of the informed-cum-ofe facto complainant babla Das at Calcutta Medical Research Institute as the informant-cum-injured was then struggling for life and death in the said hospital after being injured by gun shot injury on his abdomen. The formal FIR reveals that this petitioner was accused No. 1 and the other four accused persons are the persons against whom charge-sheet was submitted, but strangely for reasons unknown, no charge-sheet was submitted against this petitioner who was FIR named accused No. 1 and the principal conspirator behind the incident. The Statement of the injured-cum-de facto complainant was recorded in the question answer form at hospital by the police officer in presence of authorities of hospital. The fir reveals that the injured-cum-de facto complainant had partnership business with this petitioner namely Md. Ayub @ Mulki Baccha. Though the partnership was running for the last 10 years the ate facto complainant was no receiving any money out of the partnership business. Before Durgapuja of that year i. e. 2002 the de facto complainant-cum-victim asked this petitioner as to why he was not submitting any account to him and why he was not paying any money to him and it was alleged that this petitioner threatened him which murder. On 11. 11. 02 the victim worked in the office of Indo Nepal Tailor association upto 9. 30 P. M. and thereafter leaving that office at about 10 A. M. he proceeded towards a hotel for obtaining 'khaini1 (a kind of tobacco ). He obtained 'khaini' and lime from one Sk. Tulu and thereafter he was preparing 'khaini' with lime within his palm. At that time Chanda Hossain, Asgar, Noushad and Kashi surrounded him and Chanda Hosain abused him saying that why he demanded accounts of partnership from his boss Md. Ayub and he will kill him by short. Then and there Chanda Hossain brought out a revolver which was in his possession and placed the revolver near navel of the victim and fired. Receiving gun shot injury the victim Babla Das rushed towards Jaisawal kanta through DEB Road and he noticed that those four miscreants were chasing him. Babla Das fell down near Jaisawal Kanta and became senseless. Then and there Chanda Hossain brought out a revolver which was in his possession and placed the revolver near navel of the victim and fired. Receiving gun shot injury the victim Babla Das rushed towards Jaisawal kanta through DEB Road and he noticed that those four miscreants were chasing him. Babla Das fell down near Jaisawal Kanta and became senseless. After regaining sense he found himself in Calcutta Hospital which is known as Calcutta Medical Research Institute. Statement of the victim was recorded on 12. 11. 02 and the aforesaid P. S. Case was started. After completing investigation the I. O. submitted final report under Section 173 (2) of Cr. RC. against four accused persons and excluded FIR named accused No. 1 Md. Ayub @ Mulki Baccha, the petitioner. The I. O. submitted prayer for his discharge and the learned Magistrate allowed such prayer. ( 9 ) IT appears that at the time of taking cognizance on the basis of final report submitted by I. O. and discharging this petitioner, the learned magistrate did not issue any notice to the de facto complainant-cum-victim babla Oas, though in accordance with law it was an obligation on the part of learned Magistrate to inform de facto complainant or victim as I. O. prayed for discharge of this petitioner and to pass necessary order after the hearing the informant. As Section 307 of I. P. C. was mentioned in the charge-sheet it was a sessions triable case along with other sections and sections of Arms Act as stated above. After commitment of the case to the Court of Sessions it was transferred to the learned Additional Sessions Judge, Fast Track Court no. 4 at Alipore. Charge was framed against four accused persons namely chanda Hossain, Asgar, Naushad and Kashi under Sections 307/34 of I. P. C. , and thereafter, learned Judge fixed dates of evidence. P. W. 1 Babla Das was examined in chief on 22. 6. 04. ( 10 ) IN his examination in chief P. W. 1 Babla Das narrated the entire story as depicted in FIR i. e. he corroborated his entire statements recorded by police officer on 12. 11. P. W. 1 Babla Das was examined in chief on 22. 6. 04. ( 10 ) IN his examination in chief P. W. 1 Babla Das narrated the entire story as depicted in FIR i. e. he corroborated his entire statements recorded by police officer on 12. 11. 02 in the bed of the hospital and clearly stated that this petitioner wanted to kill him and also stated that Chanda Hossain placed a revolver on the left side of his belly and told him why he demanded money from his boss Md. Ayub @ Mulki Baccha and thereafter Chanda fired from his revolver on the left side of his belly. His evidence reveals that previous to durga Puja in the year of incident he demanded money from this petitioner, but this petitioner declined to pay his 'bhag' (share) and also disclosed that he would kill him and would not give accounts. Thereafter, learned Public prosecutor in charge of the case filed an application on 22. 6. 04 before the learned Court and prayed for issuing summons against this petitioner as in evidence name of the petitioner transpired as principal conspirator and person who is involved in this incident. The learned Judge by the impugned order dated 27. 7. 04 negated the objection of other accused persons and allowed the prayer of learned Public Prosecutor in charge and issued summons against this petitioner fixing 14. 9. 04 for his appearance in Court to face the trial. Challenging the said ode the petitioner Md. Ayub @ Mulki Baccha has moved this Court in this revisional application. ( 11 ) THE detailed medical reports lying in case diary reveals that bullet could not be extracted out of his body or retrieved as it has entered inside bladder of the injured. ( 12 ) IT is evident that several articles including wearing apparels of the victim were sent to Forensic Science Laboratory (FSL) for examination and report on certain points including ascertainment whether there were stains of blood on the wearing apparels or not, whether it was human blood or not, and if human blood of which group etc. It appears that the I. O. was so negligent that he even did not take care to collect the report of FSL before submitting report in final form in Court completing investigation. The report of FSL may be relevant document in the trial. It appears that the I. O. was so negligent that he even did not take care to collect the report of FSL before submitting report in final form in Court completing investigation. The report of FSL may be relevant document in the trial. The learned trial Court will definitely take steps for production of report of FSL in his Court during trial through competent officer but, not through I. O. who made the defective investigation in this case. It is evident that investigation was designedly made defective by the I. O. so that the principal conspirator may be out of the clutches of Court. ( 13 ) IT was submitted by Mr. Sengupta for the petitioner that the de facto complainant-cum-victim himself wrote a letter to his Advocate on 5. 2. 03 stating therein that this petitioner was not present at place of occurrence and there was mistaken identity and he has no nexus in the commission of the offence. According to him this letter clearly indicates that there was no material against the petitioner and the I. O. acting on such letter submitted report in the final form with a prayer for discharging the petitioner. The learned Magistrate who acted on such report and discharge the accused on the basis of police report made no mistake. I am not in agreement with the views expressed by the learned senior Advocate for petitioner and his contention is not at all tenable. After going through the materials on record and case diary it is evident that the I. O. after receiving such letter forwarded by the alleged advocate did not enquire concerning that letter as to whether the victim himself wrote that letter willingly and voluntarily or he was compelled to write such letter under threat or coercion. It was a letter addressed to the Advocate and not addressed to the I. O. of the case. Communication between a client and his lawyer, communication between a patient and doctor should be treated as secret and it should not be disclosed to others. The letter was not addressed to the I. O. and, therefore, it was an obligation and duty on the part of I. O. to verify whether the victim himself wrote the letter and, whether he was forced or compelled to write such letter to his Advocate under threat or coercion. The letter was not addressed to the I. O. and, therefore, it was an obligation and duty on the part of I. O. to verify whether the victim himself wrote the letter and, whether he was forced or compelled to write such letter to his Advocate under threat or coercion. ( 14 ) THERE are some interesting parts which revealed from case diary which I think should not be disclosed but, it appears that the learned Advocate who first appeared for this petitioner before the learned Sessions Judge in an application under Section 438 of Cr. P. C. did not proceed with the matter and thereafter another Advocate was engaged and who by letter dated 21. 2. 03 informed the I. O. about the interim order of the Court of learned Sessions judge. Learned Sessions Judge, Alipore as it appears acted illegally by allowing interim order of not to arrest on an application under Section 438 of Cr. P. C. in such a serious case. The learned Advocate wrote the letter to I. O. on 21. 2. 03 and before that on 5. 2. 03 the alleged letter of de facto complainant was obtained. If chain of these circumstances are connected it will reveal where lies the mystery and I am confident that the I. O. did not investigate the case properly so far as it relates to this petitioner. If he acted on the letter of victim dated 5. 2. 03 properly, he could not have submitted charge-sheet against other persons also as in the said alleged letter it was mentioned that Md. Ayub and his persons have no nexus in the commission of the offence. If the o. I. on the basis of such letter submitted prayer for discharge of this petitioner then, why he did not submit prayer for discharge of the other persons and submitted charge-sheet against four others. The reasons remained undisclosed and the mystery I think would never come to light. The learned Magistrate or the learned Sessions Judge did not forward the alleged letter dated 5. 2. 03 to i. O. for taking any action. Then why I. O. without verifying its genuineness acted on such letter ? The reasons remained undisclosed and the mystery I think would never come to light. The learned Magistrate or the learned Sessions Judge did not forward the alleged letter dated 5. 2. 03 to i. O. for taking any action. Then why I. O. without verifying its genuineness acted on such letter ? Was he devoid of sense or negligent, or something illegal played part behind such action of I. O. It is clear that some extraneous circumstances played part in the matter for which the I. O. acted on such letter and did not examine the victim-cum-de facto complainant and the learned advocate concerned to whom the victim addressed the letter to verify the genuineness of this letter. ( 15 ) IT further appears from case diary that the I. O. also acted on the report of learned Public Prosecutor, South 24-Parganas, Calcutta and it shows clearly that the I. O. acted contrary to law. It is well settled that the Public prosecutor cannot give any opinion relating to investigation of the case. The role of Public Prosecutor starts after submission of final report before the court of learned SDJM and after commitment of the case to Court of Sessions. Before that Public Prosecutor has no role to play except assisting Court in bail matters and has no authority to take part in investigation and he has no authority at all to give any opinion relating to progress of investigation and what steps should be taken by the I. O. while investigating a case. In the instant matter the I. O. as well as the O. C. , South Port P. S. acted wrongly and illegally by relying upon opinion of learned Public Prosecutor, South 24-Parganas, Calcutta who opined for discharging this petitioner which was quite contrary to law and beyond scope of Public Prosecutor. The law prescribes that the I. O. during course of investigation shall collect materials and examine witnesses, would make seizure and after doing everything necessary for investigation would form his own opinion as to whether materials of offence have been disclosed against the FIR named accused and others who were not named in FIR. The role of the Officer-in-Charge of concerned P. S. is to forward the report of I. O. with his opinion. The role of the Officer-in-Charge of concerned P. S. is to forward the report of I. O. with his opinion. In the instant matter the provisions of law relating to investigation particularly forming of opinion by the I. O. and officer-in-Charge of police station were not followed. The I. O. acted blindly relying on the opinion of learned Public Prosecutor and the alleged letter dated 5. 2. 03 of victim without further examining the victim and the learned advocate to whom the victim wrote such letter to find out whether such letter was genuine or not. The O. C. in his note dated 22. 4. 03 mentioned that this accused petitioner is not FIR named now. Can a responsible police officer make such comment when in FIR in a case under Section 307/34/109 of i. P. C. and 25/27 of Arms Act this petitioner was accused No. 1 and FIR disclosed materials against him ? ( 16 ) IN this perspective in order to strengthen my views I intend to refer the views of Hon'ble Supreme Court on legal principles in such a situation pronounced in the decision of R. Sara/a v. T. S. Velu, reported in 2000 Cr LJ 2453. The Supreme Court observed that, "investigation and prosecution are two different facets in the administration of criminal justice. The role of Public prosecutor is inside the Court, whereas investigation is outside the Court. Normally, the role of Public Prosecutor commences after investigating agency presents the case in the Court on culmination of investigation. Its exception is that Public Prosecutor may have to deal with bail applications moved by the parties concerned at any stage. Involving the Public Prosecutor in investigation is unjudicious as well as pernicious in law. At any rate no investigating agency can be compelled to seek opinion of a Public Prosecutor under the orders of court. . . . . . . . . . . . . Section 173 (1) casts an obligation for completing the investigation without unnecessary delay and sub-section (2) enjoins on the officer-in-charge of the police station to forward to the Magistrate a report in the form prescribed by the State Government, on completion of such investigation. The aforesaid power of the officer-in-charge of the police station is subjected only to the supervision of superior police officers in rank as envisaged in Section 36 of the Code. The aforesaid power of the officer-in-charge of the police station is subjected only to the supervision of superior police officers in rank as envisaged in Section 36 of the Code. There is no stage during which the investigating Officer is legally obliged to take the opinion of a Public Prosecutor or any authority, except the aforesaid superior police officer in rank. . . . . . . . . . Under the Code the formation of the opinion, whether or not there is a case to place the accused on trial, has to be that of the officer-in-charge of the police station and none else. . . . . . . . . . Public Prosecutor is appointed, as indicated under Section 24 of the Code, for conducting any prosecution, appeal or other proceedings in the Court. He has also the power to withdraw any case from the prosecution with the consent of the Court. He is the officer of the Court. Thus Public Prosecutor is to deal with a different field in the administration of justice and he is not involved in investigation. It is not in the scheme of the Code for supporting or sponsoring any combined operation between the Investigating Officer and the Public Prosecutor for filing the report in the Court. " In this decision the Supreme Court clearly indicated that the I. O. cannot be directed to be influenced by the opinion of the Public prosecutor. The principle of law enunciated by the Supreme Court and the discussion which has been made by me earlier clearly indicates that the I. O. as well as officer-in-charge of South Port P. S. acted illegally in the matter of investigation by taking opinion of Public Prosecutor before submitting the report in final form under Section 173 (2) of Cr. P. C. ( 17 ) THE decisions cited by the learned Advocate for the petitioner are not applicable in the instant matter. The decision of Sohan Lai v. State of rajasthan (supra) is not at all an authority in this matter. It appears that in the said case on 21. 4. 80 one Shantilal lodged FIR at Bikaner police station and after completing investigation police found materials of offence under sections 147, 323, 325, 335 and 427 of I. P. C. and charge-sheet was forwarded to Court. It appears that in the said case on 21. 4. 80 one Shantilal lodged FIR at Bikaner police station and after completing investigation police found materials of offence under sections 147, 323, 325, 335 and 427 of I. P. C. and charge-sheet was forwarded to Court. The learned Magistrate after taking cognizance, at the stage of framing charge heard argument from both sides and thereafter discharged two accused persons namely appellant Nos. 4 and 5 and framed charge against three others namely appellant Nos. 1, 2 and 3 only under Section 427 of I. P. C. Thereafter, the Assistant Public Prosecutor submitted an application under Section 216 of Cr. P. C. for alteration of charge stating that from evidence including medical reports, elements of Sections 147, 325 and 336 of I. P. C. has been made out and so charge should be amended. The learned Magistrate examined four witnesses and thereafter passed the order for alteration if charge and issued summons against the two accused persons who were discharged earlier exercising jurisdiction under Section 319 of Cr. P. C. In that connection, the Supreme Court discussed what is the true explanation of 'discharge' and under what circumstances the Court can exercise power under Section 319. The said decision is not at all applicable in the present case as the facts are different. In the present case the police did not submit charge-sheet against this accused petitioner. After completing investigation police submitted prayer for discharge of the accused which was accepted by the learned Magistrate without serving notice upon the de facto complainant and without hearing the complainant. There was no 'discharge, of this accused petitioner at the stage of framing of charge after hearing both parties and going through materials on record including materials in case diary. There is difference between 'discharge, on the prayer of I. O. in final report under section 173 (2) of Cr. P. C. against accused not charge-sheeted, and 'discharge' by Court after hearing the prosecution and defence under Sections 227 (sessions triable case) and 239 (in a warrant procedure case) of Cr. P. C. It is clear, therefore, there was no 'discharge' of this petitioner either under Section 227 or 239 of Cr. P. C. In the present case the learned Judge or the Court is empowered to invoke jurisdiction under Section 319 of Cr. P. C. It is clear, therefore, there was no 'discharge' of this petitioner either under Section 227 or 239 of Cr. P. C. In the present case the learned Judge or the Court is empowered to invoke jurisdiction under Section 319 of Cr. P. C. if on the basis of evidence the learned Judge finds that elements of offence have been disclosed against a person who was not charge-sheeted by police, though he was named in FIR. ( 18 ) IN this connection I like to refer few more decisions to make the principle of law clear. In 1995 Cr LJ 2118 : 1995 C Cr LR (SC) 121 (Nisar and Anr. v. State of U. P.) the Supreme Court made it clear by observing that power under Section 319 (1) to proceed against other persons appearing to be guilty of offence can be exercised only when involvement of such person comes to light in course of evidence recorded during enquiry or trial and not prior to that stage. It is settled that person found to have been already accused in the case, he cannot be proceeded against under Section 319. In 1990 Cr LJ 2302 (Sohan Lal v. State of Rajasthan) there was submission of charge-sheet and after taking cognizance and hearing arguments, the Court discharged two accused persons. Subsequently, the Court exercising provisions of Section 319 of Cr. P. C. issued summons against those two accused persons who were earlier discharged by the Court during the stage of framing charge. It was held by the Supreme Court that those two persons cannot be proceeded against under Section 319 of Cr. P. C. The Supreme Court in Joginder Singh v. State of Punjab reported in AIR 1979 SC 339 :1979 Cr LJ 333 observed that where an accused was not tried by the Court and was released by police and not cited in charge-sheet can be proceeded against under Section 319 of Cr. P. C. , if against him evidence showing involvement in the offence came before the criminal Court. P. C. , if against him evidence showing involvement in the offence came before the criminal Court. ( 19 ) THE other decisions Naser Ali Mirza v. State of West Bengal (supra), shahid v. Afsar AH (supra) and Michael Machado v. Central Bureau of investigation (supra) cited by the learned Advocate for the petitioner are not at all applicable as the facts and circumstances of the said reported cases are completely different from the facts and circumstances of the present case. In Michael Machado v. Central Bureau of Investigation (supra) 54 witnesses were examined and thereafter the Court exercised power under section 319 of Cr. P. C. For this reason the Supreme Court observed that at such belated stage addition of person as co-accused under Section 319 of cr. P. C. cannot be made and at the cost of de novo trial. In Naser AH Mirza (supra) the prayer under Section 319 allowed by the lower Court was set aside by this Court as such power was exercised almost ten years after incident and as number of witnesses were already examined. In Shahid (supra)the Supreme Court made it clear that it is not the law that the moment a witness utters name of a person who has not been arrayed as an accused, when an application under Section 319 of Cr. P. C. is filed, then to allow it automatically. It was made clear that the facts and circumstances of each case are required to be examined including the stage of trial and other relevant factors. ( 20 ) I lay emphasis on the words 'each case are required to be examined including stage of trial and other relevant factors. ' In this connection i rely upon the decision of the Supreme Court in Kishun Singh v. State of bihar reported in (1993)2 SCC 16 and two recent decisions of the Hon'ble supreme Court in Geeta Ram v. Vedi Ram reported in 2004 SCC (Cr) 1136 and Rukhsana Khatoon (Smt.) v. Sakhawat Hussain reported in 2004 SCC (Cr) 1153. In these decisions the Hon'ble Supreme Court made it clear that power of trial Court to issue summons against persons appearing to be guilty may be invoked when name of such person or persons summoned was in the fir but no charge-sheet against him/them was submitted by police. In these decisions the Hon'ble Supreme Court made it clear that power of trial Court to issue summons against persons appearing to be guilty may be invoked when name of such person or persons summoned was in the fir but no charge-sheet against him/them was submitted by police. In Geeta ram v. Vedi Flam (supra) it was also observed by the Supreme Court that power under Section 319 may be invoked even if no protest petition was filed by informant. In this matter failure of de facto complainant to file revision against order of learned Magistrate cannot be a ground to conclude that trial court is powerless in such a situation to invoke jurisdiction under Section 319 of Cr. P. C. More so, when the learned Magistrate did not issue any notice to de facto complainant after receiving final report. ( 21 ) IN the present case this petitioner was named in FIR, and not only that, he was FIR named accused No. 1. The statement of the de facto complainant-cum-injured recorded in hospital by police officer on 12. 11. 02 clearly revealed involvement of this petitioner in the alleged offence. The FIR also reveals that he was the principal conspirator behind the incident and he tried to kill the de facto complainant-cum-injured when the de facto complainant demanded his share of money in the partnership business which this petitioner and the victim was running. It is true that this petitioner was not present at the place of incident and did not take part in the actual incident of firing the injured. The statement of the person who fired on the belly or abdomen of victim clearly reveal that he and his associates were engaged by their boss namely, the present petitioner. It is also clear that this petitioner was named as accused in FIR but, the police did not submit charge-sheet against him. During trial from the evidence of P. W. 1, the victim-cum-de facto complainant himself again name of the petitioner transpired as the principal conspirator and the main brain behind the incident of attacking the victim. The learned additional Sessions Judge exercised his power and jurisdict'on very rightly considering the facts and circumstances of the case including the stage of trial and relevant factors. The learned additional Sessions Judge exercised his power and jurisdict'on very rightly considering the facts and circumstances of the case including the stage of trial and relevant factors. ( 22 ) THERE was no delay at all in summoning the accused in the instant trial and he has been summoned only after evidence of P. W. 1. It is not necessary that Court should exercise power to summon accused after completion of cross examination. Court has power to issue summons if during examination in chief elements of offence against a person transpires to be guilty of alleged offence against whom charge-sheet was not submitted, though he was named in FIR. In this connection. I rely upon a decision in Rakesh v. State of Haryana reported in 2001 SCC (Cr) 1090. In this decision it was observed by the Supreme Court that addition of other persons as accused may be made if in evidence their names transpires and evidence would not include cross examination of the witness. Opportunity to cross examine the witness would be available to such person at the time of trial. ( 23 ) I make it clear that power to issue summons to a person under section 319 of Cr. P. C. to be guilty of alleged offence does not depend upon the application of de facto complainant or Public Prosecutor. The language of section 319 of Cr. P. C. makes it clear that in the course of any enquiry or trial of an offence, it appears from evidence that any person not being the accused has committed any offence for which such person would be tried with the accused, the Court may proceed against such person for the offence which he appears to have committed. The language clearly indicates that the Court, who is trying the offence should not wait till application filed by learned Public prosecutor or application by de facto complainant to summon the person not an accused against whom in evidence materials transpired. It is an obligation or duty 6? trial Court to summon such person who was earlier not made accused or was discharged by police, though name was there in FIR. In this case this petitioner was not an accused before the Court in the trial as he was not charge-sheeted by I. O. , though he was named in FIR. It is an obligation or duty 6? trial Court to summon such person who was earlier not made accused or was discharged by police, though name was there in FIR. In this case this petitioner was not an accused before the Court in the trial as he was not charge-sheeted by I. O. , though he was named in FIR. The learned trial Court rightly invoked the jurisdiction and power under Section 319 of cr. P. C. in this case. ( 24 ) BEFORE conclusion, I think it expedient for ends of justice to direct the Deputy Commissioner of Police, Port Division, Calcutta to consider whether such negligent police officer (I. O.) and the concerned officer in charge of south Port P. S. should be given the responsible duty of investigation of serious cases and O. C. should be given in charge of any police station in future after taking into consideration entire facts and circumstances of this case. The superior police officers or Deputy Commissioner of Police (Port Division) are directed to engage a responsible and honest police officer for looking after trial in the Court, for example, bringing alamats to Court, to secure attendance of witnesses in Court etc. and shall not permit the I. O. who made designedly perfunctory investigation at all to deal with the present case during trial. Learned Registrar (Administration) shall forward copy of this judgment and order to the Commissioner of Police, Calcutta and Deputy Commissioner of police (Port Division) for information and necessary action. ( 25 ) IN view of the aforesaid discussion the revisional application has no merit at all and is accordingly dismissed. ( 26 ) LEARNED Additional Sessions Judge is directed to proceed with the trial after causing appearance of this petitioner before him in accordance with law exercising all available powers and framing charge against this petitioner. ( 27 ) THE observations made by this Court are only for the purpose of the points involved in the revisional application and the learned trial Judge shall come to his own conclusion in the trial on the basis of evidence and materials on record without being influenced in any way by any observation of this Court. ( 28 ) ALL interim orders passed earlier stand vacated. ( 28 ) ALL interim orders passed earlier stand vacated. ( 29 ) SEND a copy of this order to the learned Additional Sessions judge, Fast Track Court No. 4, Alipore for information and necessary action. ( 30 ) URGENT xerox certified copy be given to the parties, if applied for, expeditiously in accordance with law and rules of this Court on payment of requisite fees or charges.