JAHARUL HAQUE Vs. STATE OF ASSAM

JUDGEMENT

(1.) Being aggrieved by the order dated 07.10.2009 passed in GR case No 992 of 2003 whereby the summons have been issued against the petitioners under Section 319 of the Criminal Procedure Code, 1973 (the Cr.P.C. in short) for arraigning them as the co-accused on the charge framed under Section 147/148/448/324 of the I.P.C. this petition under Section 397 read with Section 407 of the Cr.P.C. has been filed. There is no dispute that the petitioners were dropped and not sent up for trial even though their names appeared in the First Information Report dated 11.11.2003. But after recording some evidence a petition being No. 3432/2009 was filed by the prosecution on 06.08.2009 contending that the involvement of the some other persons (the petitioners herein) has surfaced. They should be arraigned as the co-accused persons for substantive ends of justice. In terms of the said prayer, the Sub-Divisional Judicial Magistrate passed the impugned order dated 07.10.2009 which reads as follows:

(2.) Mr. S.C. Biswas, learned counsel appearing for the petitioners contended that the order dated 07.10.2009 cannot be sustained primarily for two reasons viz:

(3.) To buttress his contention Mr. S.C. Biswas, learned counsel appearing for the petitioners referred a decision of the apex Court in Sarbjit Singh & Anr. Vs. State of U.P., 2009 AIR(SC) 2792where the apex Court held as under: