Orissa High Court
Dr. Laxmidhar Naik And Another vs State Of Orissa on 10 August, 2016
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC NO. 2635 OF 2004
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with S.T. Case No.9/173 of 2002
pending on the file of Assistant Sessions Judge, Nimapara.
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Dr. Laxmidhar Naik
and another ......... Petitioners
-Versus-
State of Orissa ......... Opposite party
For Petitioners: - Mr. H.M. Dhal
Girish Ch. Sahu
For Opposite Party: - Mr. Dillip Kumar Mishra
Addl. Govt. Advocate
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment - 10.08.2016
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S. K. SAHOO, J.This is an application under section 482 of Cr.P.C. filed by the petitioners Dr. Laxmidhar Naik and Lalitendu Naik, who are the father and son, with a prayer to quash the order dated 10.11.2004 passed by the learned Assistant Sessions Judge, Nimapara in adding the petitioners as accused in S.T. Case No.9/173 of 2002 invoking power under section 319 Cr.P.C. 2
2. The prosecution case, as per the First Information Report lodged by one Ramesh Chandra Behera (P.W.1) before the Officer in Charge of Nimapara Police Station on 22.07.1994 is that on that day at about 2.00 p.m., accused Nityananda Rana and his two sons namely, Naba Rana and Kusa Rana chased one Pravakar Barik holding knife to kill him on river embankment and as some persons arrived there, the accused persons left that place and went towards their village. On the same day during the evening hours at about 7 O' clock, while Pravakar Barik was passing on the village road, accused persons Nityananda Rana, Chaitanaya Rana, Naba Rana and Kusa Rana obstructed him and abused him in filthy language and all of them assaulted Pravakar Barik by means of lathi. At that point of time, the petitioners arrived at the spot and instigated Nityananda Rana to kill Pravakar Barik and they also instigated Chitanya Rana to set fire to his own house and falsely entangle the co-villagers in a case. The petitioners then entered inside the house of Chitanya Rana and following them, Chaitanya Rana, his brother Nityananda Rana and their two sons also entered inside the house and closed the door and then they set fire to the house from the backside. One Gangadhar Behera saw the fire and pulled the straw from the thatched roof of Chaitanaya Rana but Nityananda Rana assaulted Gangadhar Behera on his right side chest by 3 means of a tenta. When the informant Ramesh Chandra Behera tried to extinguish the fire, he was also assaulted by co-accused Sanatan Behera and Gangadhar Sahu by means of Bhujali. At that point of time, some persons of the village arrived at the spot and snatched away Bhujali from the hands of the accused persons. The accused persons Chaitanya Rana, Naba Rana, Kusa Rana, Sanatan Sahoo, Baina and Lingaraj Mekap assaulted Gagandhar Behera and Ramesh Behera by means of lathi.
On the basis of such report submitted by Ramesh Chandra Behera, Nimapara P.S. Case No.164 of 1994 was registered on 22.07.1994 under sections 341/ 294/ 323/ 326/ 109/ 34 of the Indian penal Code against eleven accused persons including the petitioners.
The case was investigated and after completion of investigation, on 03.01.1997 charge sheet was submitted under sections 341/323/294/326 /34 of the Indian penal Code against accused persons namely, Sanatan Sahu, Chitanya Rana and Nityananda Rana.
3. The learned Trial Court framed charge on 26.07.2004 under sections 341/ 323/ 326/294/34 of the Indian Penal Code against accused Sanatan Sahu, Chaitana Rana and Nityananda Rana.
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The informant Ramesh Chandra Behera was examined as P.W.1 on 13.09.2004. He was cross examined and discharged on the very same day. On the next day i.e. on 14.09.2004 the prosecution filed a petition under section 319 of Cr.P.C. to add five persons namely, Naba Rana, Kusa Rana, Sanatan Behera, Gangadhar Behera and Lingaraj Mekap as accused and to proceed against them on the ground that as per the evidence of P.W.1, the complicity of those persons were appearing. The learned Trial Court vide order dated 20.09.2004 allowed the petition filed by the prosecution and found that from the evidence, those five persons not being the accused should also be tried together with the three accused persons already facing trial and accordingly, added them as accused in the case. On 10.11.2004 the second petition under section 319 of Cr.P.C. was filed by the prosecution on the self-same materials indicating therein that inadvertently the petitioners were left out in the first petition filed under section 319 of Cr.P.C. and therefore, they should also be impleaded as accused persons.
The learned Trial Court considered the petition on the very day and directed that the petitioners should be arrayed as accused.
4. Mr. Girish Chandra Sahu, learned counsel appearing on behalf of petitioners contended that the petitioners have been 5 falsely entangled in the case and there is a counter case against the informant and others and no specific overt act has been alleged against the petitioners as per the evidence of P.W.1 and there was no justification on the part of the learned Trial Court to invoke its power under section 319 of Cr.P.C. to include the petitioners as accused and the same has been done mechanically without application of mind and therefore, the impugned order is not sustainable in the eye of law. It is further contended that the petitioner no.1 is a reputed doctor and retired as Joint Director of Health and he is an aged person more than 80 years and petitioners no.2 is a businessman and due to village dispute, they have been falsely entangled in the case.
Mr. Dillip Kumar Mishra, learned Additional Government Advocate on the other hand supported the
impugned order and contended that in view of the materials available on record and particularly the evidence of P.W.1., prima facie case is well made out against the petitioners and therefore, no fault can be found in the impugned order.
5. It appears from the evidence of P.W.1 that he has not seen the actual setting fire to the house of Chitanya Rana and he arrived at the spot hearing hullah and found the burning of the house of Chitanya Rana at the back side and one Gangandhar Behera pulling the burning straw from the thatched 6 roof and extinguishing the fire. He has stated that the petitioners were telling to kill and set fire to the house. Though in the FIR, it is alleged that the petitioners asked Chaitanya Rana to set fire to his own house to falsely entangle the co-villagers in a case but in the evidence P.W.1 has not specifically stated so. There is no evidence that the petitioners set fire to the house of Chaitanya Rana. No case under section 436 of Indian Penal Code has been registered nor charge sheet was submitted for such offence.
6. Law is well settled that power of summoning new accused under section 319 Cr.P.C. is not to be exercised in a routine and mechanical manner and it is an extraordinary power conferred on the Court to do real justice and can be invoked only when compelling reasons arises for proceeding against the person against whom action has not been taken. When the power is to be exercised sparingly and with caution, looking at the materials available on record particularly the evidence of P.W.1, I am of the view that there was no justification on the part of the learned Trial Court at that stage to add the petitioners as accused persons. It is needless to say that at the first instance when section 319 of Cr.P.C. petition was filed on 14.09.2004, no prayer was made by the prosecution to include the petitioners as accused and prayer was made only in respect of five accused persons. The learned Trial Court after perusing 7 the available material on record allowed such petition and arrayed five accused persons. At that stage, the learned Trial Court had ample power to add the petitioners as accused suo moto which he had failed to exercise. On the self-same material,, when another petition was filed by the prosecution, the learned Trial Court should not have hurriedly added the petitioners as accused persons. He should have waited for the better evidence to be led by the prosecution inasmuch as invoking such power requires stronger evidence than the mere probability of complicity and more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction.
In view of the available materials on record, particularly the evidence of P.W.1, I am of the opinion that the learned Trial Court has committed illegality in allowing the second petition filed by the prosecution under section 319 Cr.P.C. and adding the petitioners as accused and therefore, the impugned order dated 10.11.2004 of the learned Trial Court in adding the petitioners as accused stands quashed.
Needless to say that in the event the prosecution adduces any further clinching evidence and makes a prayer under section 319 Cr.P.C. at the subsequent stage of trial, the 8 learned Trial Court is free to take appropriate decision on such petition in accordance with law without being influenced by any observation made in this order.
Accordingly, CRLMC is allowed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 10th August, 2016/Sisir