Orissa High Court
Dhaneswar Sahoo And Anr. vs The State Of Orissa And Ors. on 3 February, 2000
Equivalent citations: 2000(1)ALT(CRI)21, 2000(I)OLR397
JUDGMENT R.K. Patra, J.
1. The short question that arises for consideration in this revision is whether the learned Additional Sessions Judge was justified in accepting the application filed by the Public Prosecutor Under Section 319(1) of the Code of Criminal Procedure (hereinafter referred to as "the Code') in respect of the petitioners.
2. The opposite parties 2 to 20 are facing trial in the Court of the Second Additional Sessions Judge, Puri (vide S.T.No. 51 /85 of 1991) for charges Under Sections 148/302/307/324/149 of the Indian Penal Code for intentionally causing death of Purna Chandra Palei and causing hurt to Chakradhar Panda, Banchha Nidhi Naik and others. In the midst of the trial after examination of ten witnesses, the Public Prosecutor filed the application Under Section 319(1) of the Code to add six more persons including the petitioners as accused. The learned trial Judge by the impugned order dated 23.12.1992 allowed the said application in respect of the petitioners and rejected against the remaining four others.
3. Shri Ray, learned Senior Counsel for the petitioners raised two contentions :
(i) The impugned order is hit by the principles of res judicata inasmuch as the very point decided by the impugned order was before this Court in Criminal Revision No. 387 of 1985 filed by the informant which was dismissed on 28.3.1990; and
(ii) The petitioners were neither named nor implicated in the FIR nor any of the witnesses examined by the police in course of investigation implicated them, and as such, the Trial Judge erred in law in invoking the power Under Section 319(1) of the Code.
Shri Das Mohapatra, learned counsel appearing for the informant, on the other hand, submitted that the evidence of P.Ws. 4, 8, 9 and 10 clearly implicates the petitioners as culprits and the learned trial Judge has rightly in exercise of powers Under Section 319(1) of the Code issued summons to them :
4. Contention No. (i) It appears that the widow of the deceased and the informant filed Crl. Revision No. 387 of 1985 in this Court praying for a direction to the petitioners and some others to stand trial in the Court of Session along with other accused persons. The aforesaid prayer was made on the ground that some witnesses in their statements recorded Under Section 164 of the Code have implicated the petitioners as culprits. A Division Bench of this Court by order dated 28.3.1990 dismissed the revision holding that the police had merely filed charge-sheet and the stage for taking action Under Section 319 of the Code had not yet reached. While dismissing the revision this Court observed :
"It is now open for the learned Sessions Judge to take such appropriate action in accordance with the law more particularly Section 319 of the Code of Criminal Procedure if the materials on record in course of trial so justify."
In my considered opinion, the aforesaid order passed in Criminal Revision No. 387 of 1 985 is not at all hit by the principle of res judicata. By the time the revision was disposed of, the trial of the sessions case had not commenced and the said revision was filed at a premature stage. On the contrary, the observation made by this Court that the Sessions Jude is free to take appropriate action Under Section 319 of the Code in course of trial strengthens the impugned order.
5. Contention No. (ii) :
There is no dispute that the trial of the case has already commenced and P.Ws. 4, 8, 9 and 10 have implicated both the petitioners in commission of offences. P.Ws. 4, 8, 9 and 10 in their evidence have stated that it was petitioner No. 2 - Kailash Chandra Mohapatra who instigated the accused persons to kill Purna Chandra Palei and at his instigation accused- Arakhita pierced a kunta on his chest and other accused persons assaulted him and caused hurt to prosecution witnesses. P.W. 9 has deposed that after the deceased fell down receiving a kunta blow from accused Arakhita. Dhaneswar Sahoo - petitioner No. 1 assaulted the deceased by a lathi. P.W. 10 in his evidence also stated that after the deceased fell down, Dhaneswar Sahoo - petitioner No. 1 assaulted him by a lathi. It may be noted that the police in course of investigation had recorded the statements of P.Ws. 4, 8, 9 and 10 Under Section 164 of the Code wherein they implicated both the petitioners.
6. Section 319(1) of the Code provides, inter alia, that where in course of trial of an offence it appears from the evidence that any other person has committed any offence for which such person could be tried together with accused, the Court may proceed against such person for the offence which he appears to have committed.
7. In view of the aforesaid evidence of P.Ws. 4, 8, 9 and 10 which has come in course of trial implicating the petitioners in the commission of offence, the learned trial Judge has rightly accepted the application of the prosecution filed Under Section 319(1) of the Code. The contention of the petitioners that P. Ws. 4, 8, 9 and 10 have not implicated them in their statements recorded Under Section 161 of the Code and as such power Under Section 319(1) of the Code could not have been invoked is without substance inasmuch as the stage to evaluate their evidence has not yet reached which will be done by the trial Judge at the time of final disposal.
8. For the reasons aforesaid, I do not find any merit in this revision which is accordingly dismissed.
With the dismissal of the revision, the interim order passed by this Court on 1.2.1993 stands vacated.
It may be noted that if the petitioners pursuant to the summons issued to them by the trial Judge appear before him, they may be granted bail on such terms and conditions as he deems appropriate.