Orissa High Court
Asish Kumar Nayak & Anr vs Unknown on 4 January, 2012
M. M. DAS, J.
CRLMC. NO. 4118 OF 2011 (Dt.04.01.2012)
ASISH KUMAR NAYAK & ANR. .........Petitioners.
.Vrs.
STATE OF ORISSA .........Opp.Party.
CRIMINAL PROCEDURE CODE, 1973 (ACT NO.2 OF 1974) - S.319.
For Petitioners - M/s.P.K.Singh & D.Mohanty.
For Opp.Party - Mr. R.P.Mohapatra,
Addl. Govt. Advocate.
M.M. DAS, J.Order dated 29.10.2011 passed by the learned Ad hoc Additional Sessions Judge, FTC-IV, Cuttack in S.T . No. 212 of 2011 has been impugned in this application filed under section 482 Cr.P.C. By the said order, the learned Ad hoc Additional sessions Judge exercising power under section 319 Cr.P.C. allowed the prayer of the prosecution by directing issuance of process to the petitioners and further directing to bring the petitioners on record as accused persons to face the trial. Thus ordering, the learned court below issued bailable warrant against the petitioners calling upon them to be present in court and face the charge on 21.11.2011.
2. Mr. P.K. Singh, learned counsel for the petitioners submits that though initially the F.I.R. lodged by the informant- Nihar Ranjan Nayak (P.W.3) was registered as Salipur P.S. Case No. 361 of 2008 against seven persons including the petitioners, for alleged commission of offence under sections 147/ 148/307/294/452/323/325/354/379/427 I.P.C., but after investigation, which was supervised by the superior police officer, the Investigating Officer finding no cogent materials against the petitioners submitted charge-sheet against four accused persons. Thereupon, the learned J.M.F.C., Salipur took cognizance of the offences against the said charge sheeted accused persons and committed the accused persons to the court of the learned Sessions Judge, Cuttack which has been ultimately transferred to the court of the learned Ad hoc Additional Sessions Judge, FTC-IV, Cuttack for trial. During the course of trial, after examination of some of the witnesses, a petition was filed by the prosecution through the Additional Public Prosecutor making a prayer to issue process against the petitioners invoking jurisdiction of the court under section 319 Cr.P.C. The learned Ad hoc Additional Sessions Judge, contrary to the settled position of law, on the basis of presumption, has passed the impugned order issuing process against the petitioners adding them as accused persons and calling upon them to face the trial. Mr. Singh also relies upon various decisions of the Supreme Court as well as this Court with regard to the scope and ambit of exercising power under section 319 Cr.P.C. and refers to the evidence of P.Ws 1 and 7 on whose statements, the learned trial court has placed reliance for directing issuance of process to the petitioners.
3. It is felt necessary to quote the portion of the impugned order where the learned trial court has assigned the basis for exercising jurisdiction under section 319 Cr.P.C., which is as follows:
"Having regard to the definition explained in the aforesaid two decisions coupled with the decision relied upon by the learned counsel for the defence in the aforesaid light when the case in hand is examined it reveals that P.W. 1, the informant so also the injured in the incident in his evidence on oath at para-3 has stated Asis along with the other accused persons threatened to kill challenging as to why he reported the incident to the police. In his evidence on oath P.W. 7, another injured being the son of the informant at para-3 of his examination-in-chief stated that Asis was armed with sword and Mukesh along with others was holding lathi and forced entry inside the house along with others, pushed and pulled his father and assaulted him. Both these witnesses in course of their cross-examination asserted to have disclosed the aforesaid fact during their earlier examination made by the police as recorded under section 161 Cr.P.C. Since the FIR and the substantive evidence brought in the case as discussed above indicates the distinct overt act shown by the said Asis and Mukesh and the incident evidenced to have occurred in furtherance of common intention there is every chance of the case to end in a conviction against the said Asis and Mukesh who have not been arrayed by the police at the time of submission of final form. Having gone through the decision cited by the learned defence counsel I find the fact narrated therein goes completely different then the one in present. In all those cases either there is no evidence that would ultimately result in conviction of the persons sought to be arrayed or the allegations brought are omnibus in nature. The said decisions, barring the principles have no application in the present case and hence, the defence cannot take any advantage therefrom. Considering the fact and circumstances in the case as discussed above, I find it expedient to invoke the jurisdiction of the Court U/s. 319 Cr.P.C. and while allowing the prayer of the prosecution direct the process to be issued against the persons, namely, Asis Kumar Nayak & Mukesh Ranjan Nayak to be brought on record being arrayed as accused persons to face the trial. Issue B.W. against the said persons calling upon their presence in the Court to face the charge on 21.11.2011. Put the case on the date fixed as above."
4. In the oft quoted decision of the Supreme Court, where the essential conditions for the exercise of power under section 319 Cr.P.C. has been considered, i.e., in the case of Michael Machado v. Central Bureau of Investigation, 2000 (3) SCC 262, the Supreme Court held that the power under section 319 Cr.P.C. vested in the Court should be used sparingly and the evidence on which the same is to be invoked should indicate a reasonable prospect of conviction of persons to be summoned. The Supreme Court went to hold that mere suspicion of the involvement of the person concerned in the offence is not enough, particularly, when, a large number of witnesses have been examined and no evidence on which conviction can be secured has been adduced on behalf of the prosecution. It was ultimately observed that in such a case, there could be no justification for proceeding against the persons summoned under section 319 Cr.P.C. which would entail recommencing the whole proceeding against the newly added persons and re-examining the witnesses already examined.
5. In a series of decisions of the Supreme Court, the scope of exercising power under section 319 Cr.P.C. has been dealt with which have been referred to by the judgment of this Court in the case of Durga Naik @ Daroga Naik and another v. State of Orissa (2011) 48 OCR 677, where this Court, applying the law as laid down in the decisions rendered by the Supreme Court and emphasizing on the ratio of the decision in the case of Michale Machada (supra), that the court must have reasonable satisfaction from the evidence already collected regarding two aspects, i.e., the other persons could as well be tried along with already arrayed accused persons, but what is conferred on the court under section 319 Cr.P.C. is only a discretion as could be discerned from the words "the court may proceed against such persons". The discretionary power so conferred should be exercised only to achieve criminal justice. Further, it is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. It would be profitable to add that in the case of Michael Machado (supra), the Supreme Court also laid down that while exercising power under section 319 Cr.P.C., a judicial exercise is called for keeping a conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then and also the amount of time which the court had spent for collecting such evidence. In the case of Brindaban Das v. State of West Bengal (2009) 42 OCR (SC) 453, while relying upon the earlier decisions, the Supreme Court laid down that the court is required to consider whether the evidence adduced would be sufficient to convict the person being summoned to face trial. It was further held that such power cannot be invoked as a matter of course but only to meet the ends of justice.
6. Keeping the law as laid down by the apex Court as well as by this Court in view, on perusing the entire evidence of the witnesses on the basis of which, the learned trial court has exercised jurisdiction under section 319 Cr.P.C. and issued process against the petitioners, this Court finds that the learned trial court in spite of contradictions in the statements of the witnesses, i.e., P.Ws 1 and 7 and the material contradictions between the statements of those witnesses given in court and the statements recorded under section 161 Cr.P.C. during investigation, could not have come to the conclusion that there is every chance of the case to end in a conviction against the petitioners, who have not been arrayed as accused in the charge sheet. This Court, therefore, finds that the judicial discretion under section 319 Cr.P.C. has been improperly exercised by the learned trial court by passing the impugned order.
7. The impugned order dated 29.10.2011 issuing process against the petitioners and directing them to appear before the learned trial court and face the trial is accordingly set aside and the said sessions trial shall not proceed against the petitioners. However, the said trial shall continue against the other accused persons who were charge-sheeted.
8. The CRLMC is accordingly allowed.
Application allowed.