Orissa High Court
Santosh Nayak vs State Of Orissa on 8 April, 2008
Equivalent citations: 2008(II)OLR25, 2009 CRI. L. J. 193, 2009 (2) AJHAR (NOC) 377 (ORI), (2008) 2 ORISSA LR 25, (2008) 40 OCR 10
Author: B.K. Patel
Bench: B.K. Patel
ORDER B.K. Patel, J.
1. These two revisions are directed against the order dated 14.3.2007 passed in exercise of power under Section 319 Cr.P.C. by the learned Ad hoc Additional Sessions Judge, Fast Track Court, Jajpur in ST. Case No. 28/08/2006 by which the petitioners have been arrayed as accused persons and summoned to face trial under Section 302 I.P.C.
2. Allegation in S.T. Case No. 28/08/2006 relates to commission of murder of deceased Prasanna Behera. On detection of the decomposed dead body of the deceased in an abandoned quarters meant for occupation of Junior Engineer of the Irrigation Office at Jenapur, an U.D. case was registered and enquired into. Subsequently, on the basis of the F.I.R. lodged by S.l. of Police, Dharmasala P.S. Case No. 159 of 2005 was registered against unknown accused persons. On completion of investigation, charge-sheet was submitted against the accused Bijaya Kumar Patra @ Atiri under Sections 341/342/ 325/302/201 I.P.C. By order dated 22.2.2006 passed in S.T. Case No. 28/08/2006, charges under Sections 302/201 I.P.C. were framed against him and trial commenced. As many as eighteen prosecution witnesses were examined between 22.3.2006 to 1.3.2007 on which date the prosecution case was closed. On 5.3.2007, after the statement of accused Bijaya under Section 313 Cr.P.C. was recorded, a petition under Section 319 Cr.P.C. was filed on behalf of the prosecution to issue processes against the present revision petitioners. On consideration of the petition, the order impugned in the present revision was passed on 14.3.2007. It is also pertinent to note that judgment acquitting accused Bijaya of the charges under Sections 302/201 I.P.C. was passed by the learned Court below on 16.3.2007. In passing the impugned order, it has been observed by the learned Court below that the witnesses particularly. P.Ws. 2, 3, 4, 5, 8, 9, 12 and 18 have revealed in their evidence that in the morning of 5.5.2005, the deceased accompanied the petitioner Santosh Nayak being called by him and that the deceased's cycle was subsequently snatched away by the petitioner Dhiren Behera on the same day and that the deceased was last seen in the company of the petitioners on 5.5.2005 before the dead body was recovered in a decomposed state on 16.5.2005.
3. In assailing the impugned order, it is contended on behalf of the petitioners that the learned Court below should not have acted upon the petition under Section 319 Cr.P.C. filed as late as on 5.3.2007, after the entire prosecution evidence had been adduced, on the basis of the evidence of the witnesses, who were examined as early as from 26.3.2006. It is further argued that even if the evidence of the prosecution is considered in its entirety, no prima facie case is made out against any of the petitioners for commission of offence under Section 302 I.P.C. and there is no chance of conviction of any of the petitioners on the basis of the materials which prompted the learned Court below to exercise the extra ordinary jurisdiction under Section 319 Cr.P.C.
4. In reply, it is submitted by the learned Counsel for the State that as the learned Court below has exercised the jurisdiction conferred under Section 319 Cr.P.C. upon recording cogent reasons to conclude that it appears from the evidence that the present revision petitioners could be tried together with accused Bijaya, there is no illegality in the impugned order so as to warrant interference.
5. Substantial question that has been raised to assail the impugned order is as regards the true scope and ambit of Section 319 Cr.P.C. as well as parameters which have to be kept in view while exercising the extraordinary power of summoning a person to face trial though he does not figure as an accused. Sub-section (1) of Section 319 Cr.P.C. which confers jurisdiction to proceed in a trial against newly arrayed persons reads:
Power to proceed against other persons appearing to be guilty of offence.- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
The scope and ambit of Section 319 Cr.P.C. has been pointed out in a series of authoritative judicial pronouncements.
6. In Palanisamy Gounder and Anr. v. State represented by Inspector of Police (2006) 34 OCR (SC) 389, it has been held as follows:
The power under Section 319 of the Court cannot be exercised so as to conduct a fishing inquiry. We have already noticed the observations of the learned trial Judge that though the case against the appellants was not on solid foundation but it was felt that to find out the real truth they deserved to be added as accused. The manner in which the power under Section 319 deserves to be exercised has been laid down in Michael Machado v. Central Bureau of Investigation holding that unless the Court is hopeful that there is a reasonable prospect of the case against the newly added accused ending in their conviction for the offence concerned, the Court shall refrain from adding them as accused. In Krishnappa v. State of Karnataka a Bench of which one of us (Hon'ble Mr. Justice Y.K. Sabharwal) was a member, following Mischael Machado it was said that:
In Michael Machado v. Central Bureau of Investigation construing the words 'the Court may proceed against such person' in Section 319 Cr.P.C, this Court held that the power is discretionary and should be exercised only to achieve criminal justice and that the Court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. This Court further held that a judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has already proceeded and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. The Court, while examining an application under Section 319 Cr.P.C, has also to bear in mind that there is no compelling duty on the Court to proceed against other persons. In a nutshell, it means that for exercise of discretion under Section 319 Cr.P.C, all relevant factors, including the one noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused.
7. In Lok Ram v. Nihal Singh and Anr. (2006) 34 OCR (SC) 214, the apex Court has observed as follows:
10. On a careful reading of Section 319 of the Code as well as the aforesaid two decisions, it becomes clear that the Trial Court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the F.I.R. as an accused, but not charge sheeted, can also be added to face the trial. The Trial Court can take such a step to add such persons as accused on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary, do not constitute evidence. Of course, as evidence from the decision reported in Sohan Lal and Ors. v. State of Rajasthan, the position of an accused who has been discharged stands on a different footing.
11. Power under Section 319 of the Code can be exercised by the Court suo motuor on an application by someone including accused already before it. If it is satisfied that any person other than accused has committed an offence, he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates that evidence of witnesses given in Court. Under Sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of Sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned.
8. In Michael Machado and Anr. v. Central Bureau of Investigation and Anr. , when the trial against four accused persons had already proceeded to penultimate stage (after examining fifty four witnesses by then), the Metropolitan Magistrate, before whom the case was being tried, ordered two more persons to be arrayed as accused, in exercise of power under Section 319 Cr.P.C. The apex Court held that the order of the trial Court in exercise of Section 319 Cr.P.C. had to be interfered with for enabling the trial to proceed to its normal culmination. It was held that if the order of the Magistrate was to sustain, the proceedings in respect of the newly added persons had to be recommended afresh, which meant that the entire massive evidence thus far collected and the time which the Court had thus far spent for recording the evidence of the large number of witnesses, besides the cost involved for all concerned to reach up to the present stage, would all become, for all practical purpose, a waste- a colossal waste. It was further held that it was not so very necessary at such belated stage to bring such two more additions to the array of the accused at the cost of such a de novo trial. In coming to such conclusion, the scope and ambit of Section 319 Cr.P.C. were observed as follows:
The Court must have reasonable satisfaction from the evidence already collected regarding two aspects while invoking power under Section 319 to proceed against other persons appearing to be guilty of offence. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused. But even then, what is conferred on the Court is only a discretion as could be discerned from the words "the Court may proceed against such person". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. 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. It must be remembered that there is no compelling duty on the Court to proceed against other person.
The Court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of Sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be re-commenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite a large in number the Court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the Court should refrain from adopting such a course of action.
9. From the facts situation in Guriya @ Tabassum Tauquir and Ors. v. State of Bihar and Anr. (11) SC 438 : 2007 (II) OLR (SC) 817 another decision relied upon by the petitioners, questions more or less similar to the present case emerged for consideration. The facts situation in Guriya @ Tabassum Tauquir (supra) was described in a nut shell by the apex Court as follows:
FIR was lodged on 29.5.1999 by Manzoor Baitha alleging that his parents, brother and sister had a fight with his family members. Annu Siddiqui hit on the head of his son Akbar Hawari with the butt of a pistol and he also snatched away a wrist watch of his son. Cognizance was taken on 27.9.1999 and charge-sheet was filed on 09.09.1999. Charges were framed on 14.3.2000. Only three persons were arrayed as accused persons and the present appellants were not arrayed as accused. It appears that a protest petition was filed before charges were framed on 14.03.2000 but the same was rejected. Recording of prosecution evidence commenced on 16.04.2001 and continued till 29.04.2002. The prosecution evidence was thereafter closed and the statement of accused persons was recorded in terms of Section 313 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') on 19.02.2003. Thereafter on 07.05.2003, an application in terms of Section 311 Cr.P.C. was filed and was allowed and two more witnesses i.e. PWs 4 and 5 were examined. An application under Section 319 Cr.P.C. was filed on 14.01.2004 stating that new evidence has surfaced which requires the trial of the present appellants. It is to be noted that PWs 4 and 5 were examined on 6.1.2004 pursuant to the order in the application filed under Section 311 Cr.P.C. The petition filed under Section 319 Cr.P.C. was rejected by the Trial Court holding that no case was made out for putting the appellants on trial. Learned Sessions Judge was moved for revision and the same was allowed. The High Court dismissed the revision petition filed on the ground that there are materials against the appellants.
Upon reference to the earlier decisions including the decisions in Michael Machado (supra), Krishnappa (supra) and Lok Ram (supra), it was concluded by the apex Court:
15. The factual position noted above goes to show that there was no new material after examination of the accused persons under Sections 313 Cr.P.C, which threw any light on the incident. The evidence of PWs 4 and 5 is not the basis of the application under Section 319 Cr.P.C. as they have not spoken anything about the appellants.
16. As noted above, PWs. 1, 2 and 3 have stated about the presence of the appellants without any definite role being ascribed to them in their evidence recorded on 16.04.2001, 08.01.2002 and 29.04.2002. If really the complainant had any grievance about the appellants being not made accused, that could have, at the most, be done immediately after the recording of evidence of PWs 1, 2 and 3. That has apparently not been done. Additionally, after the charge-sheet was filed, a protest petition was filed by the complainant which was dismissed. No explanation whatsoever has been offered as to why the application in terms of Section 319 Cr.P.C. was not filed earlier. The revisional Court did not deaf with these aspects and came to an abrupt conclusion that all the PWs have stated that the appellants have committed overt acts and their names also find place in the protest petition. Undisputedly, no overt act has been attributed to the appellants by PWs 1, 2 and 3. Nothing has been stated about the appellants by PWs 4 and 5. There was mention of their names in the FIR. A protest petition was filed. Same was also rejected. These could not have formed the basis of accepting the prayer in terms of Section 319 Cr.P.C. The High Court's order, to say the least, is bereft of any foundation. It merely states that there are materials against the petitioners before it. It also did not deal with various aspects highlighted above.
10. Provision under Section 319 Cr.P.C. as well as the judicial pronouncements referred to above make it evident that the trial Court has the jurisdiction to array any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied in course of enquiry and trial on the basis of the evidence adduced before it that such person should face trial and that the trial Court may resort to the provision of Section 319 Cr.P.C. only on the basis of the evidence adduced before it and not on the basis of the materials available in the charge-sheet or the case diary. As recourse to Section 319 Cr.P.C. postulates die novo trial, the extra ordinary power conferred thereunder should be used very sparingly and only if compelling reasons exist. Also the power should be exercised at the earliest when the evidence necessitating the exercise of jurisdiction under Section 319 Cr.P.C. appears. An order under Section 319 Cr.P.C. is not required to be mechanically passed merely on the ground that some evidence had come on record implicating the person sought to be added as an accused. Also unless the Court is hopeful that there is reasonable prospect of the case against newly brought accused ending in conviction of the offence concerned, it should refrain from exercising the jurisdiction.
11. In the present case, by the time the learned Court below decided to exercise the jurisdiction under Section 319 Cr.P.C. in response to the petition filed by the learned Associate P.P., not only the entire gamut of evidence available in connection with the murder of the deceased had been adduced by the prosecution but also the statement of accused Bijaya who was facing trial had been recorded under Section 313 Cr.P.C. From the order dated 5.3.2007, it is evident that the petition under Section 319 Cr.P.C. was filed by the learned Associate P.P. only after examination of accused Bijaya under Section 313 Cr.P.C. Considering the evidence, the learned trial Court by order dated 8.3.2007 held that it was not a case of no evidence against the accused Bijaya and called upon him to enter into his defence and also on that day, the learned Associate P.P. was heard on the petition under Section 319 Cr.P.C. On 14.3.2007, argument was heard fixing the case to 16.3.2007 for judgment and also the order impugned in this revision was passed.
12. It is apparent that there was no material after examination of the accused Bijaya under Section 313 Cr.P.C. which could have prompted the learned Court below to exercise the jurisdiction under Section 319 Cr.P.C. The evidence of P.Ws. 2, 3, 4, 5, 8, 9, 12 and 18 stated to be revealing that in the morning of 5.5.2005, the petitioner Santosh called the deceased from his house and that subsequently on that day, the petitioner Dhiren snatched away the deceased's cycle, was recorded earlier between 23.3.2006 and 1.3.2007. P.W.2 is the deceased's co-villager whereas others are deceased's close relations P.W. 3 being the grand-father, P.W.4 being the uncle, P.Ws. 5 and 8 being the brothers, P.W. 9 being the sister and P.Ws. 12 and 18 being the parents of the deceased. P.W. 2 examined on 23.3.2006 deposed that he was informed by P.W. 9 and also told by the petitioner Dhiren that the petitioner Dhiren took away the deceased's cycle. P.W. 3, also examined on 23.3.2006, deposed that the petitioner Dhiren told that the deceased had kept his cycle near his betel shop. P.W. 3 also deposed that on 5.5.2005, the petitioner Santosh called the deceased and both left in the morning. In cross-examination, P.W. 3 says that another person also accompanied the deceased. Though P.W. 2 stated the petitioner Dhiren to have told that he took away the cycle from the deceased, P.W. 3 says that the petitioner Dhiren informed that the deceased had kept his cycle in his betel shop. P.W. 4 also deposed that on 5.5.2005, the deceased left with the petitioner Santosh, but added that he had not seen them going. P.W. 4 examined on 17.4.2006 also says that the petitioner Dhiren informed that he had snatched away the deceased's cycle. P.W. 4 also stated in cross-examination that the petitioner Dhiren had dispute with the deceased. P.W. 5, examined on 17.4.2006, also stated that 5.5.2005 the deceased left with Santosh and that the petitioner Santosh admitted to have snatched away the deceased's cycle. P.W. 8, examined 18.4.2006, also stated that the deceased accompanied the petitioner Santosh and the petitioner Dhiren to have snatched away the deceased's cycle. P.W. 9, examined on 17.7.2006, deposed to have seen the deceased leaving his house with the petitioner Santosh and to have learnt that the petitioner Dhiren snatched away the deceased's cycle. P.W. 12, the deceased's mother, examined on 16.10.2006, stated that in the early morning on 5.5.2005 the deceased left home with the petitioner Santosh and subsequently came and informed that the petitioner Dhiren snatched away and kept the deceased's cycle. On being asked, the petitioner Dhiren told that the deceased went way leaving his cycle in his betel shop. P.W. 18, the deceased's father was examined on 1.3.2007. He stated that the deceased left with petitioner Santosh. It is also stated by him that on that day, the deceased had returned to the house. It is also observed that P.W. 9 as well as P.W. 12 stated in their evidence that they suspected the present petitioners to have killed the deceased. It is further observed that the petitioners Santosh and Dhiren had been cited as witnesses in the charge-sheet at SI. Nos. 7 and 8 respectively.
13. Thus, in spite of evidence on the basis of which the present petitioners have been proceeded against under Section 319 Cr.P.C. being available before the learned trial Court long since, no grievance was raised by the prosecution till after the recording of the statement of accused Bijaya. There is no explanation as to why no application under Section 319 Cr.P.C. was filed earlier. Therefore, there has certainly been unexplained delay in filing the application under Section 319 Cr.P.C. and, as has been stated earlier, there is nothing in the statement of accused Bijaya recorded under Section 313 Cr.P.C. to urge that such statement indicated the complicity of the present petitioners with the offence for which accused Bijaya was facing trial. That apart, the prosecution having adduced the entire evidence and thereby laid before the Court all the materials in connection with the murder of the deceased, the nature of allegations raised against the present petitioners indicated above does not appear to constitute such material on the basis of which it may be stated that there is reasonable prospect of the case against present petitioners ending in conviction for commission of offence of murder of the deceased. Provision under Section 319 Cr.P.C. does not contemplate conducting of a fishing inquiry.
14. The learned Court below has mechanically proceeded to exercise the jurisdiction under Section 319 Cr.P.C. without keeping in view the factors relevant for the purpose of exercising the extra ordinary jurisdiction. Therefore, the impugned order is not sustainable.
15. Accordingly, the impugned order dated 14.3.2007 passed by the learned Ad hoc Addl. Sessions Judge, Fast Track Court, Jaipur in S.T. Case No. 28/8 of 2006 impleading the petitioners Santosh Nayak and Dhiren Behera in CRLREV Nos. 839 of 2007 and 779 of 2007 respectively as accused persons under Section 319 Cr.P.C. is quashed. Both the Crl. Revisions are allowed.