Research › Browse › Judgment

Orissa High Court · body

1991 DIGILAW 2 (ORI)

SURESH @ MADHU DAS v. STATE OF ORISSA

1991-01-01

L.RATH

body1991
JUDGMENT : L Rath, J. - This petition is directed against an order passed by the learned Assistant Sessions judge, Ganjam directing to array the petitioner u/s 319 read with Section 193 Cr.P.C. as an accused in Sessions Case No. 21 of 1990 arising out of CR Case No. 367/89. The brief facts are that the prosecution was launched against some other persons under Sections 147, 148 and 486, IPC for having set fire to the house of the Harijans. In course of trial, the Additional Public Prosecutor filed an application u/s 319, Cr P.C. before the Assistant Sessions Judge to summon the petitioner to stand trial along with the accused persons since his name was purported to have been revealed by the witnesses as having been associated with the crime. The application was allowed and NBW was ordered to be issued against the petitioner for taking cognisance and framing charges against him. 2. Mr. Misra, learned counsel for the petitioner, has urged that the only evidence purported to be utilised against the petitioner so as to invoke the powers u/s 319 Cr. PC is that of PWs 1, 2, 5 and 7, but while PWs 5 and 7 have been declared hostile, PWs 1 and 2 have not named the petitioner and hence there is no justification for the petitioner to be made to face the trial along with the accused persons. The learned Addl. Govt. Advocate does not dispute that the only evidence relevant so far as the petitioner is concerned is that of PWs 1, 2, 5 and 7, but submits that PWs 5 and 7 have been declared hostile only so far as their not implicating the other accused persons, but that both of them have named the petitioner as the person who had set fire to the houses. Besides, PWs 1 and 2 have also stated the petitioner to have instigated the villagers to set fire to the houses of the Harijans. 3. Learned counsel for the petitioner filed a petition for amendment of the criminal revision petition and to take an additional ground which has been registered as Misc. Case No. 19 of 1991. On hearing the learned counsel for the petitioner, the petition was allowed. 3. Learned counsel for the petitioner filed a petition for amendment of the criminal revision petition and to take an additional ground which has been registered as Misc. Case No. 19 of 1991. On hearing the learned counsel for the petitioner, the petition was allowed. It is the stand taken by him that PWs 5 and 7 having never stated before the police in their statements u/s 161 Cr.P.C. of the petitioner having set fire to the houses of the Harijans, their statements in Court are not believable. So far as PWs 1 and 2 are concerned, it is submitted by him that PW 1 never stated before the police of the petitioner having instigated the villagers to set fire to the houses of the Harijans and PW 2 also never named the petitioner before the police at all. Hence it is his submission that their statements in Court are also not to be given any credit. 4. Section 319 Cr.P.C. empowers the Court to add any person as accused at any stage of the trial if during the course of the trial evidence appears against him. Yet, it is well settled that the power is an exceptional one and must be used in rare cases. Reference may be made to a Division Bench decision of this Court in Kailash Chandra Sahoo Vs. Mahani Charan Mohanty and Others, wherein it was observed that the power Is extraordinary and should be exercised sparingly and only if compelling circumstances exist. It is conceded by the learned Addl. Govt. Advocate that PW 1 though stated in Court of the petitioner having instigated the villagers to set fire to the houses of the Harijans, it was his statement before the police that the petitioner along with others set fire to the houses of the Harijans. In Court he never named the petitioner as the person who set fire to the houses but only of having instigated the villagers. PW 2 also did never name the petitioner at all in his statement before the police and only stated in Court of the petitioner having instigated the villagers. PWs. 5 and 7 though stated in Court of the petitioner having set fire to the houses yet they also never named the petitioner before the police. PW 2 also did never name the petitioner at all in his statement before the police and only stated in Court of the petitioner having instigated the villagers. PWs. 5 and 7 though stated in Court of the petitioner having set fire to the houses yet they also never named the petitioner before the police. In view of such state of evidence of PWs 1, 2, 5 and 7, it can hardly be said that their statements in Court involving the petitioner would be worthy of credit so as to justify an order u/s 319 Cr.P.C. to array him as an accused. Since the power is to be sparingly used and is extraordinary, the Court has to consider before exercising power under this section if there is material to bring in a person as accused on the evidence adduced. If the evidence appears to be shaky and is not credible, impletion of a person as an accused would be a futile exercise of power and would be a cause of harassment to the person proposed to be arrayed as an accused. It does not appear that any useful purpose would be served by making the petitioner to stand the trial along with other accused persons. 5. In that view of the matter, the revision is allowed and the impugned order of the learned Assistant Sessions Judge is quashed. The Misc. Case is also disposed of. Final Result : Allowed