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2007 DIGILAW 30 (ORI)

G. Sambhu Rao v. State of Orissa

2007-01-10

R.N.BISWAL

body2007
JUDGMENT R. N. BISWAL, J. — This revision is directed against the order dated 2.5.2003 passed by the learned Sessions Judge, Gan¬jam-Gajapati at Berhampur in Sessions case No.368 of 2001 ar¬raigning the petitioner as an additional accused and issuing N.B.W. of Arrest against him. 2. The facts giving rise to this revision succinctly stated are that Berhampur Sadar P.S. Case No.130 (6) dated 9.10.2000 was registered against six accused persons including the petitioner on the allegation that they committed offence punishable under Section 302/34 of I.P.C. On completion of inves¬tigation charge sheet was submitted against all but the petition¬er for the aforesaid offence. The case having been committed to the Court of Session, charge was framed under Section 302/34 I.P.C. against accused Nanda Sethi, Maya @ Maheswar Gouda, Kalia Gouda and Babula Gouda. Accused Babula Gouda was further charged for the offence under Section 324 of I.P.C. The other accused remained absconded. To establish its case prosecution examined as many as 12 witnesses. At the stage of argument, on 2.5.2003 learned Public Prosecutor submitted before the trial Court that there was ample evidence on record against G. Sambhu Rao (the petitioner) to prima facie hold that he was also involved in commission of the murder. On examination of the evidence on record, the trial Court found P.Ws 1,3,4,5 and 8 to have also implicated the petitioner in the crime in question. Having been prima facie satisfied regarding the complicity of the petitioner in the alleged offence, it arraigned him as an accused in aid of Section 319 of Cr.P.C. and issued N.B.W.A. against him. Since the trial Court had already heard argument in sessions Case No.368 of 2001, it did not prefer to keep it pending and accordingly dis¬posed of it vide order dated 9.5.2003. Being aggrieved with order of adding the petitioner as an accused and issuing N.B.W. of Arrest against him he preferred this Revision. 3. Learned counsel appearing for the petitioner submitted that the trial Court committed gross error in arraigning the petitioner as an accused at the fag end of trial. He further submitted that as per the provision contained under Section 319 of Cr.P.C., the newly added accused ought to be tried along with the other accused persons afresh. 3. Learned counsel appearing for the petitioner submitted that the trial Court committed gross error in arraigning the petitioner as an accused at the fag end of trial. He further submitted that as per the provision contained under Section 319 of Cr.P.C., the newly added accused ought to be tried along with the other accused persons afresh. In the case at hand, since the case against the original accused persons had already been dis¬posed of, there was no scope for trial of the petitioner along with those accused persons and as such he ought not have been arraigned as an accused. Moreover, even though name of the peti¬tioner found place in the F.I.R., since no sufficient material could be collected the I.O. did not submit charge sheet against him. For the self-same reason the trial Court did not frame charge against him also. Furthermore, the evidence brought out against the petitioner was shaky and there was no prima facie case to hold that the petitioner was involved in commission of the crime. Under all these grounds, learned counsel for the petitioner urged to allow the revision and set aside the impugned order. On the contrary, learned Addl. Standing Counsel submitted that the trial Court rightly added the petitioner as an accused in accordance with the provision contained under Section 319 of Cr.P.C. 4. As envisaged under Section 319 of Cr.P.C., where in course of trial it appears from the evidence that any person not being an accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against him. In other words, at any stage of the trial a person can be arraigned as an accused, if the conditions stipulated under Section 319 of Cr.P.C. are fulfilled. So, the submission of learned counsel for the petitioner that a person cannot be ar¬raigned as an accused at the fag end of trial is not tenable under law. As required under Section 319 of Cr.P.C. the proceed¬ing against the newly added accused has to be commenced afresh and witnesses already examined are to be re-examined and oppor¬tunity should be given to the newly added accused to cross-exam¬ine those witnesses. As required under Section 319 of Cr.P.C. the proceed¬ing against the newly added accused has to be commenced afresh and witnesses already examined are to be re-examined and oppor¬tunity should be given to the newly added accused to cross-exam¬ine those witnesses. With regard to the trial of the newly added accused along with the accused facing trial, the Apex Court, in the decision Shashikant Singh v. Tarkeshwar Singh and another; (2002) 22 OCR (SC) 811, held as follows : “The mandate of the law of fresh trial is mandatory whereas the mandate that the newly added accused could be trial together is directory.” So, in view of the Apex Court the expression “could be tried together with the accused” appearing in Section 319(1) of Cr.P.C. is only directory, which can be ignored for rendering a just decision. In the instant case, five witnesses have deposed regarding the involvement of the accused/petitioner in the crime in question. He cannot be let off at the very threshold on mere technicality. Even if name of the petitioner found place in the F.I.R. and charge sheet was not submitted against him, still then, there is no bar to arraign him as an accused in aid of Section 319 of Cr.P.C., provided the conditions required in the provision are fulfilled. On perusal of the evidence of P.Ws. 1,3,4,5 and 8 it is found that the petitioner is one of the assailants. There is material to prima facie hold that he is also involved in the alleged crime. It is not the duty of the Court to assess the evidence of the witnesses thread-bare and to come to a finding that there are sufficient materials against the person to be newly added as accused for his conviction. This has to be done at the time of trial and not at the stage of passing the order under Section 319 of Cr.P.C. Therefore, I am not inclined to interfere with the impugned order, while sitting in revision and as such the revision stands dismissed. Revision dismissed.