JUDGMENT : L. Mohapatra, J. - This application u/s 482 Code of Criminal Procedure. is directed against the Order dated 14.8.2006 passed by the Learned Additional Sessions Judge, Fast track Court-II, Bhadrak in S.T. Case No. 93/161-04-03 allowing the application filed u/s 319 Code of Criminal Procedure. and directing the Petitioner to face trial. 2. One Sankarshan Lenka lodged a written report before the Officer-inCharge of Rajnagar Police Station on 10.2.2003 alleging therein that while he along with other forest officials were on patrolling duty within Gahirmatha Marine Sanctuary on 8.2.2003, they found two boats illegally fishing there. One of the boat was being driven by Bachu Singh and other by Jakir Hussain. Both the boats were seized and taken to Babubali Island where the forest camp is located. Around 13 persons including both the drivers of the boats were found fishing. The forest Guard Bamdev Pradhan was entrusted to guard one boat and the informant Shyamsundar Singh and Ors. were entrusted to guard another boat. At about 8 P.M. suddenly the accused persons assaulted the guards and tied them. However, the forest guard Shyamsundar Singh fought with them. The accused persons were successful in taking away the boats. While going away, the accused Jakir Hussain threatened to kill. It is further alleged in the F.I.R. that the forest guard Shyamsundar Singh was severely assaulted and threw into the water. Thereafter the accused persons left the informant. With much difficulty he came to sea shore and informed the matter over phone. The whereabouts of the Shyamsundar Singh could not be found out and ultimately his dead body was recovered from the sea shore. A case was registered initially for commission of offence u/s 307 apart from other offences of the Indian Penal Code but after recovery of the dead body of Shyamasundar Singh, a case was again registered for commission of offence under Sections 143, 364,342, 302, 379, 224 and 149 of the Indian Penal Code against 13 accused persons. Jakir Hussain, who is the Petitioner before this Court, had been named in the F.I.R. as one of the driver of the boats but surprisingly his name was not found in the list of the accused persons. Accordingly, charge sheet had not been submitted against him. 3. In course of trial after examination of five witnesses, an application was filed u/s 319 Code of Criminal Procedure. Accordingly, charge sheet had not been submitted against him. 3. In course of trial after examination of five witnesses, an application was filed u/s 319 Code of Criminal Procedure. for issuing process against the present Petitioner having been implicated in the case by the witnesses. The said application was allowed in the impugned order, which has given rise the present application for quashing the same. 4. Shri Sahoo, the Learned Counsel appearing for the Petitioner submitted that as per the F.I.R., there were 13 persons including the drivers. All those 13 persons have been named in the F.I.R. as accused persons but the name of the present Petitioner does not find place in the list of the accused persons. The witnesses, who have been examined in the case, though stated that one Jakir Hussain was the driver of one of the boats, the confusion is with regard to identity. One of the charge sheeted accused persons is being named as Jakir Hussain who has created confusion resulting in the impugned order. The Learned Counsel appearing for the Petitioner further submitted that the Petitioner has not been identified by any of the five witnesses and, therefore, there is hardly any chance of conviction and, accordingly, the Court should not have allowed the application. The Learned Counsel appearing for the Petitioner relied upon two decisions, which shall be dealt with later on. The Learned Counsel appearing for the State referring to the deposition of the five witnesses examined so far submitted that the Petitioner has been specifically named by the witnesses to be one of the driver of the boats and he was also named in the F.I.R.as one of the driver. For reasons not known the Petitioner was not charge sheeted even though his name found place in the F.I.R. and he having been named and implicated for commission of offence, the Trial Court has rightly allowed the application u/s 319 Code of Criminal Procedure. 5. In order to appreciate the contention of the Learned Counsel appearing for both sides, it is necessary to refer the evidence adduced before the Court so far. The evidence of P.W. 1 is not of much help in this matter. P.W. 2 is the informant and this witness turned hostile in course of examination. 5. In order to appreciate the contention of the Learned Counsel appearing for both sides, it is necessary to refer the evidence adduced before the Court so far. The evidence of P.W. 1 is not of much help in this matter. P.W. 2 is the informant and this witness turned hostile in course of examination. However, on being cross-examined by the prosecution, he admitted to have lodged the F.I.R. and stated before the police that one of the drivers of boats was accused Jakir Hussain, who had threatened them to kill. P.W. 3 in course of examination has stated that he cannot identify the present Petitioner. P.W. 4, an eyewitness to the occurrence stated that he had seen the present Petitioner driving one of the boats. He also stated that after seizure of the boats, a copy of the seizure list was given to the Petitioner. In course of examination, he has stated that he cannot say the father's name and residence of the present Petitioner and also cannot say who were the other persons in the boat driven by the Petitioner and also cannot identify them.The evidence of P.W. 5 is also similar to the extent that he had seen the Petitioner driving one of the boats with six others in the same boat. This witness wrongly identified the accused Noor Hussain as Jair Hussain. Referring to the evidence, it was contended by the Learned Counsel appearing for the Petitioner that accused Noor Hussain has been wrongly identified as Jakir Hussain and the witnesses speak about Jakir Hussain, who is actually Noor Hussain and not the Petitioner.This argument was advanced on the basis that there are total numbers of thirteen accused persons named in the F.I.R. who have been charge sheeted. In the event the present Petitioner is added as one of the accused person, the number, of accused persons will come to 14 and the prosecution case has to fail. The Learned Counsel relied upon a decision of the Apex Court in the case of Palanisamy Gounder and Anr. v. State represented by Inspector of Police reported in (2006) 34 OCR (SC) 389 and submitted that only when materials are produced before the Court to warrant conviction against a non-charge sheeted accused person, the Court may exercise its jurisdiction u/s 319 Code of Criminal Procedure. v. State represented by Inspector of Police reported in (2006) 34 OCR (SC) 389 and submitted that only when materials are produced before the Court to warrant conviction against a non-charge sheeted accused person, the Court may exercise its jurisdiction u/s 319 Code of Criminal Procedure. Reliance was also placed on another decision of the same Court in the case of Kavuluri Vivekananda Reddy and Anr. v. State of A.P. and Anr., reported in (2006) 34 OCR (SC) 401. Relying on the aforesaid two decisions, it was further contended that on such evidence the chance of conviction is bleak. Therefore, the application filed u/s 319 Code of Criminal Procedure. should not have been allowed. As is evident from the discussion made above, the Petitioner was not only named in the F.I.R. but also has been implicated by P. Ws. 2, 4 and 5 specifically. Even accepting the contention of the Learned Counsel appearing for the Petitioner that total number of accused persons are thirteen and the Petitioner's name does not find place as accused person and that Noor Hussain is being wrongly named as Jakir Hussain, I am of the view that the Petitioner has not been put to dock as yet and the question of identification shall arise only after the Petitioner faces trial. At this stage it will be difficult to accept the contention of the Learned Counsel for the Petitioner with regard to identity between Noor Hussain and Jakir Hussain. Primal facie, it appears that the Petitioner has been implicated not only in the F.I.R. but also by three witnesses examined so far and the allegation against him is that he was one of the driver of a boat and he had threatened the forest officials. On the face of such materials whether a conviction can lie or not should not be discussed since it may cause prejudice to either prosecution or defence. Only five witnesses have been examined and other witnesses are yet to be examined. Only after examination of all the prosecution witnesses, the Court can come to a conclusion whether there is possibility of conviction or not. In the event such application is permitted to be allowed only after examination of all the prosecution witnesses, again a de novo trial has to be started, so far as newly added accused person is concerned. Only after examination of all the prosecution witnesses, the Court can come to a conclusion whether there is possibility of conviction or not. In the event such application is permitted to be allowed only after examination of all the prosecution witnesses, again a de novo trial has to be started, so far as newly added accused person is concerned. I am, therefore, of the view that on the existing materials available from the evidence of five witnesses examined so far, it cannot be said that the Petitioner has a clear case for acquittal. I accordingly decline to interfere with the impugned order. 6. The CRLMC is dismissed. CRLMC dismissed