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2009 DIGILAW 821 (ORI)

Biranchi Kumar Parida v. State of Orissa

2009-10-23

PRADIP MOHANTY

body2009
ORDER 23.10.2009 — Heard Mr. Swain, learned counsel for the petitioner and Mr. Das, learned Additional Standing Counsel. 2. In this criminal revision, petitioner challenges the order dated 26.5.2007 passed by the Assistant Sessions Judge, Anandapur in S.T.Case No. 40/252 of 2005 allowing an application under Section 319 Cr.P.C. filed by the prosecution. 3. The brief fact of the case is that at the stage of argument in the aforesaid S.T.Case, prosecution filed a petition under Sec. 319 Cr.P.C. for inclusion of the present petitioner as an accused basing upon the evidence of P.Ws. 1 and 4. The trial Court after hearing the parties and considering the evidence of P.Ws. 1 and 4, allowed the petition, arraigned the present petitioner as an accused and issued summons to him to face trial under Sections 147/148/447/323/336/295/506/307/149 IPC. 4. Mr. Swain, learned counsel for the petitioner submits that the petitioner was not named in the FIR by the informant (P.W.1). During the course of investigation no witnesses whispered the name of the petitioner. Even P.Ws. 1 and 4 in their statement recorded under Section 161 Cr.P.C. had not implicated the petitioner. No charge-sheet was filed against the petitioner. For the first time, P.Ws. 1 and 4 in their evidence before Court have tried to implicate the petitioner. Their evidence is omnibus in character and no specific overt act has been attributed against the petitioner. If the evidence of P.Ws. 1 and 4 is considered in its entirety, no prima facie case is made out against the petitioner for commission of any of the offences alleged. In other words, there is no chance of conviction of the petitioner on the basis of the materials which prompted the trial Court to exercise the extraordinary jurisdiction under Section 319, Cr.P.C. Moreover even though P.W.1 and P.W.4 were examined on 10.1.2007 and 11.1.2007 respectively, the petition under Section 319, Cr.P.C. was filed at the stage of argument and no explanation has been offered for not filing such petition earlier. In support of his submission, he relies on the decisions in Lal Suraj alias Suraj Singh and another Vrs. State of Jharkhand (2009) 2 SCC 696; Kailash Vrs. State of Rajasthan & Anr., (2008) 40 OCR (SC) 150; Suprava @ Jhuna Behera Vrs. State of Orissa; (2007) 37 OCR 762 and Santosh Nayak Vrs. State of Orissa, 2008 (II) OLR 25 . 5. Mr. State of Jharkhand (2009) 2 SCC 696; Kailash Vrs. State of Rajasthan & Anr., (2008) 40 OCR (SC) 150; Suprava @ Jhuna Behera Vrs. State of Orissa; (2007) 37 OCR 762 and Santosh Nayak Vrs. State of Orissa, 2008 (II) OLR 25 . 5. Mr. Das, learned Additional Standing Counsel per contra submits that there are sufficient materials against the petitioner for his inclusion as an accused. The evidence of P.W.1 is very clear and cogent with regard to participation of the present petitioner in the assault. P.W.4 also corroborates the statement of P.W.1 (injured) and specifically states that the present petitioner gave 3 to 4 blows on the back of the informant. Therefore, there is no illegality committed by the Trial Court in allowing the petition under Section 319 Cr.P.C. In support of his submission he relies on the decision in Sarabjit singh & Anr. Vrs. State of Punjab & Anr., 2009 Cri LJ 3978. 6. Perused the record and the decisions cited by the parties. In the instant case, P.W.1, the injured was examined on 10.1.2007 and P.W.4, the nephew of P.W.1, was examined on 11.1.2007. After recording of the accused statement, the case was posted to 23.4.2007 for argument. On that day, prosecution filed a petition under Section 319, Cr.P.C. to implead the present petitioner as an accused. After hearing the parties and considering the evidence of P.Ws. 1 & 4, the Trial Court allowed the petition and issued summons to the present petitioner. It is the settled principle of law as has been held in Sarabjit Singh (supra) that before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the Court must also be such which would satisfy the Court that it is one of those cases where its jurisdiction should be exercised sparingly. In Santosh Nayak (supra), it has been held by this Court that the power should be exercised at the earliest when the evidence necessitating the exercise of jurisdiction under Section 319 Cr.P.C. appears. Turning to the present case, this Court finds that the petition under Section 319 Cr.P.C. was filed at the stage of argument after recording of the statement of the accused. P.Ws. 1 & 4 were examined three months before filing of the petition. Turning to the present case, this Court finds that the petition under Section 319 Cr.P.C. was filed at the stage of argument after recording of the statement of the accused. P.Ws. 1 & 4 were examined three months before filing of the petition. No explanation whatsoever has been offered for such belated filing of the petition. If the evidence of P.Ws. 1 and 4 is considered in its entirety, chance of conviction of the petitioner is very bleak. No fruitful purpose will be served if the present petitioner is arraigned as an accused. Therefore, this Court is of the opinion that the Trial Court has mechanically proceeded to exercise the jurisdiction under Section 319 Cr.P.C. without keeping in view the factors relevant for the purpose of exercise of such jurisdiction. 7. In view of the discussions made above, the impugned order cannot be sustained, which is accordingly set aside and the Criminal Revision is allowed. Since the Sessions trial is of the year 2005 and is at the stage of argument, this Court directs the Trial Court to complete the trial by the end of December, 2009. Urgent certified copy of this order be granted on proper application. Revision allowed.