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2010 DIGILAW 177 (ORI)

SANTOSH KUMAR RAY v. STATE OF ORISSA

2010-03-16

I.MAHANTY

body2010
JUDGMENT : I. Mohanty, J. - In this application u/s 482 Code of Criminal Procedure the Petitioner has sought to challenge the order dated 14.10.2009 passed by the learned Addl. Sessions Judge, Titilagarh in S.C. No. 71-B/30/11 of 2002-04-09 rejecting the Petitioner filed by the State-Opp. Party No. 1 u/s 319 Code of Criminal Procedure to issue summons against Sachidananda Ghose, Subrat Ghose and Shyamali Ghose. 2. Learned counsel for the Petitioner submits that he does not press this application in so far as Shyamali Ghose is concerned and therefore, this application is confined to Sachidananda Ghose and Subrat Ghose. 3. On perusal of the impugned order and the averments made in this application, it appears that on the basis of the F.I.R. lodged by the Petitioner, Titilagarh P.S. Case No. 1 of 2001 was registered under Sections 498A, 304-B/34 IPC against one Subhasis Ghose and Ors. . After completion of investigation, charge sheet has been filed against all the accused persons. Thereafter, Opp. Parties 3 and 4 filed an application before the learned Addl. Sessions Judge, Titilagarh for discharge and the said application was allowed by the order dated 13.12.2002. In the said order it was noted that the learned Addl. Special P.P appearing for the prosecution on special appointment conceded to the submissions made on behalf of the accused persons. It is stated that on the basis of the materials collected during investigation, the investigating agency ought to have submitted charge sheet only against Subhasis Ghose and it should not have charge-sheeted the. other two accused persons, as in fact there is absolutely no material against them. Learned Addl. Sessions Judge came to a conclusion that there is no prima facie material to frame charge against accused Subrat Ghosh and Sachidanan'da Ghose and therefore, they were discharged. Being aggrieved by the said order of discharge, the Petitioner/informant had approached this Court in CRLMC No. 2411 of 2003. While this Court refused to interfere with the matter it observed that, at the stage of trial if any specific evidence-is brought on record, then the prosecution is at liberty to move an application u/s 319 Code of Criminal Procedure and in the event of filing of such an application, the trial Court to consider the same "strictly in accordance with law". 4. 4. It appears that pursuant to the liberty granted by the High Court, after conclusion of recording of evidence in the trial the Petitioner filed an application u/s 319 Code of Criminal Procedure to issue summons to accused Sachidanada Ghose, Shyamali Ghose and Subrat Ghose, which came to be rejected by the impugned order dated 14.10.2009, and is the subject matter of the present challenge. 5. Learned counsel for the Petitioner submits that, since liberty was granted to the Petitioner by this Court in CRLMC No. 2411 of 2003, the learned Addl. Sessions Judge erred in not considering the evidence on record and not issuing summons to the aforementioned accused persons. 6. In this respect law is well settled by the Hon'ble Supreme Court in the case of Sohan Lal and others Vs. State of Rajasthan in which it was held that the provisions of Section 319 have to be read in consonance with the provisions of Section 398 and once a person is found to have been the accused in the case and has thereafter been discharged he goes out of the reach of Section 319. After referring to the provisions of Section 319, the Supreme Court concluded as follows: The crucial words in the Section are 'any person not being the accused'. This Section empowers the Court to proceed against persons not being the accused appearing to be guilty of offence. Sub-Sections (1) and (2) of this Section provide for a situation when a Court hearing a case against certain accused person finds from the evidence that some person or persons, other than the accused before it is or are also connected in this very offence or any connected offence; and it empowers the Court to proceed against such person or persons for the offence which he or they appears or appear to have committed and issue process for the purpose. It provides that the cognizance against newly added accused is deemed to have been taken in the same manner in which cognizance was first taken of the offence against the earlier accused. It naturally deals with a matter arising from the course of the proceeding already initiated. The scope of the Section is wide enough to include cases instituted on private complaint. 7. The said judgment of the Supreme Court has been approved by the Apex Court in a subsequent judgment in the case of Suman Vs. It naturally deals with a matter arising from the course of the proceeding already initiated. The scope of the Section is wide enough to include cases instituted on private complaint. 7. The said judgment of the Supreme Court has been approved by the Apex Court in a subsequent judgment in the case of Suman Vs. State of Rajasthan and Another and in paragraph-14 of the judgment the Supreme Court has observed that the position of an accused who has been discharged in that case stands on a different footing from those who had not been arrayed as "accused persons". 8. Learned counsel for the Petitioner Mr. Mohanty has placed reliance on a judgment of the Supreme Court in the case of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, and in particular, the finding of the Supreme Court in Paragraphs-17 and 18 there of as well as on paragraph-25 of Sohan Lal's case (supra). 9. On perusing the aforesaid decisions, I am of the considered view that the same does not support the present Petitioner's contention in any manner and on contrary, the same reiterates the situation that, Section 319 vests in all Courts including Sessions Court, with the power to add any person not being an accused before it and against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused. 10. In so far as the contention of the Petitioner regarding the "liberty" granted to the Petitioner to file an application u/s 319 is concerned, it is needless to state that such liberty though granted was required, to be disposed of by the Court below, "in accordance with law". In my considered view, the learned Addl. Sessions Judge has dealt with the said application "in accordance with law". With the aforesaid observations, the CRLMC is dismissed.