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2012 DIGILAW 301 (ORI)

Bhagirathi Jena v. State of Orissa

2012-07-16

B.K.NAYAK

body2012
ORDER Heard learned counsel for the petitioners and the learned Additional Government Advocate appearing for the State. Perused the record. Order dated 12.5.2010 passed by the learned J.M.F.C. Puri in G.R. Case No.112 of 2008 directing issuance of summons to the present petitioners in exercise of power under Section 319, Cr. P.C. has been assailed in this application under Section 482, Cr. P.C. In the aforesaid G.R. Case, one Sanju @ Sanjukta Jena who is the sole accused, is facing the trial for alleged offences under Sections 341/323, IPC. During course of evidence, P.Ws. 1 to 6 did not at all implicate the present petitioners in the commission of the offences but deposed about the involvement of the sole accused Sanjukta in the alleged offences. P.W. 7 who is the informant lodged the FIR alleging that the accused, Sanjukta along with the petitioners attacked and assaulted her. P.W. 8 who is a member of the village committee, as per the version of the informant, was present on the spot at the time of occurrence. During course of investigation P.W.8 in his statement before the Investigating Officer did not implicate any of the petitioners in the commission of offences. The only person implicated by him is the sole accused, Sanjukta. P.Ws. 7 and 8 in their evidence in Court ascribed different roles to the petitioners in the matter of commission of offences stating about their involvement. The learned Assistant Public Prosecutor filed an application under Section 319, Cr. P.C. before the learned J.M.F.C. praying for summoning the present petitioners to stand trial along with the accused, Sanjukta which has been allowed by the impugned order dated 12.5.2010 on the ground that the evidence of P.W. 7 as corroborated by P.W. 8 makes it clear that there was enough material showing involvement of the petitioners in the commission of offences and they should be tried along with the accused-Sanjukta. The learned counsel for the petitioners submits that the power under Section 319, Cr. P.C. is to be exercised very sparingly, when only compelling reasons exist, and there is reasonable prospect of the case against newly added accused persons ending in conviction and that mere presence of some evidence on record against the newly added accused persons should not be mechanically accepted. P.C. is to be exercised very sparingly, when only compelling reasons exist, and there is reasonable prospect of the case against newly added accused persons ending in conviction and that mere presence of some evidence on record against the newly added accused persons should not be mechanically accepted. He further submits that material contradictions in the evidence given in Court vis-a-vis statements recorded by the Investigating Officer during investigation shall be looked into while forming an opinion whether the evidence can be reasonably accepted for the purpose of conviction of the newly added accused persons. The learned Additional Government Advocate on the other hand, submits that the informant has directly named the accused persons in the FIR about their presence and involvement in the commission of the offences. He further submits that during her evidence, the informant (P.W. 7) has scribed specific roles-played by each of the present petitioners and her evidence has also been corroborated by the evidence of P.W. 8, the independent witness. The Apex Court, in the case of Ram Singh and others v. Ram Niwas and another reported in (2009) 14 SCC 25 has held as follows: The High Court, in our opinion, however, has committed a serious error in proceeding on the premise that mere existence of a prima facie case would be sufficient to exercise the court's jurisdiction under Section 319 of the Code. We have noticed hereinbefore the importance of the word "appears". What is, therefore, necessary for the Court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as accused in the case. The High Court further more committed a serious error insofar as it failed to take into consideration that when the order dated 29.5.2003 was passed, the learned Judge was in a position to consider the evidence brought on record including the cross-examination of the prosecution witnesses. The High Court did not arrive at any finding that a case has been made out for exercise of such an extraordinary jurisdiction which, in terms of the judgments of this Court, is required to be exercised very sparingly. In the case of Michael Machadio v. Central Bureau of Investigation reported in (2000) 3 SCC 262 the apex Court explaining the scope and ambit of Section, 319, Cr. In the case of Michael Machadio v. Central Bureau of Investigation reported in (2000) 3 SCC 262 the apex Court explaining the scope and ambit of Section, 319, Cr. P.C. has observed as follows: "The Court-must be reasonable satisfaction from the evidence already collected regarding two aspects while invoking power under Section 319 to proceed against other persons appearing to be guilty of offence. First is that the other person has committed an offence. Second is that for such offence that other person could as well as tried along with the already arraigned accused. But even then, what is conferred, on the Court is only a discretion as could be discerned from the words "the Court may proceed against such persons". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the evidence. Judicial exercise is called for keeping a conspectus of the case, including the stage at which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against other person. Unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the Court should refrain from adopting such a course of action." The above decision was relied upon by this Court in the case of Ramakanta Behera @ Sahu and others v. State of Orissa, 2009 (I) OLR 864 reported in (2009) 42 OCR 645 and Asish Kumar Nayak and another v. State of Orissa reported in (2012) 52 OCR 1, (2012) (I) OLR 332. In the case of Asish Kumar Nayak (supra), this Court considered the value and veracity of the evidence given by the prosecution witnesses in Court with reference to their statements made before the Investigating Officer during investigation, in order to find out if there was reasonable prospect of conviction of the newly added accused on the basis of the evidence. In the case of Asish Kumar Nayak (supra), this Court considered the value and veracity of the evidence given by the prosecution witnesses in Court with reference to their statements made before the Investigating Officer during investigation, in order to find out if there was reasonable prospect of conviction of the newly added accused on the basis of the evidence. On going through the record, in the instant case, it is found that admittedly P.W. 8 was an eye-witness to the occurrence who has given a statement before the Investigating Officer implicating the accused Sanjukta alone and has not whispered anything about the involvement of any of the present petitioners, farless ascribed any particular role played by any of the present petitioners. Such omission in his statement before the Investigating Officer amounts to material contradiction and makes his evidence about involvement of the petitioners unreliable. Therefore, there is no corroboration to the evidence of P.W. 7. In the circumstances, I am of the view that even though there is some evidence against the present petitioners but the evidence is not to such extent as may reasonably lead to the conviction of the petitioners. I am, therefore, of the view that the discretion exercised by the learned J.M.F.C. summoning the petitioners under Section 319, Cr. P.C. has not been properly and rightly exercised. I, therefore, set aside the impugned order. The CRLMC is accordingly allowed. CRLMC allowed.