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2013 DIGILAW 9 (ORI)

Kishore Kalet v. State of Orissa

2013-01-08

B.K.NAYAK

body2013
ORDER Head Learned Counsel for the parties. 2. Petition filed by the informant-Petitioner through the Learned A. P. P. under Section 319 of the Cr. P.C. to issue warrant of arrest & proceed against the present Opp. Party Nos. 3 & 4 in S.T. Case No. 102/30 of 2008 having been rejected by the Learned ACJM-cum-ASJ. Rourkela, the Petitioner has come up before this Court in the present revision. 3. On the basis of F.I.R lodged by the present Petitioner, Tangarpali P.S. Case No. 51 dated 09.04.2008 was registered against the present Opp. Party No.2 under Section 363 of the I.P.C. & ultimately charge-sheet was submitted under Section 366 of the I.P.C. & the case being committed it is now pending before the ACJM-cum-ASJ, Rourkela in S.T. Case No.102/30 of 2008. It is stated that a protest petition was filed for taking cognizance against the present Opp. Party Nos. 3 & 4 which has been rejected on the ground that the Petitioner could invoke the discretion of the Court under Section 319 of the Cr. P.C. Accordingly, in the sessions tried petition under Section 319 of the Cr. P.C. was filed by the Petitioner for issuance of process to Opp. Party Nos.3 & 4, which has been rejected by the impugned order on the ground that the victim girl has neither stated before police nor before the C.J.M., Port Blair, where she was produced, nor before the Learned S.D.J.M., Rourkela about any assistance rendered by Opp. Party Nos. 3 & 4 to Opp. Party No. 2 for kidnapping her (victim girl) & that another witness, namely P.W.8 also pleaded his ignorance about the involvement of the said Opp. Parties & that the I.O. also stated that he had not found during investigation the involvement of the said Opp. Parties & as such no prima facie case is made out against Opp. Party Nos. 3 & 4 for issuance of process against them. 4. Learned Counsel for Opp. Party No. 3 & 4 submits that the evidence collected is not sufficient for the Court to arrive at a conclusion that if un-rebutted such evidence would lead to conviction of Opp. Party Nos. 3 & 4 in the case. 5. Party Nos. 3 & 4 for issuance of process against them. 4. Learned Counsel for Opp. Party No. 3 & 4 submits that the evidence collected is not sufficient for the Court to arrive at a conclusion that if un-rebutted such evidence would lead to conviction of Opp. Party Nos. 3 & 4 in the case. 5. In the case of Michael Machado & another v. Central Bureau of Investigation & another, reported in (2000) 3 SCC 262 the Apex Court explaining the scope & ambit of Section 319, Cr. P.C. has observed as follows: "The Court must have reasonable satisfaction from the evidence already collected during trial or in the inquiry regarding two aspects: First, that some other person, who is not arraigned as an accused in that case has committed as offence. Second, that for such offence that other person could as well be tried along with the already arraigned accused. It is not enough that the Court entertain some doubt, from the evidence, about the involvement of another person in the offence. 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 Court may proceed against such person". 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 other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already & the quantum of evidence collected till then, & also the amount of time which the Court had spent for collecting such evidence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already & the quantum of evidence collected till then, & also the amount of time 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 such other person xxx xxx xxx Unless the Court is hopeful that there is a reasonable prospect of the case as against the newly-brought accused ending in being convicted of the offence concerned, 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 & Others v. State of Orissa reported in (2009) 42 OCR 645, Asish Kumar Nayak & another v. State of Orissa, reported in (2012) 52 OCR 1 & Bhagirathi Jena & others v. State of Orissa reported in (2012) 52 OCR 814. 6. In the instant case, it is apparent that though in the F.I.R. & in examination-in-chief the informant stated that he learnt that Opp. Party Nos. 3 &. 4 called the victim girl & took her to the bus stand, where the accused was waiting & boarded them in the bus admittedly, he does not have any direct knowledge of the same, which is instead in the nature of hearsay. The only evidence being that of the victim girl (P.W.3), she having not stated about involvement of Opp. Party Nos. 3 & 4 in the occurrence before the I.O or before the C.J.M. Port Blair, where she was first produced or before the S.D.J.M., Rourkela, there is no reasonable prospect of the case as against Opp. Party Nos. 3 & 4 ending in conviction. Therefore, the discretionary power of the learned Court below has been rightly exercised in rejecting the petition. The impugned order does not suffer from any infirmity & the CRIREV is accordingly dismissed. CRIREV Dismissed.