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2017 DIGILAW 4 (ORI)

Bharat Kumar Patra v. State of Orissa

2017-01-02

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. Heard learned counsel for the petitioners and learned counsel for the State. 2. This revision petition has been filed by the petitioners namely Bharat Kumar Patra, Narendra Patra, Babaji Charan Behera, Jayanta Kumar Mohanty, Bhim Sen Behera @ Kamal Lochan Behera, Chaitanya Behera, Ganesh Behera and Thakur Charan Patra challenging the impugned order dated 14.12.2015 passed by the learned Asst. Sessions Judge, Balasore in Sessions Trial No. 9/438 of 2010/2009 in allowing the petition filed by the State under section 319 of the Cr.P.C. and directing issuance of summons against the petitioners to face trial along with other charge sheeted accused persons. 3. It appears that the F.I.R. was lodged on 18.05.2009 by one Mihir Pani before Inspector in charge, Soro police station, on the basis of which Soro P.S. Case No. 130 of 2009 was registered under sections 436/427/294/506 Part-II/34 of the Indian Penal Code and sections 25 & 27 of the Arms Act and section 9-B of the Explosives Act and after completion of investigation, charge sheet was submitted on 20.10.2009 under sections 436, 427, 294, 506 Part-II/34 of the Indian Penal Code against twelve accused persons. The petitioners were not charge sheeted. 4. During course of trial of the charge sheeted accused persons, four witnesses were examined including the informant Mihir Pani as P.W.1. The other three witnesses are P.W.2 Sesadev Rout, P.W.3 Badri Narayan Mohanty and P.W.4 Madhab Pani. After examination of the aforesaid four witnesses, the prosecution filed a petition on 29.04.2015 under section 319 of the Cr.P.C. to implead the petitioners as accused persons in the case to face trial. The learned Trial Court vide impugned order dated 14.12.2015 has been pleased to hold that on perusal of the F.I.R. as well as the evidence of P.Ws. 1 to 4, prima facie materials are made out against the petitioners and therefore, it is necessary to implead them as accused persons for proper adjudication of the case and accordingly, directed for issuance of summons against the petitioners. 5. Mr. 1 to 4, prima facie materials are made out against the petitioners and therefore, it is necessary to implead them as accused persons for proper adjudication of the case and accordingly, directed for issuance of summons against the petitioners. 5. Mr. Basant Kumar Das, learned counsel for the petitioners challenging the impugned order passed by the learned Trial Court contended that though in the F.I.R., the names of the some of the petitioners finds place but the 161 Cr.P.C. statement of the informant indicates that he is not an occurrence witness and he got information about the occurrence from others and accordingly lodged the first information report. It is further contended that the other three eye witnesses examined during trial i.e. P.Ws.2, 3 and 4 have not stated anything against the petitioners in their 161 Cr.P.C. statements and therefore, the learned Trial Court should not have exercised its power under section 319 of Cr.P.C. and directed for impletion of the petitioners as accused and therefore, it is a fit case where the impugned order should be quashed. 6. Mr. Dillip Kumar Mishra, learned Addl. Government Advocate on the other hand placed the evidence of the four witnesses examined during trial including the informant and contended that the informant being examined as P.W.1 specifically named the petitioners in the crime and the other eye witnesses like Sesadev Rout, Badrinarayan Mohanty being examined as P.Ws.2 and 3 respectively have attributed specific overt acts against petitioner no.1 Bharat Kumar Patra and petitioner no.3 Babaji Charan Behera. Similarly P.W.4 has also stated about the participation of the petitioners in the crime. Learned counsel for the State further contended that at this stage, it is not proper to discard such evidence merely relying on the previous statements made before the police that can be assessed at the appropriate stage of trial by the learned Trial Court and therefore, the revision petition being devoid of merits should be dismissed. 7. Considering the submissions made by the learned counsels for both the parties and taking into account the provision under section 319 of Cr.P.C., it is very clear that the power exercisable under section 319 of Cr.P.C. is an extraordinary one conferred on the Court to do real justice and it should be used with caution and only if compelling reasons exist for proceeding against the persons against whom action has not been taken. The power of summoning the additional accused persons cannot be exercised in a routine and mechanical manner and it is to be exercised judicially having regard to the facts and circumstances of the case. Where the Court feels the necessity of impleading new accused persons in the case having been reasonably satisfied that the prosecution would be able to prove the charges against those persons against whom the processes are sought to be issued, the Court can proceed accordingly. The Trial Court is not precluded from taking into account materials collected in course of investigation for considering the desirability for exercise of the extraordinary discretion. The expression “any persons not being an accused” includes the persons who have been named in the F.I.R. but not charge sheeted. 8. Keeping in view the settled principle of law and looking at the materials available on record, it is found that though the informant named some of the petitioners in the First Information Report but as per his 161 Cr.P.C. statement, he is a post occurrence witness. He projected himself as an eye witness during trial of the case. Material contradictions have been brought in his cross examination which is to be proved when the Investigating Officer will be examined. 9. On perusal of the evidence of P.W.2 and P.W.3, it appears that they have attributed specific overt acts against two of the petitioners namely petitioner no.1 Bharat Kumar Patra and petitioner no.3 Babaji Charan Behera but in their 161 Cr.P.C. statements, P.W.2 and P.W.3 have not even whispered the names of any of these petitioners. 10. P.W.4 Madhab Pani though stated to be an eye witness to the occurrence but he has also not implicated any of the petitioners in the alleged crime in his statement before police but implicated them for the first time during trial that to in an omnibus manner. 11. Therefore, out of the four witnesses examined so far in the Trial Court, P.W.1 is a post occurrence witness as per his previous statement before the police and P.Ws.2, 3 and 4 have not stated anything against the petitioners in their previous statements made before the police. 11. Therefore, out of the four witnesses examined so far in the Trial Court, P.W.1 is a post occurrence witness as per his previous statement before the police and P.Ws.2, 3 and 4 have not stated anything against the petitioners in their previous statements made before the police. In such circumstances, when the witnesses have come up with the evidence against the petitioners for the first time during trial and some of them implicated the petitioners no.1 and 3 specifically while stating in an omnibus manner against the rest of the petitioners, I am of the view that the learned Trial Court was not justified in invoking its power under section 319 of Cr.P.C. and allowing the petition filed by the prosecution and directing for impletion of the petitioners as accused. 12. The learned Trial Court has not kept in view the settled position of the law while invoking its power under section 319 of Cr.P.C. for summoning the petitioners to face the trial and therefore, I am inclined to accept the contentions raised by the learned counsel for the petitioners and set aside the impugned order dated 14.12.2015 passed by the learned Trial Court. 13. Accordingly, the revision petition is allowed.