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2022 DIGILAW 87 (ORI)

Sabitri Nanda v. State of Orissa

2022-04-13

V.NARASINGH

body2022
JUDGMENT : V. NARASINGH, J. 1. Heard learned counsel for the petitioners, learned counsel for the State and learned counsel for the informant-Opposite Party No. 2. 2. Being aggrieved by the order dated 09.11.2021 passed by the learned J.M.F.C. Hatadihi, Keonjhar in G.R. Case No. 399 of 2015 arising out of Soso P.S. Case No. 28 of 2015 at Annexure-6, allowing an application under Section 319 Cr.P.C. and issuing summons to the accused, the present CRLMC has been filed. 3. The brief factual narration is necessary to appreciate the lis: (i) The informant lodged an FIR registered as Soso P.S. Case No. 28 of 2015, alleging that the accused person Mr. Braja Kishore Nanda along three other accused persons namely Kailash Nanda, Sabitri Nanda and Gitanjali Nanda have tortured her on dissatisfaction of demand for dowry. On the basis of such allegation all the accused persons named in the FIR were implicated under Section 498-A/506/34 read with 4 of Dowry Prohibition Act. After investigation charge sheet was filed wherein, the husband Mr. Braja Kishore Nanda and father in-law of the informant Mr. Kailash Ch. Nanda were charge-sheeted and present petitioners were not cited as accused persons, as evidently no prima facie material was found against them being involved in the alleged offence. (ii) During the course of trial after examination of five prosecution witnesses out of the seventeen, relying on the evidence of PW-1 the informant, PW-2 the father of the informant, PWs. 3 and 5 co-villagers and PW-4 related to the informant, stated to have knowledge regarding the marriage, a petition was filed on behalf of the prosecution under Section 319 Cr.P.C. giving details of the present petitioners who are the mother in-law and sister-in-law's of the informant to be arrayed as accused. Inter-alia, contending that there are materials on record which indicate the complicity of the petitioners and they have wrongly been left out during the investigation and it was stated that on the basis of materials on record, they ought to face the trial along with the other accused persons. (iii) Objection was filed to such petition by the present petitioners on receipt of notice. (iv) On consideration of the objection, the learned Court by the impugned order dated 09.11.2021 on scrutiny of the evidence of PWs. (iii) Objection was filed to such petition by the present petitioners on receipt of notice. (iv) On consideration of the objection, the learned Court by the impugned order dated 09.11.2021 on scrutiny of the evidence of PWs. 1, 2, 3 and 5 came to the finding that there are materials on record which point to involvement of the present petitioners and accordingly, the petition was allowed and directed for issuance of summons which is subject matter of challenge in the present CRLMC. 4. The power to be exercised under Section 319 Cr.P.C. engaged the attention of the Apex Court in the case of Hardeep Singh vs. State of Punjab and Others, (2014) 3 SCC 92 , the principles which are relevant to be considered for disposal of the present CRLMC has been succinctly stated in paragraphs 105 and 106 which are quoted hereunder: “105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes un-rebutted, would lead to conviction. In the absence of such satisfaction, the Court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if ‘it appears from the evidence that any person not being the accused has committed any offence’ is clear from the words “for which such person could be tried together with the accused.” The words used are not ‘for which such person could be convicted’. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.” 5. The materials on record have to be examined on the touchstone of the principles as enunciated in the case of Hardeep Singh v. State of Punjab (Supra). 6. In support of his contention learned counsel for the petitioners while relying on the judgment of the Apex Court in the case of Hardeep Singh referred to above, submits that the approach of learned Court below in allowing the petition under Section 319 Cr.P.C. is the outcome of mechanical appreciation and the principles as laid down in Hardeep Singh has been followed in its violation and he has also referred to the tendency which has been deprecated to entangle all the family members as a matter of routine in cases of this nature. 7. Learned counsel for the informant appeared suo motu relied on the judgment of the Apex Court dated 13th September, 2021 in Criminal Appeal No. 990 of 2021, in the Case of Ramesh Chandra Srivastava vs. State of U.P. and Another and submits with vehemence that there is no irregularity, less illegality warranting exercise of jurisdiction by this Court and seeks dismissal of the CRLMC. 8. Learned counsel for the State supports the contention of the informant Opposite Party No. 2. 9. The learned counsel for the Opposite Party No. 2 also relied on the language of Section 319 Cr.P.C. to state that the powers conferred on the Court is wide and in the fact situation of the case at hand such power has been rightly exercised and hence prays that the case at hand does not warrant any interference. 10. On going through the impugned order, it is seen that the leaned Court below has relied on the statements of PWs. 1, 2, 3 and 5 to arrive at the finding regarding the complicity of the present petitioners. 11. The evidence of PW-1, the informant is most material and in Paragraph 11 thereof it has been stated thus: “11. My in-laws always threatened me to meet their demand of dowry or else they kill me in life. My in laws precluded me from fooding and clothing.” 12. 11. The evidence of PW-1, the informant is most material and in Paragraph 11 thereof it has been stated thus: “11. My in-laws always threatened me to meet their demand of dowry or else they kill me in life. My in laws precluded me from fooding and clothing.” 12. PW-2 is the father of the informant and in his deposition in Paragraph 6, he narrated the alleged torture faced by his daughter in paragraph 5 and 6 quoted hereunder: “05. During her staying at her matrimonial house her mother in law, father in law, sister in law i.e. Pankajini and Gitanjali threatened her to kill her in life. They inflicted physical and mental torture upon her. 06. The in-laws of my daughter i.e. Pankajini Nanda and Gitanjali Nanda, Sabitri Nanda and Kailash Nanda precluded her from fooding. Pankajini Nanda assaulted her many a times.” 13. On perusal of the evidence of PWs. 3 and 5, this Court is of the considered opinion that there is no material on record elicited from the said P.Ws. so as to implicate the petitioners warranting issuance of notice under Section 319 Cr.P.C. 14. Hence, this Court is called upon to evaluate the evidence of PWs. 1 and 2 in the light of the guidelines fixed in the case of Hardeep Singh (Supra), more particularly in Paragraph 105 and 106 thereof. 15. Applying the standard enumerated in the judgment of Hardeep Singh (Supra), it cannot be that the said statements of PWs. 1 and 2 point to the complicity of the petitioners beyond “mere probability.” And does not conform to the test of “more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes un-rebutted, would lead to conviction.” 16. In Fact, the Apex Court has sounded a word of caution regarding extra ordinary nature of the power under Section 319 Cr.P.C. and that the same is to be exercised “sparingly and in those cases where the circumstances of the case so warrant. The Apex Court has further stated that such power is not to be exercised if the learned Court in seisin of the matter is of the opinion that some other person may also be guilty of “committing that offence.” 17. The Apex Court has further stated that such power is not to be exercised if the learned Court in seisin of the matter is of the opinion that some other person may also be guilty of “committing that offence.” 17. On perusal of the impugned order, it is seen that while exercising jurisdiction under Section 319 Cr.P.C. the learned Trial Court has lost sight of the salutary principles laid down in the case of Hardeep Singh (Supra) and reiterated in the very judgment relied on by the learned counsel for the Opposite Party. 18. Hence, on a conceptus of materials on record and taking into account, the law laid down by the Apex Court in the case of Hardeep Singh (Supra), the impugned order dated 09.11.2021 passed by the learned J.M.F.C. Hatadihi, Keonjhar in G.R. Case No. 399 of 2015 arising out of Soso P.S. Case No. 28 of 2015 at Annexure-6, issuing summons to the present petitioners is set aside. 19. The CRLMC is accordingly allowed and there shall be no order as to cost.