Orissa High Court

Kailash Chandra Sahoo & Others vs State Of Odisha & Another on 29 July, 2022

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                       CRLREV No.216 of 2021


        Kailash Chandra Sahoo & others.       ....           Petitioners

                              M/s. U.C. Mishra, A. Mishra, Advocates

                                   -versus-
        State of Odisha & another.            ....      Opposite Parties
                        Addl. Standing Counsel - For O.P. No.1-State
          M/s. B.K. Ragada, L.N. Patel, J. Mohapatra, H.K. Muduli, M.
                                    Sahoo, Advocates - Fro O.P. No.2


                 CORAM:
                 JUSTICE S. PUJAHARI
                               ORDER

Order                          29.07.2022
No.
  5.    1.      This is an application filed under Section 401

of Cr.P.C. challenging the order dated 31.03.2021

passed by the learned 3rd Addl. Sessions Judge,

Cuttack in Criminal Revision No.6 of 2021, vide which

the order passed by the learned SDJM(S), Cuttack

rejecting the application of the Informant (Opposite

party no.2 herein) under Section 319 of Cr.P.C., has

been reversed.

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2. Heard the learned counsel for the petitioners

and the learned counsel for the State. None appears

for the opposite party no.2. Perused the relevant

papers on record.

3. The petitioner no.1 is the father-in-law of the

Informant, petitioner no.2 is his son, and petitioner

no.3 is the wife of the petitioner no.2. The Informant

lodged F.I.R. with police alleging dowry demand and

torture against her husband, mother-in-law and the

present petitioners. After investigation, police,

however, submitted charge-sheet against the

husband and mother-in-law of the informant only.

The learned SDJM(S), Cuttack took cognizance of the

offences under Sections 498-A, 506/34 of IPC

accordingly and after framing charge, proceeded with

the trial. During the trial, after the informant was

examined as prosecution witness no.1, and while her

cross-examination was deferred on the prayer of the

defence counsel, the informant moved an application

under Section 319 of Cr.P.C. before the learned SDJM

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seeking for summoning the present petitioners to be

proceeded against for the aforesaid offences, and the

learned SDJM vide the order dated 14.10.2020

rejected the said application on the ground that there

was no sufficient evidence on record to exercise

jurisdiction under Section 319 of Cr.P.C. against the

present petitioners. Being aggrieved thereby, the

informant approached the revisional court by filing

Criminal Revision No.6 of 2021 which was allowed by

the learned 3rd Addl. Sessions Judge vide the

impugned order, directing the trial Court to summon

the present petitioners to face the trial, in view of

Section 319 of Cr.P.C. The petitioners, therefore, have

filed the present revision petition seeking for setting

aside the impugned order.

4. It is the submission of the learned counsel for

the petitioners that the learned 3rd Addl. Sessions

Judge has erred in law by issuing the direction vide

the impugned order, inasmuch as the evidence of the

Informant which has not been tested by cross-

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examination by defence does not make out any case

for directing the petitioners to face the trial for the

alleged offences. According to him, the untested

cryptic statement of the informant in her

examination-in-chief is vague in nature, and the

alleged dowry demand or torture is vague in nature,

having no specific attribute to the petitioners in the

alleged incident.

5. Learned counsel for the State, however,

supports the impugned order.

6. I have gone through the order of the learned

SDJM(S), Cuttack as well as the impugned order

passed by the learned First Revisional Court vis-à-vis

the testimony-in-chief of the informant recorded by

the learned SDJM(S), Cuttack.

7. The learned First Revisional Court has

observed, inter-alia, that the learned trial Court failed

to properly assess the materials available in the case

record and the spirit of Section 319 of Cr.P.C. He has

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placed reliance the decisions of the Apex Court in the

case of Hardeep Singh -Vrs.- State of Punjab &

Others, reported in (2014) 3 SCC 92 and Sartaz

Singh vrs. State of Haryana. The principles settled

in the case of Hardeep Singh have been followed in

Sartaz Singh's case. It is true, as per the principles

settled, for the purpose of exercising the jurisdiction

under Section 319 of Cr.P.C., there is no necessity

that the evidence of the witnesses must be tested with

cross-examination by the defence. But, what it

appears, the learned 3rd Addl. Sessions Judge in his

haste has neither gone in detail through either of the

above cited two decisions. Had he applied his mind

correctly to those authorities, he could have decided

the matter before him in right perspective. In para-

6.1.6 of the judgment in Sartaz Singh's case (supra)

para-105 and 106 of the judgment of Hardeep Singh's

case have been quoted with the approval. Para-6.1.6

of the judgment in Sartaz Singh's case is reproduced

here below:-

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"6.1.6 While answering Question (iv), namely, what is the degree of satisfaction required for invoking the power under Section 319 CrPC, this Court after considering various earlier decisions on this point, has observed and held as under:

105. Power under Section 319 CrPC 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 unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused."

8. As per the principles settled as above, the

evidence to be taken into consideration for the

purpose of exercising the power under Section 319 of

Cr.P.C. needs to be much stronger evidence than

mere probability of complicity of the new accused

persons sought to be summoned. In the case at hand,

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what it appears, the learned trial Court having regard

to the nature of evidence available on record as on the

date of the application in question had rightly decided

to summon the present petitioners under Section 319

of Cr.P.C. The learned First Revisional Court,