Orissa High Court

Rajendra Kshirabdhi Tanmaya vs State Of Odisha And Another on 22 February, 2023

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                     CRLREV No. 571 of 2022

      An application under Section 319 of Cr.P.C. challenging
      the order dated 17.11.2022 passed by the learned
      Assistant Sessions Judge, Khandapara in S.T. Case No.
      29/124 of 2014.
                           ---------------
      Rajendra Kshirabdhi Tanmaya ......                Petitioner
      Kanta @Rajendra [email protected]
      Kanhar

                          -Versus-

      State of Odisha and another     .......         Opp. Parties
      Advocate(s) appeared in this case:-
      _______________________________________________________
        For Petitioner    :     Mr. A. Tripathy &
                                Mr. A.K. Behera &
                                Advocates.

         For Opp. Parties :     Mr. S.R. Mohapatra,
                                B.R. Mohanty
                                A. Mohanty &
                                Anubhav Moharana,
                                Advocates
      _______________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA

                            JUDGMENT

nd 22 February, 2023

SASHIKANTA MISHRA, J.

The petitioner challenges the order dated 17.11.2022

passed by learned Additional Sessions Judge, Khandapara

in S.T. Case No.29/124 of 2014 whereby he was arraigned

as an accused on the prayer of the informant.

2. The facts of the case are that one Prasanta Kumar

Sahoo lodged FIR on 04.04.2013 before the IIC, Fategarh

Police Station alleging that the present petitioner and two

other persons came to his house and assaulted him by

means of deadly weapons causing bodily injuries. This led

to registration of Fategarh P.S. Case No.23 of 2013 under

Sections 341/294/323/324/307/506/34 of IPC against

three persons including the petitioner. However, upon

completion of investigation police submitted charge sheet

only against the other co-accused persons excluding the

present petitioner. Subsequently, trial commenced in

course of which, twelve witnesses were examined. At such

stage, the informant (present opposite party no.2) filed a

petition on 12.10.2022 with prayer to arraign the present

petitioner as an accused exercising power under Section

319 of Cr.P.C. on the ground that a prima facie case had

been made out against him from the evidence of the

prosecution witnesses. The court below heard the petition

and by order dated 17.11.2022 allowed the same by

arraigning the petitioner as an accused in the case.

3. Heard Mr. A. Tripathy, learned counsel for the

petitioner, Mr. S.K. Mishra, learned Additional Standing

Counsel for the State and Mr.S.R. Mohapatra, learned

counsel for the informant (O.P. No.2).

4. Mr. A. Tripathy submits that if the informant was

aggrieved by non submission of charge sheet against the

petitioner, he could have filed a protest petition at the

relevant time but instead of doing so he filed the petition

under Section 319 of Cr.P.C., three years after

examination of the I.O. Therefore, his intention is nothing

but to delay the trial. Moreover, the informant is himself

an accused in the murder of the petitioner's father and

therefore, his intention is to seek revenge by falsely

implicating the petitioner in the case. Mr. Tripathy has

also argued that as per the settled position of law a mere

prima facie case is not adequate to arraign a person as

accused.

6. Mr. S.K. Mishra, learned Additional Standing

Counsel has supported the impugned order by submitting

that several witnesses have deposed in clear terms about

complicity of the petitioner. On their evidence, the direct

involvement of the petitioner in the alleged occurrence is

more than evident. Therefore, the trial court rightly added

him as an accused.

7. Mr. S.R. Mohapatra also supports the impugned

order by submitting that a bare perusal of the evidence of

Prosecution Witnesses 2, 3, 5, 6 and 7 would show clear

involvement of the petitioner in the alleged occurrence and

therefore, his non-arraignment as accused in the case

would amounted to travesty of justice.

8. In order to appreciate the rival contentions it would

be proper to first refer to the provision under Section 319

of Cr.P.C., which is quoted herein below:-

"319. Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub- section (1), then-

(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."

Undoubtedly, the Court is vested with power to add a

new accused, if the evidence so suggests. In the case of

Hardeep Singh vs. State of Punjab, reported in (2014)

57 OCR (SC) 455, the Apex Court referring to the sprit

underlying Section 319 of Cr.P.C. observed as follows.:-

"12. Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P..C

13. It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. xxx xxx xxx"

Further, in Hardeep Singh (supra), the limit of

exercise of such power was delineated in the following

words:-

"105. Power under Section 319 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 their 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.

(Emphasis supplied)

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 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."

(Emphasis supplied)

8. Thus, the settled position of law is, if the evidence

suggests more than a prima facie case raising a strong

possibility of complicity of the person sought to be added

as accused in the trial, he can be so added. It is not

necessary for the Court at this stage to definitely come to

a conclusion that the evidence is sufficient to return a

finding of guilt against him, but it would suffice if the

evidence at least justifies his the facing the trial.

9. Viewed in the backdrop of the legal position as stated

above, this Court after going through the evidence of

Prosecution Witnesses 1, 2, 6, 7, 8 and 9 finds that they

have spoken about direct involvement of the petitioner in

the alleged occurrence. Whether this evidence is sufficient

to record a conviction against the petitioner is immaterial

but it does raise more than a prima facie case against him

to at least justify a trial.

10. A reading of the impugned order shows that the

court below has also gone through the depositions of the

witnesses to arrive at the same view. This Court finds no

reason to take a contrary view for the reasons indicated