Ramakanta Behera ' Sahu and Another vs State of Orissa

B.K. Patel, J.—Both the revisions are directed against the order dated 09.1.2007 passed in exercise of power under Section 319 of the Code of Criminal Procedure by the learned Additional Sessions Judge (Fast Track Court-II), Bhadrak in S.T. Case No. 22/156 of 2006/2004 arraying the four Petitioners as accused persons and summoning them to face trial along with the two accused persons who were facing trial before him for alleged commission of offences under Sections 498-A and 304-B read with 34 of the Indian Penal Code (for short the ''I.P.C'') as well as Section 4 of the Dowry Prohibition Act (for short the ''D.P. Act''). On the consent and request of the parties the revisions were taken up for disposal at the stage of admission.

Bhadrak Town P.S. Case No. 34 of 2004, out of which S.T. Case No. 22/156 of 2006/2004 has arisen, was registered for commission of offences under Sections 498-A, 307 and 326 read with 34 of the I.P.C. and Section 4 of the D.P. Act on the basis of F.I.R. lodged by the deceased Arati''s father, informant-P.W.2 Uma Sankar Das against (i) deceased''s husband Bibhuti Bhusan Sahu and (ii) deceased''s mother-in-law Malati Sahu, the two accused persons facing the trial as well as the present Petitioners. Petitioner No. 1 Sukadev Sahu in Criminal Revision No. 217 of 2007 is deceased''s father-in-law. Petitioner No. 2 Bharati '' Kuni Sahu in Criminal Revision No. 217 of 2007 is his unmarried daughter. Petitioner No. 2 Sunita Sahu '' Behera '' Sumati Sahu in. Criminal Revision No. 205 of 2007 is Sukadev''s married daughter. Petitioner No. 1 Ramakanta Behera in Criminal Revision No. 205 of 2007 is her husband. In the FIR it was alleged that marriage between deceased and accused Bibhuti Bhusan Sahu was solemnized on 10.12.2000. One year after the marriage both the accused persons as well as the Petitioner inflicted physical torture on the deceased in order to pressurize her to bring Rs. 10,000/-. Though the informant P.W.2 was apprised of the same by the deceased, he expressed his inability to pay the amount. The occurrence took place in the night of 5/6.3.2004 when informant P.W.2 and his wife P.W.1 had gone to the matrimonial house of the deceased. At about 2.30 A.M., when every body was asleep, informant P.W.2 woke up hearing shrieks raised by the deceased. Finding the deceased burning, he poured water over her. Others also arrived at the spot. The deceased was removed for treatment to hospital at Bhadrak and thereafter, at Cuttack. it appears that F.I.R. was lodged on 10.03.2004,. It further transpires that while under treatment the deceased died at S.C.B. Medical College and Hospital, Cuttack on 13.03.2004. On completion of investigation, charge sheet was submitted against the two accused persons only. Accordingly, trial commenced. After recording of the evidence of two witnesses P. Ws.1 and 2, they appear to have filed application under Section 319 of the Code of Criminal Procedure in response to which the impugned order was passed.

In assailing the impugned order it was submitted by the learned Counsel for the Petitioners that, admittedly, materials collected in course of investigation was not found to be incriminating against the Petitioners. Moreover, in her dying declarations, the deceased had made no allegation whatsoever against the Petitioners. In such circumstances, the Petitioners were not charge-sheeted though they had been named as accused persons in the F.I.R. In course of recording of their evidence, P. Ws.1 and 2 made vague and general allegations against the Petitioners implicating them with the commission of alleged offences in an omnibus manner. Such allegations should not have been made the basis for arraying the Petitioners as accused persons without taking into consideration the other materials on record including the deceased''s dying declarations. The learned Court below should have appreciated the fact that even if the allegations made by P. Ws.1 and 2 are accepted on face value, there is absolutely no chance of conviction of the Petitioners on the face of the dying declarations of the deceased as well as police statements of the witnesses. It was argued that extraordinary jurisdiction under Section 319 of the Code of Criminal Procedure, which ought to be invoked sparingly, should not have been exercised by the learned Court below without reference to all the materials before it. Decisions of the Hon''ble Supreme Court in Rakesh and Anr. v. State of Haryana 2001 (II) OLR (SC) 333, Kavuluri Vivekananda Reddy and Anr. v. State of A.P. and Anr. (2006) 34 OCR (SC) 401, Palanisamy Gounder and Anr. v. State Represented by Inspector of Police (2006) 34 OCR (SC) 389 and Anil Singh and Anr. v. State of Bihar and Ors. (2006) 35 OCR (SC) 794 and of this Court in Suresh @ Madhu Das Vs. State of Orissa, were relied upon by the learned Counsel for the Petitioners.

Learned for the State, assisted by the learned Counsel for the informant, argued that Section 319 of the Code of Criminal Procedure does not contemplate reference to any material on record other than evidence of the witnesses recorded in Court. In support of the contention, reliance was placed on the decisions of Hon''ble Supreme Court in Ranjit Singh v. State of Punjab (1998) 15 OCR (SC) 476 and Raj Kishore Prasad v. State of Bihar and Anr. (1996) 11 OCR (SC) 139 as well as decisions of this Court in Narendra Das v. State of Orissa 1987 (I) OLR 284, Panchdia Jaya v. State of Orissa (1998) 15 OCR 145 and Md. Muzaffar Hussain Khan and Anr. v. State of Orissa and Ors. (1994) 7 OCR 804. It was further contended that in view of the provision under Section 113B of the Evidence Act, the Court shall presume that a person accused of commission of offence under Section 304-B of the I.P.C. had caused dowry death as alleged by the prosecution, and the burden lies on the accused to disprove the allegation levelled against him. In this context, reliance was placed on the decisions of Hon''ble Supreme Court in Shamsaheb M. Multtani v. State of Karnataka 2001(1) Supreme 348 and Lok Ram v. Nihal Singh and Anr. AIR 2006 SCW 2129.

At the outset, it may be pointed out that Section 113B of the Evidence Act does not postulate that the burden of the prosecution to prove the charge under Section 304-B of the I.P.C. is altogether shifted to the accused. Section 113B does not provide that there is presumption that the accused caused dowry death simply because charge has been framed under Section 304-B of the I.P.C. Prosecution has the initial burden to prove that soon before her death the deceased was subjected by the accused to cruelty or harassment for, or in connection with, any demand for dowry and that her death had occurred within seven years of her marriage otherwise than under normal circumstances, after which the Court shall presume that the accused had caused the dowry death. Section 113B of the Evidence Act keeps the initial burden of the prosecution intact. It reads:

When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. 6. In Shamsaheb M. Multtani (supra) itself, relied on behalf of the informant, it has been held that:

The postulates needed to establish the said offence are: (1) Death of a wife should have occurred otherwise than under normal circumstances within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. Now reading Section 113B of the Evidence Act, as a part of the said offence, the position is this: if the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances "the Court shall presume that such person had caused dowry death. 7. The main contention raised to assail the impugned order relates to the true scope and ambit of under Section 319 of the Code of Criminal Procedure as well as parameters which have to be kept in view while exercising the extraordinary power of summoning a person to face trial though he does not figure as an accused. Sub-section (1) of Section 319 of the Code of Criminal Procedure which confers jurisdiction to proceed in a trial against newly arrayed person reads:

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. 8. In Palanisamy Gounder and Anr. (supra), it has been held as follows:

The power under Section 319 of the Code cannot be exercised so as to conduct a fishing inquiry. We have already noticed the observations of the learned Trial Judge that though the case against the Appellants was not on solid foundation but it was felt that to find out the real truth they deserved to be added as accused. The manner in which the power under Section 319 deserves to be exercised has been laid down in Michael Machado and Another Vs. Central Bureau of Investigation and Another, holding that unless the Court is hopeful that there is a reasonable prospect of the case against the newly added accused ending in their conviction for the offence concerned, the Court shall refrain from adding them as accused. In Krishnappa Vs. State of Karnataka, a Bench of which one of us (Hon''ble Mr. Justice Y.K. Sabharwal) was a member, following Michael Machado and Another Vs. Central Bureau of Investigation and Another, it was said that: (SCC p. 795, para 9). In Michael Machado and Another Vs. Central Bureau of Investigation and Another, construing the words ''the Court may proceed against such person'' in Section 319 Code of Criminal Procedure, this Court held that the power is discretionary and should be exercised only to achieve criminal justice and that the Court should not turn against Anr. person whenever it comes across evidence connecting that other person also with the offence. This Court further held that a judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has already proceeded and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. The Court, while examining an application under Section 319 Code of Criminal Procedure, has also to bear in mind that there is no compelling duty on the Court to proceed against other persons. In a nutshell, it means that for exercise of discretion under Section 319 Code of Criminal Procedure, all relevant factors, including the one noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused. 9. In Lok Ram (supra), the Hon''ble Supreme Court has observed as follows:

10 On a careful reading of Section 319 of the Code as well as the aforesaid two decisions, it becomes clear that the Trial Court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the F.I.R. as an accused, but not charge sheeted, can also be added to face the trial. The Trial Court can take such a step to add such persons as accused on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence. Of course, as evident from the decision reported in Sohan Lal and others Vs. State of Rajasthan, the position of an accused who has been discharged stands on a different footing.

Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it. If it is satisfied that any person other than accused has committed an offence, he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates that evidence of witnesses given in Court. Under Sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of Sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned.

In Michael Machado (supra), the scope and ambit of Section 319 of the Code of Criminal Procedure were observed as follows:

The Court must be reasonable satisfaction from the evidence already collected regarding two aspects while invoking power under Section 319 to proceed against other persons appearing to be guilty of offence. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused. But even then, that is conferred on the Court is only a discretion as could be discerned from the words "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 Anr. person whenever it comes across evidence connecting that Anr. person also with the offence. Judicial exercise is called for keeping a conspectus of the case, including the stage at 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 other person.

xx xx xx xx xx Unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the Court should refrain from adopting such a course of action.

Provision under Section 319 of the Code of Criminal Procedure as well as the judicial pronouncements referred to above make it evident that the trial Court has the jurisdiction to array any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied, in course of enquiry or trial, on the basis of the evidence adduced before it, that such person should face trial and that the trial Court may resort to the provision of Section 319 of the Code of Criminal Procedure only on the basis of the evidence adduced before it and not on the basis of the materials available in the charge sheet or the case diary. As recourse to Section 319 of the Code of Criminal Procedure postulates de novo trial, the extraordinary power conferred thereunder should be used very sparingly and only if compelling reasons exist. Also the power should be exercised at the earliest when the evidence necessitating the exercise of jurisdiction under Section 319 of the Code of Criminal Procedure appears. An order under Section 319 of the Code of Criminal Procedure is not required to be mechanically passed merely on the ground that some evidence had come on record implicating the person sought to be added as an accused. Also unless the Court is hopeful that there is reasonable prospect of the case against newly brought accused ending in conviction of the offence concerned, it should refrain from exercising the jurisdiction.

What the provision under Section 319 of the Code of Criminal Procedure contemplates and what has been stated by the Hon''ble Supreme Court and this Court in the decisions relied upon on behalf of the informant is that power under Section 319 of the Code of Criminal Procedure can be exercised by a Court in course of trial if it appears from the ''evidence'' before it that any offence has been committed by person or persons not facing trial as accused along with the accused facing trial. There has to be some ''evidence'' adduced before the Court to indicate complicity of person who is not facing trial. There is no scope to array a person as accused in a trial unless incriminating circumstance appears against him in the evidence. That does not mean that whenever there is evidence implicating a person as accused, the Court shall exercise jurisdiction under Section 319 of the Code of Criminal Procedure without considering other materials available on record.

In Rakesh and Anr. (supra) it has been held that the word "evidence" occurring in Sub-section (1) of Section 319 of the Code of Criminal Procedure is used in a comprehensive and broad sense which would also include the materials collected by the investigating officer and the materials or evidence which come before the Court and from which the Court can prima facie conclude that the person not already arraigned before it is involved in the commission of the crime.

It has been reiterated by the Hon''ble Supreme Court in the recent decision of Hardeep Singh v. State of Punjab and Ors. (2009) 42 OCR (SC) 182 that the word "evidence" occurring in Section 319(1) of the Code of Criminal Procedure is used in a comprehensive and broad sense which would also include the materials collected by the investigating officer and the evidence which comes before the Court and from which the Court is satisfied that person not arraigned before it is involved in the commission of the crime.

In Suresh '' Madhu Das (supra) this Court observed that out of P. Ws.1, 2, 5 and 7, on the basis of whose evidence jurisdiction under Section 319 of the Code of Criminal Procedure had been exercised, P.W.1 stated in Court that the Petitioner instigated the villagers to set fire to the houses whereas he had stated before the police that the Petitioner alongwith Ors. set fire to the houses; P.W.2 had not named the Petitioner in his police statement but stated in Court to have instigated the villagers whereas P. Ws.5 and 7 stated in Court that the Petitioner set fire to the houses though they had not named the Petitioner before the police. In such circumstances, it was held that it can hardly be said that their statements in Court involving the Petitioner would be worthy of credit so as to justify exercise of the jurisdiction. If the evidence appears to be shaky and is not credible, impletion of a person as an accused would be a futile exercise of power and would be a cause of harassment to the person proposed to be airayed as an accused and that no useful purpose would be served by asking the Petitioner to stand the trial along with other accused persons.

Taking into account the nature of extraordinary discretion conferred under Section 319 of the Code of Criminal Procedure, the Hon''ble Supreme Court held in Kavuluri Vivekananda Reddy and Anr. (supra) that general statements implicating the Appellants with the commission of the alleged offence should not have been made the basis for exercise of jurisdiction thereunder In Anil Singh and Anr., (supra) it has been held by Hon''ble Supreme Court that the jurisdiction of the Court undisputedly is limited. While it can exercise an extraordinary power, it is required to be done cautiously. The Court while issuing the processes should arrive at a reasonable satisfaction that the prosecution would be able to prove the charges against whom the processes are sought to be issued. Upon reference to earlier judgments of the Hon''ble Supreme Court it was further held:

The Court''s power, as noticed herein before, is not disputed. The learned Sessions Judge, however, as has been observed by the High Court, proceeded on a wrong premise in holding that as no charge sheet was filed as against Appellants by the police the same was not sufficient to refuse to issue summons. The question, which was necessary to be posed in view of the propositions of law as noticed supra, was as to whether any case has been made out for exercise of extraordinary jurisdiction by the Court keeping in view the fact as to whether the prosecution would be able to bring home the charge. If the Court comes to the conclusion having regard to the materials on record, that the prosecution ultimately may not be able to bring home the charge as against the person against whom processes were to be issued, it would decline to do so. The Court must also take into considerate on the fact as to whether an appropriate case has been made out for exercise of the extraordinary jurisdiction.

It may be true that the Court at that stage may not enter into the merit of the matter. Its opinion in the nature of things would be a prima facie one. But, the Court must also consider that the innocent persons may not be prosecuted. The Court is not bound by the opinion of the investigating officer. It is required to apply the tests on the touchstone of the materials brought on record. A balance is required to be maintained. The Court must pose unto itself a right questions. It is required to scrutinize the materials more closely. A power under Section 319 of the Code of Criminal Procedure is not to be exercised in a mechanical manner. Only because some evidence has been brought on record, the same by itself may not be a ground to issue processes.

Thus, it is clear that one of the foremost considerations for exercise of the jurisdiction under Section 319 of the Code of Criminal Procedure is existence of reasonable prospect of conviction of the newly arrayed accused persons. The power should not be exercised mechanically on the ground that some evidence has come on record against the person who is not facing trial. The jurisdiction should be used very sparingly only if compelling reasons exits. The Court has to consider the conspectus of the case before exercising of jurisdiction under Section 319 of the Code of Criminal Procedure While evidence appearing in course of trial implicating the persons who are not facing trial is the basis for exercise of jurisdiction under Section 319 of the Code of Criminal Procedure, the Court has to take into account other materials on record including the materials placed by the investigating agency in order to assess the prospect of conviction and desirability of exercise of the judicial discretion under Section 319 of the Code of Criminal Procedure There is no basis to sustain the contention that the trial Court is precluded from taking into account materials collected in course of investigation for considering the desirability for exercise of the extraordinary discretion.

In the present case the Petitioner were named in the F.I.R. as accused persons. However, materials collected in course of investigation did not indicate their complicity in the commission of the alleged offences. It is not disputed that dying declarations of the deceased made before witnesses as well as recorded by the investigating police officer and the Magistrate do not at all implicate the Petitioners with the commission of alleged offences. The learned trial Court mechanically proceeded to exercise jurisdiction under Section 319 of the Code of Criminal Procedure on a narrow interpretation of the word "evidence" occurring in Section 319 (1) of the Code of Criminal Procedure by confining the consideration to the depositions only of P. Ws. 1 and 2, who vaguely implicated the Petitioners alongwith the accused persons who are facing trial in general and omnibus manner, and by curtly observing that discrepancies between the evidence available before the Court on the one hand and the police statements and the F.I.R. "cannot be looked into" for the purpose of exercise of jurisdiction under Section 319 of the Code of Criminal Procedure Thus, it is evident that the factors relevant for the purpose of exercising the extraordinary jurisdiction were not kept in view by the learned trial Court. As the nature of materials placed for the purpose of prosecution by the investigating agency indicates that there is bleak prospect of conviction of the Petitioners for the alleged offences, the exercise of jurisdiction under Section 319 of the Code of Criminal Procedure by the learned trial Court is found to be uncalled for.

Therefore, the impugned order dated 09.01.2007 passed by the learned Additional Sessions Judge, Fast Track Court-II, Bhadrak in S.T. Case No. 22/156 of 2006/2004 under Section 319 of the Code of Criminal Procedure arraying the Petitioners as accused persons is set aside.

Both the Criminal Revisions are allowed.