Suprava ' Jhuna Behera vs State of Orissa

Pradip Mohanty, J.—This revision is directed against the Order dated 21.2.2007 passed by the JMFC, Pattamundai in G.R. Case No. 207 of 1997 taking cognizance under Sections 341/323/34 and issuing summons against the Petitioner u/s 319 Code of Criminal Procedure. for her appearance.

The case of the Petitioner is that on the basis of an FIR lodged by one Dibakar Prasad, a case was registered under Sections 379/506/323/354/34 Indian Penal Code against the Petitioner and other co-accused persons. After closure of investigation, final form was submitted against four accused persons, namely, Narendra Behera, Champabati Behera Padmabati Behera and Basanta Behera under Sections 341/323/34 Indian Penal Code deleting the name of the Petitioner since no materials were available against her and accordingly cognizance was taken against those accused persons under the aforesaid Sections. During the course of trial, after examination of four witnesses, a petition was filed on behalf of the prosecution u/s 319 Code of Criminal Procedure. to take cognizance against the Petitioner. The Court below considering the same took cognizance of the offences under Sections 341/323/34 Indian Penal Code against the Petitioner and issued summons for her appearance on 3.4.2007.

Mr. Sahoo appearing for the Petitioner submits that P. Ws.1 to 4, who have been examined by the prosecution, are the injured and the eye witnesses. They have not stated anything against the present Petitioner. The power u/s 319 Code of Criminal Procedure. cannot be exercised so as to conduct a fishing inquiry. He further submits that it has been laid down by the Hon''ble Apex Court in the decision reported in (2006) 34 OCR (SC) 389 Palanisamy Gounder v. State represented by Inspector of Police that unless the Court is hopeful that there is a reasonable prospect of the case against the newly added accused ending in his conviction for the offence concerned the Court shall refrain from adding that person as accused.

Mr. Behera, Learned A.G.A., vehemently contends that there are enough materials against the Petitioner. P.W. 1 in her cross examination has specifically implicated the present Petitioner. He further submits that the Trial Court is well within its jurisdiction in issuing summons to the Petitioner u/s 319 Code of Criminal Procedure.

Perused the impugned order, copies of the depositions of the witnesses and the decisions reported in (2006) 34 OCR (SC) 389 (Palanisamy Gounder v. State represented by Inspector of Police), Michael Machado and Another Vs. Central Bureau of Investigation and Another, and Krishnappa Vs. State of Karnataka, . Provisions of Section 319 Code of Criminal Procedure. read as under:

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 afresh, and witnesses re-heard;

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

From the above provision, it emanates that while exercising the power u/s 319 Code of Criminal Procedure. the Court must have reasonable satisfaction from the evidence already collected during trial or in the inquiry regarding two aspects; first, that some other person, who is not arranged as an accused in that case has committed an offence; and second, that for such offence, that other person could as well be tried along with the already arranged accused. While considering the same, the Trial Court should keep a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence and also the chance of conviction. In the instant case, nothing has been stated against the Petitioner by the prosecution witnesses in their evidence. Only P.W. 1. in her cross-examination in para 8 sated that the accused persons along with this Petitioner assaulted her by slaps and fist blow. She has further stated that

she has not sustained any visible injury, bodily pain or deformity in the body. Other three witnesses have not stated anything nor corroborated the above evidence of P.W. 1. There is no solid foundation to proceed against the Petitioner for commission of the offence punishable u/s 323 Indian Penal Code.

Considering the submissions made, the materials available on record and the ratio decided by the Hon''ble Apex Court as noticed above, this Court allows the revision and quashes the Order dated 21.2.2007 taking cognizance and directing issuance of process against the Petitioner.

Urgent certified copy of this order be granted as per rules.

Revision allowed