Yudhistir Samantaray vs State of Orissa

L. Mohapatra, J.—This revision u/s 401 Cr.P.C. has been filed challenging the Order dated 1.11.2004 passed by the Learned 1st Additional Sessions Judge, Puri in S.T. Case No. 175 of 2000 adding the Petitioner and two others as accused persons in the trial in exercise of jurisdiction u/s 390 of the Code of Criminal Procedure and also asking them to face trial.

On the basis of an F.I.R., lodged by Dayanidhi Biswal, S.I. of Pipili Police Station, Pipili P.S. Case No. 79 of 1995 was registered against some persons for commission of offence under Sections 279, 338, 325 and 34 of the Indian Penal Code. The allegation in the F.I.R. is that on 12.5.1995 at about 5.50 P.M. accused persons namely, Vijoy Kumar Samantray, Dharmendra Samantray and Susanta Bhatta brought one Manoj Das with multiple fractures on his body in semi-conscious state from a blue colour jeep and left him in the Police Station Verandah and fled away. The said deceased Manoj Das disclosed that while he was returning from Bhubaneswar towards Delanga with his friend Prasanna Swain in a scooter, he found two cars coming from opposite side. Near village Nuagaon the second car dashed against the scooter, as a result of which, he fell down. Thereafter, accused Dharanidhar Samantaray, Vijoy Samantray, Rami alias Ramesh Misra and Prafulla Sahoo came out from the car and assaulted him brutally with lathies causing multiple injuries. Prasanna Swain, who was accompanying him in the scooter ran away out of fear. Thereafter, he was put in the second vehicle and in the vehicle also he was beaten mercilessly. Thereafter, he was put inside the jeep and left in the Varandah Police Station. On the basis of such F.I.R., investigation was taken up and ultimately charge sheet was filed u/s 302 of the Penal Code apart from other offences. In course of trial, after examination of some witnesses, the Associate Public Prosecutor filed a petition u/s 319 Cr.P.C. to proceed against Prakash Srichandan, Ramesh Samantaray and Judhistir Samantaray as are materials available from the evidence of the witnesses implicate them in commission of the offence. On the basis of such petition, the impugned Order was passed directing the aforesaid three persons to face trial. One of these persons namely, Yudhistir Samantaray is the Petitioner before this Court.

Shri Sanjit Mohanty, the Learned Senior Counsel appearing for the Petitioner submitted that during investigation nobody implicated the Petitioner in the case to be one of the assailants and accordingly charge sheet had not been filed against the Petitioner. In course of Trial also though five witnesses have been examined, only one witness who is not an eye witnesses to the occurrence speaks about involvement of the Petitioner which is also not material for the purpose of even taking cognizance and, therefore, the impugned Order is liable to be set aside. It was further contended by the Learned Counsel that Section 319 Cr.P.C. gives discretionary power to the Court and such discretion has to be exercised judicially and sparingly only if compelling reasons exist. The Learned Counsel relied on some decisions of the Apex Court as well as this Court. In the case of Lok Ram v. Nihal Singh and Anr. reported in (2006) 34 OCR 214 (SC) . The Supreme Court observed as follows:

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 person 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 constituted evidence.

Power u/s 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 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 the case of Palanisamy Gounder and Anr. v. State represented by Inspector of Police reported in (2006) 34 OCR 389 (SC), it was held by the Apex Court only when there is a reasonable prospect of case against such accused ending in their conviction, the Court may consider to exercise its jurisdiction under Section. 319 Cr.P.C. The relevant paragraph is quoted below:

The power u/s 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 u/s 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 Michael Machado and Another Vs. Central Bureau of Investigation and Another, it was said that: (SCC P.795).

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 Cr.P.C. 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 another 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 u/s 319 Cr.P.C. 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 u/s 319 Cr.P.C, 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.

Reliance was placed on another decision of the Supreme Court-in the case of Kavuluri Vivekananda Reddy and Anr. v. State of A.P. and Anr. reported in (2006) 34 OCR 401 (SC). A similar view was taken as in that of the case of Palanisamy Gounder and Anr. v. State represented by Inspector of Police (supra) and the additional factor in the said reported case is that the accused was summoned eight years after the incident for which reliance is placed by the Learned Counsel, since in the present case also the Petitioner is being asked to face trial after eight years. Reliance was also placed on a decision of this Court in the case of Nilamadhab Acharya Vs. State of Orissa, where a similar view has also been taken by this Court with regard to the jurisdiction of the Court u/s 319 Cr.P.C. to add a person as an accused in course of trial.

So far as present case is concerned, reliance has been placed by the Trial Court on evidence of P.W.5 in order to direct the Petitioner to face trial. P.W.5 in his evidence has stated that on the date of the occurrence he had come to his village and learnt from his mother that the deceased had been kidnapped by the accused persons. Thereafter, he went to Pipili in an authorickshaw and learnt at Pipili P.S. that the deceased after being assaulted was thrown on the verandah of the Police Station and that the deceased had been referred to the capital hospital at Bhubaneswar. Thereafter, he met the deceased who requested him to call a doctor and save his life. On being asked by the elder brother of this witness, deceased is said to have made the following statement:

Manoj stated before us that at 3 P.M., while he was returning from Pipli to our village by a Kinetic Honda with Prasanna Swain near Nuagaon Chhak, they found two cars coming from opposite direction. He also stated that the 1st car passed, but the 2nd car intentionally dashed against the scooter by which Majoj and Prasanna were thrown from scooter and the scooter was damaged.

Thereafter, Ex- MLA Judhistir Samantray, Dhirendra Samantray, Narendra Samantray, Sanjay Routray, Ramesh Rautray and Rabi Nanda came to him and assaulted him. Thereafter, they carried him in the same car to village Madhipur by car and took him to the back of Block Office covered with rug and assaulted with crowbar. He also stated that when the said person started assaulting him at Nuagaon, Prasanna Swain out of fear ran away from the spot. By assault both the legs and one of the hands were broken and threw him in the Verandah of Pipli P.S. As the condition of Manoj did not improve, he was referred to SCB Medical College, Cuttack. At Cuttack he was admitted to Orth. Deptt. in course of treatment there he died there on 21-5-1995(21-5-95).

On examination of the aforesaid statement, it appears that the deceased has implicated the Petitioner to be one of the assailants though the other witnesses have not implicated the Petitioner and implicated only two of the accused persons, who were not charge sheeted, but added as accused persons in the impugned Order. It was contended by Shri S. Mohanty, the Learned Senior Counsel appearing for the Petitioner that eight years after the incident the Petitioner has been implicated only by one witness and therefore, chance of conviction in absence of corroboration is not there. Relying on the decisions referred to earlier, a prayer was made to set aside the impugned Order.

The Learned Counsel for the State, on the other hand submitted that since there is evidence to the effect that the Petitioner was one of the assailants, the Trial Court was justified in exercising the jurisdiction u/s 319 Cr.P.C and asking the Petitioner to face trial.

The Apex Court in the aforesaid three decisions has laid down the scope of Section 319 Cr.P.C. It has been held by the Apex Court in the aforesaid three decisions that the power u/s 319 Cr.P.C. can be exercised by the Court suo motu or an application by some one including the accused on the basis of deposition of witnesses examined in course of trial. However, this power is discretionary and must be exercised judicially. The extra ordinary power should be exercised very sparingly only if compelling reasons exist for taking action against the persons, who were not charge sheeted after investigation. Depending on the circumstances and facts available before the Court, in the case of Palanisamy Gounder and Anr. v. State represented by Inspector of Police (supra) the Court held that there was less chance of conviction and in the case of Kavuluri Vivekananda Reddy and Anr. v. State of A.P. and Anr. (supra) the Court held that summoning after eight years of the occurrence was not proper. Here is a case where the evidence of P.W.5 clearly shows that after the incident, on being asked by his elder brother, the deceased made statement, which has been quoted earlier. If the statement of the deceased is taken as a dying declaration, it cannot be said that there is absolutely no material against the Petitioner. The deceased specifically implicated the Petitioner, Dhirendra Samantray, Narendra Samantray. Ramesh Routray, Sanjay Routray, Ramesh Routray and Rabi Nanda to have assaulted him and carried him in a car to the Block Office. It is also alleged that these accused persons covered him with rug and assaulted him by means of crowbar. In view of such nature of evidence available, I am of the considered opinion that the Trial Court was justified in exercising its jurisdiction u/s 319 Cr.P.C.

Accordingly, I do not find any merit in the application.

The revision stands dismissed.