HIGH COURT OF ORISSA: CUTTACK
CRLMC No.2457 of 2009
From an order dated 23.7.2009 passed by the Chief Judicial Magistrate,
Mayurbhanj, Baripada in G.R. Case No. 530 of 2002 ‘
Sundarmohan N ayak …. .. Petitioner
-Versus-
State of Orissa & another …. .. V Opp.Parties
For Petitioner 1 : M / s S.K.Misrha, J .Pradhan,
K.R.Sahoo,K.R.Mohanty
And P.Prusty.
For Opp. Parties : Mr. A.K.Mishra,’
Addl. Govt. Advocate.
PRESENT:
THE H°N’BLE MR-‘W$TF9!3,F1NDRA~III. _ .. – . . ..
Date of hearing: 12.11.2009 Date of Judgment: 29.1 1.21009
I.Mahanty, J. The petitioner Sundarmohan Nayak- has filed the present
application under Section 482, Cr.P.C. seeking to challenge an order
gdate”C1gg2§,…7M.,2Q09 passed in .G..R.,.Case No. .530 –of .2002 by the “learned” a
K Chief Judicial Magistirate, Mayurbhanj, Baripada, invoking his power
V”x
under Section 319, Cr.P.C. by which he directed addition of the petitioner
as an accused and issued summons to him to appear before the court
and to face trial along with the other accused, namely, Bapi Nayak.
2. From the basic facts of the case it appears that an F.I.R. was
lodged by one Saraswati Singh alleging that her mother Chandramani
Singh died due to electrocution by coming in contact with an illegally
drawn electric wire, from an Lift Irrigation Point( in short ‘L.I. point’) by
the present petitioner, namely, Sundarmohan Nayak. On the basis of the
said F.I.R. Badasahi P.S. Case No. 64/02 was registered under Section
304 A of the Indian Penal Code (in short ‘IPC’) and investigation was
taken up. After completion of investigation Charge sheet was filed only
against Bapi Nayak–O.P.2 (son of the petitioner) and he was called upon
to face his trial.
In course of trial a number of witnesses were examined and
the case was posted for judgment. Instead of delivering the judgment the
learned C.J.M. took note of the testimony of P.Ws 2, 3, 5, 8 and 10 and
on the basis of such statements recorded in course of trial, passed the
impugned order dated 23.7.2009 directing the addition of the present
petitioner, Sundarmohan Nayak as an accused and issued summons to
him to face his trial in purported exercise of power under Section 319,
Cr.P.C.
3. Mr. S.K.Mishra, learned counsel for the petitioner
strenuously urged that the materials on the basis of which the learned
C.J.M. [had issued summons to theipetitioner, was veryimuch available at
the time of submission of Charge sheet in the shape of statements of
various witnesses recorded under Section 161, Cr.P.C. However, neither
the police filed Charge sheet against the present petitioner nor the learned
C.J.M. issue process against the petitioner at the time of taking
, at cognizance. It is therefore, submitted that the impugnedorder directing a–
issue of summons to the petitioner in purported exercise of the power
under Section 319, Cr.P.C at this belated stage cannot be sustained in
the eye of law.
4. Mr. Mishra further submitted that on a bare reading of the
statements of the P.Ws. 2,3,5,8 and 10, the case of the prosecution no
longer survives especially when P.W. 8, who is the owner of the Lift
Irrigation Point, had stated in his evidence that electricity supply to his
L.I. point had been disconnected more than 6 to 7 years prior to the date
of alleged occurrence. Learned counsel for the petitioner submitted that
Hon’ble Supreme Court recently in various judgments has laid down the
principles and circumstances under which the extraordinary jurisdiction
under Section 319, Cr.P.C. can be exercised. In this respect he placed
reliance on the judgments of the Hon’ble Supreme Court in the case of
Brindaban Das 85 Ors. V. State of West Bengal reported in (2009) 42
OCR (SC) 543, Sarabjit Singh &. Anr. v. State of Punjab reported in
(2009) 43 OCR (SC) 761 as well as the judgment of this Court in the case
of Ramakanta Behera @ Sahu & Ors v. State of Orissa reported in
(2009) 42 OCR 645.
5. Mr. Mishra, learned Additional Government Advocate
appearing on behalf of the State, on the other hand, submitted the
, impugned order passed by the learned C.J.M. in exercising power under
Section 319 Cr.P.C. should not be interfered with since the power of the
High Court under Section 482, Cr.P.C. is to be sparingly used only for the
purpose of giving effect to any order under the Code or to prevent the
I abuse of process or otherwise to (secure theflerids of justice.
In the present impugned order dated 23.7.2009 learned C.J.M. has
correctly exercised his power under Section 319, Cr.P.C. since in the
course of the trial of an offence, it appeared from the evidence of various
prosecution witnesses, that the present petitioner, namely,
Sundararnohan .Nayak,i.not being the accused has committed an offence
under Section 304 A, I.P.C. and therefore he has arrayed the present
petitioner as an accused and has issued summons to him. Learned State
Counsel further submitted that the present petitioner would suffer no
prejudice What-so-ever, since under sub-section( 1) of Section 319, Cr.P.C.
on adding the present petitioner as an accused, the trial is to be
commenced afresh and the witnesses were required to be lre–heard and
therefore the petitioner would have adequate opportunity of defending
himself.
6. Before proceeding to deal with the contentions advanced by
the learned counsel for the parties, it becomes extremely important to
take note of the evidence of certain witnesses recorded in course of the
trial. P.W.10, namely, Santish Chandra Nanda is the A.S.I. of Police at
Gujidarada Outpost(Bhadrak (R)) who was the Investigating Officer in that
case.
From his evidence it appears that on 11.6.2002 this witness
was the A.S.I. of Police at Badasahi Police Station and he registered the
case on the basis of the F.I.R. lodged by Smt. Sarasvvati Singh (P.W.3) and
took up investigation into the case. In the F.I.R. (Anexure-1) to the
present application the informant has stated as fo11ows:-
” ………. ..while my mother Chandramani
Singh wife of late Bira Singh was proceeding to
village pond to wash her cloths and while
crossing the farmland of Sri Sundarmohan
Nayak, she came in contact with the electric
G.I. wire erected by him to illegally draw
electricity to his house from the L.I. point and
‘ ” she dieddue to e’lectro’cutio:n:” ‘ ” ” i
(Translated from the F.I.R. written in Oriya)
7. P.W.1O claimed that he visited the place of occurrence and on
reaching the spot he found the dead body of Chandramani Singh was
lying there. There he examined the other witnesses. He seized an
aluminum pot (being carried by the deceased) and four numbers of
Ganthas'”(Blankets) and one open GII. wire from the splotiandiiiprelparedlm
the seizure list marked Exhibit-1. He further stated that during
investigation he found that there Was illegal electrical connection from the
L.I. point of one Pravat Acharya, son of late Purna Acharya to the house of
Sundarmohan Nayak . lnspite of such statement recorded in examination
in chief, the said witness further stated that after completion of
investigation Charge sheet was submitted under Sections 304/379, I.P.C.
read with Section 39 of the I.E.Act against accused Bapi Nayak
( son of the present petitioner) who at that stage was absconding. In
paragraph–3 of his deposition before the Court he has stated that “_S_1’i
Sundarmohan Navak is an old man and did not know how to use electric
current and that certain witnesses of Dhanasahi stated before him that
the accused Bapi Navak (O.P.2) son of the petitioner Sundarmohan Navk
being a voung man had taken the electric current un-authorisedlv from
the L.I.Point of one Pravat Kumar Acharva to his house through open G.I.
Wire and bamboo pillars and such open G.I. wire came in Contact With the
wet ‘Ganthas’ (blankets) which the deceased was carrying for washing the
same in the village pond resulting her death”. It is most important to note
here that, none of the so called witnesses (witnesses of village Dhanasahi)
have been shown as charge sheet witnesses and yet, the 1.0. submitted,
charge sheet not against the present petitioner Sundarmohan Nayk but
against Bapi Nayak (O.P.2) that too without even bothering to record the
statement of the present petitioner Sundamohan Nayak, who was the sole
accused named in the F.l.R.
8. P.VV. 2 Mali Singh (husband or the informant P.W.3 Saraswati
Singh, informant), P.W.5 Kumari Mina Singh daughter of the informant
and eye–Witness have categorically stated in their evidence that the
deceased Chandramani Singh had died after coming in contact with the
open live G.I. wire taken by Sundarmohan Nayak (petitioner) from the
‘ L.l.point to his house at a low “height unauthorizedly, and the deceased as .. If g
accidentally came in Contact with the same and died at the spot. P.W.5
fifteen years old daughter of the informant Kumari Mina Singh as an eye
witness has stated in her evidence that she along with her younger
brother Chiku Singh were [present at the spot during the occurrence and
the wire was a live open electric G.I. wire which was connected from the
L.I. point up to the house of Sundarmohan Nayak and although she along
with her brother had tried to save life of her grandmother (deceased),
some co-villagers apprehending danger to their lives dissuaded them from
going near their grand–mother and disconnected the live G.I. wire from
the L.I. point.
9. The learned C.J.M. placed reliance on the aforesaid evidence
and came to a conclusion that compelling circumstances exist for adding
Sundarmohan Nayak as an accused in the pending trial and accordingly
decided to invoke his power under Section 319, Cr.P.C.
10. Now I come to deal with the citations relied on by the
petitioner. In the case of Brindaban Das & Ors. (Supra) the Hon’ble
Supreme Court laid down the principle that “the use of discretionary
power vested in Section 319, Cr.P.C. and the exercise thereof has to be
considered on its own set of facts and circumstances. In the matters
relating invocation of powers under Section 319, the Court is not merely
required to take note of the fact that the name of a person who has not
been named as an accused in the F.I.R. has surfaced during the trial, but
the Court is also required to consider whether such evidence would be
sufficient to convict the person being summoned. Since the issuance of
summons underSection if aide novo trial a 1
number of witnesses may have been examined and their re–examination
could prejudice the prosecution and delay the trial, the trial court has to
exercise such discretion with great care and perspicacity.”
After having reiterated the aforesaid principle the I-Ion’ble
—- Supreme Court went on towvconsider ‘t’the»quality of the evidence saddutcedm —
by the prosecution so far as the newly added accused is concerned and
came to a View that it was difficult to hold with any amount of certainty
that the same would in all probability secure conviction against the
appellant.”
11. In the facts of the present case and the evidence adduced by
the prosecution, the present petitioner, namely, Sundarmohan Nayak had
been named in the F.I.R. itself. It is not that the present petitioner against
Whom the C.J.M. has exercised power under Section 319, Cr.P.C. was
named only in the evidence of the witnesses. The petitioner in this case
was named as the only accused in the F.I.R.
12. The next case relied upon by the petitioner is the case of
Sarabiit Singh 85 Anr. (supra). In the said case the Hon’ble Supreme Court
reiterated the principle under Section 319, Cr.P.C. and held that, “a
stringent test has to be applied before exercising extraordinary
jurisdiction under Section 319, Cr.P.C. and the mere existence of a prima
facie case would not serve the purpose. Adequate evidence should be
available on record which would reasonablv lead to conviction of that
person sought to be summoned and therefore a higher standard should
be adopted than required for taking cognizance or framing of charge.
In the aforesaid case the investigating officer upon completion
of investigation had submitted charge sheet only against ten persons and
filed final report against the appellants therein. The Hon’ble Supreme
Court in the aforesaid judgment after dealing with the various judgments
rendered by it Court came to hold that, Section 319 of the Cr.P.C. can be
I exercisedflonlv on the basis of the fresh evidencewbroughtjbeforeit” and not
on the basis of material which has been collected during the investigation,
particularly when a final form was submitted and the same had been
accepted by the Magistrate concerned against the appellants therein.
13.. In the present case at hand, even though the present
petitioner ‘Sundarmohan Nayak had been named in the F..I.R. as the only .2 .
accused, the I.O. P.W.1O in hisevidence, stated that since the petitioner
is an old man and does not know how to use the electric current and that
“witnesses of village Dhanasahi” have stated before him, that the accused
Bapi Nayak, son of the petitioner had taken the electricity unauthorisedly
from the L.I. point of another person to his house which had resulted
electrocution of the deceased Chandramani Singh. As has been noted
herein above, none of the so called “witnesses of village Dhanasahi”, who
claim to have stated before the I.O. that, it was accused Bapi Naik (O.P.2)
and not Sundarmohan Nayak (petitioner) named in the F.I.R., who had
taken illegal electric connection, have been examined as charge sheet
witnesses. What is even more shocking to take note of is the fact that the
I.O. did not even record the statement of the present petitioner although
he had been named as the only accused in the F.I.R.
The present case is clearly a case where the investigating
officer has, for reasons best to known to him, failed to discharge his duty
as an impartial investigator and has proceeded against one Bapi Nayak,
even though the said Bapi Nayak was not named in the F.I.R., nor any
evidence was laid before him to exclude the present petitioner from the
charge sheet. His entire endeavor appears to have been to keep
Sundarmohan Nayk outside the scope of prosecution. More importantly,
even though the petitioner was the only accused named in the F.I.R. while
filing the Charge sheet against Bapi Nayak, no final report against the
petitioner was ever filed by the I.O. In my humble opinion the facts of the
present case are clearly distinguishable from the facts of the cases that
iaroseflfor consideration before the SlupreIneCourt [therefore
can provide no assistance to the petitioner.
14. V Apart from the aforesaid two citations, learned counsel for the
petitioner also placed reliance on the judgment of this Court, in the case
of Ramakanta Behera @ Sahu 85 Ors (supra). In the fact of the said case,
— this Court came to .a conclusion that the power should not .be_exercised___ .. –
mechanically only on the ground that some evidence has come on record
against the person who is not facing trial and such jurisdiction should be
exercised very sparingly if compelling reasons exist. In the said case the
this Court took note of the fact that even though the petitioners were
named in the F.I.R. as accused persons, however since the materials
collected in course of investigation did not indicate their complicity in the
commission of alleged offences, it is not disputed that dying declaration 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 commission of alleged offences. Therefore, it was held
that trial court proceeded mechanically to exercise the jurisdiction under
Section 319, Cr.P.C. . .
15. It would be relevant to take note of the judgment of the
Hon’ble Supreme Court in the case of Joginder Singh and another v. of
State of Punjah and another reported in AIR 1979 SC 339 while
dealing with the scope and ambit of section 319, Cr.P.C. the Hon’ble
Supreme Court observed in paras-6 & 9, which read as thus:-
“6. A plain reading of Section 319(1), Cr.P.C. which
occurs in chapter XXIV dealing with general provisions as
to inquiries and trials, clearly shows that it applies to all
the Courts including a Sessions Court and such a Sessions
Court will have the power to add any person, not being the
accused before it, but against whom there appears during
trial sufficient evidence indicating his involvement in the
offence, as an accused and direct him to be tried along with
the other accused… ..”
“9. As regards the contention that the phrase ” any
person not be”ir”1ig”the accu’sed”” occurring in S. 319 excludes ‘
from its operation» an accused who has been released by
the police under Section 169 of the Code and has been
shown in column No.2 of the charge sheet, the contention
has merely to be stated to be rejected. The said expression
clearly covers any person who is not being tried already by
the Court and the very purpose of enacting such a _
provision like Sec. 319(1) clearly shows that even persons
who have been dropped by the police -during vinvestigation~–~–rr~
but against whom evidence showing their involvement in
10
the offence comes before the Criminal Court are included in
the said expression.”
16. In the case of Municipal Corporation of Delhi v. Ram
Kishan Rohtagi and others reported (1983) 1 SCC 1 the Hon’ble
Supreme Court reiterated the principles laid down in the case of
Joginder Singh and another (supra) and observed in para–l9, which
reads as fol1ows:-
“In these circumstances, therefore, if the prosecution can
at any stage produce evidence which satisfies the court
that the other accused or those who have not been arrayed
as accused against whom proceedings have been quashed
have also committed the offence the Court can take
cognizance against them and try them along with other
accused. But, we would hasten to add that this is really an
extraordinary power which is conferred on the court and
should be used very sparingly and only if compelling
reasons exist for taking cognizance against the other
person against whom action has not been taken. More than
this We would not like to say anything further at this stage.
We leave the entire matter to the discretion of the court
concerned so that it may act according to law. We would,
however, make it plain that the mere fact .that the
proceedings have been quashed against respondent 2 to 5
will not prevent the court from exercising its discretion if it
is fully satisfied that a case for taking cognizance against
them has been made out on the additional evidence led
before it.”
17. The case of Joginder Singh and another (supra) and the case
Municipal Corporation of Delhi (supra) are relied upon by the Hon’ble
Supreme Court in the case of Guriya @ Tabassum Tauquir & Ors. V.
State of Bihar and anr. reported in AIR 2008 SC 95 where the Hon’ble
A Supreme Court has observed in para-13, which reads as follows:-
“13. On a careful reading Sectopm 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 ~ A – —- — a
other accused persons, if the court is satisfied at any stage
11
of the proceeding on the evidence adduced that the person
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 only 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 because such
materials contained in the charge sheet or the case diary
do not constitute evidence.”
18. In the light of the aforesaid judgments of the Hon’ble
Supreme Court, the contentions raised by the learned counsel for the
petitioner that the similar evidence which was available to the trial
court, at the time of passing the impugned order, was also available to it
at the time of taking cognizance, is Wholly baseless. At the stage of
taking cognizance the only material available before the trial court was
the charge sheet or the case diary and such material is not evidence. It
is only basing upon the evidence which is rendered in course of trial,
the trial court may, in its considered view, seek to direct addition of a
person as an accused, which includes, a person, who had been named
in the F.I.R. but not charge sheeted.
In the present case the trial court has relied upon the
evidence given before it, in course of the trial against O.P.2 and on
consideration of the same, has sought to pass the impugned order by
“e”xercis’i’ng”its power undérsection 319, iCir”.P.Cito’implea’d’the petitionier” t’ at **
as an accused and therefore, in my earnest view, the contentions
advanced by the learned counsel for the petitioner cannot be accepted.
19. In the present case all the witnesses including the eye-
witness, as well as the F.I.R., the present petitioner has been named as
“sole accused and the evidence of (I.O.), clearly indicates tljiat he
had not even bothered to record the statement of the present petitioner
12
and instead has proceeded against Bapi Nayak(O.P.2) son of the present
petitioner, allegedly based on the evidence of certain witnesses, whom he
has not even cited as charge sheet witnesses. Therefore I am of the
considered view that learned C.J.M. in the present circumstances has
correctly exercised his jurisdiction under Section 319, Cr.P.C. On a
reading of the evidence of P.Ws. 2,3 and 5, it is clear that substantial
evidence exists, which could reasonably indicate abut involvement of the
petitioner. Therefore, I find no merit in the present application, which
stands dismissed.
Interim order dated 4.9.2009 passed in Misc. Case No.l92l
ij
of 2009 stands vacated. . I e
‘Matxam/E; I’?
‘Twat
ORISSA HIGH COURT, CUTTACK
24th November,2009 /AKD
