HIGH COURT OF ORISSA : CUTTACK. CRIMINAL REVISION NO.364 of 2008 From the order dated 22.12.2007 passed by Additional Sessions Judge, Rairangpur in C.T. Case No.49 of 2006 arising out of G.R. Case No. 94 of 2005 of the court of S.D.J.M., Rairangpur. --------- Bimal Prasad Sahaya …… Petitioner - Versus- State of Orissa and others …… Opp. Parties For Petitioner : M/s. Karunakar Jena, R.N. Biswal & D. Mohanty For Opp. Parties : M/s. Prafulla Kumar Rath, P.K. Satpathy, R.N. Parija, A.K. Rout & S.K. Pattnaik ( for informant) PRESENT: THE HONOURABLE SHRI JUSTICE B.K. PATEL Date of hearing – 22.6.2010 : Date of judgment –21.7.2010 B.K. PATEL, J. Legality of the order dated 22.12.2007 passed in C.T. Case No.49 of 2006 arising out of G.R. Case No.94 of 2005 of the court of learned S.D.J.M., Rairangpur corresponding to Rairangpur Town P.S. Case No.24 of 2005 by Additional Sessions Judge, Rairangpur in exercise of power under Section 319 of the Code of Criminal Procedure (for short ‘the Cr.P.C.’) arraying the petitioner and two others, namely, Sumeet Bajla and Manas Das Pattanaik as accused persons and summoning them to face trial along with accused Anand Rai who is facing trial in the case for alleged commission of offences under Sections 307 and 338 of the Indian Penal Code (for short ‘the I.P.C.’) read with Section 27 of the Indian Arms Act (for short ‘the Act’). 2. Rairangpur P.S. Case No.24 of 2005 was registered for commission of offences under Sections 147, 148 and 307 read with 149 of the I.P.C. as well as Sections 25 and 27 of the Act on the basis of F.I.R. lodged by informant Narottam Mohanty against the petitioner and above persons, namely, Sumeet Bajla and Manas Das Pattanaik as well as seven to eight unknown persons. In the F.I.R. it is alleged that the occurrence took place on 24.3.2005 at about 12 to 12.30 P.M. when the informant along with Susanta @ Manu Chaudhury (P.W.3), Abhaya Singh and Shyam Charan Hansda went to hotel Le Sancy to have lunch. Before they could have their food, occupants of Suit No.1 and Room Nos.202 to 205, namely petitioner, and above said two persons and seven to eight unsocial elements, being armed with guns and explosive, fired gun shots in order to kill them. P.W.3 sustained gun shot injury on his right thigh. The accused 2 persons also mercilessly assaulted the informant and his companions with the intention to kill them. It is specifically alleged in the F.I.R. that petitioner and above said Sumeet Bajla and Manas Daspattanaik fired gun shots. On completion of investigation, charge-sheet was submitted against accused Ananda Rai only for commission of offences under Sections 307 and 338 of the I.P.C. read with Section 27 of the Act. 3. It appears that complaint case bearing I.C.C. No.62 of 2006 was filed in the court of learned S.D.J.M., Rairangpur by P.W.3 against the petitioner and above said Sumeet Bajla and Manas Daspattanaik alleging unfair investigation in G.R. Case No.94 of 2005 and praying to proceed against them for commission of offences under Sections 147, 148 and 307 read with 149 of the I.P.C. and Sections 25 and 27 of the Act. However, by order dated 25.1.2007, the complaint was dismissed under Section 203 of the Cr.P.C. In Criminal Revision No.124 of 2007 P.W.3 assailed the legality of the said order. The material part of the order dated 14.11.2007 passed by this Court while disposing of Criminal Revision No.124 of 2007 reads: “Perused records as well as the decision cited by the petitioner and considered the submissions made by the parties. There is no dispute that under Section 319 Cr.P.C. cognizance can be taken by a court at the time of enquiry or trial of any offence if 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 other accused. Therefore, instead of remitting back the matter to the S.D.J.M. for taking cognizance afresh, this Court disposes of the revision with the direction that during the course of trial if any evidence comes out against opposite parties 2 to 4, the petitioner may file an application under Section 319 Cr.P.C. and in such event the learned Addl. Sessions Judge, Rairangpur shall dispose of the same in accordance with law” 3 4. During trial, P.W. 3 testified that in course of occurrence petitioner also exhorted to fire on P.W.3’s head. In accordance with the direction in Criminal Revision No.124 of 2007, application to array the petitioner and above said Sumeet Bajla and Manas Das Pattanaik as accused persons under Section 319 of the Cr.P.C. was filed by Additional Public Prosecutor on 31.12.2007 after recording of evidence of injured P.W.3. The impugned order was passed on consideration of objections raised by the defence, and upon hearing the rival contentions and reference to materials on record. 5. It is also pertinent to mention that on the basis of F.I.R. lodged by the above said Sumeet Bajala relating to the occurrence which took place at about 1.30 P.M. on 24.3.2005 Rairangpur Town P.S. Case No.25 of 2005 corresponding to G.R.Case No.95 of 2005 of the court of learned S.D.J.M., Rairangpur was registered for alleged commission of offences under sections 147,323,435, 427 and 506 read with 149 I.P.C. against Durga Madhab Dagara, Janmejay Dagara and others. It is alleged that Sumeet Bajala along with others including his bodyguard Ananda Rai reached Rairangpur on 23.3.2005 at about 9 P.M.. In the morning on 24.3.2005 they went out. On their return, as soon as they got down from car, Durga Madhab Dagara, Janmejay Dagara and others tried to kidnap him. The informant tried to run to the hotel but they grabbed him. The bodyguard intervened and pushed the informant into hotel. Informant and 4 some of his companions managed to reach first floor of the hotel. Bodyguard Ananda Rai tried to stop Durga Madhab Dagara, Janmejay Dagara and others from going upstairs. Informant heard sound of gun shot. Later on he could learn that his bodyguard Ananda Rai had accidentally pulled trigger of his gun while Durga Madhab Dagara, Janmejay Dagara and others attacked him on his head. In course of occurrence Durga Madhab Dagara, Janmejay Dagara and others threw stones at police persons who arrived there and into the hotel. They blocked the road, and broke glasses of and set fire to the informant’s vehicle. On completion of investigation charge-sheet was submitted against Durga Madhab Dagara, Janmejay Dagara, P.W.3 Manu @ Sushant Choudhury, Narottam Mohanty (informant in Rairangpur P.S.Case No.24 of 2005), Shyam Sundar Hansda, Babulu @ Babuli Singh for alleged commission of offences under sections 147,452,341,323,435,427 and 506 read with 34 I.P.C. 6. In assailing the impugned order it was submitted by the learned counsel for the petitioner that though the petitioner also was named as an accused in the F.I.R., materials collected in course of investigation was not found to be incriminating against him. Upon reference to the statements of the witnesses recorded in course of investigation it is submitted that none of the witnesses made allegations against the petitioner. Charge-sheet was submitted neither against the petitioner nor against Sumeet Bajala and Manas Das Patnaik. Charge sheet was submitted only against Ananda Rai who is facing trial. In course 5 of trial P.W.3 made false allegations implicating the petitioner and the above said two persons with the commission of the alleged offences. Upon reference to the deposition of injured P.W.3, it was strenuously contended that the allegations made by P.W.3 in court against the petitioner is prima facie unacceptable in view of the fact that he had omitted to make such allegations in his statement recorded in course of investigation. There is absolutely no chance of conviction of the petitioner in view of such contradiction between P.W.3’s testimony in court and police statement. It was contended that extraordinary jurisdiction under section 319 Cr.PC., which ought to be invoked sparingly, should not have been exercised by the learned trial court without reference to such contradictions and inconsistencies. In support of his contention, learned counsel for the petitioner relied upon decisions in Palanisamy Gounder and another –v- State represented by Inspector of Police : (2005) 12 SCC 327 : (2006) 34 OCR(SC) 389; Mohd. Shafi –v- Mohd. Rafiq & Anr : 2007 Crl.L.J. 3198; Lok Ram –v- Nihal Singh & Anr.: AIR 2006 SC 1892 : 2006 AIR SCW 2129 : 2006(3) Supreme 400; and Kailash –v- State of Rajasthan & Anr.: 2008 AIR SCW 1717. 7. In reply, learned counsel for the informant argued that section 319 Cr.P.C. does not contemplate reference to any material other than evidence of the witnesses recorded in court. Therefore, learned court committed no illegality in exercising the jurisdiction upon reference to the testimony of P.W.3. In support of his contentions, learned counsel for the informant relied upon decisions in Lok Ram –v- Nihal Singh & 6 Anr(supra), Rajendra Singh –v- State of U.P. and another : (2007)5 Supreme 753 : 2008(I) OLR(SC) 27; Guriya@ Tabassum Tauquir and Ors. –v- State of Bihar and Anr.: 2007(6) Supreme 599; Santosh Nayak – v- State of Orissa: 2008(II) OLR 25 and Md.Muzaffar Hussain Khan and another –v- State of Orissa and others: 78(1994)CLT 1065. 8. Sole question in this revision relates to the true scope and ambit of provisions under section 319 Cr.P.C. as well as the parameters which are to be kept in view while exercising the power of summoning persons to face trial though he does not figure as an accused. Sub- section(1) of Section 319 of the Cr.P.C. which confers jurisdiction to proceed in a trial against newly arrayed accused persons 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.” 9. The provisions under section 319 Cr.P.C. has been subjected to exposition in a number of authoritative judicial pronouncements by the Hon’ble Supreme Court including in Lok Ram –v- Nihal Singh & Anr. (supra) relied upon by both the learned counsel for the petitioner as well as the informant. In view of such pronouncements, there is no scope to quarrel over the proposition that one of the foremost considerations for exercise of jurisdiction under section 319 Cr.P.C.is existence of reasonable prospect of conviction of the newly arrayed accused persons as contended on behalf of the petitioner. It is also well settled that occasion to exercise jurisdiction under section 319 Cr.P.C would arise only when it appears 7 from the evidence adduced in course of enquiry or trial for any person not being the accused has committed any offence for which such person could be tried together with the accused. However, there is absolutely no scope to hold that in order to decide as to whether discretion to exercise jurisdiction should be invoked, the court is precluded from taking into account materials available on record including police statements of witnesses and other materials placed by the investigating agency. 10. Relying upon decisions in Palanisamy Gounder and another –v- State represented by Inspector of Police(supra); Lok Ram –v- Nihal Singh & Anr(supra); Michael Machado –v- Central Bureau of Investigation :(2000)3 SCC 262; Rakesh –v- State: 2001(II) OLR(SC)333; Hardeep Singh –v- State: (2009)42 OCR(SC) 182; Suresh @ Madhu Das – v- State of Orissa & Ors.: 1991(II) OLR 80; Kavuluri Vivekananda Reddy & Anr. –v- State of A.P. & Anr.: (2006) 34 OCR (SC) 401 and Anil Singh – v- State: (2006)34 OCR(SC)794, it has been held by this Court in Ramakanta Behera @ Sahu & Ors. –v- State of Orissa: (2009)42 OCR 645:- “11. Provision under Section 319 of the Cr.P.C. 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 Cr.P.C. 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 Cr.P.C. 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 8 exercised at the earliest when the evidence necessitating the exercise of jurisdiction under Section 319 of the Cr.P.C. appears. An order under Section 319 of the Cr.P.C. 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. 12. What the provision under Section 319 of the Cr.P.C. 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 Cr.P.C. 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 alongwith 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 Cr.P.C. without considering other materials available on record. 13. In Rakesh and another (supra) it has been held that the word “evidence” occurring in sub-section (1) of Section 319 of the Cr.P.C. 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. 14. It has been reiterated by the Hon’ble Supreme Court in the recent decision of Hardeep Singh –vrs- State of Punjab & Others, (2009) 42 OCR (SC)-182 that the word “evidence” occurring in Section 319 (1) of the Cr.P.C. is used in comprehensive and broad sense which would also include the material 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. xxx xxx xxx xxx 17. Thus, it is clear that one of the foremost considerations for exercise of the jurisdiction under Section 319 of the Cr.P.C. is existence of reasonable prospect of conviction of the newly arrayed accused persons. The power should not be exercised mechanically on the ground that 9 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 exists. The Court has to consider the conspectus of the case before exercising of jurisdiction under Section 319 of the Cr.P.C. 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 Cr.P.C., 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 Cr.P.C. There is no basis to sustain the contention that the trial court is precluded form taking into account materials collected in course of investigation for considering the desirability for exercise of the extraordinary discretion. ” 11. However, while considering desirability of exercise of jurisdiction under section 319 Cr.P.C., upon reference to police statements of witnesses who are yet to be examined in court, it has to be borne in mind that statement of witness recorded by the Investigating Officer under section 161 Cr.P.C. is not a substantive piece of evidence. It is not a permissible to record any finding on the basis of such statement. In Rajendra Singh vrs. State of U.P. and another :(2007) 7 SCC 378, as narrated in Head Notes, the appeal had been preferred against the order of Allahabad High Court by which the petition filed by Respondent 2 under Section 482 Cr.P.C was allowed and the order passed by the Sessions Court under Section 319 Cr.P.C summoning him to face trial under Section 302 IPC was set aside. A first information report was lodged against Respondent 2 and one D in relation to murder of one N who was informant and witness in a triple murder case lodged against Respondent 2 and certain others. It was alleged that the murder of N was committed as Respondent 2 had asked N not to give evidence in the triple murder case but N did not agree to it. 10 After investigation in the case, the police submitted a charge-sheet only against D and not against Respondent 2. The prosecution then moved an application for summoning Respondent 2 under Section 319 CrPC. The Sessions Judge held that Respondent 2 was named in the FIR and the first informant in his statement had corroborated the version given in the FIR and had assigned the role of exhortation to him. After taking note of the relevant law on the subject, the Sessions Judge allowed the said application and directed that Respondent 2 be summoned to face trial. Respondent 2 then filed a petition under Section 482 CrPC for quashing the said order. Before the High Court, he placed statements of certain witnesses who had been examined by the investigating officer during the course of investigation. As per the said statements, Respondent 2, who was an officer in Nagar Nigam, was attending a meeting in the Nagar Nigam at the relevant time of the occurrence. The High Court referred to Ram Kishan Rohtagi, (1983) 1 SCC 1 wherein it was observed that power under Section 319 CrPC is really an extraordinary power which should be used very sparingly and only if compelling reasons exist for taking cognizance against he other person against whom action has not been taken. On the basis of the aforesaid authority, the High Court posed the question whether compelling ground existed or not and whether there was no option but to summon the accused. Thereafter, the High Court referred to the above statements recorded by the investigating officer and allowed the petition under Section 482 CrPC by quashing the order of the Sessions Judge. Allowing the appeal, it was held : “The High Court has basically relied upon the statements of six witnesses which had been recorded by the investigating officer under Section 161 CrPC to record a 11 positive finding that Respondent 2 (who was summoned under Section 319 CrPC to face trial) could not have been present at the scene of commission of the crime. A statement under Section 161 CrPC is not a substantive piece of evidence. In view of the proviso to Section 162(1) CrPC, the said statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the High Court committed a manifest error of law in relying upon wholly inadmissible evidence in recording a finding that Respondent 2 could not have been present at the scene of commission of the crime.” 12. Moreover, in the present case, from the very beginning the informant has alleged that investigation was unfair. It is not disputed that the informant had made prayer before this Court in W.P.(C) No.130 of 2005 to handover the investigation of the case to Crime Branch or any other investigating agency. As has been pointed out earlier, informant filed complaint Case bearing I.C.C.No.62 of 2006 and preferred Criminal Revision No.124 of 2007 alleging therein that the Investigating Police Officer has not recorded statements of witnesses honestly being influenced by accused persons. 13. In Baladin and others –v- State of U.P.: AIR 1956 SC 181, it has been held by the Hon’ble Supreme Court: “Ordinarily accused persons are entitled to challenge the testimony of witnesses examined in court with reference to the statements said to have been made by them before the investigating police officer. Statements made by prosecution witnesses before the investigating police officer being the earliest statements made by them with reference to the facts of the occurrence are valuable material for testing the veracity of the witnesses examined in court, with particular reference to those statements which happen to be at variance with their earlier statements; but the statements made during police investigation are not substantive evidence. Hence, the record made by a police investigating officer has to be considered by the court only with a view to 12 weighing the evidence actually adduced in court. If the police record becomes suspect or unreliable on the ground that it was deliberately perfunctory or dishonest, it loses much of its value and the court in judging the case of a particular accused has to weigh the evidence given against him in court keeping in view the fact that the earlier statements of witnesses as recorded by the police is tainted record and has not as great a value as it otherwise would have in weighing all the material on the record as against each individual accused.” 14. Therefore, the investigation having all along been alleged by the informant party to be tainted, question as to whether Investigating Officer has recorded statements of witnesses truly and honestly is required to be considered on conclusion of the trial. Statements recorded in course of investigation cannot be utilized to refuse exercise of jurisdiction under section 319 Cr.P.C. Under the facts and circumstances of the case, in view of the categorical allegations made by P.W.3 in his evidence against the petitioner and the contents of the F.I.R. lodged at the earliest indicating involvement of the petitioner in the alleged occurrence, there appears no illegality in the impugned order so as to warrant interference in exercise of revisional jurisdiction. Therefore, the revision is dismissed. …………………… B.K. Patel, J. Orissa High Court, Cuttack, 13 Dated the 21st July,,2010/B. Jhankar. 14