The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.2849 of 2011 Susanta Kumar Mohapatra …. Petitioner Mr. T.P. Mohapatra, Advocate -Versus- State of Odisha …. Opposite Party Mr. P.K. Mohanty, ASC CORAM: JUSTICE R.K. PATTANAIK Order No. ORDER 06.05.2022 13. 1. Heard learned counsel for the petitioner and learned counsel for the State. 2. Application under Section 482 Cr.P.C. is filed by the petitioner assailing the impugned order dated 12th August, 2011 passed in S.T. No.75/236 of 2010 by the learned Adhoc Additional Sessions Judge, Puri for having summoned and arrayed him as a co- accused invoking Section 319 Cr.P.C. on the grounds inter alia that it is illegal, improper, perverse and bad in law and therefore, liable to be set aside. 3.
Legal Reasoning
In the case at hand, an FIR was lodged by the informant later to which Brahmagiri P.S. Case No.54 of 2010 was registered under Section(s) 498-A, 304-B, 302 and 506 read with 34 IPC and Section 4 of the D.P. Act which ultimately led to the filing of charge sheet against the accused persons other than the petitioner. The FIR was lodged with the allegation that the marriage of the victim was solemnized with the accused husband during which demand of dowry was made and fulfilled but thereafter, a further demand of Page 1 of 6 // 2 // Rs.50,000/- could not be honoured for which she was mentally as well as physically harassed and tortured and on 10th March, 2010, it was informed to them over telephone that she sustained burn injuries, where after, she was shifted to DHH, Puri and then, was referred to SCB Medical College and Hospital, Cuttack, where during treatment, she died on 14th March, 2010, subsequent to which, the FIR was lodged and a case under the alleged offences was registered which ultimately culminated in the filing of the charge sheet against the accused persons except the petitioner, who was directed to be arrayed as a co-accused by the impugned order under Annexure-1. 4. As submitted by the learned counsel appearing for the petitioner, the learned court below fell into serious error for having passed the impugned order dated 12th August, 2011, since at the relevant point of time, he was residing at Puri in a rented house and thus, was absent which was also revealed during the trial. It is further submitted that the reason behind the alleged incident is stated differently by the daughter of the deceased, considering which, the learned court below could not have allowed the petition filed under Section 319 Cr.P.C. and add the petitioner as a co-accused. 5. On the contrary, learned Standing Counsel appearing for the State contended that the learned court below having received positive evidence during trial showing the involvement of the petitioner, which is evident from the impugned order under Annexure-1 itself, rightly arrayed him as a co-accused even though he had not been charge sheeted by the local police. So, therefore, the impugned order under Section 319 Cr.P.C. passed by the Page 2 of 6 // 3 // learned court below vide Annexure-1 is absolutely justified in law and hence, ought not to be set aside. 6. The absence of the petitioner and the reason disclosed by one of the prosecution witnesses is the basis upon which the legality of the impugned order under Annexure-1 is questioned. It is claimed that the petitioner was not present at the time when the alleged incident took place and that apart, the daughter of the deceased clearly stated the reason as to under what circumstances, the victim mother received the burn injuries. However, it is not denied that during the trial, it was deposed to the effect that the petitioner and other accused persons did subject her to ill-treatment and that he confined the victim and also poured kerosene on her, where after, the accused husband set her to flame with a match stick and when she attempted to save her by running out of the house, all other accused persons again pushed her inside and bolted the door from outside. The above evidence which said to have been received is indicated in Annexure-1. The question is, whether, such a decision of the court below is in accordance with law? 7. As per Section 319 Cr.P.C., where in the course of enquiry or trial, it appears from the evidence that any person not being a accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person and direct the person to be summoned or arrested, as the circumstances of the case may require for the aforesaid purpose. It is settled principle of law that when evidence is tendered during trial and the court received material to show involvement of a person not charge sheeted by the police, he may be added as an accused by invoking Section 319 Cr.P.C. which is a jurisdiction rarely to be exercised. The scope of Section 319 Cr.P.C. is limited in Page 3 of 6 // 4 // the sense that it is an enabling provision which covers the post- cognizance stage, where in the course of an enquiry or trial, the involvement or complicity of a person/persons not named in the charge sheet has a surfaced and it may happen only in cases where despite the name of the person having appeared during investigation, he has not been sent up at the time of filing of charge sheet. Again in cases where no evidence even collected during investigation but then, the involvement of the person made to appear during enquiry or trial, he may be added as a co-accused exercising power under Section 319 Cr.P.C. The above position of law is enunciated in catena of decisions of the Supreme Court including in Kishun Vs. State (1993) 2 SCC 16 and Nisar Vs. State