The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMP No. 870 of 2025 Niranjan Rout …. Petitioner Mr. S. Biswal, Advocate -versus- State of Odisha …. Opp. Party Mr. R. B. Dash, ASC CORAM: THE HON’BLE MR. JUSTICE CHITTARANJAN DASH Order No. 01. 1. 2.
Decision
ORDER 28.07.2025 Heard learned counsel for the Parties. By means of this application, the Petitioner seeks the indulgence of this Court, praying to set aside the order dated 24.12.2024, passed by the learned Addl. Sessions Judge, Athagarh in Criminal Revision No.10 of 2024, confirming the order dated 17.08.2024 passed by the Learned S.D.J.M, Athagarh in C.T. Case No.278 of 2022. 3. The background facts of the case are that one Manju Rout lodged a report before the Gurudijhatia P.S on 27.05.2022, which was registered as Gurudijhatia P.S. Case No.69 of 2022, wherein she alleged that on the very day at Page 1 of 9 about 6:30 A.M., while her husband and son were absent in the house, the persons namely, Basudeb Rout, Bhaskar Rout, Niranjan Rout, Ranjan Rout, and Natabara Rout, forced their entry to her house, abused her, as well as her daughter in obscene language and dragged them outside their house and tore their wearing apparels. It is further alleged that the said persons attacked her as well as her daughter by thenga, cudgel, spear, billhook and other deadly weapons and attempted to assault aiming at the head of the informant and her daughter but they warded off the assault by raising their hands and escaped a serious injury. Being frightened, they screamed, thereby the villagers arrived and the said persons went away from the spot. Getting information about the incident, the husband of the informant and her son arrived at the spot and confronted the accused persons for creating disturbances, following which the accused persons being enraged, attempted to assault her husband, as well as the son by means of weapons held by them. 4. After the registration of the FIR, the police proceeded with the investigation and upon completion of the investigation, submitted the charge sheet against the persons, namely, Basudeb Rout, Bhaskar Rout, Ranjan Rout and Natabara Rout. However, the name of Niranjan Rout was withheld. Page 2 of 9 In course of the trial, the prosecution moved an application to implead Niranjan Rout as an accused under Section 319 of the Cr.P.C. The learned S.D.J.M, Athagarh, having heard the parties, allowed the said prayer of prosecution and issued summons to Niranjan Rout, to face the trial. Being aggrieved by the aforesaid findings of the learned S.D.J.M, Athagarh, the Petitioner moved before the Revisional Authority i.e. the learned Addl. Session Judge, Athagarh. The learned Addl. Session Judge, Athagarh too dismissed the said application confirming the order of the learned S.D.J.M, Athagarh, being aggrieved whereof the Petitioner has moved herein. 5. According to the learned counsel for the Petitioner, the impugned order passed by the learned Courts below, being not in consonance with law, are liable to be quashed. It is further submitted that the learned Courts below did not examine the statement of the witnesses, basing upon which the Court was pleased to implead the Petitioner as an accused in the case. According to the learned counsel, although the name of the present petitioner finds place in the FIR, in course of the investigation, no prima facie material could be gathered against the Petitioner, as a result of which, he was withheld from being arrayed as an accused. It is the further Page 3 of 9 contention of the learned counsel for the Petitioner that the statement of the witnesses viz. the P.Ws.1, 2 and 6, while did not support the prosecution case, the evidence of P.Ws.3, 5 and 7 reveal the name of the Petitioner to be one amongst others, who were alleged to have forced their entry and attempted to assault the complainant. According to the learned counsel for the Petitioner, the defence, in course of the cross-examination, could elicit that the name of the Petitioner has taken during the course of evidence by P.Ws. 5 and 7, but does not find place in the earlier statement recorded u/s. 161 Cr.P.C, and the same having been developed in course of the evidence, creates a doubt as to his presence at the scene of occurrence. The learned counsel for the Petitioner also submitted that the entire case having been foisted falsely to implicate the accused persons inasmuch as the allegations with respect to the injury caused to them being not in consonance with the medical report, there is hardly any possibility of the case being one with which the accused persons can ever be found guilty, much less to say about the present petitioner. 6. Having regard to the contentions made above, Section 319 Cr.P.C becomes relevant and it reads as follows:- 319. Power to proceed against other persons appearing to be guilty of offence:- Page 4 of 9 (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, the he may be arrested or summoned, as 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 the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. 7. The Hon’ble Supreme Court in it’s decision in the matter of Sarojben Ashwin Kumar Shah, Etc. Vs. State of Gujarat & Anr., reported in 2011 (13) SCC 316, held as follows: - “(i) The Court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone. (ii) The power conferred under Section 319(1) applies to all Courts including the Sessions Court. Page 5 of 9 trial evidence sufficient (iii) The phrase "any person not being the accused" occurring in section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the Court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Court. (iv) The power to proceed against any person, not being the accused before the Court, must be exercised only where there appears during inquiry or indicating his involvement in the offence as an accused and not otherwise. The word "evidence" in section 319 contemplates the evidence of witnesses given in Court in the inquiry or trial. The Court cannot add persons as accused on the basis of materials available in the charge-sheet or the case diary but must be based on the evidence adduced before it. In other words, the Court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the addition let in before it. (v) The power conferred upon the Court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the Court is not enough. The Court must also be satisfied that circumstances justify and warrant that the other person be tried with the already arraigned accused. Page 6 of 9 (vi) The Court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then. (vii) Regard must also be had by the Court to be constraints that proceedings in respect of newly added persons shall be commenced afresh from the beginning of the trial. (viii) The Court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion.” Needless to say, that before a Court exercises its in Section 319(4) imposed 8. discretionary jurisdiction in terms of Section 319 Cr.P.C, it must arrive at the satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. Such satisfaction can be arrived at, inter alia, upon completion of the cross-examination of the said witnesses. 9. As seen from the case record, in the instant case, though the name of Petitioner finds place in the FIR, the witnesses such as P.Ws.5 and 7, have not stated the name of the Petitioner as one of the culprits in their statements recorded under section 161 Cr.P.C. 10. The aforesaid facts found to have been confronted with the P.Ws.5 and 7. Admittedly, there appears some anomaly, with respect to the evidence of the witnesses implicating the present Petitioner in the alleged incident. The very fact that the name of the Petitioner having not Page 7 of 9 implicated at the first instance when P.Ws.5 and 7 volunteered their statement before the police, the subsequent evidence of the said witnesses implicating the name of the Petitioner would definitely cast cloud in their testimony and may not be sufficient to indict him as one of the culprits named in the FIR. 11. There is no substantial material otherwise to deduce that the Court could reach a conclusion in affirmative with the allegations made by the complainant vis-à-vis the Petitioner and as such, it cannot be said that the mandate of Section 319 Cr.P.C. is satisfied, so as to bring the Petitioner to trial. The underlying objective of the provision which has to be kept in mind in invoking the said provision, is that it should not be applied in a routine manner. The Court, before invoking the jurisdiction, must with all humility circumspect the background facts and over all evidence. As seen in the case in hand, there is doubt as to the genesis, if the alleged incident took place in presence of P.Ws. 6 and 7 or that they arrived later. The injuries alleged are not supported by the medical evidence. In such eventuality, the implication of the Petitioner, as an accused, does not commensurate to the mandate of the provision. The impugned order dated 24.12.2024, passed by the learned Addl. Sessions Judge, Athagarh, therefore, suffers from illegality and the material Page 8 of 9 brought against the Petitioner, being not sufficient to array him as an accused, deserves to be quashed. 12. Accordingly, the CRLMP stands disposed of. Judge (Chittaranjan Dash) Sarbani Signature Not Verified Digitally Signed Signed by: SARBANI DASH Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Jul-2025 18:05:04 Page 9 of 9