High Court of Orissa
Case Details
IN THE HIG E HIGH COURT OF ORISSA AT CUTT CUTTACK CRLMC No. 3194 of 2023 Hrushikesh Pand Panda …. Petitioner Mr. D. P. Dhal, Sr. Sr. Advocate -versus- State of Odisha …. Oppos pposite Parties Mr. N. Praharaj, Mr. A.K. Apat, haraj, Informant . Apat, Addl. P.P CORAM: THE HON’BLE BLE MR. JUSTICE CHITTARANJAN D JAN DASH Date of Judgment: 12.09.2025 Chittaranjan Dash, ash, J. Heard learn rd learned counsels for both the parties. 1. 2. By means eans of this application, the Petitioner seek ted 02.05.2023 passed by the learned 1st Add the order dated 02 er seeks to quash Addl. Sessions Judge, Baripada in ada in S.T. Case No.139 of 2019, wherein erein the learned court on the praye prayer of the prosecution found material terial against the Petitioner to be arr be arrayed as an accused under Section 319 on 319(1) Cr.P.C and issued summo ummon to the Petitioner for his appearance in ance in person. 3. The backg
Legal Reasoning
background facts of the case are that o that one Harish Chandra Panda lo nda lodged a written report before the I.I.C I.I.C., Baripada Town P.S., Mayu Mayurbhanj, alleging that his son was ki as killed by his daughter-in-law on law on 28.04.2019. As per the report, the d , the daughter-in- law of the inform informant was in a love relationship with with one Girish Chandra Panda, co nda, cousin brother of her husband, for wh or which his son was subjected to c d to constant mental and physical torture by ure by his wife. It CRLMC No. 3194 of of 2023 Page 1 of 7 was further alle r alleged that the daughter-in-law often often left the matrimonial home home in connection with the said affa d affair, and on account of the s the strained relationship, the deceased h ed had earlier informed the polic e police about threats to his life, though the h the matter was compromised. It w d. It was also reported that the son of the info the informant was living separately w tely with his family, though the informant us ant used to sleep at his son’s house house. On the intervening night, at about about 2.00 a.m., while the informan formant was sleeping in the house of his son, is son, he heard a groaning sound. O und. On knocking the door, neither his s his son nor his daughter-in-law r law responded. The informant then ca en called some neighbours, and u and upon their insistence, the daughter-in in-law opened the door. The son e son of the informant was found lying wi ing with bleeding injuries on his nose is nose and neck, and his sacred thread was m was missing. He was immediately s ately shifted to the hospital, where the doct e doctor declared him dead due to ue to strangulation. On the basis of the s the said report, Baripada Town P wn P.S. Case No.104 of 2019 was regist registered under Sections 302/34 IP otion. /34 IPC and investigation was set in motion. 4.
Legal Reasoning
Mr. Dhal, Dhal, learned Senior Advocate appearin pearing for the Petitioner, contend ontended that the statements of none of th of the aforesaid witnesses disclose isclose any material which, even if unrebu unrebutted, could lead to the convi conviction of the Petitioner. At best, th est, the evidence suggests that the w t the wife of the deceased was having an ill an illicit or love relationship with with the Petitioner. It was argued that that the entire narration in the the evidence does not reveal the p the presence or involvement of th t of the Petitioner in the death of the decea deceased, either directly, circumsta cumstantially, or even by way of conspirac spiracy. Learned Senior Counsel fu sel further drew the attention of this Court Court to several decisions of the f the Hon’ble Supreme Court and urge urged that the CRLMC No. 3194 of of 2023 Page 2 of 7 impugned order i rder is contrary to the settled position o tion of law and, therefore, liable to ble to be quashed. 5. On the oth he other hand, Mr. N. Praharaj, learned cou d counsel for the Informant, who vo voluntarily appeared in the hearing, sub submitted that during the course ourse of investigation the statement of the of the Petitioner was recorded, whe d, wherein he admitted to his relationship wi hip with the wife of the deceased. It sed. It was further submitted that various cir us circumstances emerging from th rom the case, coupled with the stateme tatements of the prosecution witnes witnesses, clearly indicate the active involve volvement of the Petitioner in the al the alleged murder. It was thus prayed that that the learned trial court, having aving rightly appreciated the materials on ls on record, has correctly arrayed rayed the Petitioner as an accused, and the nd the impugned order warrants no i ts no interference by this Court. 6. Mr. Apat, Apat, learned counsel for the State, while while supporting the order impugne pugned, submitted that the power under S nder Section 319 Cr.P.C. is intended tended to ensure that no guilty person escape escapes trial and, therefore, can be i n be invoked even against a person not cha ot charge-sheeted if sufficient evid t evidence surfaces in the course of tri of trial. It was contended that fro at from the depositions of P.Ws. 2, 3, 7 and , 7 and 8, coupled with the circumst cumstances of the case and the admitted r itted relationship between the Petitio Petitioner and the wife of the deceased, there , there emerges a prima facie case p case pointing towards the complicity of the of the Petitioner. Mr. Apat further urther submitted that at this stage the Co the Court is not required to apprec appreciate the evidence in detail as would b ould be done in a full-fledged trial, trial, but only to assess whether strong su ong suspicion or credible material terial exists to summon the person. Thus, Thus, the learned trial court having aving exercised its discretion judiciously un sly under Section CRLMC No. 3194 of of 2023 Page 3 of 7 319 Cr.P.C. on th on the basis of cogent material, the impu impugned order suffers from no ille no illegality and calls for no interference by ce by this Court. 7. The Hon’b Hon’ble Supreme Court in the matter of r of Vikas Rathi vs. State of U.P. a .P. and another reported in 2023 SCC Onl Online SC 211 – held as follows – 10. The Co he Constitution Bench in Hardeep Singh an h and Ors. case (supra), op , opined as under: “105. Po extraordi and only case so w magistra some oth that offe occurs a the court in a casu 05. Power u/s 319 CrPC is a discretionary a aordinary power. It is to be exercised spa d only in those cases where the circumstances se so warrant. It is not to be exercised becau agistrate or the sessions judge is of the opinio me other person may also be guilty of comm at offence. Only where strong and cogent ev curs against a person from the evidence laid e court that such power should be exercised a a casual and cavalier manner. nary and an ed sparingly tances of the because the opinion that ommitting ent evidence e laid before ised and not 106. Thu is to be court, no examina near prob be applie as exerci of satisfa unrebutte such sa exercisin
Decision
6. Thus, we hold that though only a prima fac to be established from the evidence laid befo urt, not necessarily tested on the anvil of amination, it requires much strong evidenc ar probability of his complicity. The test that applied is one which is more than prima faci exercised at the time of framing of charge, bu satisfaction to an extent that the evidence, i rebutted, would lead to conviction. In the abse ch satisfaction, the court should refrain ercising power u/S 319 CrPC”. a facie case id before the vil of cross- vidence that st that has to a facie case rge, but short ence, if goes e absence of efrain from 11. In Saga Sagar’s case (supra), it is stated as under: (emphasis sup sis supplied) “9. The power un and extr sparingly circumst test as n more tha . The Constitution Bench has given a cautio wer under Section 319 of the Code is a discret d extraordinary power which should be exe where aringly and only those cases wher in cumstances of the case so warrant and the t as notice above has to be applied is one wh ore than prima facie case as exercised at the t caution that discretionary be exercised the d the crucial one which is t the time of CRLMC No. 3194 of of 2023 Page 4 of 7 framing that the convictio ming of charge, but short of satisfaction to an at the evidence, if goes unrebutted, would l nviction….” to an extent ould lead to f the evidence already on record produced cution is considered on the touchstone of la by the Constitution Bench of this Court in Ha & Ors. case (supra), it does not go b cion. There is no eye-witness to the occurren as been stated by PW-2 (brother of the dec t the deceased who was working with the ap anager though claimed to be a partner b lainant, that there was some dispute reg y between the appellant and the deceased. ma whose statement was got recorded by r Section 164 of the Cr.P.C. also retracted the appearing in court as PW-5. He stated that ded by the police under threat of involvem false case. He also did not raise any finger to ppellant. Rather he was the first person to vi e of the deceased after the murder and inform llant to reach there. He was working as par with the family of the deceased. Withou rial brought on record, the widow of the de ly stated that she is sure that the appellan itted murder of her husband as there was no y. One of the brothers of the deceased ared as PW-1, who was not present at the sp uced by the of law laid Hardeep go beyond currence. All he deceased) the appellant rtner by the te regarding ased. Rajesh d by police ed therefrom d that it was olvement in nger towards n to visit the informed the as part time Without any the deceased ppellant had was no other ceased who the spot, did 12. If the prosecution down by th Singh & suspicion. T what has b is that the d as Manage complainan money betw Sharma wh under Secti while appe recorded b some false the appella house of th appellant to cook with material br merely sta committed enemy. On appeared as not utter a s er a single word against the appellant. 13. The afo in the ligh summoning under Secti of the appe he aforesaid material was not sufficient if exa e light of the law laid down by this Cou oning of an additional accused in exercise of r Section 319 of the Cr.P.C. to establish com e appellant in the crime.” t if examined is Court for ise of power h complicity 8. Having reg ing regard to the aforesaid decisions, when when the case at hand is examined mined, it appears that the only basis on is on which the learned trial court court sought to array the Petitioner as an acc an accused is the statements made b ade by certain witnesses during trial, more more particularly P.Ws. 2, 3, 7 and 8 7 and 8. It is, therefore, necessary to briefly riefly notice their evidence. CRLMC No. 3194 of of 2023 Page 5 of 7 9. P.W.2, in h .2, in his deposition, stated that the deceased eased Aditya had told him that he s at he suspected his wife, Chandana, to be i to be in an illicit relationship with with his ‘Kaka Pua Bhai’ (cousin bro n brother), who frequently visited isited their house. P.W.3 deposed in sim in similar terms. P.W.7 further state er stated that Chandana had developed a love a love affair with Tukun @ Hrushik rushikesh Panda (the Petitioner), the cousin cousin brother of the deceased, wh d, which caused disturbance in the mari marital life of Chandana and Adi nd Aditya. He also deposed that in connectio nnection with the said relationship, a ship, an FIR had earlier been lodged, though though the matter was later comprom mpromised. P.W.8, who is the father of th r of the deceased and the informant rmant, likewise stated that Chandana had d had developed a love affair with h with her cousin, for which his son had ma ad made reports before the Town P own Police on different occasions, but no ut no action was taken. He also sta lso stated that the Petitioner was regularly larly visiting the house of the decea deceased. 10. The impug impugned order does not reflect considerat sideration of any material other tha er than the aforesaid statements of the w the witnesses to implicate the Petiti e Petitioner under Section 319 Cr.P.C. 11. It is well well settled that the test for invoking po power under Section 319 Cr.P. Cr.P.C. is whether the evidence, if left f left unrebutted, would reasonably nably lead to the conviction of the person so rson sought to be summoned. In the In the absence of such satisfaction, the Cou e Court ought to refrain from exerci exercising the extraordinary power conferre nferred under the said provision. 12. In the inst e instant case, the statements, whether read er read conjointly or individually, me lly, merely indicate that accused Chandana, dana, the wife of the deceased, was , was having a love affair with the cousin br sin brother of the CRLMC No. 3194 of of 2023 Page 6 of 7 deceased, giving iving rise to suspicion of an illicit re icit relationship. Admittedly, there there is no eye-witness to the occurren currence. In the absence of any ma ny material on record to connect such statem statements into a chain of circumsta cumstances pointing towards the guilt of the of the Petitioner, the said evidence, ence, by itself, does not furnish a basis to a is to array him as an accused for the for the grave offence of murder. At best, it est, it renders his conduct questiona stionable. On the contrary, during investi investigation, the statement of accu f accused Chandana herself disclosed the p the presence of two other persons rsons in the alleged crime, and they have al ave already been charge-sheeted. Th ted. The depositions implicating the presen present Petitioner rest entirely on su on suspicion and surmises, without even a ven a semblance of evidence show showing his participation in the prep preparation or commission of the of the offence. Consequently, there is no m is no material on record, direct or ct or circumstantial, to establish his pre is presence with Chandana at the t the relevant time or otherwise to gener generate even a strong suspicion su r.P.C. cion sufficient to attract Section 319 Cr.P.C. 13. In the resu e result, the impugned order dated 02.05.2 2.05.2023 passed by the learned 1st ed 1st Additional Sessions Judge, Baripada in pada in S.T. Case No.139 of 2019 sta 019 stands quashed. 14. According ordingly, the CRLMC is allowed. (Chittaranjan Da n Dash) Judge Signature Not Verified Digitally Signed Bijay Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 15-Sep-2025 19:18:55 CRLMC No. 3194 of of 2023 Page 7 of 7