The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.4498 of 2024 (In the matter of an application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023) Avijit Bastia & another ……. Petitioners -Versus- State of Odisha & another ……. Opposite Parties For the Petitioners : Mr. Rakesh Behera, Advocate For the Opposite Parties : Mr. S.N. Biswal, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA -------------------------------------------------------------------------------------- Date of Hearing: 04.03.2025 Date of Judgment: 10.04.2025 --------------------------------------------------------------------------------- S.S. Mishra, J. The petitioners have filed the present application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) [corresponding to Section 482 CrPC], seeking quashing of the order dated 09.09.2024 passed by the learned Sessions-cum-Special Judge, Jagatsinghpur in C.T. Case No. 329
Facts
of 2023 arising out of Biridi P.S. Case No. 350 of 2023, whereby Page 1 of 11 the learned Trial Court by allowing the application of the prosecution under Section 358 BNSS, summoned the petitioners to face the trial. 2. The case originates from an FIR lodged on 10.12.2023 by Opposite Party No. 2 (informant) at Biridi P.S., alleging that the occurrence took place on 10.12.2023 at about 11:30 AM on a public road in front of the Petitioners’ house. A marriage function was being celebrated in the family of Anil Mallick, which the complainant attended. At that time, accused Biswajit Bastia, Avijit Bastia, and Jagatjeet Bastia were passing through the spot on a motorcycle. The complainant’s son, Susanta, was standing by the roadside when the accused stopped near him and allegedly stated, "Kandara Bahaghara Kan Dekhiba, Sala ku Chuin le Chuan Heba". 3. Upon Susanta’s objection, Biswajit Bastia allegedly inflicted a fist blow on his face, while Avijit and Jagatjeet Bastia also assaulted him, causing him to fall to the ground. The complaint led to an investigation, during which the police did not find sufficient material to charge-sheet the Petitioners (Avijit and Jagatjeet Bastia). Page 2 of 11 4. The police, after investigation, filed a chargesheet only against Biswajit Bastia under Sections 294, 323 of IPC read with Sections 3(1)(r), 3(1)(s), and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The present petitioners were not charge-sheeted due to lack of substantiated evidence against them. 5. The case was committed to the learned District & Sessions- cum-Special Judge, Jagatsinghpur, and registered as C.T. Case No. 329 of 2023. Cognizance was taken on 02.02.2024, and charges were framed against the charge-sheeted accused on 26.06.2024. The trial commenced, and seven witnesses were examined. 6. At this stage, the prosecution moved an application under Section 358 BNSS, seeking to add the petitioners as accused persons based on the depositions of PWs 1, 2, 3, and 4. The learned Trial Court allowed the application on 09.09.2024, summoning the petitioners as additional accused. 7. Aggrieved by the said order, the petitioners have approached this Court, contending that the impugned order suffers from legal infirmities and is liable to be quashed. Page 3 of 11
Legal Reasoning
than prima facie evidence, nearing the threshold of conviction. 9. Furthermore, relying on the judgement of the Hon’ble Supreme Court in Sarojben Ashwinkumar Shah vs. State of Gujarat [(2011) 13 SCC 316] submitted that pre-existing materials from the chargesheet cannot form the basis for summoning an accused under Section 319 CrPC. In the present case, the prosecution witnesses have merely reiterated the allegations made during the investigation, without introducing any new substantive Page 4 of 11 evidence. The learned Trial Court also failed to consider that the cross-examination version of the witnesses is essential to be taken into consideration before invoking Section 319 CrPC. In that regard, he relied upon Hetram vs. State of Rajasthan [2024 INSC 903]. The contradictions in evidence further weaken the prosecution’s case, rendering the summoning order legally flawed. 10. The Petitioners also submitted that there is no independent corroboration of the allegations, particularly regarding Section 3 of the SC/ST (PoA) Act, which requires the act to have been committed in public view. The absence of neutral witnesses was the reason the Investigating Officer did not charge-sheet the Petitioners initially. Moreover, summoning the Petitioners at an advanced stage of trial, after seven out of nine charge-sheeted witnesses have been examined, violates their right to a speedy trial and causes unnecessary delay. 11. Given that the learned Trial Court has failed to apply the principles laid down by the Hon’ble Supreme Court and has acted contrary to settled law, the Petitioners pray that this Hon’ble Court quash the impugned order summoning them under Section 319 CrPC and grant any other relief deemed just and proper in the Page 5 of 11 interest of justice. 12. Mr. Biswal, learned Additional Standing Counsel, appearing for the State, opposing the petition, argued that the impugned order is legally sound and does not warrant interference. It is submitted that the Trial Court has rightly exercised its power under Section 358 BNSS, as testimonies of the witnesses during trial sufficiently implicated the petitioners in the alleged offences. 13. The prosecution relied on Mohit @ Sonu & Another v. State of Uttar Pradesh & Another [(2013) 7 SCC 789], wherein the Supreme Court have held that a revisional remedy under Sections 397/401 CrPC should be preferred over a petition under Section 482 CrPC unless there is a gross miscarriage of justice. In Mohit (supra), the Hon’ble Supreme Court observed: “28. So far as the inherent power of the High Court as contained in Section 482 CrPC is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that the inherent power of the Court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged.” 14. It is further argued that the degree of satisfaction for Page 6 of 11 summoning an additional accused is not as stringent as required for conviction but should be higher than the prima facie standard applied at the stage of framing charges. Since the Trial Court found sufficient material suggesting the petitioners’ complicity, the exercise of discretion under Section 358 BNSS was justified. 15. I have carefully gone through the material placed before this Court and evaluated the material in the light of judgement cited at the bar. The names of the present petitioners were found mentioned in the FIR. Specific overt acts were attributed to them. However, when the police examined the witnesses, the witnesses had given a blurred picture regarding the incident. Therefore, the Investigating Officer (IO) exonerated the present petitioners and filed a chargesheet against the principal accused. However, during the progression of the trial, as many as seven witnesses have specifically taken the name of the petitioners and attributed overt acts against them. The evidence of these witnesses in unison have implicated the petitioners, for brevity. Those evidences are not reproduced herein. 16. Learned counsel for petitioners has attempted to point out contradictions in the evidence of those witnesses and emphatically Page 7 of 11 drew the attention of the Court regarding the material that came in the cross-examination. Following contradictions are highlighted by the petitioners are worth reproducing. “2. For that, there are discrepancies in depositions 1,2,3 and 4 vital points which suspicion. As to the role the petitioners P.W.3 has stated paragraph of his deposition- that time, Biswajit, Abhijeet and ……..At Jagatjit were proceeding to their house. Finding me they started abusing me as "Kandara, Maghia"….... P.W.4 has stated in Paragraph 1 of her deposition- that time, Biswajit, Abhijeet and ……..At Jagatjit were passing in front of our house on the road. On finding my husband, Biswajit stated that "Kandara Bahaghara Dekhile Amara Jaati Jiba" As to the duration of the occurrence, P.W.3 has stated in paragraph 7 of his cross-examination that- “…..The entire incident continued for 5 to 7 minutes." P.W.2 has stated in paragraph 6 of his cross- examination that- ".....Occurrence minutes......." continued for 10-15 As to who tore the saree of P.W.4, P.W.4 has stated in paragraph 2 of her deposition that “…..When I intervened, Biswajit twisted my left hand and pushed at my neck, tore my saree and blouse……” P.W.1 has stated in paragraph 2 of his deposition that- Page 8 of 11 ".....When my daughter in law intervened to save three accused persons her husband, assaulted her and twisted her hands. They also removed her saree to some extent...." the As to previous enmity between the complainant and the petitioners P.W.3 has stated in his cross- examination at paragraph 5 that- "I had previous enmity with the accused one year prior to this occurrence....” P.W.1 has stated paragraph 5 that- in his cross-examination at "the above three persons had no prior enmity with my son...." 17. The nature of evidence which has come on record undoubtedly brings the complicity of petitioners into the crime. At this stage, while exercising jurisdiction under Section 528 of BNSS, the Court is forbidden to delve upon the merits of evidence by appreciating the same. The only test at this stage to sustain the impugned order is to arrive at a satisfaction as to whether enough material has come on the record to summon the witness or not. The Court need not weigh the quality of evidence which would eventually lead to conviction, but the evidence should be a little higher than the prima facie standard. In the case of N. MANOGAR vs. THE INSPECTOR OF POLICE, 2024 LiveLaw (SC) 197, the Constitution Bench of the Hon’ble Supreme Court significantly Page 9 of 11 refering to its prior decision in Hardeep Singh v State of Punjab & Ors., (2014) 3 SCC 92 has held: “Power Under Section 319 Code of Criminal Procedure is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the magistrate or the sessions judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence laid before the court that such power should be exercised and not in a casual and cavalier manner.” "Thus we hold that though only a prima facie case is to be established from the evidence laid before the court, not necessarily tested on the it requires much strong anvil of cross-examination, evidence that near probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power Under Section 319 Code of Criminal Procedure." “The High Court failed to appreciate that the discretionary powers under Section 319 of the CrPC ought to have been used sparingly where circumstances of the case so warrant. In the present case, the Trial Court Order was well reasoned and did not suffer from any perversity. Moreover, the materials on record could not be said to have satisfied the threshold envisaged under Hardeep Singh (Supra) i.e., more than a prima facie case, as exercised at the time of framing of charge but short of evidence that if left unrebutted would lead to conviction.” 18. In my considered view, the evidence brought by the prosecution unescapably warrants the summoning of the accused persons. At this stage, it is jurisdictionally forbidden for the High Court to delve upon the quality, quantity and trustworthiness of the witnesses deposed against the petitioners. Once material worth Page 10 of 11 summoning an accused born on record, the trial Court shall exercise its power under Section 319 CrPC to summon the accused and afford the opportunity of fair trial in accordance with law. 19. In view of the foregoing discussion on material facts on record and Judgments cited by the parties at the bar, this Court is not inclined to interfere with the impugned order as no legal infirmity is found prominently warranting to exercise the jurisdiction under Section 482 CrPC. 20. This CRLMC is accordingly dismissed. The High Court of Orissa, Cuttack The 10th day of April, 2025/ Subhasis (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 14-Apr-2025 12:40:50 Page 11 of 11
Arguments
8. Mr. Behera, learned Counsel appearing for the petitioners submitted that the impugned order dated 09.09.2024, summoning them under Section 319 CrPC, is legally unsustainable. The power under Section 319 CrPC is extraordinary and should be exercised only when strong, cogent evidence emerges during trial, establishing direct involvement. However, in the present case, the learned Trial Court has mechanically relied on prosecution witnesses depositions without identifying any fresh evidence justifying the summoning of the Petitioners. This is contrary to the principles laid down in Hardeep Singh vs. State of Punjab [(2014) 3 SCC 92], where the Hon’ble Supreme Court held that summoning under Section 319 CrPC requires a higher standard