BIDYADHAR CHADEI Vs. STATE OF ORISSA

JUDGEMENT

(1.) Order dated 16-11-1996 in S.T. Case No. 6/50 of 1996 of the Court of Assistant Sessions Judge, Anandapur is under challenge in this revision.

(2.) The aforesaid sessions case was registered as against opposite party No. 2-Tutu Swain, allegedly for kidnapping the victim girl and committing rape on her on 17th November, 1995 in the Tea stall of the petitioner. The victim girl is partially mentally retarded and also partially handicapped because of no having capability to speak clearly and fluently which in the vernacular and coloquial term in Orissa has been termed as 'Jadi.' After she was ravished, the blind father and the helpless mother of the victim sought for the intervention of the villagers which, as alleged, resulted in a decision in the Village Panchayat for marriage of the victim with opposite party No. 2. That marriage was performed but the father of the opposite party No. 2, as alleged, declined to accept the victim as the daughter-in-law. That resulted in lodging of the F.I.R. and investigation into the crime. It was alleged in the F.I.R. that besides the opposite party No. 2 another person i.e., the owner of the Tea stall, where she was ravished, also committed rape on her. The statement of the informant and the prosecutrix before the Investigating Officer was to the effect that besides the opposite party No. 2, the petitioner also committed rape on her. Yet the officer-in-charge did not submit a charge-sheet against the petitioner. After commitment of the case during the course of trial evidence of the mother of the victim as P.W. No. 1 and the evidence of the victim as P.W. No. 4 also reveals the allegation of rape committed on her by the petitioner. Such evidence was recorded on 2nd and 3rd September, 1996. On 16-11-1996 the concerned officer-in-charge was examined as P.W. No. 11. During his examination-in-chief, on a query made by the Court, he stated that the victim made statement before him that the petitioner also raped her but he did not made the petitioner a co-accused (while submitting the charge-sheet). Thereafter, the trial Court in exercise of the power under S. 319 of the Code passed the impugned order to issue process against the petitioner to stand the trial for the offence order S. 376, I.P.C.

(3.) It was argued on behalf of the petitioner that under the given facts and circumstances, exercise of the power under S. 319 of the Code of Criminal Procedure, 1973 (in short 'the Code') by the learned Assistant Sessions Judge was wholly unwarranted and, therefore, liable to be set aside. It was also argued that when the Investigating Agency had excluded the petitioner from being charge-sheeted he does not come within the meaning of the term "any person not being the accused" and hence power under S. 319, Cr. P.C. could not have been invoked as against him. Learned Additional Standing Counsel appearing for the opposite party No. 1-State of Orissa, however, supported the impugned order and argued that as the petitioner was not an accused in the case before the Courts below, therefore, he very much comes within the meaning of the term "any person not being the accused."