NILAMADHAB ACHARYA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner challenges the order dated 30 -5 -2001 passed by the learned J. M F. C., Balasore in G. R. Case No. 486/97 directing the petitioner under Section 319, Cr. P. C. to face trial along with the other co -accused.

(2.) THE facts of the case, in brief, are as follows : - - The informant Gadadhar Acharya lodged an information at Remuna P. S. on 15 -4 -97 alleging that the father of the present petitioner who had prior enemity with the informant and his family members due to land dispute hit the heifer of the petitioner by means of a lathi and caused fracture of a hind leg ofthe heifer when it entered into the threshing floor of the petitioner which was not fenced. Seeing it when the informant protested the father of the petitioner abused him in filthy language and threatened him to kill. On the above information Remuna P. S. Case No. 56/97 was registered for the offences under Sections 294, 429, 506, I. P. C. After investigation police submitted charge sheet against the father of the petitioner and the learned Magistrate took cognizance of the offences. During trial three witnesses including the informant and the investigating officer were examined. At that stage a petition was filed under Section 319, Cr. P. C. to add the present petitioner as an accused to face trial along with the other accused, namely, Bhaskar Acharya, the father of the petitioner contending that there were evidence to show that the petitioner committed the offences for which he could be tried along with the other accused. The learned J. M. F. C. after hearing both the sides allowed the petition and issued summons to the petitioner to face trial along with the accused in the aforesaid G. R. case corresponding to P. S. Case No. 56/97, Being aggrieved by the aforesaid order the petitioner questioned the legality of the same in this petition filed under Section 482, Cr. P. C.

(3.) IN the above context, it is noticed that the petitioner has not been named in the F. I. R. as one of the accused. The witnesses examined by the prosecution excepting the informant have not also implicated the petitioner with the alleged occurrence. It appears that departing from the F. I. R. case the informant has implicated the petitioner with the alleged offences for the first time while deposing in the court. He has also beenconfronted with his previous statement where he did not implicate the petitioner. The attention of the investigating officer has also been drawn to the same. The other independent witness examined by the prosecution in support of its case has not also implicated the petitioner. In the above premises, it may not be worthwhile to add the petitioner as an accused to face trial along with the other accused as it appears that the chance of his conviction is bleak. In this context, reference be made to the case of Micheal Machado and Anr. v. Central Bureau of Investigation and Anr. reported in (2000) 18 O. C. R. (S. C.) 441 ; wherein the Apex Court has held as under: - -