ASISH KUMAR NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) Order Dated 29.10.2011 passed by the Learned Ad hoc Additional Sessions Judge, FTC-IV, Cuttack in S.T. No. 212 of 2011 has been impugned in this application filed under Section 482 Cr.P.C. By the said order, the Learned Ad hoc Additional Sessions Judge exercising power under Section 319 Cr.P.C. allowed the prayer of the prosecution by directing issuance of process to the Petitioners and further directing to bring the Petitioners on record as accused persons to face the trial. Thus: ordering, the Learned Court below issued bailable warrant against the Petitioners calling upon them to be present in Court and face the charge on 21.11.2011. Mr. P. K. Singh, Learned Counsel for the Petitioners submits that though initially the F.I.R. lodged by the informant-Nihar Ranjan Nayak (P.W. 3) was registered as Salipur P.S. Case No. 361- of 2008 against seven persons including the Petitioners, for alleged commission of offence under Sections 147/148/307/294/452/323/325/354/379/ 427 I.P.C., but after investigation, which was supervised by the superior police officer, the Investigating Officer finding no cogent materials against the Petitioners submitted charge-sheet against four accused persons. Thereupon, the Learned J.M.F.C. Salipur took cognizance of the offences against the said charge sheeted accused persons and committed the accused persons to the Court of the Learned Sessions Judge, Cuttack which has been ultimately transferred to the Court of the Learned Ad hoc Additional Sessions Judge, FTC-IV, Cuttack for trial. During the course of trial, after examination of some of the witnesses, a petition was filed by the prosecution through the Additional Public Prosecutor making a prayer to issue process against the Petitioners invoking jurisdiction of the Court under Section 319 Cr.P.C. The Learned Ad hoc Additional Sessions Judge, contrary to the settled position of law, on the basis of presumption, has passed the impugned order issuing process against the Petitioners adding them as accused persons and calling upon them to face the trial. Mr. Singh also relies upon various decision of the Supreme Court as well as this Court with regard to the scope and ambit of exercising power under. Section 319 Cr.P.C. and refers to the evidence of P.Ws. 1 and 7 on whose statements, the Learned Trial Court has placed reliance for directing issuance of process to the Petitioners.

(2.) It is felt necessary to quote the portion of the impugned order where the Learned Trial Court has assigned the basis for exercising jurisdiction under Section 319 Cr.P.C., which is as follows:

(3.) In the of quoted decision of the Supreme Court, where the essential conditions for the exercise of power under Section 319 Cr.P.C. has been considered, i.e., in the case of Michael Machado v. Central Bureau of Investigation, 2000 3 SCC 262, the Supreme Court held that the power under Section 319 Cr.P.C. vested in the Court should tie used sparingly and the evidence on which the same is to be invoked should indicate a reasonable prospect of conviction of persons to be summoned. The Supreme Court went to hold that mere suspicion of the involvement of the person concerned in the offence is not enough, particularly, when a large number of witnesses have been examined and no evidence on which conviction can be secured has been adduced on behalf of the prosecution. It was ultimately observed that in such a case, there could be no justification for proceeding against the persons summoned under Section 319 Cr.P.C. which would entail recommencing the whole proceeding against the newly added persons and re-examining the witnesses already examined.