R GOPAL KRISHNA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This petition under section 482 Cr. P.C. is aimed at quashing of the cognizance taken against the two petitioners under section 307, I.P.C. and section 27 of the Indian Arms Act utilising the power under section 319 Cr. P.C. The original accused in the trial is one R. Venkata Prasad brother of the two petitioners, who stood charged under the same sections on the allegation of having fired upon a mob from his double-barrel gun. After investigation charge-sheet was submitted against him citing 17 witnesses of which as the learned counsel for the petitioners submits, P.W s. 1 to 4 were examined as the eye-witnesses. During evidence these witnesses implicated the petitioners as having instigated R. Venkata Prasad in firing upon the crowed saying MARO MARO. It also appears that these witnesses had made statements under Section 164, Cr. P.C. implicating the present petitioners. Because of such evidence, the learned Magistrate has taken cognizance against the two petitioners and has issued summons to them to appear.

(2.) It is urged by Mr. Rao, the learned counsel appearing for the petitioners that the implication of the present petitioners as having been participants in the occurrence is an after thought and is a much belated attempt to which the learned Magistrate should have been alive and should not have taken cognizance against them. It is his submission that the power under section 319, Cr. P.C. has been mechanically utilised without making any attempt to find out whether any genuine or prima facie case exists against the petitioners. In making the submissions he points out that P.Ws. Ito 4 in their statements before the police did never implicate the petitioners. All that was said was that by the time R. Venkata Prasad had fired upon the crowd, these petitioners were standing by his side. The further fact that they had been instigating the accused either by words or by gesture had not been spoken to by them, their statements before the police were made on 17.2.1989 and 18.2.1989, the date of Occurrence being 17.2.1989. The statements under section 164, Cr. P.C. were recorded on 2.5.1989, i.e. around after two months and seventeen days, wherein the petitioners were implicated for the first time. This very fact should have made the learned Magistrate cautious to find out it a prima facie case exists against the petitioners. The impugned order docs not show him to have considered this aspect of question. It has been repeatedly pointed out by this court that the power under section 319 Cr. P.C. is as special and extraordinary power required to be exercised only in exceptional circumstances where compelling necessity exists. The power is not to be exercised merely because some statements are made at the evidence stage but instead the trial Court has the bounden duty to shift all materials at its possession and reach an objective conclusion regarding the existence of prima facie case. It is to be particularly conscious whether any belated attempt is made to rope in more persons as it is common knowledge that embellishment of the prosecution case is a common phenomenon in India. Liberty is the most cherished of fundamental rights and since launching of a prosecution adversely affects or is capable of affecting such liberty, it is not to be lightly interfered with. Such caution was administered by this Court in the Division Bench decision reported in Tribikram Mistra v. State of Orissa and another, and again in Suresh alias Madhu Das v. State of Orissa and others. Judging in such background of law, the present case reveals factual data which unmistakably show a belated attempt to implicate the petitioners in the occurrence and as such is a fit one where power under section 482, Cr. P.C. should be exercised to quash the prosecution against them.

(3.) In the result, the petition succeeds and the order dated 1.8.1989 passed by the SDJM, Parlakhemundi in G.R. Case No. 53 of 1989 taking cognizance against the petitioners is quashed. Petition allowed.