SANGRAM JENA Vs. SULOCHANA MALLICK

JUDGEMENT

(1.) Appellant is aggrieved by order dtd. 16/8/2023 made by the Additional District and Sessions Judge in exercising power under Sec. 319 in Code of Criminal Procedure, 1973, to add him as an accused in the case on trial.

(2.) Mr. Khatua, learned advocate appears on behalf of appellant and submits, his client was named in the First Information Report (FIR). The police made investigation and upon being satisfied, did not include his name in the charge-sheet. The Supreme Court by judgment dtd. 13/11/2018 in Criminal Appeal no.1349 of 2018 (Labhuji Amratji Thakor and others v. The State of Gujarat) declared that Sec. 319 is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. The crucial test, which had been laid down is, 'the test that has to be applied is that it 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'. He submits, this test does not stand satisfied by reasons given in impugned judgment and hence, there be interference in appeal.

(3.) Mrs. Pattanaik, learned advocate, Additional Government Advocate appears on behalf of State and submits, in course of the investigation there was intimation made to Motorcycle Riders of the Indian Army at Jabalpur regarding appellant, whether he was present and on duty at his station on 13/11/2013. The Captain, Officer Commanding of 10 Dispatch Rider, Sec. 10 replied by letter dtd. 25/3/2014. Paragraphs 1 and 2 from the letter are reproduced below.