MD MUZAFFAR HUSSAIN KHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) This is an application questioning correctness as of order dated 9.10.1990 passed by the learned Additional Sessions Judge, Balangir, holding that the petition dated 6.9.1989 filed by petitioner No. 1 styled as one under section 319, Code of Criminal Procedure, 1973 (in short, the Code) to frame charge against some persons, whose names did not appear in charge-sheet was without merit. The said persons are arrayed as opposite party Nos. 2 to 11 in this application. In this application it was stated that in addition to three persons who had been arraigned as accused, role of some others clearly established them to be equally responsible as would be evident from statements of many who were examined by the police during investigation. The learned Additional Sessions Judge rejected the motion holding that the stage for exercising power under section 319 of the Code had not come. He, however, observed that if during trial circumstances come to fore to warrant proceeding against others, the same shall be done at the appropriate stage. Nevertheless he referred to statements of persons recorded by the Investigating Officer to conclude that prima facie there was no material to proceed against any other persons.

(2.) Mr. Swain, learned counsel appearing for the petitioners submits that though the petition was labeled under section 319 of the Code, in fact the prayer was to frame charge against opp. party Nos. 2 to 11 in terms of section 228 of the Code. Allegations are also levelled against the prosecuting lawyer to the effect that for reason best known to him, there was opposition to the motion made by the petitioner No.1. It is his case that in the greater interest of justice, the learned Additional Sessions Judge should not have looked at the level but should have gone into the substance of the petition.

(3.) Mr. H.S. Misra, learned counsel appearing for some of the opposite parties, submits that the materials on record clearly show the fallacy in the stand of petitioner No.1 about any role having been played by opposite party Nos. 2 to 11 in the alleged incident. He further raises an objection as to the maintainability of the application at the behest of petitioner No. 2, who was not a copetitioner with petitioner No. 1, in the application filed on 6.9.1989.