G SAMBHU RAO Vs. STATE OF ORISSA

JUDGEMENT

(1.) This revision is directed against the order dated 2.5.2003 passed by the learned Sessions Judge, Ganjam-Gajapati at Berhampur in Sessions case No. 368 of 2001 arraigning the petitioner as an additional accused and issuing N.B.W. of Arrest against him.

(2.) The facts giving rise to this revision succinctly stated are that Berhampur Sadar P.S. Case No. 130 (6) dated 9.10.2000 was registered against six accused persons including the petitioner on the allegation that they committed offence punishable under Section 302/34 of I.P.C. On completion of investigation charge sheet was submitted against all but the petitioner for the aforesaid offence. The case having been committed to the Court of Session, charge was framed under Section 302/34 I.P.C. against accused Nanda Sethi, Maya @ Maheswar Gouda, Kalia Gouda and Babula Gouda. Accused Babula Gouda was further charged for the offence under Section 324 of I.P.C. The other accused remained absconded. To establish its case prosecution examined as many as 12 witnesses. At the stage of argument, on 2.5.2003 learned Public Prosecutor submitted before the trial Court that there was ample evidence on record against G. Sambhu Rao (the petitioner) to prima facie hold that he was also involved in commission of the murder. On examination of the evidence on record, the trial Court found P. Ws. 1, 3, 4, 5 and 8 to have also implicated the petitioner in the crime in question. Having been pn'ma facie satisfied regarding the complicity of the petitioner in the alleged offence, it arraigned him as an accused in aid of Section 319 of Cr.P.C. and issued N.B.W.A. against him. Since the trial Court ha already heard argument in sessions Case No. 368 of 2001, it did not prefer to keep it pending and accordingly disposed of it vide order dated 9.5.2003. Being aggrieved with order of adding the petitioner as an accused and issuing N.B.W. of Arrest against him he preferred this Revision.

(3.) Learned counsel appearing for the petitioner submitted that the trial Court committed gross error in arraigning the petitioner as an accused at the fag end of trial. He further submitted that as per the provision contained under Section 319 of Cr.P.C., the newly added accused ought to be tried along with the other accused persons afresh. In the case at hand, since the case against the original accused persons had already been disposed of, there was no scope for trial of the petitioner along with those accused persons and as such he ought not have been arraigned as an accused. Moreover, even though name of the petitioner found place in the F.I.R., since no sufficient material could be collected the I. O. did not submit charge sheet against him. For the selfsame reason the trial Court did not frame charge against him also. Furthermore, the evidence brought out against the petitioner was shaky and there was no prima facie case to hold that the petitioner was involved in commission of crime. Under all these grounds, learned counsel for the petitioner urged to allow the revision and set aside the impugned order. On the contrary, learned Addl. Standing Counsel submitted that the trial Court rightly added the petitioner as an accused in accordance with the provision contained under Section 319 of Cr.P.C.