Bimbadhara Lenka vs State of Orissa and Others

A. Pasayat, J.—The informant in G.R. Case No. 13 of 1989 of the Court of Judicial Magistrate, first class, Cuttack which is subject-matter of trial in Sessions Trial No. 218 of 1990 questions legality of the order passed by the learned Assistant Session Judge, Cuttack refusing the prayer to summon Tulu Lenka and Milu Lenka to stand for trial.

The background facts sand unnecessary details are as follows ;

The petitioner lodged first information report at the Niali Police Station on 8-1 -1983, inter alia stating that one Inspector of Supplies had come to village Kapasi to enquire into the allegations made by some of the villagers against one dealer of controlled commodities, namely. Laxmidhar Mohanty, Several witnesses were examined by the said Inspector to ascertain whether they were getting the essential commodities from the dealer regularly. On 6-1-1989 the aforesaid Laxmidhar Mohanty demanded his dues from Prasanna Mohanty and there was verbal altercation between them. On the next day, the said Laxmidhar Mohanty and some of his supporters held a meeting where a decision was taken to assault Prasanna Mohanty. On the date of occurrence, i.e. 9-1-1989 Rama Mohanty and some others went to the house of Prasanna Mohanty and demanded the dues. Whan Prasanna Mohanty wanted some time to pay the dues,,Laxmidhar Mohanty abused one Puma Lenka. The informant went to Rama Mohanty and Laxman Mohanty and questioned why Prasanna was abused. Taking exception Laxman Mohanty, Janu, Mantu, Tulu Lenka and Milu Lenka and others pelted brick bats at the house of the informant. After some time, Janu Lenka and Mantu Lenka set fire to one Chakradhar Lenka''s house and some others also set fire to the said house. Several persons also set fire to the house of Jogi Lenka. On account of brick batting, several persons received bleeding injuries. One Braja Lenka was given a farsa blow by Bijaya Lenka. Obstructions were made when several persons tried to put out the fire. After investigation charge-sheet was submitted Under Sections 147/148/436/336/337/326/323/149, IPC. Cognizance of the aforesaid offences was taken by the learned Judicial Magistrate, first class,(Rural)Cuttack against 21 accused persons against whom charge-sheet has been submitted. The case was committed to the Court of Session for trial. During the course of trial, an application was filed to summon Tulu Lenka and Milu Lenka to face trial on the ground that the evidence of PWs 2 and 3 disclosed the role played by the aforesaid two persons in setting fire to the house of Chakradhar Lenka and Tribakar Lenka. The motion was resisted by the accused persons on the ground that the application was not maintainable in law as there was no material to summon the aforesaid two persons. Reference was made to the first information report lodged by the petitioner wherein it was slated that Tulu Lenka and Milu Lenka along with Janu Lenka and others pelted brick bats to the house of Bimbadhar Lenka. the petitioner. Initially the informant-petitioner did not implicate Tulu Lenka and Milu Lenka in the alleged arson, and the only allegation made against them in the FIR was that they had pelted brick bats. The evidence of the informant-petitioner who was examined as PW 1 was also referred to. His evidence was only to the effect that the aforesaid Tuiu and Milu along with others raised a cry to assault.

The learned trial Judge analysed the evidence of, PW 1 and observed that the informant-petitioner had not implicated Milu and Tulu in the offence of arson, though PWs 2 and 3 had implicated the afore- said Tulu and Milu in the offence of arson, and PW 4''s evidence was to the effect that Tulu and Milu set fire to the house by using burning cycle tyres. The learned trial Judge found that the informant-petitioner had not implicated Tulu and Milu in the offence of arson in the FIR. PWs 6, 7, 9, 11 and 12 did not implicate Milu and Tulu in their evidence. According to the prosecution, in any event an offence u/s 337, IPC was clearly made out against accused Milu and Tulu. The learned trial Judge found that PWs 4, 5 and 6 did not state about pelting of brick bats. We made reference to the case diary, particularly statements of Bishnu Ch. Sahu, Asst. Teacher of Pahanga school wherein it was stated that at the relevant time Milu was reading in Pahanga School and had not left the hostel either with the permission or without permission on 8-1-1989. With reference to the statements of two other persons namely Manas Ranjan Naik and Umasankar Naik it was observed that Tulu was reading in Nialt College with them and was remaining with them in a mess in the year 1989. From this/learned trial Judge concluded that Milu and Tulu could not have been at the alleged place of occurrence. Accordingly he rejected the motion for issue of summons to Milu Lenka and Tutu Lenka. The learned counsel for petitioner submitted that the approach of the learned trial Judge is erroneous and goes against the very purpose for which v. 319 of the Code of Criminal Procedure, 1973 (in short, the ''Code'') was enacted.

In spite of notice, there is no appearance on behalf Milu Lenka and Tulu Lenka,

Section 319 of the Code corresponds to Section 351 of the repealed Code of Criminal Procedure, 1898 (in short, the ''old Code''). Section 319 of the Code as it presently stands, is the recast version of Section 351 of the old Code based on the recommendations made by the Law Commission in its 41st Report. The main purpose for which this provision has been enacted is to ensure that the whole case against all known suspects should be proceeded with expeditiously, and convenience requires that cognizance against the newly added accused should be taken in the same manner as against the other accused. Section 319 empowers the Court to proceed against persons not being the accused, appearing to be guilty of offence. Sub-sac. (1) and (2) of this section provide for a situation when a Court hearing a case against certain accused person finds from the evidence that some person or persons, other than the accused before it, is or also connected in this very offence or any connected offence; and it empowers the Court to proceed against such person or persons for the offence which he or they appears or appear to have committed and issue process for the purpose. It provides that the cognizance against newly added accused is deemed to have been taken in the same manner in which cognizance was first taken of the offence against the earlier accused.

The use of expression ''may proceed'' makes it clear that the power u/s 319 is a discretionary power which is to be exercised by the Magistrate on considerations such as the following :

(i) He must be satisfied that the evidence or the circumstances disclosed warrant that a person not brought up for a trial should also be arraigned as accused, and made to face the trial, and that the charge for the same or connected offence could be substantiated against him as well.

(ii) This power of the Court should not be allowed to be used as a false plea by the original accused that the case could not proceed without persons being joined as co-accused.

(iii) The Court must also see that in its anxiety to effectively administer justice, it does not indirectly contribute to the obliteration of the case against the main offender or offenders.

The section has been provided in the Code with a design and for effective administration of justice. The framers of the Code did not want the Court to feel helpless when it found that the porosecution had laid charge sheet only against some persons concerned in an offence and had left out some others either intentionally or unintentionally The words "it appears from the evidence that any person not being the accused has committed any offence" appearing in the said section are very significant and provide a key to the proper construction of the same. On their plain meaning all that they connote is that there must be some legal evidence on the record showing involvement of any person other than the accused before the Court in the commission of an offence. Of course, the evidence must be sufficient to make out a prima facie case against such a person and satisfy all the essential ingredients constituting the offence for which he is sought to be prosecuted. However, the Court at that stage is not called upon to evaluate or appraise the evidence with a view to assess whether the evidence is sufficient for his ultimate conviction. (See Sohan Lal and others Vs. State of Rajasthan, . In Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, it was observed that Section 319 has application when the prosecution satisfies the Court that the other accused or those who have not been arraigned as accused have also committed the offence. The Court can take cognizance against them and try them along with the other accused. It would all depend on the facts and circumstances of a particular case whether exercise of power u/s 319 is warranted or not. Merely because some others have been left out is not a factor in their favour, if the Court is satisfied about existence of prima facie evidence against the persons concerned.

In the case at hand the approach of the learned trial Judge appears to be somewhat unusual, He has referred to the statements recorded during investigation u/s 161 of the Code which per se is no evidence. He was not required to adjudicate whether there is possibility of conviction or not. He was to be satisfied whether prima facie a case existed against the persons whose arraingment as accused was prayed for. Omission of some witnesses to state about the role played by those persons, may be vital while considering the question of their innocence or guilt. This is not a case where it can be said that there is total absence of evidence against Tulu Lenka and Milu Lenka. Some of the witnesses have stated about the role played by them. Therefore, there was prima facie evidence against them, which was sufficient to attract exercise of power u/s 319. The learned trial Judge was not justified in rejecting the prayer to issue summons to them to stand trial. The order is accordingly set aside. I make it clear that my interference shall not be construed as if I have expressed any opinion about innocence or guilt of abovenamed Tulu Lenka and Milu Lenka

The revision application is allowed.