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Judgment
Arindam Sinha, J
Appellant is aggrieved by order dated 16th August, 2023 made by the Additional District and Sessions Judge in exercising power under section 319 in Code of Criminal Procedure, 1973, to add him as an accused in the case on trial.
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 dated 13th November, 2018 in Criminal Appeal no.1349 of 2018 (Labhuji Amratji Thakor and others v. The State of Gujarat) declared that section 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.
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 13th November, 2013. The Captain, Officer Commanding of 10 Dispatch Rider, section 10 replied by letter dated 25th March, 2014. Paragraphs 1 and 2 from the letter are reproduced below.
“1. Ref your case No.112 dt 14 Nov 2013 u/s 341/323/324/354/307/506/34 IPC and 3(1)(X)(XI) SC/ST(PA) Act.
In reference to your letter mentioned above it is to inform you that the fact and finding of the above subject case as mentioned there in have been examined and found that L/NK Sangram Keshari Jena S/O Bharat Chandra Jena was present in Defence duty in his head quarter at Jabalpur on 13 Nov 2013 so question does not arise in the subject offence.”
(emphasis supplied)
Accordingly appellant was not named in the charge-sheet.
Mr. Nayak, learned advocate appears on behalf of respondent no.2 (informant). He submits, appellant was named in the FIR. The persons, who witnessed the occurrence, were examined by the police and they all asserted that appellant was present. However, the police did not name him in the charge-sheet. Said persons again deposed at trial that appellant was present. In the circumstances, the Court exercised power under section 319 and there should not be interference in appeal.
The letter sent by the Commanding Officer, on presence of appellant at Jabalpur, as on duty, is at best a certificate. It is not primary evidence. The trial Court has relied on statements made in the investigation by persons, who claimed to be ocular witnesses. In the circumstances, this aspect supports exercise of the extraordinary power, to add appellant as accused in the case.
Applying the test as in Labhuji Amratji Thakor (supra), it is to be seen that if there is no cross-examination of the persons, who claimed to be ocular witnesses, it will lead to conviction. Result of examination of the persons by the police as well as the trial Court is that appellant was seen at the occurrence. Such evidence, in event unchallenged, would be reliable evidence for the trial Court to act upon. At this stage there is satisfaction obtained on successful application of the test, in the making of impugned order.
No interference is warranted in appeal. However, on appellant facing trial, he will be entitled to his defence including by production of primary evidence, to show he was on duty at Jabalpur on 13th November, 2013. Mr. Khatua submits, trial Court had straight away issued warrant. His client will be represented on the next date in the trial Court. The submission stands recorded.
The appeal is accordingly disposed of.
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