Allowed

Pravakar Sahoo v. State of Orissa

Orissa HC9 Mar 2021CRLMC/1385/2016

Case brief

AI extract

What is this about?

The High Court allowed a petition under Section 482 Cr.P.C. to quash an order rejecting a Section 319 application to summon additional accused in a dowry death trial. The Court held the trial court committed material irregularity by not scrutinizing the entire evidence before rejecting the prayer, despite settled law allowing such summoning at any stage if involvement is disclosed.

What did the court decide?

CRLMC allowed; impugned order set aside; matter remitted to Addl. Sessions Judge, Jajpur to re-address the prayer within 15 days.

Pravakar Sahoo Vs State of Orissa — Dowry and Cruelty | Orissa HC (2021)

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CORAM :- HON’BLE SHRI JUSTICE S.PUJAHARI

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CRLMC NO.1385 OF 2016

Pravakar Sahoo.

…….. Petitioner

-Versus-

State of Orissa & others.

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…….. Opp.parties

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O R D E R

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09.03.2021

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This is an application filed under Section 482 of

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Cr.P.C. seeking for quashment / modification of the order dated 20.02.2016 passed by the learned Addl. Sessions Judge, Jajpur in C.T. Case No.296 of 2013 rejecting the petition filed by the Informant-petitioner under Section 319 of Cr.P.C.

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2. Heard the learned counsel appearing for both the sides and perused the impugned order and other materials on record vis-à-vis the averments made by the petitioner in his application under Section 482 of Cr.P.C.

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3. Deceased – Minati Sahoo is the sister of the petitioner and her marriage had been solemnized with the accused – Santosh Sahoo on 03.12.2010. Alleging the accused – Santosh and his relatives to have

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subjected the deceased to dowry related torture and to have committed her murder, the petitioner lodged a report with police, and pursuant to the said report (FIR), police registered a case against Santosh Sahoo and unnamed relatives under Sections 498A/302/304-B/34 of I.P.C. and Section 4 of the Dowry Prohibition Act and on completion of investigation, submitted charge-sheet under Sections 498-A/304B/406 of IPC read with Section 4 of the D.P. Act against the sole accused – Santosh Sahoo. Cognizance was taken accordingly, and the case on being committed to the Court of Session is now under trial before the learned Addl. Sessions Judge, Jajpur. As it appears, after examination of the witnesses, while the case stood posted for hearing of argument, the learned counsel for the prosecution filed a petition under Section 319 of Cr.P.C. seeking for summoning the present opposite party nos.2 to 6 to be tried together with the charge-sheeted accused – Santosh for the offences on the ground that it is transparent in the evidence adduced by the prosecution that the said

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opposite parties were involved in the commission of the offences. The learned trial Court, however, on having heard the learned prosecution counsel as well as the learned counsel for the accused – Santosh rejected the said petition vide the impugned order citing the reason that none of the prosecution witnesses examined during trial has named the persons sought to be summoned / proceeded against. The belatedness of the petition was also taken note of by the trial Court, inasmuch as the same was filed at the stage of argument.

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4. It is argued by the learned counsel for the petitioner that the learned trial Court lost sight of the oral testimony that the opposite parties were demanding dowry from the deceased and subjecting her to mental and physical torture. It is his further submission that there are ample evidence to show that the deceased died of poisoning, and that this Court in the order dated 24.11.2015 passed in CRLREV No.18 of 2014 has also observed existence of materials regarding involvement of the opposite party nos.2 to 6

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in dowry torture and murder. It is his further submission that since there is no procedural bar for filing such a petition at the stage of argument, the observation of the trial Court regarding delay was redundant.

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5. Per contra, the learned counsel appearing for the State and the learned counsel for the opposite party nos.2 to 6 repudiate the contention advanced on behalf of the petitioner, with their unequivocal submission that since the power as contemplated under Section 319 of Cr.P.C. is extraordinary in nature, the same needs to be exercised sparingly, and the learned trial Court has rightly rejected the petition, inasmuch as the evidence adduced by the prosecution does not make out any case so as to summon the opposite party nos.2 to 6 to face the trial.

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6. Both the sides have also cited certain case laws with regard to the exercise of power under Section 319 of Cr.P.C.

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7. As to the submission of the learned counsel for

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the petitioner with regard to the observation made by

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this Court in the order dated 24.11.2015 in CRLREV No.18 of 2014, it needs no mention that the question that was posed before this Court in the said Revision was as to whether the materials produced by the Investigating Agency / prosecution were sufficient to frame charge under Section 302 of IPC against the charge-sheeted accused – Santosh Sahoo. It was not a question of determination at that stage as to whether or not the materials warranted for framing of any charge against the present opposite party nos.2 to 6 much less for the offence under Section 302 of IPC. Hence, observation, if any, made in the said order cannot be sought to be appropriated by the petitioner for the purpose at hand which contemplates a different situation and different consideration.

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8. In the case of Hardeep Singh Vrs. State of Punjab , reported in (2014) 3 SCC 92 , a Constitution Bench of the Apex Court taking almost all the earlier decisions rendered with regard to adding of accused persons who are not charge-sheeted, have held as follows:-

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“8. The constitutional mandate under Articles 20 and 21 of the Constitution of India provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under CrPC indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished.

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The presumption of innocence is the general law of the land as every man is presumed to be innocent unless proven to be guilty. Alternatively, certain statutory presumptions in relation to certain class of offences have been raised against the accused whereby the presumption of guilt prevails till the accused discharges his burden upon an onus being cast upon him under the law to prove himself to be innocent. These competing theories have been kept in mind by the legislature. The entire effort, therefore, is not to allow the real perpetrator of an offence to get away unpunished. This is also a part of fair trial and in our opinion, in order to achieve this very end that the legislature thought of incorporating provisions of Section 319 CrPC. It is with the said object in mind that a constructive and purposive interpretation should be adopted that advances the cause of justice and does not dilute the intention of the statute conferring powers on the court to carry out the abovementioned avowed object and purpose to try the person to the satisfaction of the court as an accomplice in the commission of the offence that is the subject-matter of trial.”

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So also, in answer to the question the nature of satisfaction to invoke the power under Section 319 of Cr.P.C. to arraign as an accused, the Apex Court in the aforesaid case have held as follows:-

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“117.5. Though under Section 319(4)(b) CrPC the accused subsequently impleaded is to be treated as if he had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 CrPC would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.”

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9. Taking note of the aforesaid law laid down, when

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the order impugned is addressed, it appears to this Court that the trial Court in oblivious to the same, as because the names of the persons sought to be arrayed as accused persons by the petitioner were not finding

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place in the F.I.R. and also scrutinizing the evidence at random as well as delay in filing the petition, rejected such prayer. Law is well settled that even though someone had not been initially named in the F.I.R. as an accused or not charge-sheeted though named, can be arraigned as an accused to face the trial, if the evidence collected during the course of any enquiry into or trial of an offence against another, discloses his involvement in the said case in exercise of power under Section 319 of Cr.P.C. to face the trial along with the accused, who is being tried. There is also no impediment in law to exercise such power at any stage of the proceeding, even at the stage of argument. However, such power has to be exercised sparingly. Therefore, the evidence on record unless so warrants, the Court should not exercise such power. The Apex Court in the case of Hardeep Singh (supra) have held that the nature of satisfaction that is required to be recorded for proceeding against the person who has not been arraigned as accused under Section 319 of Cr.P.C. As it appears, in the impugned order, the trial

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Court remained oblivious to the aforesaid provision of law, inasmuch as without scrutinizing the entire evidence, had scrutinized the evidence in random and also taking note of the fact that the persons sought to be arraigned as accused persons were not named in the F.I.R., rejected the prayer. Since the order is being passed with material irregularity and oblivious to the law, this Court is of the view that the impugned order is unsustainable and liable to be set-aside and the matter is required to be remitted back to the trial Court to re-address the prayer made taking note of the law.

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10. In the result, this CRLMC is allowed, the impugned order is set-aside and the matter is remitted back to the learned Addl. Sessions Judge, Jajpur to readdress the prayer made taking note of the law laid down in the case of Hardeep Singh (supra) and also the evidence on record within a period of fifteen days of receipt / production of the certified copy of this order. However, it is made clear that this order of remand should not be construed as a finding in favour of the petition filed by the petitioners or expression of any

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opinion on merit of the same. As such, the learned Addl. Sessions Judge, Jajpur is at liberty to decide the same in its own merit, but in accordance with law.

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Issue urgent certified copy as per rules.

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……………………… S.Pujahari, J.

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MRS

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Pravakar Sahoo v. State of Orissa

Case brief

What is this about?

What did the court decide?

Pravakar Sahoo v. State of Orissa

Case brief

What is this about?

What did the court decide?

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