Panchadia Jaya Vs. State of Orissa - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - as well as the statements under section 161 of the informant and the other witnesses do not show participation of the petitioner in the alleged crime in any manner whatsoever and p. 4. before attending to abovenoted parallel contentions of the petitioner and the state, for a better appreciation of the points raised the citations relied upon need be referred to. thus, a prima facie case from that evidence is well made out against him.orderp.k. tripathy, j.1. being aggrieved by the order dated 23-2-1998 passed by learned sessions judge, koraput at jeypore in s.c. no. 173/96 petitioner has filed this application under section 482 of the criminal procedure code, 1973 (in short, 'the code') to quash that order. it appears from the l.c.r. that on 3-3-1996 huika kumuti was killed. on the basis of the f.i.r. lodged by the widow of the deceased investigation was undertaken and ultimately charge-sheet was submitted against accused mandingi chandal (not a party in this proceeding). he was sent to the court of sessions to face the trial. charge for the offence under section 302, i.p.c. was framed against him. at the stage of recording of evidence informant i.e. the widow of the deceased deposed about participation of the present petitioner in the killing of the deceased. at that stage, learned public prosecutor filed an application before the trial court to invoke the power under section 319 of the code to add the petitioner as an accused in that trial. that petition was allowed vide the impugned order on the ground that evidence of p.w. 1 prima facie shows that petitioner is one of the assailants of the deceased.2. learned counsel for the petitioner argued that f.i.r. as well as the statements under section 161 of the informant and the other witnesses do not show participation of the petitioner in the alleged crime in any manner whatsoever and p.w. 1 has developed a new story only at the stage of her examination in the trial court. he further argued that when the provision under section 319 of the code has to be exercised carefully and only in the event of compelling circumstance, learned sessions judge should not have readily accepted evidence of p.w. 1 and should not have allowed the petition under section 319 of the code. he has relied upon a plithora of decisions regarding the principle under section 319 of the code.3. learned addl. standing counsel, on the other hand, drawing attention of the court to section 319 of the code vis-a-vis the principle of law in the decision relied upon by the petitioner argued that at the stage of consideration of an application under section 319 of the trial court is not required to go to scan case diary or to evaluate the statements recorded under section 161, but to remain confined to the evidence tendered at the time of trial. he argued that when evidence of p.w. 1 is clear and unambiguous regarding participation of the petitioner in the alleged crime, he cannot escape the trial on the ground of non-availability of his name in the f.i.r. or the statement under section 161 of the code.4. before attending to abovenoted parallel contentions of the petitioner and the state, for a better appreciation of the points raised the citations relied upon need be referred to.5. in the case of pepsi food ltd. v. special judicial magistrate (1998) 14 ocr (sc) 1 : (1998 cri lj 1), while dealing with the matter relating to exercise of the power under section 482 of the code and articles 226 and 227 of the constitution, the apex court has said that (at page 8 of cri lj):-summoning of an accused in a criminal case is a serious matter. criminal law cannot be set into motion as a matter of course....(from paragraph 22)keeping in view the abovequoted principle of law it can be safely concluded that power under section 319 should not be exercised as a matter of course unless a proper case is made out for invoking that power.6. in the case of md. muzaffer hussain khan v. state of orissa (1994) 7 ocr 804, this court held that during trial if it appears from the evidence that any person not being an accused has committed any offence for which he or she can be tried together with the accused and in such case the court may proceed against such person for the offence which he appears to have committed. at that stage the power under section 319, which is extraordinary, should be invoked with cautioned if compelling reasons exist for proceeding against a person against whom such evidence appears. at that stage, court is not required to evaluate or appraise evidence as it would amount to prejudging the issue and that 'evidence' as used in section 319 means evidence recorded during the course of inquiry or trial and not the statements recorded by police during investigation or by the court under sections 161 and 164 of the code, respectively.in the cases of m.j. akbar v.orissa industries ltd. (1995) 79 clt 131 and hrushikesh pradhan v. state of orissa (1995) 80 clt 612, this court has reiterated the same principle of law as in the case of md. muzaffar (supra).in the case of municipal corporation of delhi v. ram kishan rohtagi air 1983 sc 67 : (1983 cri lj 159), the apex court has propounded that (at page 163 of cri lj):-section 319 gives ample powers to any court to take cognizance and add any person not being an accused before it and try him along with the other accused. in these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings, have been quashed have also committed the offence the court can take cognizance against them and try them along with the other accused. but, this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.(quoted from placitum)in the case of sohan lal v. state of rajasthan air 1990 sc 2158 : (1990 cri lj 2302), the problem placed before the apex court was as to whether the provisions of section 319 of the code can be availed against the accused persons (emphasis given) who were discharged under section 245 and not under section 203 of the code. in that context, the apex court have propounded that (at page 2309 of cri lj):-.the provisions of section 319 had to be read in consonance with the provisions of section 398 of the code. once a person is found to have been the accused in the case he goes out of the reach of section 319. whether he can be dealt with under any other provisions of the code is a different question. in the case of the accused who has been discharged under the relevant provisions of the code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under section 398 of the code may not be lost sight of...(from paragraph 33)it may be noted here that petitioner was neither charge sheeted nor discharged at any stage.7. in the case at hand, the evidence of p.w. 1 who was both examined and cross-examined, is very clear regarding participation of the petitioner in the occurrence along with the accused who is facing the trial. thus, a prima facie case from that evidence is well made out against him. non-mentioning of his name in the f.i..r. or in the 161 statement is non-consequential because of the mandate of law that evidence recorded during the trial should be perused not the police papers or the case diary. when evidence of p.w. 1 is clear to disclose a prima facie case against the petitioner and the prosecution seeks for his inclusion as an accused in the trial and when there is no allegation and proof of any bias or ill-motive either with the prosecutor or the p.w. 1, learned trial judge was correct in his approach to take recourse to section 319 of the code. he has thus committed an error or illegality in adding the petitioner as an accused in the aforesaid trial. hence, the criminal misc. case is dismissed as there is nothing to interfere with the impugned order.

Judgment:
ORDER

P.K. Tripathy, J.

1. Being aggrieved by the order dated 23-2-1998 passed by learned Sessions Judge, Koraput at Jeypore in S.C. No. 173/96 petitioner has filed this application under Section 482 of the Criminal Procedure Code, 1973 (in short, 'the Code') to quash that order. It appears from the L.C.R. that on 3-3-1996 Huika Kumuti was killed. On the basis of the F.I.R. lodged by the widow of the deceased investigation was undertaken and ultimately charge-sheet was submitted against accused Mandingi Chandal (not a party in this proceeding). He was sent to the Court of Sessions to face the trial. Charge for the offence under Section 302, I.P.C. was framed against him. At the stage of recording of evidence informant i.e. the widow of the deceased deposed about participation of the present petitioner in the killing of the deceased. At that stage, learned Public Prosecutor filed an application before the trial Court to invoke the power under Section 319 of the Code to add the petitioner as an accused in that trial. That petition was allowed vide the impugned order on the ground that evidence of P.W. 1 prima facie shows that petitioner is one of the assailants of the deceased.

2. Learned Counsel for the petitioner argued that F.I.R. as well as the statements under Section 161 of the informant and the other witnesses do not show participation of the petitioner in the alleged crime in any manner whatsoever and P.W. 1 has developed a new story only at the stage of her examination in the trial Court. He further argued that when the provision under Section 319 of the Code has to be exercised carefully and only in the event of compelling circumstance, learned Sessions Judge should not have readily accepted evidence of P.W. 1 and should not have allowed the petition under Section 319 of the Code. He has relied upon a plithora of decisions regarding the principle under Section 319 of the Code.

3. Learned Addl. Standing Counsel, on the other hand, drawing attention of the Court to Section 319 of the Code vis-a-vis the principle of law in the decision relied upon by the petitioner argued that at the stage of consideration of an application under Section 319 of the trial Court is not required to go to scan case diary or to evaluate the statements recorded under Section 161, but to remain confined to the evidence tendered at the time of trial. He argued that when evidence of P.W. 1 is clear and unambiguous regarding participation of the petitioner in the alleged crime, he cannot escape the trial on the ground of non-availability of his name in the F.I.R. or the statement under Section 161 of the Code.

4. Before attending to abovenoted parallel contentions of the petitioner and the State, for a better appreciation of the points raised the citations relied upon need be referred to.

5. In the case of Pepsi Food Ltd. v. Special Judicial Magistrate (1998) 14 OCR (SC) 1 : (1998 Cri LJ 1), while dealing with the matter relating to exercise of the power under Section 482 of the Code and Articles 226 and 227 of the Constitution, the Apex Court has said that (at page 8 of Cri LJ):-

Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course....

(from paragraph 22)

Keeping in view the abovequoted principle of law it can be safely concluded that power under Section 319 should not be exercised as a matter of course unless a proper case is made out for invoking that power.

6. In the case of Md. Muzaffer Hussain Khan v. State of Orissa (1994) 7 OCR 804, this Court held that during trial if it appears from the evidence that any person not being an accused has committed any offence for which he or she can be tried together with the accused and in such case the Court may proceed against such person for the offence which he appears to have committed. At that stage the power under Section 319, which is extraordinary, should be invoked with cautioned if compelling reasons exist for proceeding against a person against whom such evidence appears. At that stage, Court is not required to evaluate or appraise evidence as it would amount to prejudging the issue and that 'evidence' as used in Section 319 means evidence recorded during the course of inquiry or trial and not the statements recorded by police during investigation or by the Court under Sections 161 and 164 of the Code, respectively.

In the cases of M.J. Akbar v.Orissa Industries Ltd. (1995) 79 CLT 131 and Hrushikesh Pradhan v. State of Orissa (1995) 80 CLT 612, this Court has reiterated the same principle of law as in the case of Md. Muzaffar (supra).

In the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi AIR 1983 SC 67 : (1983 Cri LJ 159), the Apex Court has propounded that (at page 163 of Cri LJ):-

Section 319 gives ample powers to any Court to take cognizance and add any person not being an accused before it and try him along with the other accused. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings, have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.

(quoted from placitum)

In the case of Sohan Lal v. State of Rajasthan AIR 1990 SC 2158 : (1990 Cri LJ 2302), the problem placed before the Apex Court was as to whether the provisions of Section 319 of the Code can be availed against the accused persons (emphasis given) who were discharged under Section 245 and not under Section 203 of the Code. In that context, the Apex Court have propounded that (at page 2309 of Cri LJ):-.The provisions of Section 319 had to be read in consonance with the provisions of Section 398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of Section 319. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under Section 398 of the Code may not be lost sight of...(from paragraph 33)

It may be noted here that petitioner was neither charge sheeted nor discharged at any stage.

7. In the case at hand, the evidence of P.W. 1 who was both examined and cross-examined, is very clear regarding participation of the petitioner in the occurrence along with the accused who is facing the trial. Thus, a prima facie case from that evidence is well made out against him. Non-mentioning of his name in the F.I..R. or in the 161 statement is non-consequential because of the mandate of law that evidence recorded during the trial should be perused not the police papers or the case diary. When evidence of P.W. 1 is clear to disclose a prima facie case against the petitioner and the prosecution seeks for his inclusion as an accused in the trial and when there is no allegation and proof of any bias or ill-motive either with the prosecutor or the P.W. 1, learned trial Judge was correct in his approach to take recourse to Section 319 of the Code. He has thus committed an error or illegality in adding the petitioner as an accused in the aforesaid trial. Hence, the Criminal Misc. case is dismissed as there is nothing to interfere with the impugned order.