Orissa High Court
Avijit Bastia & Another vs State Of Odisha & Another ……. … on 10 April, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4498 of 2024
(In the matter of an application under Section 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023)
Avijit Bastia & another ....... Petitioners
-Versus-
State of Odisha & another ....... Opposite Parties
For the Petitioners : Mr. Rakesh Behera,
Advocate
For the Opposite Parties : Mr. S.N. Biswal, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
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Date of Hearing: 04.03.2025 Date of Judgment: 10.04.2025
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S.S. Mishra, J. The petitioners have filed the present application
under Section 528 of the Bharatiya Nagarik Suraksha Sanhita,
2023 (BNSS) [corresponding to Section 482 CrPC], seeking
quashing of the order dated 09.09.2024 passed by the learned
Sessions-cum-Special Judge, Jagatsinghpur in C.T. Case No. 329
of 2023 arising out of Biridi P.S. Case No. 350 of 2023, whereby
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the learned Trial Court by allowing the application of the
prosecution under Section 358 BNSS, summoned the petitioners
to face the trial.
2. The case originates from an FIR lodged on 10.12.2023 by
Opposite Party No. 2 (informant) at Biridi P.S., alleging that the
occurrence took place on 10.12.2023 at about 11:30 AM on a
public road in front of the Petitioners’ house. A marriage function
was being celebrated in the family of Anil Mallick, which the
complainant attended. At that time, accused Biswajit Bastia, Avijit
Bastia, and Jagatjeet Bastia were passing through the spot on a
motorcycle. The complainant’s son, Susanta, was standing by the
roadside when the accused stopped near him and allegedly stated,
“Kandara Bahaghara Kan Dekhiba, Sala ku Chuin le Chuan
Heba”.
3. Upon Susanta’s objection, Biswajit Bastia allegedly inflicted
a fist blow on his face, while Avijit and Jagatjeet Bastia also
assaulted him, causing him to fall to the ground. The complaint led
to an investigation, during which the police did not find sufficient
material to charge-sheet the Petitioners (Avijit and Jagatjeet
Bastia).
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4. The police, after investigation, filed a chargesheet only
against Biswajit Bastia under Sections 294, 323 of IPC read with
Sections 3(1)(r), 3(1)(s), and 3(2)(va) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989. The
present petitioners were not charge-sheeted due to lack of
substantiated evidence against them.
5. The case was committed to the learned District & Sessions-
cum-Special Judge, Jagatsinghpur, and registered as C.T. Case No.
329 of 2023. Cognizance was taken on 02.02.2024, and charges
were framed against the charge-sheeted accused on 26.06.2024.
The trial commenced, and seven witnesses were examined.
6. At this stage, the prosecution moved an application under
Section 358 BNSS, seeking to add the petitioners as accused
persons based on the depositions of PWs 1, 2, 3, and 4. The
learned Trial Court allowed the application on 09.09.2024,
summoning the petitioners as additional accused.
7. Aggrieved by the said order, the petitioners have approached
this Court, contending that the impugned order suffers from legal
infirmities and is liable to be quashed.
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8. Mr. Behera, learned Counsel appearing for the petitioners
submitted that the impugned order dated 09.09.2024, summoning
them under Section 319 CrPC, is legally unsustainable. The power
under Section 319 CrPC is extraordinary and should be exercised
only when strong, cogent evidence emerges during trial,
establishing direct involvement. However, in the present case, the
learned Trial Court has mechanically relied on prosecution
witnesses depositions without identifying any fresh evidence
justifying the summoning of the Petitioners. This is contrary to the
principles laid down in Hardeep Singh vs. State of Punjab
[(2014) 3 SCC 92], where the Hon’ble Supreme Court held that
summoning under Section 319 CrPC requires a higher standard
than prima facie evidence, nearing the threshold of conviction.
9. Furthermore, relying on the judgement of the Hon’ble
Supreme Court in Sarojben Ashwinkumar Shah vs. State of
Gujarat [(2011) 13 SCC 316] submitted that pre-existing materials
from the chargesheet cannot form the basis for summoning an
accused under Section 319 CrPC. In the present case, the
prosecution witnesses have merely reiterated the allegations made
during the investigation, without introducing any new substantive
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evidence. The learned Trial Court also failed to consider that the
cross-examination version of the witnesses is essential to be taken
into consideration before invoking Section 319 CrPC. In that
regard, he relied upon Hetram vs. State of Rajasthan [2024 INSC
903]. The contradictions in evidence further weaken the
prosecution’s case, rendering the summoning order legally flawed.
10. The Petitioners also submitted that there is no independent
corroboration of the allegations, particularly regarding Section 3 of
the SC/ST (PoA) Act, which requires the act to have been
committed in public view. The absence of neutral witnesses was
the reason the Investigating Officer did not charge-sheet the
Petitioners initially. Moreover, summoning the Petitioners at an
advanced stage of trial, after seven out of nine charge-sheeted
witnesses have been examined, violates their right to a speedy trial
and causes unnecessary delay.
11. Given that the learned Trial Court has failed to apply the
principles laid down by the Hon’ble Supreme Court and has acted
contrary to settled law, the Petitioners pray that this Hon’ble Court
quash the impugned order summoning them under Section 319
CrPC and grant any other relief deemed just and proper in the
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interest of justice.
12. Mr. Biswal, learned Additional Standing Counsel, appearing
for the State, opposing the petition, argued that the impugned
order is legally sound and does not warrant interference. It is
submitted that the Trial Court has rightly exercised its power
under Section 358 BNSS, as testimonies of the witnesses during
trial sufficiently implicated the petitioners in the alleged offences.
13. The prosecution relied on Mohit @ Sonu & Another v.
State of Uttar Pradesh & Another [(2013) 7 SCC 789], wherein
the Supreme Court have held that a revisional remedy under
Sections 397/401 CrPC should be preferred over a petition under
Section 482 CrPC unless there is a gross miscarriage of justice. In
Mohit (supra), the Hon’ble Supreme Court observed:
“28. So far as the inherent power of the High Court as
contained in Section 482 CrPC is concerned, the law in
this regard is set at rest by this Court in a catena of
decisions. However, we would like to reiterate that when
an order, not interlocutory in nature, can be assailed in
the High Court in revisional jurisdiction, then there should
be a bar in invoking the inherent jurisdiction of the High
Court. In other words, inherent power of the Court can be
exercised when there is no remedy provided in the Code of
Criminal Procedure for redressal of the grievance. It is
well settled that the inherent power of the Court can
ordinarily be exercised when there is no express provision
in the Code under which order impugned can be
challenged.”
14. It is further argued that the degree of satisfaction for
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summoning an additional accused is not as stringent as required
for conviction but should be higher than the prima facie standard
applied at the stage of framing charges. Since the Trial Court
found sufficient material suggesting the petitioners’ complicity,
the exercise of discretion under Section 358 BNSS was justified.
15. I have carefully gone through the material placed before this
Court and evaluated the material in the light of judgement cited at
the bar. The names of the present petitioners were found
mentioned in the FIR. Specific overt acts were attributed to them.
However, when the police examined the witnesses, the witnesses
had given a blurred picture regarding the incident. Therefore, the
Investigating Officer (IO) exonerated the present petitioners and
filed a chargesheet against the principal accused. However, during
the progression of the trial, as many as seven witnesses have
specifically taken the name of the petitioners and attributed overt
acts against them. The evidence of these witnesses in unison have
implicated the petitioners, for brevity. Those evidences are not
reproduced herein.
16. Learned counsel for petitioners has attempted to point out
contradictions in the evidence of those witnesses and emphatically
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drew the attention of the Court regarding the material that came in
the cross-examination. Following contradictions are highlighted by
the petitioners are worth reproducing.
“2. For that, there are discrepancies in depositions
1,2,3 and 4 vital points which suspicion. As to the
role the petitioners P.W.3 has stated paragraph of his
deposition-
……..At that time, Biswajit, Abhijeet and
Jagatjit were proceeding to their house. Finding
me they started abusing me as “Kandara,
Maghia”…….
P.W.4 has stated in Paragraph 1 of her deposition-
……..At that time, Biswajit, Abhijeet and
Jagatjit were passing in front of our house on the
road. On finding my husband, Biswajit stated
that “Kandara Bahaghara Dekhile Amara Jaati
Jiba”
As to the duration of the occurrence, P.W.3 has stated
in paragraph 7 of his cross-examination that-
“…..The entire incident continued for 5 to 7
minutes.”
P.W.2 has stated in paragraph 6 of his cross-
examination that-
".....Occurrence continued for 10-15
minutes......."
As to who tore the saree of P.W.4, P.W.4 has stated in
paragraph 2 of her deposition that
“…..When I intervened, Biswajit twisted my left
hand and pushed at my neck, tore my saree and
blouse……”
P.W.1 has stated in paragraph 2 of his deposition
that-
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“…..When my daughter in law intervened to save
her husband, the three accused persons
assaulted her and twisted her hands. They also
removed her saree to some extent….”
As to previous enmity between the complainant and
the petitioners P.W.3 has stated in his cross-
examination at paragraph 5 that-
“I had previous enmity with the accused one
year prior to this occurrence….”
P.W.1 has stated in his cross-examination at
paragraph 5 that-
“the above three persons had no prior enmity with
my son….”
17. The nature of evidence which has come on record
undoubtedly brings the complicity of petitioners into the crime. At
this stage, while exercising jurisdiction under Section 528 of
BNSS, the Court is forbidden to delve upon the merits of evidence
by appreciating the same. The only test at this stage to sustain the
impugned order is to arrive at a satisfaction as to whether enough
material has come on the record to summon the witness or not.
The Court need not weigh the quality of evidence which would
eventually lead to conviction, but the evidence should be a little
higher than the prima facie standard. In the case of N. MANOGAR
vs. THE INSPECTOR OF POLICE, 2024 LiveLaw (SC) 197, the
Constitution Bench of the Hon’ble Supreme Court significantly
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refering to its prior decision in Hardeep Singh v State of Punjab
& Ors., (2014) 3 SCC 92 has held:
“Power Under Section 319 Code of Criminal Procedure is
a discretionary and an extraordinary power. It is to be
exercised sparingly and only in those cases where the
circumstances of the case so warrant. It is not to be
exercised because the magistrate or the sessions judge is of
the opinion that some other person may also be guilty of
committing that offence. Only where strong and cogent
evidence occurs against a person from the evidence laid
before the court that such power should be exercised and
not in a casual and cavalier manner.” “Thus we hold that
though only a prima facie case is to be established from the
evidence laid before the court, not necessarily tested on the
anvil of cross-examination, it requires much strong
evidence that near probability of his complicity. The test
that has to be applied is one which 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. In the absence of such
satisfaction, the court should refrain from exercising power
Under Section 319 Code of Criminal Procedure.”
“The High Court failed to appreciate that the discretionary
powers under Section 319 of the CrPC ought to have been
used sparingly where circumstances of the case so warrant.
In the present case, the Trial Court Order was well
reasoned and did not suffer from any perversity. Moreover,
the materials on record could not be said to have satisfied
the threshold envisaged under Hardeep Singh (Supra) i.e.,
more than a prima facie case, as exercised at the time of
framing of charge but short of evidence that if left
unrebutted would lead to conviction.”
18. In my considered view, the evidence brought by the
prosecution unescapably warrants the summoning of the accused
persons. At this stage, it is jurisdictionally forbidden for the High
Court to delve upon the quality, quantity and trustworthiness of the
witnesses deposed against the petitioners. Once material worth
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summoning an accused born on record, the trial Court shall
exercise its power under Section 319 CrPC to summon the accused
and afford the opportunity of fair trial in accordance with law.
19. In view of the foregoing discussion on material facts on
record and Judgments cited by the parties at the bar, this Court is
not inclined to interfere with the impugned order as no legal
infirmity is found prominently warranting to exercise the
jurisdiction under Section 482 CrPC.
20. This CRLMC is accordingly dismissed.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
The 10th day of April, 2025/ Subhasis
Signature Not Verified
Digitally Signed
Signed by: SUBHASIS MOHANTY
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 14-Apr-2025 12:40:50
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