The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.26 of 2000 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Damodar Biswal and others ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Sudipto Panda, Amicus Curiae For the Respondent : Mr. Raj Bhusan Dash, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 14.08.2025 :: Date of Judgment: 19.08.2025 S.S. Mishra, J. The seven appellants consolidately preferred this appeal assailing the judgment and order dated 07.01.2000 passed by the learned Special Judge, Balasore in Special Case No.46 of 1996, whereby
Legal Reasoning
the learned trial Court found the appellants guilty of the offences under Sections 147/323/506/427/34 of I.P.C. read with Section 3(1)(xi) of the SC & ST (PoA) Act and sentenced them to undergo R.I. for six months on each count. The sentences are directed to run concurrently. 2. The present appeal is pending since 25.01.2000. When the matter
Legal Reasoning
was taken up for hearing, Mr. Sudipto Panda, learned counsel submitted that this is an old file being handled by his senior Mr. Brahmananda Panda, who is no more. He also submitted that he does not have the power to appear in the matter. Therefore, this Court requested Mr. Panda, learned counsel to assist the Court as Amicus Curiae. He has readily accepted the same and after obtaining entire record assisted the Court very effectively. This Court records appreciation for the meaningful assistance rendered by Mr. Panda, learned Amicus Curiae. 3. Heard Mr. Sudipto Panda, learned Amicus Curiae for the appellants and Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the State. 4. During pendency of the present appeal, the appellant No.5-Babuli Nayak has expired. Therefore, the present appeal qua him stood abated. The present appeal is confined only appellant Nos.1, 2, 3, 4, 6 and 7. Page 2 of 8 5. The prosecution case in terse and brief is that the informant- Upendra Mukhi (P.W.2) a member of Scheduled Caste (HADI by caste) on 29.06.1996 at 6.00 P.M. while thatching his house, the accused persons having formed an unlawful assembly and armed with deadly weapons such as lathi, knife and bhujali came to his house and did not allow him to continue with the thatching. They threatened him to kill if he would continue with the work. The informant, out of fear got down from the roof and, thereafter, the accused persons entered inside his house, dragged his daughter-in-law and son to outside and torn their wearing apparels, inflicted injuries on their persons by means of knife. They also damaged his household articles and while decamping, the accused persons threatened him and his family members to kill. 6. The matter was reported at the police station and on the basis of the aforesaid allegations, the police investigated the case and filed the charge-sheet for the offences punishable under Sections 147/323/506/427/34 of I.P.C. read with Section 3(1)(xi) of the SC & ST (PoA) Act. Page 3 of 8 7. The prosecution in order to prove its case examined as many as six witnesses, whereas the defence examined one witness and took a stance of complete denial of the charges and claimed trial. Out of whom, P.W.1, was the doctor, who examined the injured, P.W.2 was the informant and eye witness to the occurrence, P.Ws.3, 4 and 5 are the victims and eye witnesses to the occurrence and P.W.6 was the Investigating Officer of the present case. 8. Mr. Sudipto Panda, learned Amicus Curiae for the appellants submitted that relating to an incident happened on 29.06.1996 an F.I.R was registered on the same day for the offences punishable under Sections 147/323/506/427/34 of I.P.C. read with Section 3(1)(xi) of the SC & ST (PoA) Act. After investigation, charge-sheet in the present case has been filed on 13.12.1996. He submitted that the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rule, 1995 has been incorporated w.e.f. 31.03.1995 and Rule 7 of 1995 Rules mandates that every offence committed under the Act shall be investigated by an officer not below the rank of Deputy Superintendent of Police. Page 4 of 8 Admittedly, P.W.6, who was working as A.S.I. of Police, Khaira has investigated the case. As per the evidence of P.W.6 although he had investigated the entire offence but the charge-sheet has been filed by one Manas Ranjan Tripathy, S.I. of Police, Khaira Police Station. Therefore, the Investigating Officer and the Officer filed the charge-sheet being not the officers of the rank of Deputy Superintendent of Police, the entire investigation is vitiated. Hence, he submitted that the offence under Section 3(1)(xi) of the SC & ST (PoA) Act cannot sustain in the eyes of law. In view of the above, the appellants are acquitted of the charges under Section 3(1)(xi) of the SC & ST (PoA) Act. 9. In so far as the remaining offences under Sections 147/323/506/427 of I.P.C. are concerned, Mr. Panda, submitted that the appellants had prayed for treating them under the Probation of Offenders Act. However, the learned trial Court rejected the same on the ground that since the appellants are convicted under section 3(1)(xi) of the SC & ST (PoA) Act, probation cannot be granted. The learned trial Court while Page 5 of 8 rejecting the prayer of the appellants for treating them under probation, has held as under:- “Heard on the question of sentence. It is submitted on behalf of the convicts that they are first offenders; so, they may be the Probation of the provisions of released and/or Offenders’ Act. Since they have committed the offence U/S 3(xi) of the SC & ST (Prevention of Atrocities Act), I am not inclined to extend the provisions of Probation of Offenders’ Act to the convicts. Hence, each of the convict is sentenced to undergo R.I. for 6 (six) months on each count. The sentences are to run concurrently.” Since the appellants are now acquitted under Section 3(1)(xi) of the SC & ST (PoA) Act, he reiterated his prayer for grant of the benefit of the Probation Of Offenders Act to the appellants. 10. Mr. Panda, learned Amicus Curiae for the appellants further submitted that he would confine his case limited to the question of sentence, because the incident relates back to the year 1996 and at that point of time, the appellants were in their forties, hence, at present all of them are in their late sixties or seventies. The record also reveals that the appellants have already undergone more than one month incarceration. Therefore, sending them to custody to serve out remaining period of Page 6 of 8 sentence at this belated stage would be harsh and would have cascading effect on the entire family. Passing of more than three decades in between has reformed all the appellants, they have been well integrated in the society and all of them are leading a respectable family life. Hence, they are entitled to be treated under the Probation of the Offenders’ Act. 11. Regard being had to the age of the appellants, their societal position, clean antecedents and the fact that the incident had taken place in the year 1996, I am of the considered view that all these appellants are entitled to the benefit of the Probation of Offenders Act and Section 360 of Cr.P.C. Additionally, the case of the appellants are also covered by ratio of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra1. 12. In such view of the matter, the present Criminal Appeal in so far as the conviction is concerned is turned down. But instead of sentencing 1 2012 (Supp-II) OLR 469 Page 7 of 8 the appellants to suffer imprisonment, this Court directs the appellants to be released under Section 4 of the Probation of Offenders Act for a period of six months on their executing bond of Rs.5,000/- (Rupees Five Thousand) each within one month with one surety each for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellants shall keep peace and good behavior and they shall remain under the supervision of the concerned Probation Officer during the aforementioned period of six months.
Decision
13. With the above observation, the CRA is accordingly disposed of. 14. This Court acknowledges the effective and meaningful assistance rendered by Mr. Sudipto Panda, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as a token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 19th August, 2025/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 22-Aug-2025 15:18:50 Page 8 of 8