The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.59 of 2024 Kunja Parida @ Kunja Bihari Parida ..…… Petitioner Mr. A.K. Sahoo, Advocate -Versus- State of Odisha ..……. Opposite Party Mr. B.K. Ragada, AGA CORAM: JUSTICE S.S. MISHRA
Decision
ORDER 07.02.2024 Order No. 01. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2. The petitioner has filed the present petition seeking quashing of the entire criminal prosecution in connection with Binjharpur P.S. Case No.184 of 1993 corresponding to G.R. Case No.877(B) of 1993 pending in the court of the learned S.D.J.M., Jajpur. It appears from the record that although F.I.R. was registered in the year 1993 and the charge-sheet was subsequently filed by the police but the present petitioner being an accused has been absconding. Therefore, repeated NBWs 2 were issued which were not executed. Lastly, when the petitioner came to know about the issuance of NBW by the court below, he approached this Court by filing ABLAPL No.13519 of 2023. The coordinate Bench of this Court disposed of the bail application on 21.11.2023. Pursuant to the said order passed by this Court, the petitioner appeared before the court below and was released on bail. The petitioner is aggrieved by the continuance of the prosecution against him and seeks indulgence. 3. The prosecution case in brief is that during the year 1992 one High School was established in the village Nalagada and Mahakalpada. The School was temporarily functioning in another old School. The villagers demanded to open a separate new School. It is alleged that they have threatened the students taken admission in the old School and asked the parents and the students to take admission in the new School which is being established. On 23.08.1983 the accused persons obstructed one Binod Behera who was proceeding to the School. The accused persons were holding deadly weapons. While the informant and others went to the spot and prevented the illegal action of the accused persons, the accused persons started abusing the 3 informant and others and tried to assault them, as a result of which, the informant and other people sustained injury. The informant Batakrushna Samal submitted a detailed report on the basis of which the F.I.R. was registered. 4. There were as many as sixteen accused persons impleaded in the case. Out of them, nine accused persons were apprehended and they are put to trial. The learned court of C.J.M.-cum-Assistant Sessions Judge, Jajpur in C.T. Case No.220 of 2017 vide its detailed judgment dated 23.10.2017 has acquitted all the nine accused persons. The relevant part of the judgment reads as under: “07. It is now well asserted that the occurrence was taken place in the year 1993, around twenty four years back. The informant and other material witnesses are dead. P.W. 1 who is the informant and other three witnesses who are claimed by the prosecution to be either eye-witnesses or injured to the case attended the court and deposed that they do not have any knowledge about the incident. In such circumstances prosecution declined to invite the the attendance of other witnesses and closed prosecution case. The available evidence lead to the conclusion that the witnesses either due to lapse of time or any settlement outside the court are not interested to depose anything before this court concerning to the alleged incident. There is absolutely no evidence to establish the involvement of the accused persons in the alleged crime. Hence it is of the opinion that the accused persons cannot be held liable for the alleged offences upon which they are being charged. 08. In view of the above facts and findings, I am of the opinion that the prosecution has miserably 4 failed to establish its case against the accused persons U/s.147/148/323/324/307/294/506/149 I.P.C. beyond all reasonable doubt.” Subsequently another accused namely Subash Chandra Samal was also apprehended and put to trial. The learned C.J.M.-cum-Assistant Sessions Judge, Jajpur vide its judgment dated 15.03.2019 in C.T. No.148 of 2018 has recorded an acquittal in favour of the said accused. The relevant part of the said judgment reads as under: “6. For the sake of convenience and to avoid repetition all the points are taken together for consideration. Prosecution in this case has examined four witnesses. From the evidence of P.Ws.1 to 4 it is seen that nobody has supported the prosecution case. All of them have stated that they do not know anything about this case. They also stated that they were not examined by the police. On the prayer of learned Associate Lawyer all these witnesses were learned Prosecutor was declared hostile. The allowed to put leading questions to them. It is seen that the learned Prosecutor could not bring anything from their mouth which will support the prosecution case. In their cross examination P.Ws.1 to 4 stated that the informant Batakrushna Samal died around 20 years back. The prosecution has not examined the injured witness namely Babaji Samal and Binod Bihari Behera. Further, P.W.4 stated that the other injured person i.e. Rabindra Pradhan has also died around 20 years back. It is seen that the case incident took place on 7. 23.08.1993. The informant and other material witnesses are dead. The whereabout of injured persons could not be ascertained by the prosecution. The Investigating Officer was also not examined. The four witnesses examined by the prosecution could not say anything about the occurrence. There 5 is no material on record to connect the accused with the alleged occurrence. 8. Considering the above discussions I feel that, the prosecution has failed to prove its case against the accused beyond all reasonable doubt. In absence of any relevant and cogent evidence on record, I hold the accused not guilty for committing offence punishable U/s. 147/148/323/324/307/294 and 506 read with Section 149 of IPC and he is acquitted U/s.235(1) of Cr.P.C. He is set at liberty and his bail bod stands discharged.” 5. After the aforementioned two separate judgments of the court below acquitting as many as ten accused persons for lack of adequate evidence, the petitioner inter alia contends that putting him to trial in this case is a futile exercise. Therefore, he is praying for indulgence of this Court under inherent jurisdiction. 6. I have carefully perused the record placed before this Court and analysed the evidence recorded by the court below while dealing with the other accused persons those who had faced the trial. Eminently the following things are illuminated from record: (a) The incident had taken place in the year 1993, i.e., about three decades back; (b) Many of the witnesses to the alleged incident have already died. 6 (c) The “so called” eye-witnesses claimed by the prosecution have deposed that they have no knowledge about the incident. (d) The incident being a village affair, perhaps the villagers have settled their grievances outside the Court. Therefore, nobody has come forward to depose against the accused persons. (e) All the accused persons are by now senior citizens. (f) Allegations are minor in nature. 7. For the reasons stated above, it is apparent that even if the petitioner is put to trial, in all probability the prosecution would fail to prove the case beyond reasonable doubt and securing conviction is bleak. The trial would be mere procedural formality. Therefore, this Court should exercise its inherent jurisdiction in the present case. 8. Accordingly, I am of the view that the criminal prosecution pending against the petitioner in connection with Binjharpur P.S. Case No.184 of 1993, corresponding to G.R. Case No.877(B) of 1993 pending in the court of the learned S.D.J.M., Jajpur is liable to be quashed. 9. Therefore, the present petition is allowed and the criminal prosecution pending against the petitioner in 7 connection with Binjharpur P.S. Case No.184 of 1993, corresponding to G.R. Case No.877(B) of 1993 pending in the court of the learned S.D.J.M., Jajpur is quashed. However, taking into consideration the conduct of the petitioner, who has been absconding in the case for a longer time and did not extend cooperation to the investigation, which led to issuance of N.B.W., the petitioner is liable to pay cost of Rs.2,000/- (Rupees two thousand). Petitioner is directed to pay a cost of Rs.2,000/- (Rupees two thousand) to the Orissa High Court Advocates’ Welfare Fund. 10. The CRLMC is disposed of. (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: ASISH KUMAR KAR Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Feb-2024 18:06:22