The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.576 of 2020 Jaguli Mohapatra @ Jagabandhu Mohapatra and Another …. Petitioners Mr. Basudev Pujari, Advocate -Versus- State of Odisha and Another …. Opposite Parties Mr. Tapas Kumar Praharaj, SC, O.P. No.1 None for O.P. No.2 CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:26.06.2023 1. In the instant case, the petitioners have approached this Court by invoking its inherent jurisdiction under Section 482 Cr.P.C. challenging the initiation and continuation of the criminal proceeding in connection with G.R. Case No.423 of 2012 pending in the file of learned S.D.J.M., Puri corresponding to Brahmagiri P.S. Case No.66(46) of 2012 on the ground that the projected trial against them would be a futile exercise in view of order of acquittal vis-à-vis another accused by a judgment dated 19th March, 2013 delivered in S.T. Case No.72/316 of 2012 by the learned 1st Additional Sessions Judge, Puri.
Legal Reasoning
2. In fact, the FIR was lodged for an incident dated 24th February, 2012, whereafter, Brahmagiri P.S. Case No.66(46) dated 25th February, 2012 was registered under Section 302 read with 34 IPC which culminated in submission of chargesheet under the alleged offence against the petitioners and others. In the meanwhile, one of the chargesheeted accused, namely, Purna Chandra Mohapatra @ Gedu faced trial as others were shown as CRLMC No.576 of 2020 Page 1 of 6 Jaguli Mohapatra@Jagabandhu Mohapatra and Another Vrs. State of Odisha absconders and were not available for enquiry and trial excluding one of them, namely, Sanatan Mohapatra, who was treated as a juvenile in conflict with law. The accused, who was subjected to trial, was acquitted of the levelled charge by the judgment in S.T. Case No.72/316 of 2012 referring to which the petitioners demand quashing of the criminal proceeding on the ground that the material prosecution witnesses turned hostile and therefore, no fruitful purpose would be served with a full-fledged trial which is in the waiting.
Legal Reasoning
3. Heard. Mr. Pujari, learned counsel for the petitioners and Mr. Praharaj, learned SC for the State-opposite party No.1. However, none appeared for the informant-opposite party No.2. 4. Admittedly, the petitioners along with other accused persons were chargesheeted under Section 302 read with 34 IPC but both were shown as absconders and as earlier stated, a co-accused, namely, Purna Chandra Mohapatra @ Gedu was tried by the Sessions court but stood acquitted from the charge. The copies of the judgment in ST Case No.72/316 of 2012 along with chargesheet corresponding to Brahmagiri P.S. Case No.66(46) of 2012 are available in the record for the Courts’ perusal. Mr. Pujari, learned counsel for the petitioners submits that when the entire evidence in S.T. Case No.72/316 of 2012 is hostile and none supported the prosecution story, considering such nature of evidence, to subject the petitioners to a full-blown trial would be an exercise in futility. As a counter, Mr. Praharaj, learned counsel for the State-opposite party No.1 submits that the petitioners were the absconders and because of which, they could not be made to face the trial and now after the order of acquittal in favour of co- accused, cannot be allowed to derive any benefit therefrom and while advancing such an argument, cited a decision in Hidayat Khan @ Hidayatullah Khan Vrs. State of Orissa (CRLMC No.1244 CRLMC No.576 of 2020 Page 2 of 6 Jaguli Mohapatra@Jagabandhu Mohapatra and Another Vrs. State of Odisha of 2004) decided on 26th September, 2017, wherein, this Court held that absconding accused cannot be given premium to frustrate the court of justice or to misuse to process of law with a claim to treat him at par with the other accused, who have shown respect for the legal process. 5. Gone through the judgment in S.T. Case No.72/316 of 2012. In the said case, the prosecution examined as many as eight witnesses including the informant and three of the relations or family members of the informant besides an independent witness being the scribe of the FIR, however, none supported its version. Quite curiously, the wife of the deceased also deposed against the prosecution and all the witnesses, who turned hostile, were examined under Section 154 of the Indian Evidence Act. The certified copies of the depositions of the informant as P.W.1 and others examined as P.Ws.2, 3 & 4 have been placed on record. P.Ws. 1 and 3 did not support the alleged incident dated 24th February, 2012. P.W.1 is the brother-in-law of P.W.3, who is wife of deceased. Interestingly, P.W.1 proved the FIR as Ext.1 but denied to have any knowledge regarding its contents and the scribe of the same. The prosecution examined P.W.1 under Section 154 of the Indian Evidence Act by declaring him as a hostile witness during which only suggestions were put to him and nothing was elicited with regard to the alleged occurrence. The facts of the FIR have not been supported by P.W.1. Again P.W.3, the wife of the deceased simply claimed that she did not know as to how and when her husband died. The entire incident narrated in Ext.1 as to the manner in which the deceased was forcibly taken away by the accused persons and other events followed have been out rightly denied by P.W.3 as well as P.W.1, who are the material witnesses so to say. The I.O. was examined but considering the hostile evidence and the fact that there was CRLMC No.576 of 2020 Page 3 of 6 Jaguli Mohapatra@Jagabandhu Mohapatra and Another Vrs. State of Odisha no chemical examination report and final opinion of the State SFSL, the Sessions court by judgment dated 19th March, 2013 directed acquittal of the co-accused. In fact, the chargesheet was submitted in the month of July, 2012, whereas, the judgment in S.T. Case No.72/316 of 2012 arrived in March, 2013, which means within a years’ time, the trial as against the co-accused was commenced and concluded but without any evidence in support of the prosecution. 6. Mr. Praharaj, learned SC for the State-opposite party No.1 submits that the petitioners cannot be given the benefit of the order of acquittal in view of judgment of this Court in Hidayat Khan @ Hidayatullah Khan (supra) where it has been observed that one cannot forecast that no evidence would surface against the accused, who is yet to face trial despite acquittal of another accused. In the said case, the petitioner was the main accused and he had fired gun shot on the deceased and in so far as the prosecution case is concerned, the informant examined during trial vividly described the occurrence about the alleged incident and manner in which deceased was killed and in a way, supported the prosecution claim and not only that, identified two of the accused persons, considering which, notwithstanding acquittal of co-accused persons declined to exercise jurisdiction under Section 482 Cr.P.C. to quash the proceeding. In contrast, the case at hand, stands on a different footing where the informant and other material witnesses including the wife of the deceased did not whisper anything about the alleged incident which as per Ext.1, all the accused persons, are alleged of forcibly taking away the deceased and thereafter dropped him later at his residence in a serious condition, whereafter, was shifted to the hospital but was declared dead. The joint participation of all the accused persons was alleged in Ext.1 but for the reasons best CRLMC No.576 of 2020 Page 4 of 6 Jaguli Mohapatra@Jagabandhu Mohapatra and Another Vrs. State of Odisha known, the informant and also P.W.3, wife of the deceased deposed against the prosecution. Admittedly, the death of the deceased is under unnatural circumstances as revealed from the evidence of the Medical Officer examined as P.W.5 since he had received number of injuries internal and external supported by the postmortem report i.e. Ext.3. But except the death proved to have been on account of ante mortem injuries, the very genesis of the prosecution story has been demolished by the material witnesses, namely, P.Ws.1 & 3. Had there been any evidence in support of the prosecution and not hostile in its entirety, in such a case, the petitioners, who are yet to face trial, could not have claimed for exoneration demanding the criminal prosecution against them to be quashed. Even on the basis of the evidence on record, there may be implication against one or two which could involve the accused challenging the prosecution and under such circumstances, where the prosecution evidence is not entirely hostile, the subsequent trial shall have to follow suit. But where the evidence totally dismantled the prosecution claim and brazenly disapproved of the alleged incident to have taken place in the manner described in the FIR and chargesheet which resulted in acquittal of a co-accused, a question may be posed, as to what purpose it would really serve directing any other accused to face the trial even though he is chargesheeted as an absconder. According to the Court, the decision to quash a proceeding or otherwise would therefore depend on the nature of evidence received by a court in respect of the accused exonerated of the charge after trial. If such evidence is confined to a particular accused and does not refer to others or where further evidence may surface in case of a trial which is awaited, in such cases, it would not be justified to derail the prosecution on the plea that one of the accused persons stood acquitted after a trial. However, as mentioned before, when the very origin of the case is not CRLMC No.576 of 2020 Page 5 of 6 Jaguli Mohapatra@Jagabandhu Mohapatra and Another Vrs. State of Odisha supported even by the material witnesses, who are naturally expected to depose in favour of the prosecution and for having completely turned hostile, the answer to the question is that it would really be a futile exercise to go for a full-fledged trial vis-à- vis the accused, who is waiting to face trial, which for certain reasons could not be accomplished earlier. The present case is of such kind where none supported the prosecution and no evidence worthy of acceptance could be elicited despite the material witnesses being examined and therefore, no real purpose would be achieved by subjecting the petitioners to a trial. In so far as the decision in Hidayat Khan @ Hidayatullah Khan (supra) is concerned, the same sets in peculiar facts and circumstances of the case and hence distinguishable and cannot be treated as a ratio to the hold that in no case, inherent jurisdiction is exercisable despite an acquittal of one of the accused persons based on hostile evidence all the more when the very genesis of the prosecution story is discarded. 7. Accordingly, it is ordered. 8. In the result, the CRLMC stands allowed. As a necessary corollary, the criminal proceeding in connection with G.R. Case No.423 of 2012 pending in the file of learned S.D.J.M., Puri corresponding to Brahmagiri P.S. Case No.66 (46) of 2012 is hereby quashed vis-a-vis the petitioners. (R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU TUDU Reason: Authentication Location: OHC,CTC Date: 27-Jun-2023 15:21:19 CRLMC No.576 of 2020 Page 6 of 6