The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMP Nos.481 of 2022 and 1478 of 2019 In the matters of applications under Articles 226 and 227 of the Constitution of India. K. Dinabandhu Reddy In CRLMP No.481 of 2022 …. Petitioner State of Odisha and Ors. …. Opposite Parties -versus- Advocates appeared in the case through Hybrid Mode: : For Petitioner Mr. Sabyasachi Tripathy, Adv. For Opposite Parties. : Mr. Ch. Satyajit Mishra, AGA K. Dinabandhu Reddy In CRLMP No.1478 of 2019 …. Petitioner -versus- S.P., Nayagarh & another …. Opposite Parties Advocates appeared in the case through Hybrid Mode: : For Petitioner
Legal Reasoning
Mr. Sabyasachi Tripathy, Adv. For Opposite Parties. : Mr. Ch. Satyajit Mishra, AGA CORAM: Dr. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-27.07.2023 DATE OF JUDGMENT: -24.08.2023 Dr. S.K. Panigrahi, J. 1. The Petitioner in CRLMP No.481 of 2022 prays to quash the order dated 12.11.2016 passed in G.R. Case No.13 of 2010 by the learned J.M.F.C., Ranpur permitting the learned Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 19:18:55 Page 1 of 11 Additional Public Prosecutor to withdraw the case under Section 321 of the Cr.P.C. 2. The Petitioner in CRLMP No.1478 of 2019 seeks a direction from this Court to the Opposite Party No.1/ Superintendent of Police, Nayagarh to conduct a fresh inquiry or reinvestigate the matter pertaining to Ranapur P.S. Case No.13 of 2010 in connection with G.R. Case No.13 of 2010 pending in the court of the learned J.M.F.C., Ranpur. I. FACTUAL MATRIX OF THE CASE: 3. The Petitioner who is the informant lodged a written report on 18.01.2010 in Ranapur P.S alleging, inter alia, that while he was proceeding to Berhampur from Bhubaneswar in the car bearing No.OR.02AY-8496 on 03.01.2010. Thereafter, a blue coloured Indica car with bearing No. OR.02-5556 dashed against his car from behind leaving him and the other occupants injured. The car was also badly damaged while the driver of the offending vehicle along with its occupants were in inebriated condition at that time of Committing accident. 4. After committing the accident, in order to conceal their crime, the four occupants of the other vehicle started abusing the petitioner in filthy language and threatened him. The other driver even came in front of the car of the petitioner to intimidate him. Accordingly, the police registered P.S case No. 13 of 2010 and submitted the charge sheet on 14.03.2011 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 19:18:55 Page 2 of 11 for which cognizance was taken under Sections 337 and 279 of the I.P.C. only in G.R case No.13 of 2010 by the learned JMFC, Ranpur. 5. However, the police/ I.O changed the vehicle description with same number and the offender accused person without showing the actual offending driver for reasons best known to him. No material documents were filed in the charge-sheet of the offending vehicle and the identity of the offending driver also. 6. While the matter stood thus, the learned APP, after rejection of the Vakalatnama of the Petitioner, took advantage of the same and moved an application under Section 321 of the Cr.P.C. to drop the case in Lokadalat to which the learned court below also without applying its judicial mind allowed the same on 12.11.2016 under untenable grounds. Aggrieved
Decision
of this, the petitioner has filed the writ petition. II. PETITIONER’S SUBMISSIONS: 7. Learned counsel for the Petitioner(s) earnestly made the following submissions in support of his contentions: 8. The court below has rejected the Vakalatnama of the informant. Before the withdrawal of the case, the informant should have been provided with a notice affording the informant an opportunity of hearing as it is the informant / victim who has initiated the criminal motion into action. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 19:18:55 Page 3 of 11 Since, there is also no scope in future to the informant to correct the anomalies and discrepancies found on the face of the record per se, the court below before withdrawal should have examined the grounds of the petitioner under Section 321 of the Cr.P.C. which has not been done in this case. 9. Appropriate action under the Sections of the I.P.C & the M.V. Act. also has not been initiated against the offenders purposefully to allow them to escape from the clutches of law and the real accused persons cannot be identified if the informant is not given a chance to identify them in court. 10. The court below has every power and jurisdiction to refuse to accept the petition under Section 321 of the Cr.P.C. charge- sheet, more so, when the anomalies found are prima facie. The court below has committed a serious illegality by entertaining a petition filed by the learned APP under Section 321 of the Cr.P.C. without reasonable grounds. The state cannot also file such a petition without the consent of the informant/victim or knowledge of the informant. 11. Moreover, the lower court has to look into the reasonableness and viability of the grounds stated in the petition by the learned APP for withdrawal and its basis for such withdrawal, the lower court below should have examined the same before perfunctorily withdrawing the same for the sake of withdrawal in the Lok Adalat. Thus, this necessitated the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 19:18:55 Page 4 of 11 filing of this CRLMP at this juncture for a direction to restore the case to its file by quashing the impugned order date 12.11.2016. Otherwise, the courts would be defunct where the ends of justice so demands for a restoration of the case to its file. Needless to mention that when the investigation of the police authorities is not in proper direction, just and fair and when the facts, of the case so demands in order to do complete justice. 12. Additionally, withdrawal of the case without informing the victim parties merely on the strength of the petition under Section 321 of the Cr.P.C. thereby prejudicing all parties amounts to sheer non-application of mind and thus, the impugned order dated 12.11.2016 is bad in law. III. AFFIDAVIT FILED BY THE INSPECTOR-IN-CHARGE, RANPUR POLICE STATION, NAYAGARH: 13. Per contra, learned counsel for the Opp. Party intently made the following submissions: 14. On 18.01.2010 at about 4.15 p.m., the complainant namely K.Dinabandhu Reddy, Son of K. Banamali Reddy of Raghunathpur, PS: Chamakhandi in the district of Ganjam appeared at the Police Station and presented a written report. He has stated that on 3.01.2010 at about 5.20 PM while he was proceeding from Berhampur to Bhubaneswar by driving a Santro Car bearing Registration No.OR-02-AY-8496 in which Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 19:18:55 Page 5 of 11 Smt. Shyama Kumari Mishra, the wife of the owner of the Car was sitting. On the way at N.H-5 near Champagada Chhak, another green coloured Indica Car bearing Registration No.OR-02-P-5556 which came from behind in a rash and negligent manner dashed against his car as a result of which the occupant Smt. Shyama Kumari Mishra sustained injury on her persons and the rear side of his car was damaged. As he remained otherwise busy, he reported the fact late. 15. On the written report of the complainant, the then Inspector- in-Charge, Ranpur Police Station registered Ranpur P.S. Case No.13 dated 18.01.2010 under Sections 279/337 of the I.P.C. and instructed S.I., R.N. Mohapatra, S.I., K.C. Nayak and ASI, P.N. Mishra of Ranpur Police Station to investigate the matter. During the course of the investigation, the Investigating Officer visited the spot, examined the complainant as well as other witnesses, seized the car of the complainant along with its documents and also left/release the same in zima by executing proper zimanama in favour of the owner of the vehicle which will be evident from the copy of the seizer list. 16. During investigation, it is also found that as per allegation of the complainant that the Car bearing Registration No.OR-02- P-5556 is not an Indica Car but an Ambassador Car and Sri Ganeswar Lenka, Son of Judhistir Lenka of Junaganj, Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 19:18:55 Page 6 of 11 Tangisahi, PS:-Khurda in the district of Khurda is the owner of the alleged vehicle. 17. Thereafter, the involved Ambassador Car was also seized and released/left in zima by executing a proper zimanama in favour of the owner. The driver-cum-owner was arrested and released on bail by following the due procedure of law by furnishing necessary bail bond. After completion of the investigation, charge-sheet has been submitted before the learned J.M.F.C., Ranpur vide C.S. No.45 dated 14.02.2011 under Sections 279/337 of the I.P.C. 18. In spite of several summons issued by the Court below, the attendance of the accused person could not be procured for trial for which the case was pending since long. In the meantime, the Government in Home Department vide letter No.37772/Pros dated 25.10.2016 has taken a policy decision for withdrawal/disposal of cases through 4th National Lok Adalat to be held on 12.11.2016 has instructed all the Public Prosecutors/Assistant Public Prosecutors to file petitions u/s 321 of the Cr.P.C. before the concerned Courts, for withdrawal of long pending cases of the following categories vide Serial No.1 up-to the year, 2015 and Serial No.2 to 12 up-to the year, 2013, in which in-spite of issuance of summons/warrants, the attendance of the accused persons could not be procured. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 19:18:55 Page 7 of 11 19. Pursuant to the said letter, the Assistant Public Prosecutor has filed a petition under Section 321 of the Cr.P.C. before the court of the learned JMFC, Ranpur and after perusing the said letter, the learned JMFC, Ranpur has passed the order dated 12.11.2016 under Annexure-1 to the CRLMP. IV. COURT’S REASONING AND ANALYSIS: 20. The Supreme Court in the case of The State of Kerala v. K. Ajith and Ors.1 has laid out the principles which emerge from the decisions of this Court on the withdrawal of a prosecution under Section 321 of the Cr.P.C. can now be formulated: “(i)Section 321 entrusts the decision to withdraw from a prosecution to the public prosecutor but the consent of the court is required for a withdrawal of the prosecution; (ii) The public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice; (iii) The public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution; (iv) While the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the public prosecutor was satisfied the withdrawal of the prosecution is necessary for good and relevant reasons; that 1SLP (Crl) No 4481 of 2021 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 19:18:55 Page 8 of 11 (v) In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature. Before deciding whether to grant its consent the court must be satisfied that: (a) The function of the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes; (b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law; (c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given; (d) The grant of consent sub-serves the administration of justice; and (e) The permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty bound to maintain; (vi) While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinizing the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated; and (vii) In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, this Court while exercising its jurisdiction under Article 136 of the Constitution would exercise caution before disturbing concurrent findings. The Court may in exercise of the well- settled principles attached to the exercise of this Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 19:18:55 Page 9 of 11 jurisdiction, interfere in a case where there has been a failure of the trial judge or of the High Court to apply the correct principles in deciding whether to grant or withhold consent.” 21. In the present case, in spite of several summons issued by the Court below, the attendance of the accused person could not be procured for trial for which the case was pending since a long time. In the meantime the Government in Home Department vide letter No.37772/Pros dated 25.10.2016 has taken a policy decision for withdrawal/disposal of cases through the 4th National Lok Adalat to be held on 12.11.2016 has instructed all the Public Prosecutors/Assistant Public Prosecutors to file petitions under Section 321 of the Cr.P.C. before the concerned Courts, for withdrawal of long pending cases of the following categories vide Serial No.1 up-to the year, 2015 and Serial No.2 to 12 up-to the year, 2013, in which, in-spite of issuance of summons/warrants, the attendance of the accused persons could not be procured. 22. Moreover, from the perusal of the order of the court below, it is clear that the court below has made an effort to elicit the reasons for withdrawal so as to ensure that the public prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons. 23. From the conspectus of factual matrix, this Court is unable to accede to the submission of the Petitioner. In light of the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 19:18:55 Page 10 of 11 aforesaid discussion and having regard to the present position of law, this Court hereby confirms the impugned order dated 12.11.2016 passed by the learned J.M.F.C., Ranpur in G.R. Case No.13 of 2010 permitting the learned Additional Public Prosecutor to withdraw the case under Section 321 of the Cr.P.C. 24. Accordingly, both the CRLMPs are disposed of. Judge ( Dr. S.K. Panigrahi ) Orissa High Court, Cuttack, Dated the 24th August, 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 19:18:55 Page 11 of 11