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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC NO.1283 OF 2023 (Application under Section 482 of the Code of Criminal Procedure) Bilas Naik & others … Petitioners -versus- State of Orissa … Opposite Party Advocates appeared in the case through hybrid mode: For Petitioners: Mr.Debabrata Dash, Advocate -versus- For Opp.Party : Mr.S.K.Mishra, Addl. Standing Counsel --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 27.6.2023. CRLMC No.1283 of 2023 Page 1 of 8 Sashikanta Mishra,J. This application has been filed under Section 482 of the Cr.P.C. by the Petitioners, who are accused persons in C.T. Case No.197/2021 pending in the Court of learned S.D.J.M., Dharamgarh. 2. The brief facts of the case are that one Hemanta Naik, lodged a written report before the O.I.C., Dharamgarh Police Station on 28th May, 2021 stating that while his family members were sleeping, at about 12 midnight, he came out of the house to attend call of nature and saw that his sister was not in the house. After a prolonged search he came to know that one Narendra Naik of village Khairpadar had kidnapped his sister, kept her in his house and fled away after having sexual intercourse with her. Subsequently, the family members of the said accused tried to drive out the victim from their house and also threatened to kill her if she did not leave. Said Narendra was a married person. On such facts, the complainant lodged a written report basing on which Dharamgarh P.S. Case CRLMC No.1283 of 2023 Page 2 of 8 No.73 of 2021 was registered and investigation was taken up. 3. Upon completion of investigation, charge sheet was submitted under Sections 506/294/34 of the Indian Penal Code against the present Petitioners, and Sections 363/376/294/596/34 against the said Narendra Naik. Petitioner No.1 is the mother, PetitonerNi.2 is the wife and Petitioner No.3 is the father of the accused Narendra Naik. It is to be noted that the Petitioners were shown as absconders in the charge sheet, for which the trial was split-up and continued against accused Narendra Naik in G.R. Case No.54/2021. However, during pendency of the present case, all the three Petitioners surrendered before the
Legal Reasoning
trial Court on 12th May, 2023 and have been admitted to bail. In the original case, the informant and the victim were examined as witnesses from the side of prosecution. Learned trial Court, vide judgment passed on 19th July, 2022 acquitted accused Narendra Naik of the charges as there was nothing incriminating against CRLMC No.1283 of 2023 Page 3 of 8 him in the evidence of the informant and the victim. Thus, the case was directed to be entered as a mistake of fact.
Legal Reasoning
4. It is argued by Mr. Dash that the case was falsely foisted which is evident from the deposition of the informant as well as the victim in the original case. Mr. Dash drew attention of the Court to the depositions of the informant and the victim wherein they have, inter alia, testified as under; Informant “(1) I am the informant in this case. (2) I know both the accused of this case. (3) The occurrence took place about 4 to 5 months ago. That night I was sleeping in house. Sometimes thereafter, I could not find my sister at home. I searched her and found her from outside. So, I went to the Police Station and lodged the report. Police rescued my sister. (4) Police seized the wearing apparels of my sister and prepared a seizure list. CRLMC No.1283 of 2023 Page 4 of 8 Victim (1) I know the accused in the dock. Informant is my brother. (2) I do not want to proceed with the case. The accused took me to his house and then absconded. That is why my brother lodged the report. The family members of the accused abused me. (3) I went to the hospital. I have signed there. This is my signature. Nothing was seized from me by the Police. (4) I had been to the Magistrate. I have signed in his presence”. On the above basis, Mr. Dash submits that holding trial against the present Petitioners on the same evidence after two years would tantamount to an abuse of the process of law. To fortify his argument Mr. Dash has referred to a decision of this Court in the case of Pandu Dalai v. State of Orissa; reported in 2008(1) OLR-404. 5. Mr. S.K.Mishra, learned Addl. Standing Counsel for the State, on the other hand, has fairly submitted that it is true that the informant has not stated anything CRLMC No.1283 of 2023 Page 5 of 8 about the occurrence to incriminate the accused persons, but such evidence was given in the original case and not in the case where the present Petitioners are accused. Therefore, according to Mr. Mishra, the decision cited by learned counsel for the Petitioners can be distinguished on facts and hence, not applicable to the present case. 6. The relevant facts of the case are not disputed inasmuch as the principal accused in the case is Narendra Naik, who faced trial in C.T. Case No.54/2021. In the said case, the informant and the victim, being examined as prosecution witnesses, said nothing whatsoever to incriminate either Narendra Naik or the present Petitioners. His specific statement that he cannot recollect anything about the case as almost eleven years have passed after the occurrence and that he has no longer any hostile relation with the ‘accused persons’ obviously refers to accused Narendra Naik and also includes the present Petitioners. CRLMC No.1283 of 2023 Page 6 of 8 7. The question for consideration before this Court is, whether on the existing facts and materials, there is any chance of conviction of the present Petitioners. In the case of Pandu Dalai v. State of Orissa (supra) relied upon by Mr.Dash, with almost similar facts as the present case, a view was taken relying upon two earlier decisions of this Court, i.e. in the case of Upendra Sahoo @ Upendra Kumar Sahoo v. State of Orissa; reported in (2006) 35 OCR 171 and in the case of Santosh Kumar Maity v. State of Orissa reported in 2006(II)OLR 308 to the effect that when the principal accused having faced trial and having been acquitted, continuance of the criminal proceeding against the co-accused persons would amount to abuse of the process of law. Thus, when the accused in the connected case has been acquitted with the specific finding that there is no evidence on record to prove the charges, the chances of conviction in the split up case is not only bleak, but must be held to be non-existent as well. As such, continuance of the CRLMC No.1283 of 2023 Page 7 of 8 criminal proceeding against the present Petitioners would definitely be an abuse of the process of law. 8. Under the above circumstances, this Court is of the considered view that no useful purpose would be served by allowing continuance of the proceeding against the present Petitioners and that ends of justice would be best served if the proceeding in C.T. Case No.197/2021 tagged in C.T. (Sessions) No.54/2021 pending in the court of learned S.D.J.M., Dharamgarh is quashed. 9. The CRLMC is, accordingly, allowed. The proceeding in C.T. Case No.197/2021 tagged in C.T. (Sessions) No.54/2021 pending in the court of learned S.D.J.M., Dharamgarh against the present Petitioners is hereby quashed. …………….…….……….. (Sashikanta Mishra) Judge Ashok Kumar Behera CRLMC No.1283 of 2023 Page 8 of 8 Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Jun-2023 16:57:37 CRLMC No.1283 of 2023 Page 9 of 8