The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.1703 of 2023 (In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973) Jayakrishna Behera & others ……. Petitioners -Versus- State of Orissa (Vigilance Department)……. Opposite Party For the Petitioners : Mr. Himanshu Sekhar Mishra, Advocate For the Opp. Party : Mr. Niranjan Maharana, Additional Standing Counsel, Vigilance CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 20.11.2024 : Date of Judgment: 23.12.2024 S.S. Mishra, J. In the present case, the petitioners are accused in Sambalpur Vigilance P.S. Case No.169 of 2012 for the alleged commission of offences punishable under Section 13(2) read with Section 13(1)(c), 13(1)(d) of the P.C. Act,1988 read with Sections 420/120-B of the IPC. 2. After the investigation, the charge sheet has already been filed in the present case and subsequently, the cognizance of the offences has been taken by the court below against the petitioners. 3. The petitioners have appeared pursuant to the notice issued to them by the learned Court below. However, one of the co-accused Binaya Kumar Garnaik, who was the Ex-Special Land Acquisition Officer, remained absent to face the trial in spite of sufficient notice. 4. The NBW was issued against the said accused, which remained unexecuted and led to the issuance of the processes under Sections 82/83 Cr.P.C. Eventually the said accused could not be apprehended by the Investigating Agency despite best efforts. Therefore, vide impugned order dated 23.10.2021, the learned trial Court split up the trial of the case of the petitioners vis-à-vis the co-accused Binay Kumar Garnaik. The impugned order dated 23.10.2021 passed by the learned Special Judge (Vigilance), Balangir reads as under: “ Accused Ignance Hansda is present and files hazira on being identified by his defence counsel. Other accused persons are absent they are allowed to be represent U/s 317 Cr.P.C. for today only. No intimation is received from S.P. Vigilance, Sambalpur in compliance to letter No.509 dtd. 11.10.2021 in where copy of letter also sent to D.S.P. Vigilance, Anugul. However earlier a letter has been received from the Page 2 of 11 Inspector Vigilance Anugul Unit vide his letter No.913 dtd. 27.08.2021 in this letter Inspector of Vigilance Anugul intimate that I along with my staff Physically verified and found that accused Binay Kumar Garnaik Ex-Spl. L.A.O. Lower Suktel Irrigation Project is absent in his house at Village- Narendrapur P.S.- Banarpal Dist.- Anugul. He also enclosed a written statement of Local Ward member Smt. Narmada Garnaik that the accused Binay Kumar Garnaik absent since last ten years and his present where about is now known. Due to absence of the accused Binay Kumar Garnaik the N.B.W.A not yet executed till yet and process U/s 82, 83 Cr.P.C. issued to the D.S.P. Vigilance, Anugul no reply has been received in this regard. Accordingly the case against Binay Kumar Garnaik is splitted up. Now the case posted to 16.11.2021 for hearing on the point of charge Office to prepare police paper four sets supplied to the Spl. P.P. and learned defence counsels. The accused persons are directed to through their defence counsel to remain present on the date fixed.” 5. The petitioners, making a grievance out of the aforementioned order, have filed the present petition. 6. Mr. H.S. Mishra, learned counsel for the petitioners vehemently put-forth his points and urged that the Investigating Agency has failed on their duty to execute the N.B.W. against their own Officer who was working under the State Authorities. He contended that the petitioners have been prejudiced because of the splitting of the trial qua the co- accused, who was the public servant. He further contended that the offences alleged against the petitioners are involving the alleged commission of the offences under the Prevention of Corruption Act. Page 3 of 11 Therefore, in the absence of the public servant, subjecting the petitioners to rigors of the trial, who are the private persons, would definitely prejudice them. 7. To substantiate his argument, Mr. Mishra, learned counsel for the petitioners has not only relied upon the judgment of the Hon’ble Madras High Court but also relied upon the article of one of the practicing Advocate on the subject of splitting of trial in a criminal case. Mr. Mishra has relied upon the judgment of the Madras High Court in the case of H. Aarun Basha V. The State, reported in 2018 SCC OnLine Mad 12845 which has formulated certain guidelines to deal with the case of the absconding accused vis-à-vis the accused ready to face the trial. The guideline, inter alia, provides as under: “When there are several accused persons in a case and only some of them have appeared before the court and if the court is satisfied that the presence of other accused cannot be secured, the court may split up the case if it satisfied that such splitting up will cause no prejudice either to the prosecution or to the accused who are in attendance. Before splitting up of the case, the Magistrate Court shall follow the same procedure mutatis mutandis just like any other criminal case. After splitting up of the case, information regarding split up case shall be given to the Sessions Court, and it shall assign a new number to the split-up case and communicate the same number to the Magistrate Court. If the absconding accused appears before the court, the Magistrate Court shall comply with section 207 or 208 of Cr. P.C.” Page 4 of 11 The concluding paragraph of the judgment of the Hon’ble Madras High Court in H. Aarun Basha (supra) assume relevancy to be reproduced: “14. A copy of this order shall be circulated to all the subordinate Courts dealing with criminal trials. The issue of absconding accused, is one of the major cause for pendency of criminal cases before trial Courts. Therefore, it is important that trial courts equip themselves well to deal effectively with this issue. This issue shall also be discussed regularly in the Judicial academy so that there is more clarity in dealing with the issue and solutions can be found out for certain practical difficulties faced by the learned Judges in this regard.” 8. The article, which has been relied upon by Mr. Mishra also discussed elaborately regarding the procedure to be adopted in the cases where one or more accused is absconding after the charge sheet has been filed. But in both the judgments and article, the underlined principle which has been given importance is to ensure that the trial should not get delayed in so far as the accused persons those, who have been apprehended and ready to face the trial. Because of some of the co-accused persons have absconded, the accused persons those who are ready for facing the trial, shall not be prejudiced by simply Page 5 of 11 prolonging the trial awaiting the arrest of the absconding accused. The conclusive paragraph of the article relied upon by Mr. Mishra draws my attention, which reads as under: “In India, separation of trial is not frequently ordered by the courts during the trial of the cases due to which the number of trials pending in country is on rapid rise. Although the trial courts have been given this power of separation under section 317 of the Cr.PC, it appears that section 317 Cr.PC is also not exhaustive of all circumstances in which a direction for separation of trial can be made. It only enumerates some of the circumstances in which separate trial of one or more accused from that of the rest can be ordered. Hence, a wide interpretation of this section must be made while separating the case of the absconding accused to overcome the problem of delayed, stalled, and consequently pending trials in India.” 9. Mr. Maharana, learned Additional Standing Counsel for the Vigilance Department has submitted that all the efforts have already been made by the prosecuting agency to execute the N.B.W. against the co-accused Binaya Kumar Garnaik, but to no avail. He has placed on record the written instruction received by him on 25.04.2023, which enumerates the steps taken by the prosecuting agency to execute the N.B.W. issued against Binaya Kumar Garnaik. Relevant would be to reproduce the extract of the written instruction so as to demonstrate as to what steps have been taken by the Vigilance Page 6 of 11 Department to execute the N.B.W and apprehend the absconding accused., reads as under: “xxxxxx For the execution of NBW issued in CTR No.21/2013 against Sri Binay Kumar Garnaik, S/o. Sri Padmanabha Garnaik, Vill- Narendrapur, PS- Banarpal, Dist- Angul the following steps have been taken. It is ascertained from the Special Land Acquisition Officer, Lower Suktel Irrigation Project, Bolangir vide Letter No.815/Spl.LA dt. 25.04.2023 regarding transfer of Sri Binaya Kumar Garnaik, Ex-Spl. LAO, LSIP, Bolangir. From the said letter it is ascertained that, Sri Binay Kumar Garnaik was working as Ex- Special L.A.O., SLIP, Bolangir and transferred to Collectorate, Dhenkanal. He relieved on dtd. 20.06.2008 AN vide Office Order No.638 dt. 20.06.2008 from Lower Suktel Irrigation Project, Bolangir to join as Dy. Collector at Collectorate, Dhenkanal. His salary account was at former United Bank of India, now merged with Punjab National Bank of India, Bolangir Branch vide A/c No.2322. On dt. 21.04.2022 vide letter No.322/Vig., Blg requisition was placed to the Branch Manager, United Bank of India, Bolangir Branch (Punjab National Bank) to furnish the account statements of A/c No.2322 stands in the name of Binaya Kumar Garnaik. BM, Punjab National Bank, Bolangir Branch vide letter No.CN/169110/Misc dt.21.04.2022 supplied the bank statements of the said account. It was ascertained that the said account was opened on dt. Page 7 of 11 21.05.2003 and now in dormant account having no transaction. In the mean time, in order to verify the presence of warrantee Sri Binaya Kumar Garnaik, Sri Samal, Inspector of Police, Vigilance, Angul Unit along with his staff proceeded to Village Narendrapur, PS- Banarpal, Dist- Angul and found that Sri Binaya Kumar Garnaik, Ex-Spl. LAO, SLIP, Bolangir was absent in his house at Village- Narendrapur, PS- Banarpal, Dist- Angul. During his enquiry, Sri Bibhuti Garnaik, Younger brother of Sri Binaya Kumar Garnaik was present there. Being asked about Sri Binaya Kumar Garnaik, he stated that his brother is not coming to the house since death of Pusparani Garnaik, wife of Sri Binaya Kumar Garnaik. He further made local verification, the Ward Member Smt. Narmada Garnaik stated that Sri Binaya Garnaik has not come to his house since 10 years or more and his present where about is now known. The villagers also could not tell about Sri Binaya Garnaik and his present where about. Further on dt. 21.04.2023, VHF message was sent to the IIC, Banarpal PS, Dist- Angul vide No.511/Vig., Blg dt. 21.04.2023 to cause a local enquiry at the parental village of Sri Garnaik to know his present whereabouts. Similarly, VHF message was sent to the Tahasildar, Banarpal, Dist- Angul vide No.512 /Vig., Blg dt. 21.04.2023 to furnish the information regarding the landed property of warrantee Sri Garnaik under his jurisdiction. In this regard return reply from IIC, Banarpal and Tahasildar, Banarpal are yet to be received. Page 8 of 11 On dt. 21.04.2023, I physically contacted over phone to Sri Bibhuti Garnaik, brother of the warrantee Sri Garnaik, but he could not tell about the present where about of his elder brother. Similarly, I contacted Dr. Monalisa Garnaik, daughter of telephone and warrantee Sri Garnaik over ascertained from her that she has no contact with her father. She also stated that during the death of her mother and death of her younger sister, her father did not attend the funeral ceremony. They have no contact with her father and they cannot say about the present where about of her father.” 10. It appears from the aforementioned that the Vigilance Department has made all out efforts to execute the NBW against absconding accused Sri Garnaik. It is apparent that, there is no immediate prospect of arrest of the said accused. This aspect of the matter appears to have been apprised to the learned trial Court. Therefore, the learned trial Court has rightly thought it appropriate to split up the trial qua the petitioners, so as to avoid further delay in the trial of the case. 11. I have given conscious consideration to the issue raised by Mr. Mishra, learned counsel for the petitioners. I have also taken note Page 9 of 11 of the fact that the prosecuting agency has made enough efforts to make sure that the absconding co-accused is apprehended. However, all the efforts made by the prosecuting agency has failed and there is no immediate prospect of arrest of the absconding accused. 12. Mr. Maharana, learned Additional Standing Counsel for the Vigilance Department has assured the Court that efforts to execute the warrant against the absconding accused is still on and the same shall be achieved by the prosecuting agency sooner or later. However, he submitted that awaiting the arrest of the absconding accused deferring the trial of the present petitioners, indeed violates the fundamental rights of speedy justice granted to the petitioners. Hence, the impugned order goes in favour of the petitioners rather than prejudicial to him. 13. Taking into consideration the aforementioned, I find no reason to disagree with the impugned order. The learned trial Court, so as to expedite the trial, has opted for the right option of splitting up the trial qua the petitioners. Page 10 of 11 14. I do not find any reason for the petitioners to comprehend prejudiced to be caused to them on splitting up of the trial in their case. The trial court has rightly opted for the best procedure under the code to speed up the trial of the case pending for more than a decade. Therefore, this Court finds no reasonable ground to interfere with the impugned order. 15. Accordingly, this petition does not deserve any merit. Hence, the CRLMC is dismissed. …………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 23rd December, 2024/Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 23-Dec-2024 19:23:43 Page 11 of 11