The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 815 of 2021 Nirod Bihari Mohanty Petitioner Mr. Biplab Kumar Dash, Advocate …. -Versus- State of Orissa and Another Opposite Parties Mr. T.K.Praharaj,AGA Mr. S.S. Mohanty, Advocate for Informant …. CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:17.05.2023 1. Instant petition under Section 482 Cr.P.C. is at the behest of the petitioner for quashing of the proceeding in connection with G.R. Case No. 1194(A) of 2012 pending in the file of learned SDJM, Kendrapara corresponding to Patkura P.S. Case No. 213 of 2012 on the grounds inter alia that one of the accused persons, namely, Ramesh @ Binod Bihari Mohanty has been acquitted of all the charges after a full-fledged trial in S.T. Case No. 227 of 2013 by judgment dated 17th March, 2022 of the learned Special Judge, Kendrapara. 2. In fact, the informant lodged the F.I.R. for the alleged occurrence describing therein the circumstances leading to the death of the victim being assaulted by the petitioner and others. After completion of investigation, chargesheet was submitted against the petitioner and other accused persons. The chargesheet was filed under Section 302 IPC and other allied offences showing the petitioner as an absconder. In the meanwhile, two of the accused persons, namely, Ramesh @ Binod Bihari Mohanty and CRLMC No. 815 of 2021 Page 1 of 8 Nirod Bihari Mohanty Vrs. State of Orissa and Another Jugal Mohanty were committed to the Sessions court for trial. After such commitment, one of the accused, namely, Jugal Mohanty died and the case was against him was abated on 8th November, 2021. The other accused faced the trial and ultimately, he was acquitted of the charges by the judgment dated 17th March, 2022 in S.T. Cases No. 227 of 2013. Since there has been an order of acquittal against one of the accused persons, the
Legal Reasoning
petitioner, who is yet to be committed to the Sessions court, has approached this Court for quashing of the proceeding in G.R. Case No. 1194(A) of 2012 pending in the file of learned SDJM, Kendrapara on the ground that the evidence so received during trial in S.T. Case No. 227 of 2013 is entirely hostile and as there is absolutely no possibility of any result in favour of the prosecution, continuation of the proceeding would be an abuse of process of law and hence, in exercise of the Court’s inherent jurisdiction under Section 482 Cr.P.C., it deserves to be quashed.
Legal Reasoning
3. Heard Mr. Dash, learned counsel for the petitioner, Mr. Praharaj, learned counsel for the State besides Mr. Mohanty, learned counsel for the informant. 4. Mr. Dash, learned counsel for the petitioner submits that the material witnesses including informant examined by the prosecution in S.T. Case No. 227 of 2013 did not whisper anything about the incident, rather, turned hostile. Referring to the evidence of the informant examined as P.W. 2 & other material witnesses, such as, P.Ws 1, 3 to 7 received in S.T. Case No. 227 of 2013 (as copies of the depositions of the said witnesses supplied), it is submitted by Mr. Dash that no fruitful purpose would be served to direct the petitioner to face the enquiry and trial after commitment. It is further submitted that when all the prosecution witnesses have turned hostile and that apart, one of the accused stands acquitted, any such conviction CRLMC No. 815 of 2021 Page 2 of 8 Nirod Bihari Mohanty Vrs. State of Orissa and Another with the aid of Section 149 IPC is no more feasible. It is therefore contended that the proceeding corresponding to G.R. Case No. 1194(A) of 2012 and any such exercise after commitment would yield no result. In support of such contention, Mr. Dash cited the following decisions, such as, CBI Vrs. Akhilesh Singh (2005) 30 OCR(SC) 201; Santosh Kumar Maity Vrs. State of Orissa (2006) 35 OCR 151; Upendra Sahoo @ Upendra Kumar Sahoo Vrs. State of Orissa (2006) 35 OCR 171; Braja Kishore Das & Others Vrs. State of Orissa 2013(II) OLR433; Surendra Kumar @ Surendra Routray and Another Vrs. State of Orissa 2011(I)OLR1052 and Satyaban Pradhan @ Kuna Pradhan Vrs. State of Odisha (2016)63 OCR 87 and contended that inherent jurisdiction under Section 482 Cr.P.C. should be exercised by this Court to quash the criminal proceeding pending before the court of learned SDJM, Kendrapara as against the fact that one of the accused persons has been acquitted of all the charges by a judgment rendered in S.T. Case No. 227 of 2013 of the learned Special Judge, Kendrapara, which received support from Mr. Mohanty, learned counsel for the informant. 5. Mr. Praharaj, learned counsel for the State, on the other hand, objects to the quashing of the proceeding in connection with G.R. Case No. 1194(A) of 2012 pending before the court of learned SDJM, Kendrapara in spite of acquittal order in favour of one of the accused, namely, Ramesh @ Binod Bihari Mohanty, who faced trial in S.T.Case No. 227 of 2013. It is submitted that since the chargesheet was filed against all the accused persons showing the petitioner as an absconder, the latter cannot be allowed to take benefit of the order of acquittal in S.T. Case No. 227 of 2013, rather, he has to face the trial independently. While contending so, Mr. Praharaj, learned counsel for the State referred to a decision in Hidyat Khan @ Hidayatullah Khan Vrs. State of CRLMC No. 815 of 2021 Page 3 of 8 Nirod Bihari Mohanty Vrs. State of Orissa and Another
Decision
Orissa decided in CRLMC No. 1244 of 2004 and disposed of 26th September, 2017. 6. In the facts and circumstances of the case, the Apex Court in Akhilesh Singh (supra) finding that the original accused and wife of the deceased therein since both of them were discharged, the respondent who was implicated on the basis of alleged conspiracy between him and the other accused, without any other material to prove his complicity, held and observed that the prosecution as against him was rightly quashed in exercise of jurisdiction under Section 482 Cr.P.C. In other words, since two other accused persons were discharged, as there was no other material or incriminating evidence available to prove the complicity of the accused, the Allahabad High Court quashed the proceeding against the latter exercising power under Section 482 Cr.P.C. which was challenged before Apex Court but was confirmed. In Santosh Kumar Maity (supra), the Court after having perused the materials on record and specific allegations made against the petitioner therein and regard being had to the acquittal of the principal accused held that chance of conviction is bleak and therefore, the criminal proceeding against him and its continuance would be an abuse of process of court and thus quashed it. In Upendra Sahoo @ Upendra Kumar Sahoo (supra), the injured as well as other witnesses to the alleged incident turned hostile, rather, it was deposed that the injuries were received as a result of an accident and on consideration of such evidence, some of the accused, who were committed for trial and acquitted and since the prosecution failed to prove the offences alleged, concluded that the criminal proceeding against another accused awaiting trial should be quashed as there is every chance of case ending in acquittal. Similarly in Aditya Kumar Rath (supra), this Court exercised inherent jurisdiction and quashed the proceeding against CRLMC No. 815 of 2021 Page 4 of 8 Nirod Bihari Mohanty Vrs. State of Orissa and Another the petitioner when the prosecution against an accused and the charges levelled against him could not be proved beyond reasonable doubt. In a case for offences under Section 498-A IPC and Section 4 of Dowry Prohibition Act, the main accused was acquitted after trial and this Court in Braja Kishore Das (supra), considering the said fact reached at a conclusion that in view of such acquittal, the proceeding against in-laws would be an abuse of process of law and quoted with approval one of its earlier judgment in Surendra Vrs. State 2011(I) OLR-105. A similar view has been expressed in Surendra Kumar @ Surendra Kumar Routray (supra), wherein, the main accused was acquitted in a split-up case and the proceeding against the remaining accused persons held to be an abuse of process of law considering the fact that there is a remote possibility of conviction. A case similar to the present one, wherein, the accused was absconding, whereas, the co-accused faced the trial and was acquitted for one and the same offence under Section 307 IPC, this Court in Satyaban Pradhan @ Kuna Pradhan (supra) held that when the prosecution failed to prove the main allegation against the co-accused and he was acquitted of the said charge, hardly anything left to prove the case against the petitioner and therefore, it would be appropriate for the ends of justice and to prevent abuse of process of law to quash the proceeding against him in exercise of inherent power under Section 482 Cr.P.C. So, therefore, on a proper reading of the decisions (supra), it is made to understand that depending on the facts and circumstances of each particular case, where any of the accused faced trial and stands acquitted, in absence of any incriminating material vis-a-vis the other accused, inherent jurisdiction under Section 482 Cr.P.C. may be exercised to quash the proceeding against him as no fruitful purpose would be achieved. In Hidyat Khan @ Hidayatullah Khan (supra), the authority which has been placed reliance on by the State, this CRLMC No. 815 of 2021 Page 5 of 8 Nirod Bihari Mohanty Vrs. State of Orissa and Another Court declined to quash the criminal proceeding against one of the accused, who was yet to face the trial and was shown as an absconder. In the said case, some of the material witnesses supported the prosecution, however, the co-accused persons who faced the trial were acquitted of the charges. Considering the facts of the said case, this Court reached at a conclusion that mere acquittal of co-accused persons or discharge by the trial court cannot be a ground to quash the criminal proceeding against others and especially, an absconding accused cannot be given the premium to frustrate the justice of misuse the process of law. In the peculiar facts and circumstances of the said case and with the conclusion that one cannot forecast absence of any evidence to surface in future against the accused seeking the proceeding to be quashed declined to exercise jurisdiction under Section 482 Cr.P.C. 7. Mr. Dash, learned counsel for the petitioner made the Court to go through the evidence of P.W.s 1 to 7. The copies of the depositions of said witnesses are made available to the Court. On a reading of the evidence of P.Ws. 1 to 7 including the informant, namely, P.W. 2, it is made to reveal that none of them whispered anything about the alleged incident. All the witnesses were declared hostile and then, the prosecution examined them in terms of Section 154 of the Indian Evidence Act. In fact, P.W.2, at whose instance, the F.I.R. was lodged did not support the prosecution case. As per the evidence of P.W.2, the victim, who was his paternal uncle, sustained injury on his head near a tube well after an accident fall. Such is the evidence of P.W. 2 while being cross-examined by the defence. The prosecution though examined P.W.2 but only confronted his statement made before the I.O. Save and except suggestions put to P.W.2, in course of examination under 154 of the Indian Evidence Act, nothing could CRLMC No. 815 of 2021 Page 6 of 8 Nirod Bihari Mohanty Vrs. State of Orissa and Another be elicited with regard to the alleged incident. Interestingly, the wife of the deceased examined as P.W. 4 deposed in a similar fashion. In other words, P.W.4 also turned hostile and discarded the prosecution story and likewise claimed that her husband died after a fall near a tube well where she was cleaning utensils. Apart from the witnesses related to the victim, the I.O. was examined as P.W. 8. Considering the evidence in its entirety and as the material witnesses turned hostile, the Sessions court in S.T. Case No. 227 of 2013 concluded that the charges levelled against the accused could not be established. The question is, whether, in view of such evidence received in S.T. Case No. 227 of 2013, any real purpose would be served to direct the petitioner to face the trial post-commitment. If there is any evidence left out or any of the witnesses not examined by the prosecution and it resulted in acquittal of an accused, in such cases, it would not justified to quash the proceeding against others merely on the ground of an order of acquittal. Similarly, there is evidence against one and two but not against others and considering the same any of the accused was acquitted at the end, it cannot be a ground to quash the proceeding vis-à-vis a particular accused. The nature of evidence on record and its quality would determine as to if jurisdiction under Section 482 Cr.P.C. should be invoked or otherwise. The evidence in S.T. Case No. 227 of 2013 has been stereotype and the informant and other witnesses including wife of the deceased examined as P.W.4 did not support the prosecution and revealed a different story as to the manner in which the deceased died. In fact, as per the F.I.R. the assault was by means of a wooden plank and it was by the petitioner in presence of another accused and with the participation of the rest. The circumstances under which the alleged assault was carried out stands described in the F.I.R. strangely, however, neither the informant nor the wife of the deceased supported the claim of the CRLMC No. 815 of 2021 Page 7 of 8 Nirod Bihari Mohanty Vrs. State of Orissa and Another prosecution. It is outrightly denied by both the material witnesses about any such assault having been carried out causing injury to the victim. The deceased died on account of an injury received on head but as earlier mentioned P.W. 2 as well as P.W. 4, who are material witnesses and one of them claimed to be present near the spot, for the reasons best known, turned hostile. In such situation, what remains for a trial vis-à-vis the petitioner? It is not that the witnesses deposed anything specific alleging the involvement of some excluding others. The evidence on record in S.T. Case No. 227 of 2013 is parrot like exonerating everyone by narrating a story which has demolished the very genesis of the prosecution story. By stating so, the Court is of the logical conclusion that the continuance of the proceeding in G.R. Case No. 1194(A) of 2012 would serve no purpose as the chance of conviction of the petitioner is virtually foreclosed considering the quality of evidence received in S.T. Case No. 227 of 2013 and hence, therefore, it is a fit case to exercise the inherent jurisdiction and to quash the proceeding to elude abuse of process of the court. 8. Accordingly, it is ordered. 9. In the result, the CRLMC stands allowed. As a necessary corollary, the proceeding in connection with G.R. Case No. 1194(A) of 2012 pending in the file of learned SDJM, Kendrapara vis-à-vis the petitioner corresponding to Patkura P.S. Case No. 213 of 2012 is hereby quashed. Signature Not Verified Digitally Signed Signed by: KABITARANI MAJHI Designation: Secretary Reason: Authentication Location: OHC, CUTTACK Date: 19-May-2023 16:46:32 kabita CRLMC No. 815 of 2021 Page 8 of 8 (R.K. Pattanaik) Judge