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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 2099 of 2023 Application under Section 482 of the Code of Criminal Procedure, 1973. AFR Suren Pooja @ Puja ...… Petitioner -Versus- --------------- State of Odisha ...… Opp.Party Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner : Mr. D. Nayak, Sr. Advocate M/s. A.K. Acharya, S. Mishra, A. Acharya, S.S. Das, Advocates. For Opp. Party: Mr. Sitikanta Nayak, Addl. Standing Counsel _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 18th August, 2023 SASHIKANTA MISHRA, J. The petitioner is one of the accused persons in G.R. Case No. 658 of 2018 pending in the Court of learned S.D.J.M., Jagatsinghpur. In the present application filed under Section 482 of Cr.P.C., she seeks quashment of the criminal proceeding on the ground that no case is made out against her as alleged by the prosecution. Be it noted that originally two persons Page 1 of 12 namely, Aurobinda Khuntia and S. Chandan including the present petitioner had filed this application but the same was not pressed in relation to Aurobinda Khuntia and S. Chandan and was therefore, dismissed as such. The present application is confined only to petitioner Puja Suren. 2.
Legal Reasoning
The facts of the case are as follows: On receipt of information regarding illegal procurement of two infants by the owner/staff of Acharya Clinic, Jagatsinghpur, one Bisweswari Mohanty, Chairperson of Child Welfare Committee, (CWC), Jagatsinghpur conducted raid with a team of officers and doctors in the said clinic on 27.07.2018. During such raid they found a male infant aged about two weeks and a female infant aged about five weeks at the clinic. The owner, Dr. Paramananda Acharya could not account for the presence of the infants and also could not satisfy the raiding team as to the purpose of keeping the infants in his possession. Since no one came forward to claim the parentage of the infants, the children were kept in the Special Newborn Care Unit, DHH, Jagatsinghpur and Page 2 of 12 subsequently restored to Sishu Ashram, which is a specialized adoption agency. On such facts, Bisweswari Mohanty lodged a written report on 27.07.2018 before the IIC of Jagatsinghpur Police Station leading to registration of P.S. Case No.162 dated 27.07.2018 under Sections 365/370/317/120-B/34 of IPC and Section 81 of Juvenile Justice (Care and Protection of Children) Act, 2015. In course of investigation, it came to light that an unmarried girl named ‘X’ (name withheld) had given birth to the female child. Since the pregnancy was begotten out of her relationship with a young man of her village, her family, in order to protect her prestige and social image, left the child at Acharya Clinic, where she had been delivered. The health condition of the child however deteriorated for which it was taken to Kidy Care Baby Hospital at Cuttack by the owner. Thereafter, the owner informed one of his patients namely Nilamani Bhatta, who in turn disclosed such fact to Aurobinda Khuntia. Aurobinda Khuntia happens to be the cousin brother of the petitioner, Pooja Suren. As she was issueless, she wanted to keep the female child. Accordingly, Pooja paid Rs.80,000/- to Dr. Page 3 of 12 Paramananda Acharya for treatment of the child. Dr. Paramananda Acharya thereafter applied in Jagatsinghpur Municipality for birth certificate of the child stating her mother’s name as Pooja Suren. In so far as the male child is concerned, it was restored to its biological parents. Upon completion of investigation, charge sheet was submitted against Dr. Paramananda Acharya, Aurobinda Khuntia, S. Chandan and the present petitioner under Sections 466/468/511/120-B IP and Section 81 of the Juvenile Justice (Care and Protection of Children) Act, 2015. By order dated 20.08.2022, learned S.D.J.M., Jagatsinghpur took cognizance of the aforementioned offences and issued summons to the accused persons including the present petitioner. 3.
Legal Reasoning
Heard Mr. D. Nayak, learned Senior Counsel assisted by Mr. A.K. Acharya, learned counsel for the petitioner and Mr. S. Mishra, learned Addl. Standing Counsel for the State. 4. Mr. Nayak, learned Senior Counsel would argue that none of the alleged offences are even prima facie made out against the petitioner. The Investigating Agency Page 4 of 12 has entangled the petitioner in the case entirely on the basis of the statements of the co-accused persons, which is not admissible in law. Moreover, none of the other witnesses, whose statements were recorded by the I.O., have even whispered a word against the petitioner. 5. Mr. S. Mishra, learned State Counsel on the other hand contends that the materials on record are adequate to arouse suspicion as regards involvement of the petitioner in the alleged occurrence. He further submits that even leaving aside the statements of the co- accused persons there is evidence in the form of the statement of one Nilamani Bhatta as well as the application for birth certificate showing the petitioner’s name as the mother of the child. These are enough to proceed against the petitioner. 6. This Court need not dwell upon the position of law that the statement of a co-accused cannot be utilized against another accused. In the instant case the owner of the clinic, Dr. Paramananda Acharya and the cousin of the petitioner namely, Aurobinda Khuntia allegedly confessed before police that they had taken steps for Page 5 of 12 handing over the child to the petitioner, Pooja Suren. Dr. Paramananda Acharya also admitted that Aurobinda Khuntia had paid him Rs.80,000/- in all through bank transactions for treatment of the child at Cuttack, which was actually paid by Pooja Suren. Though the statements of the co-accused persons as referred above were recorded under Section 161 Cr.P.C., yet the same amount to confession of the guilt by them. However, such confession being made before a Police Officer is clearly inadmissible being hit by the provision under Section 25 of the Indian Evidence Act. Even otherwise, if it is treated as a statement simplicitor under Section 161 of Cr.P.C., the admission of guilt made therein is inadmissible as per Section 162 of Cr.P.C. If any authority is required to be referred to for such a basic proposition of law, the case of Dipakbhai Jagdishchandra Patel vs. State of Gujarat and Another, reported in (2019) 16 SCC 547 can be looked into. Therefore, the prosecution in order to show the involvement of the petitioner has to come up with evidence or material to corroborate the admission/confession of the co-accused persons. Page 6 of 12 7. Keeping the above principles in mind this Court has carefully perused the statements of the witnesses examined by the I.O. The case diary contains the statements of Nilamani Bhatta, the unwed mother (‘X’), the informant- Bisweswari Mohanty, Utkal Ranjan Mohanty, Durga Charan Ojha, Dr. Jyotirmayee Mohanty, Udaynath Swain, Jutika Mishra @ Minu, Kaminiprabha Bhoi, Mamina Bhoi, Brajakishore Bhoi, Jenamani Rout, Raghunath Rout and Kanhu Charan Rout, apart from the statements of the accused persons Dr.Paramananda Acharya and Aurobinda Khuntia. None of the witnesses, except Nilamani Bhatta have even whispered a word about the petitioner’s involvement in the alleged occurrence. In fact, none of them has even taken the name of the petitioner in their statements. Coming to the statement of Nilamani Bhatta, it is seen that on 25.05.2018 he had been to Acharya Nursing Home and came to know about the birth of a female child by an unmarried girl. Since he had good relations with Aurobinda Khuntia, who in turn had earlier informed him that his cousin being issueless was interested to adopt a child, he disclosed such fact Page 7 of 12 before him. Aurobinda Khuntia arrived at the nursing home and assured to bear all treatment expenses of the child whereupon Dr. Paramananda Acharya took the child to Kidy Care Baby Hospital at Cuttack where it was kept till 04.06.2018. A sum of Rs.80,000/- was transferred to Dr. Paramananda Acharya’s bank account by Aurobinda Khuntia and application was submitted in Jagatsinghpur Municipality for grant of birth certificate of the child wherein the name of the parents was mentioned as stated by Aurobinda Khuntia. If the above statement of Nilamani Bhatta is accepted in toto, it will fall far sort of implicating the petitioner even remotely, firstly because her name has not been referred to specifically by him and secondly, nothing has been said by him as to the role supposedly played by the petitioner in the entire transaction. 8. Thus, this Court finds that none of the witnesses examined by the I.O. have implicated the petitioner even remotely. Two aspects however, need to be considered- firstly, the evidence that sum of Rs. 80,000/- was transferred to the bank account of Dr. Paramananda Page 8 of 12 Acharya and secondly, the birth certificate had been applied for stating the mother’s name of the child as Pooja Suren. Coming to the first point, this Court observes that there is nothing on record to show that the amount of Rs.80,000/- transferred to the bank account of Dr. Paramananda Acharya was actually done by the petitioner. On the contrary, the materials on record reveal that such transfer had been effected by Aurobinda Khuntia. As regards the application submitted for birth certificate of the child, it is evident that the same was done at the instance of Aurobinda Khuntia and not the petitioner. Even the applicant, Dr. Paramananda Acharya has himself said so in his statement under Section 161 Cr.P.C., which of course this Court has held to be not admissible. Nevertheless, even assuming that an application was submitted for grant of birth certificate, there is absolutely no evidence to show that the petitioner had any role to play in it. Thus, this Court finds that there is no independent material other than admission of the co-accused persons in their statements recorded under Section 161 Cr.P.C. to show the complicity of the Page 9 of 12 petitioner in the alleged occurrence. It is stated at the cost of repetition that sans corroboration, the statements of the co-accused persons would hardly have any evidentiary value to be accepted during trial. No doubt, learned State Counsel had made an attempt to buttress the prosecution case by submitting that the name of the petitioner appearing in the application for birth certificate as mother of the child raises suspicion that she was involved. However, according to this Court the above would have been an acceptable argument had there been evidence that such recording of the name of the petitioner as mother of the child was at her instance, or that she was in any way responsible for the same. As discussed earlier, there is instead material to show that the same was done at the instance of Aurobinda Khuntia. So only because the name of the petitioner finds place in the application for grant of birth certificate, linking her to such act without any corroborative material or evidence would only be a product of conjecture and not even suspicion, not to speak of grave suspicion. Page 10 of 12 9. Thus, from the conspectus of the analysis made hereinbefore, this Court is left with no doubt that the prosecution case, even if accepted on its face value does not reveal a prima facie case against the petitioner so as to proceed against her. In the oft-quoted judgment of the Apex Court in the case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335 it has been observed as follows: xx xx the allegations made “102. xx (1) Where the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. xx xx in xx” 10. For the foregoing reasons therefore, this Court finds that the continuance of the criminal proceedings against the petitioner without any acceptable evidence would be a travesty of justice and an abuse of the process of Court. 11. In the result, the CRLMC is allowed. The proceeding in G.R. Case No. 658 of 2018 pending in the Court of learned S.D.J.M., Jagatsinghpur in so far as Page 11 of 12 relates to the petitioner, Pooja Suren @ Puja is hereby quashed. ……..…………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 18th August, 2023/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: AUTHENTICATION Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-Aug-2023 17:53:16 Page 12 of 12