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1998 DIGILAW 133 (ORI)

SASIKANTA SAMANTARAY v. STATE OF ORISSA

1998-04-17

P.K.TRIPATHY

body1998
P. K. TRIPATHY, J. ( 1 ) HEARD learned counsel for the petitioners and learned Addl. Government Advocate on behalf of the State of Orissa. ( 2 ) THIS application under Section 482 of the Code of Criminal Procedure, 1973 has been filed with the following prayer :-"it is humbly prayed this Hon'ble Court may graciously be pleased to quash the cognizance of order dated 7-5-1990 by learned S. D. J. M. (S), Cuttack in G. R. Case No. 213/87 and further- more also be pleased to quash the cognizance taken against the petitioners in aforesaid G. R. case. " ( 3 ) LEARNED counsel for the petitioners argues that when the case is pending and lingering for above ten years, no useful purpose will be served by further continuing the proceeding. His second contention is that the incident relates to an occurrence which occurred during the student days of the petitioners and at present pursuing that matter will not enure in any benefit to the Society and apart from that if the proceeding is allowed to continue, it will amount to harassment not only to the petitioners, but also to their innocent family members. ( 4 ) BEFORE dealing with the contentions advanced some facts which are relevant may be briefly stated. On 25-2-1989 charge sheet was filed for the offences under Sections 147/148/323/427/436/452/506/149, I. P. C. on the ground that there exists prima facie evidence that both the petitioners and eight other co-accused while being student of Bhubanananda Engineering School committed the aforesaid offences. Cognizance of the offences was taken on that date and learned S. D. J. M. (S), Cuttack issued summons. On 1-9-1989 both the petitioners and two other accused persons entered appearance and went on bail. Order was passed to secure attendance of other accused persons either by issue of summons or warrants, keeping in view of the nature of the service report. On 17-5-1990, these two petitioners besides some other accused persons did not appear. Hence, order for issuance of non-bailable warrant of arrest was passed. Prayer to quash the cognizance order dated 17-5-1990 is incorrect inasmuch as cognizance was taken on 25-2-1989 and not on 17-5-1990. On 17-5-1990, these two petitioners besides some other accused persons did not appear. Hence, order for issuance of non-bailable warrant of arrest was passed. Prayer to quash the cognizance order dated 17-5-1990 is incorrect inasmuch as cognizance was taken on 25-2-1989 and not on 17-5-1990. ( 5 ) NOW dealing with the points raised, learned counsel for the petitioners argues that delay in disposal of the case for a period above ten years has defeated the ends of justice and to save the proceeding from the abuse of process of law, the order of cognizance should be quashed. It is clear from the above narration of the facts that delay in disposal of the case has occurred only due to default in appearance by the petitioners for about long eight years. It is said that justice delayed is justice denied. In this case that maxim applies in favour of the prosecution and against the accused -petitioners inasmuch as because of the default in attending the Court, petitioners, have arresed the further progress in the trial of the case. When the petitioners are the creator and perpetrator of the delay, they cannot take shelter of that plea to gain any advantage or any relief. Needless to say that the above argument being devoid of merit, is rejected. ( 6 ) MR. Pradhan, learned counsel for the petioners, further argues that the occurence relates back to the student days of the petitioners and after long lapse of time there is remote chance of availability of evidence and therefore the process of trial will be a futile exercise not enuring in any benefit to the society. On the other hand, he argues, if at all the offences are proved and accused persons are punishable, it will result in the petitioners losing their jobs and their family members harassed and that will also not enure in any benefit to the society. Hence, he pleads that the order of cognizance should be quashed. ( 7 ) THE above noted argument is attractive but devoid of substance. It has already been noted that delay in disposal of the case is only due to default in appearance of some of the accused persons and petitioners are amongst those defaulters. Hence, he pleads that the order of cognizance should be quashed. ( 7 ) THE above noted argument is attractive but devoid of substance. It has already been noted that delay in disposal of the case is only due to default in appearance of some of the accused persons and petitioners are amongst those defaulters. There cannot be a valid and legal presumption that because the trial of the case has not been taken up so far, therefore, witnesses mentioned in the charge sheet either will not be available or that they will not depose about the occurrence. Such an argument is far fetched. No exception is provided in Indian Penal Code, for any offence committed by students or during the student days of the accused persons. However, at the conclusion of the trial, if the charge against the petitioners will be substantiated at the stage of considering the factum of awarding sentence, petitioners may plead for granting the benefit of the provisions in Probation of Offenders Act and the trial Court may consider the same appropriately. Similarly, the consequence after the conviction and its effect on the service career of the petitioners and consequential effect on the family members of the petitioners is of no relevance inasmuch as when a crime has been alleged, petitioners are bound to go through the legal process. Hence, the aforesaid argument advanced on behalf of the petitioners is not accepted. ( 8 ) APART from that a cognizance order is not liable to be quashed either on the ground of delay in disposal of the case or because there is less chance of conviction or that the family members in the families of the accused will suffer the after effect of the conviction. A cognizance order can be quashed by invoking inherent power under Section 482 of the Code, if the materials in the case record does not disclose existence of a prima facie case for the alleged offences or that there is no material to connect the petitioners with the alleged crime. Learned counsel for the petitioners does not argue anything regarding absence of prima facie case or lack of prima facie evidence against the petitioners. In view of such facts and circumstances also the order of cognizance is not liable to be interfered with. Learned counsel for the petitioners does not argue anything regarding absence of prima facie case or lack of prima facie evidence against the petitioners. In view of such facts and circumstances also the order of cognizance is not liable to be interfered with. ( 9 ) IT has already been noted that on 17-5-1990 cognizance of the offence was not taken but due to default in appearance of the petitioners and two other co-accused, order for issue of non-bailable warrant of arrest was passed. When the accused persons defaulted in their appearance, learned S. D. J. M. (S), Cuttack had no other alternative than to pass such an order. Thus that order is neither illegal nor unjust or improper. Such an order need not be interfered with by exercising inherent power inasmuch as no reason whatsoever has been advanced by the petitioners for such default in appearance and subsequent conduct in not appearing in that Court for long eight years. ( 10 ) THOUGH the lower Court record is not available to know the manner in which step was taken for exception of the warrant of arrest, yet the fact remains that the petitioner No. 1 who is serving under O. S. R. T. C. and posted at Jeypore in Koraput district and petitioner No. 2 who is serving under the Hindusthan Steel Ltd. (Rourkela Steel Plant) at Rourkela, have not been arrested by the police for long eight years. In such type of cases there must be proper co-ordination between prosecuting and investigating agencies, so that Court work proceeds smoothly, systematically and unblemishly. Concerned Chief Judicial Magistrate, exercising administrative control over the functioning of magisterial Courts should have taken note of non execution of the warrant for such a long time and if necessary should have drawn the attention of the Director of Public Prosecution of the State for proper remedy. It is thus observed that not only in this case, but also in similar other cases the Chief Judicial Magistrate shall take appropriate steps. In that process callousness if any, either of the Magistrates or of ministerial staff should be brought to the notice of the Sessions Judge for appropriate administrative actions. ( 11 ) FOR the reasons already indicated, prayer to quash the cognizance order or the order dated 17-5-1990 is rejected and accordingly the Criminal Misc. case is dismissed. In that process callousness if any, either of the Magistrates or of ministerial staff should be brought to the notice of the Sessions Judge for appropriate administrative actions. ( 11 ) FOR the reasons already indicated, prayer to quash the cognizance order or the order dated 17-5-1990 is rejected and accordingly the Criminal Misc. case is dismissed. Communicate a copy of this order to the Court of S. D. J. . M (S), Cuttack and also a copy to the Court of Chief Judicial Magistrate, Cuttack immediately for information and necessary action. Misc. Case No. 571 of 1998. 11-A. Heard. ( 12 ) IN view of the aforesaid order, though this Misc. case has become infructuous yet, if the petitioners shall surrender in the Court of S. D. J. M. (S), Cuttack in G. R. Case No. 213 of 1987 by 22-4-1998 and apply for bail, learned S. D. J. M. may consider it appropriately and dispose of the same during the course of the day. ( 13 ) THE Misc. case is disposed of. Order accordingly. .