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2002 DIGILAW 549 (ORI)

RABI ALIAS RABINDRANATH SAHU v. STATE OF ORISSA

2002-08-27

P.K.TRIPATHY

body2002
JUDGMENT : P.K. Tripathy, J. - Heard. 2. In this application u/s 482, Code of Criminal Procedure both the Petitioners pray to quash the order of cognizance and issue of process against them in G.R. Case No. 184 of 2001 of the Court of J.M.F.C. Kodla. It appears from the order dated 25.2.2002 of the J.M.F.C. Kodla that while taking cognizance of the offence under Sections 457/395/109, IPC and Section 25(1-B)(a) of the Arms Act in G.R. Case No. 184 of 2001 of the Court of J.M.F.C. Kodla, he directed to issue process against the Petitioners for abatement of the offences under Sections 457 and 395. IPC 3. Learned Counsel for the Petitioner placing the FIR and the statement u/s 161, Code of Criminal Procedure of opposite parties 2 and 3 and their-affidavits argues that a case of abatement has not been made out against the Petitioners and therefore, the order of issue of process against them is liable to be quashed. In support of that contention, learned Counsel for the Petitioners relies on the decisions of Bisu Gouda and Ors. v. Niladri Gouda (1990) 3 OCR 587, (sic) Behera v. State (1992) 5 OCR 311, Dr. B. Rosaiah v. State of Andhra Pradesh (sic) Shri Ram Vs. The State of U.P., . 4. Learned Standing Counsel vehemently opposes to the quashing of the order of cognizance and issue of process and also relies on the ratio in the case of Noor Mohammad Mohd. Yusuf Momin Vs. The State of Maharashtra. He also argues that affidavits of opposite party Nos. 2 and 3 cannot be considered at this stage. His contention is that inclusion of two witnesses as opposite parties in this proceeding is suggestive of the fact that Petitioners have started gaining over the prosecution witnesses. 5. It is not disputed at the Bar that on 19.1.2001 night a dacoity was committed in the Factory-cum-residential premises of the informant in which the informant and his family members were looted and some of them were injured in the process of dacoity, by unknown persons. It is also not disputed at the Bar that the other accused persons involved in the case have been arrayed as accused for the offences under Sections 457/395, IPC and Section 25(1-B)(a) of the Arms Act. A detailed discussion in that respect relating to the materials in the case diary is not necessary. It is also not disputed at the Bar that the other accused persons involved in the case have been arrayed as accused for the offences under Sections 457/395, IPC and Section 25(1-B)(a) of the Arms Act. A detailed discussion in that respect relating to the materials in the case diary is not necessary. The point of controversy between the parties i.e., the Petitioners and the prosecution is relating to sufficiency of evidence to implicate the two Petitioners as a betters of the said offences. In the "decisions referred to above, on different facts and circumstances, the cited authorities have deliberated and propounded that the salient principle on abatement is that there must be instigation or conspiracy or intentional aid to facilitate committing of the crime. It has also been held that a better need not remain present at the place of occurrence at the time of committing of the offence. Thereafter on the basis of relevant facts and circumstances, different conclusions have been made in, such cases.... 6. In this case, as it appears opposite parties 2 and 3, according to the prosecution made statement before the Investigating Officer and that they heard the Petitioners making conspiracy and instigating the dacoits to commit dacoity in the house of the informant. Though there was no necessity to add those witnesses as. opposite party, yet, Petitioner, cunningly applied that trick to bring them on record to obtain their affidavits contrary to the statements u/s 161, Code of Criminal Procedure Such an attempt by the Petitioner is neither approved nor appreciated by this Court. That conduct of the Petitioners amounts to influencing or gaining over the prosecution witnesses at a pre-trial stage. For that reason affidavits of the opposite party Nos. 2 and 3 are not worthy perusal or appreciation at this stage because at the time of trial they may be confronted with such statements, and appropriate legal action may be taken if they shall be found to be deposing falsehood or suppressing the truth or giving misleading evidence. On a perusal of the 161, Code of Criminal Procedure statement of the opposite parties 2 and 3 this Court finds there exists a prima facie case for the offence of abatement punishable u/s 109, Code of Criminal Procedure and sufficient evidence to issue process against the Petitioners. A thread bare discussion of such evidence is not necessary at this stage. A thread bare discussion of such evidence is not necessary at this stage. Under such circumstance, the prayer to quash the order of cognizance or issue of process against the Petitioners bears no merit. 7. At this stage, learned Counsel for the Petitioners states that by end of 1st week of September, 2002. both the Petitioners shall surrender and apply for bail in the Courts below and since they have not yet been arrested because of the stay order granted by this Court, therefore, that stay order may be permitted to continue till the date of surrender and observation be made for expeditious disposal of such bail applications. Learned Standing Counsel has no objection to that submission. 8. Thus it is observed that if by 6th of September. 2002 both the Petitioners shall surrender before J.M.F.C. Kodla and apply for bail, then their bail applications be heard and disposed of by the Courts below in accordance with law but expeditiously. The order of execution of N.B.W.A. against the Petitioners shall not be executed on them till the date of surrender or 6th September, 2002, whichever occurs earlier. However, no inference is available in favour of the Petitioner for the direction not to execute the N.B.W.A. as above and bail application be considered on its own merit. The Criminal Misc. Case is accordingly disposed of.