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2008 DIGILAW 1132 (ORI)

A. v. SURYA RAO VS STATE OF ORISSA

2008-12-12

B.K.PATEL

body2008
JUDGMENT : B.K. Patel, J. - Heard. 2. The Petitioner has field this application u/s 482 of the Code of Criminal Procedure with a prayer to quash the First Informant Report in Lalbag P.S. Case No. 51 of 2008 corresponding to G.R. Case No. 451 of 2008 pending in the Court of Learned S.D.J.M. (S), Cuttack. 3. Lalbag P.S. Case No. 51 of 2008 was registered upon receipt of the complaint petition bearing I.C.C. No. 581 of 2008 in the Court of S.D.J.M. (S), Cuttack for commission of offences 395, 450, 427 and 294 of the read with 25 & 27 of the Arms Act. In the complaint petition the Petitioner figures as the only named accused and allegations have been made against ten to twenty others who have not been named. Allegations in the complaint petition relates to occurrence which took place at about 1.30 to 2.00 P.M. on 30.03.2008 at Nayasarak situated in the heart of Cuttack city. Briefly stated, it is alleged that the informant who was in peaceful possession of the case shop room belonging to the Petitioner-accused pursuant to an agreement entered into between them was forcibly evicted by the Petitioner and co-accused persons who were armed with different weapons. In order to take over forcible possession the locks were broken and in course of the occurrence the case shop room was ransacked. It is also alleged that the Petitioner and co-accused persons committed dacoity in respect of silver ornaments. Report lodged regarding the occurrence by the informant before the I.I.C., lalbag Police Station and Deputy Commissioner of Police, Cuttack having not yielded any result, the informant instituted I.C.C. No. 581 of 2008 before the Learned S.D.J.M. (S), Cuttack. 4. It is submitted by the Learned Counsel for the Petitioner as well as the informant that the dispute between the Petitioner and the informant was the outcome of civil dispute emanating from rival claim over the case shop room. It is further submitted that the parties have amicably settled their dispute in the meanwhile and the informant does not want to proceed with the criminal proceeding. In support of the contention that in view of compromise between the parties the F.I.R. as well as the proceeding ought to be quashed in exercise of jurisdiction u/s 482 of the Code of Criminal Procedure, decisions of Hon'ble Supreme Court and of this Court are cited. 5. In support of the contention that in view of compromise between the parties the F.I.R. as well as the proceeding ought to be quashed in exercise of jurisdiction u/s 482 of the Code of Criminal Procedure, decisions of Hon'ble Supreme Court and of this Court are cited. 5. Learned Counsel for the State in resisting the prayer for quashing the proceeding contends that criminal proceeding, once instituted, has to be allowed to continue till disposal of the case in accordance with law and should not be brought to an end at the will of whim and fancy of the parties unless the offences alleged are compoundable in terms of Section 320 of the Code of Criminal Procedure. 6. Having heard the Learned Counsel for the Petitioner and Learned Counsel for the informant as well as Learned Counsel appearing for the State and upon perusal of materials on record including the records of the criminal proceeding produced in course of hearing, it appears that the contention raised on behalf of the parties to the effect that the criminal proceeding is outcome of civil dispute between the parties does not appear to be unfounded. The informant appears to have already approached the Court of Civil Judge (Sr. Division), 1st Court, Cuttack by filing a suit in which interim arrangement in respect of case shop room appears to have been made by Order Dated 22.04.2008 passed in LA: No. 167 of 2008. Though the case has been registered for commission of offence u/s 395 of the Indian Penal Code also on the basis of averments made in the complaint petition a status report of the investigation submitted by the investigating police officer to the Court of S.D.J.M. (8), Cuttack, reveals that though the alleged occurrence took place in broad day light in the heart of Cuttack city, none could be able to substantiate the allegations made in the complaint petition except one Gourab Kayal who vaguely stated that the Petitioner alongwith some other persons gathered in front of the case shop room. Learned Counsel for the parties also referred to copy of agreement concerning the cash shop room and the order passed in LA. Learned Counsel for the parties also referred to copy of agreement concerning the cash shop room and the order passed in LA. No. 167 of 2008 submit that dispute between the parties related to claim of possession of the case shop room and that materials on record do not indicate commission of offence u/s 395 of the Indian Penal Code in as much as police statements of none of the witnesses reveal that there was commission of robbery or dacoity as defined under the Indian Penal Code. Allegations in the case at the worst amount to commission of offences of mischief and trespassing which are compoundable. In an affidavit sworn by the informant it has been averred that in view of amicable settlement of their dispute, he does not want to proceed with the case. 7. From the above discussion, it is apparent that though the case has been registered u/s 395 of the Indian Penal Code, there is no material on record to indicate commission of offence of dacoity. The crux of the dispute between the parties relates to occupation of the case shop room in respect of which they had entered into an agreement. The informant has approached the Civil Court also for adjudication of the dispute. Prayer made in the present application is not for compounding of the offences. The Petitioner seeks quashing of the F.I.R. and the criminal proceeding by invoking inherent jurisdiction of the Court u/s 482 of the Code of Criminal Procedure to prevent abuse of process of Court in order to secure the ends of justice. The informant supports the motion. In view of the stand taken by the informant it is evident that continuance of the criminal proceeding shall be an exercise in futility without any chance of the success of the prosecution. 8. Under similar consideration, when the continuance of the criminal proceeding was found to be a futile exercise, it has been held by the Hon'ble Supreme Court as well as this Court that proceeding further with the case will be an abuse of process of Court and, accordingly, proceedings have been quashed by exercise of jurisdiction u/s 482 of the Code of Criminal Procedure In this connection, decisions of the Hon'ble Supreme Court in (2000) 10 SCC 10 in the case of Fazle Gaffar Khan and Ors. v. State of W.B. and Anr., and decisions of this Court in Betu alias Bijan Kumar Nayak Vs. State of Orissa and Another Lliaquat Hussen Khan and Anr. v. State of Orissa, (2001) 21 OCR 437, Tasoraj Mahamad and Ors. v. State of Orissa and Anr., 2004 (II) OLR 642 , Ajaya Kumar Das v. State of Orissa & two Ors., (2005) 31 OCR 339, Hemanta Kumar Rout v. State of Orissa, (2007) 37 OCR 698 and Balabhadra Rout and Ors. v. State of Orissa and Ors., (2008) 40 OCR 363 may be referred to. In B.S. Joshi and Ors. v. State of Haryana and Anr., (2003) 25 OCR 99 it has been observed by the Hon'ble Supreme Court that when quashing of proceeding is found to be necessary for the purpose of securing the ends of justice, Section 320 of the Code of Criminal Procedure cannot stand as a bar. When chance of conviction is bleak, the Court can proceed to quash the proceeding taking into consideration the facts and circumstances of the case. In Satish Mehra v. Delhi Administration and Anr., 1996 (3) Crime 85 (SC) it has been observed that when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time 'of the Court should not be wasted for bolding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. Even when the Trial Court is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or ship the proceeding. 9. In view of the above discussion, there appears no justification to allow continuance of the criminal proceeding when the informant himself does not want to proceed with the case. Therefore, in order to prevent abuse of process of Court with a view to secure the ends of justice the F.I.R. and proceeding in Lalbag P.S. Case No. 51 of 2008 corresponding to G.R. Case No. 451 of 2008 pending in the Court of Learned S.D.J.M.(S), Cuttack are quashed. 10. Accordingly, the CRLMC is disposed of. 11. Urgent certified copy of this order be granted on proper application. 12. Appeal allowed. Final Result : Allowed