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2014 DIGILAW 43 (ORI)

Kailash Chandra Mohanty v. State of Orissa

2014-01-20

M.M.DAS

body2014
JUDGMENT M. M. DAS, J. - This application under Section 482 of the Code of Criminal Procedure has been filed by the petitioner for quashing of the proceeding in S.T. Case No. 59/196 of 2011 pending before the then learned Ad hoc Additional Sessions Judge (F.T.C.) Puri by quashing the order of cognizance as well as the order passed by the learned Ad hoc Additional Sessions Judge (FTC.), Puri in the aforesaid sessions case rejecting the application of the petitioner, for discharge. 2. Facts reveal that an FIR was lodged by one Jitendriya Pratihari on 17.8.1999 before the I.I.C. Sea Beach Police Station, Puri which was registered under Sections 302/34 IPC read with Sections 25 and 27 of the Arms Act against one Mintu Sur and one Rintu Sur along with others. It was alleged in the FIR that the uncle of the informant, namely, Babu @ Ramanarayan Pratihari had a cloth shop on the Sea Beach, Puri. On 17.8.1999 at about 8.00 P.M., while the said Babu accompanying one Pratima Bose, who was working in the said shop, went to the rear side of the shop, some unidentified persons all of a sudden came towards Babu, who had a scuffle with them. At that time, one of the persons forcible took Pratima Bose in a Bolero vehicle one, out of the rest, fired at Babu, who sustained serious bleeding injuries due to gun shot and was carried to the hospital, where he succumbed to the injuries. It was further alleged in the FIR that the wife of Babu, namely, Pampa along with her two brothers, i.e., Mintu Sur and Rintu Sur, earlier, many a times, threatened Babu that they will kill him, for which they have hired four unidentified persons and arranged their stay at Holiday Home. On receiving the FIR, the Investigating Officer investigated into the matter and ultimately filed charge sheet against 11 (eleven) accused persons including the petitioner. The learned SDJM, Puri on receiving the charge sheet filed under Sections 302/120(B)/201/216/34 IPC read with Sections 25 and 27 of the Arms Act took cognizance of the said offences against the accused persons named in the charge sheet and issued process against the absconding accused persons. The case was thereafter committed to the Court of Session. During framing of charge, the petitioner filed an application on 1.11.2011 under Section 227 Cr. The case was thereafter committed to the Court of Session. During framing of charge, the petitioner filed an application on 1.11.2011 under Section 227 Cr. P.C. praying to discharge him from the charges. The said petition was rejected by the learned Ad hoc Additional Sessions Judge (FTC.), Puri by his order dated 22.11.2011. 3. Learned counsel for the petitioner submitted that during the course of investigation, statement of the petitioner under Section 164 Cr.P.C. was recorded by the learned Magistrate in which the petitioner stated that he was working as a Supervisor in Sriram Apartment along with another staff. The other person went for his marriage for which the owner of the Apartment deputed one Raja, just ten days before the occurrence, to perform the duties of the other staff. The said Raja and the petitioner were staying in the Apartment. On 16.8.1999 about 1.00/1.30 A.M., six persons came in a Maruti Car and woke up the petitioner and Raja. As Raja was acquainted with one of those persons, he allowed them to stay in the site, where they stayed for one day. During their discussion, the petitioner could know about the incident and their intention of visit. Raja told the petitioner about the entire incident and specifically told him that one Chandan has fired a gun shot to a person, near the Sea Beach. Hearing this, the petitioner wanted to inform the owner of the Apartment, but as he was absent, having gone to Balasore, the petitioner returned to the Apartment and found that the said Raja has gone away. Learned counsel further submitted that the entire reading of all the statements of the witnesses recorded under Section 161 Cr.P.C. would show that the petitioner is in no way implicated with the alleged occurrence and no offence whatsoever is made out to have been committed by the petitioner. 4. Learned counsel for the State submitted that except the statement of the petitioner recorded under Section 164 Cr. P.C., no other witnesses have spoken about the petitioner while being examined under Section 161 Cr.P.C. by the Investigating Officer. 5. 4. Learned counsel for the State submitted that except the statement of the petitioner recorded under Section 164 Cr. P.C., no other witnesses have spoken about the petitioner while being examined under Section 161 Cr.P.C. by the Investigating Officer. 5. This Court called for the Case Diary and perused the statements recorded by the Investigating Officer during investigation, under Section 161 Cr.P.C. as well as the statement of the petitioner given under Section 164 Cr.P.C. From the order of the learned Ad hoc Additional Sessions Judge, it appears that he considered the statement given by the petitioner as a confessional statement and surmising that the petitioner has allowed the accused persons to stay in the Apartment and also misquoting his statement under Section 164 Cr.P.C. as if the petitioner was a witness to the occurrence, came to the conclusion that the petitioner concealed the fact and allowed all the accused persons to flee and on this ground ultimately, concluded that there is a prima facie case well made out against the petitioner. 6. This Court on going through the statements of all the persons recorded under Section 161 Cr.P.C. during investigation and the materials available in the Case Diary finds that there is absolutely no material to implicate the petitioner with the alleged crime and the offences for which cognizance was taken and charge has been framed. No prima facie case whatsoever is made out against the petitioner. 7. It is by now well settled in law that allegations made in the FIR, taken at their face value and accepted in their entirety, if do not make out a prima facie case of any offence against the accused or where the uncontroverted allegations made in the FIR and the evidence collected in support of the same do not disclose commission of any offence and make out a case against an accused, the power under Section 482 Cr.P.C. can be exercised in quashing the proceeding against such accused. (See State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604 , M/s. Zandu Pharmaceutical Works Ltd. and others v. Md. Sharaful Haque and others, 2005 (I) OLR (SC) 51, AIR 2005 SC 9 and 2006 (II) OLR (SC) 659 M/s. Indian Oil Corporation v. M/s. NEPC India Ltd. and others, AIR 2006 SC 2780 ). 8. Bhajan Lal and others, AIR 1992 SC 604 , M/s. Zandu Pharmaceutical Works Ltd. and others v. Md. Sharaful Haque and others, 2005 (I) OLR (SC) 51, AIR 2005 SC 9 and 2006 (II) OLR (SC) 659 M/s. Indian Oil Corporation v. M/s. NEPC India Ltd. and others, AIR 2006 SC 2780 ). 8. This Court on considering all the materials in detail collected by the Investigating Agency during investigation including the FIR and the statement recorded under Section 164 Cr.P.C., as already stated above, finds that there is absolutely no case made out against the petitioner even accepting the entire material produced by the prosecution on its face value and, therefore, allowing the sessions trial to proceed against the present petitioner, would be an abuse of the process of the Court and a travesty of justice. 9. In view of the above, the order dated 22.11.2011 passed by the learned Ad hoc Additional Sessions Judge (FTC), Puri in S.T.No.59/196 of 2011 is set aside and the petitioner stands discharged from the charges framed against him in the said sessions trial. As a corollary, the order passed by the learned S.D.J.M., Puri taking cognizance of the offences under Sections 302/120-B/201/216/34, IPC read with Sections 25 and 27 of the Arms Act against the petitioner also stands quashed. The petitioner will not be required to face the trial in S.T.No. 59/196 of 2011. However, the said sessions trial shall continue to proceed against the other accused persons. The interim order passed earlier staying further proceeding of the sessions trial stands vacated. The CRLMC is accordingly allowed. CRLMC allowed.