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2015 DIGILAW 615 (ORI)

Satyaban Pradhan v. State of Odisha

2015-11-09

S.K.MISHRA

body2015
JUDGMENT : S.K. Mishra, J. 1. This is an application under Section 482 of the Code of Criminal Procedure, 1973, hereinafter referred as "Cr.P.C." for brevity. The petitioner is one of the accused in G.R. Case No. 1237-A of 1992 of the court of the learned S.D.J.M., Puri, who has been charge-sheeted for the alleged commission of offences under Sections 341, 307 and 294/34 of the I.P.C. The petitioner was not arrested and one Madhab Chandra Sahoo, the co-accused was arrested and released on bail. Later on the case of Madhab Chandra Sahoo was spitted up from the case of the present petitioner. The said case was committed to the Court of Session and it came before the learned Assistant Sessions Judge-cum-C.J.M., Puri bearing S.T. No. 74/116 of 1998 for trial. The prosecution examined five witnesses in all and the defence examined none. It is apparent from the case records that the prosecution witness No. 1 Gani Sahu, who is one of the eye witnesses, has not supported the case of the prosecution and he has not been cross-examined by the prosecution. It is stated that the informant Pravakara Senapati, who happens to be the injured in this case, is examined as P.W. No. 5 and has stated that the occurrence took place about ten years back. He further states that while he was returning from hotel during the noon hour his bicycle dashed against the accused, for which the accused assaulted him, but he has further stated that he does not remember what has happened at that time. Prosecution has also not proved the F.I.R. through this witness. Rest of the witnesses examined on behalf of the prosecution i.e. P.W. No. 2-Anii Kumar Sahu, P.W- No. 3-Sunil Kumar Sahu and P.W. No. 4-Ligam Kumar Behera have not supported the case of the prosecution. They have not been cross-examined by the prosecution by obtaining permission under Section 154 of the Evidence Act. Accordingly, : having recorded the evidence of these prosecution witnesses, learned Asst. Sessions Judge has come to the conclusion that there is no evidence on record to conclude that the accused has wrongfully restrained Pravakar Senapati and assaulted him on his face by a stick with an intention to commit murder and has also abused him in obscene languages in a public place to cause annoyance. Sessions Judge has come to the conclusion that there is no evidence on record to conclude that the accused has wrongfully restrained Pravakar Senapati and assaulted him on his face by a stick with an intention to commit murder and has also abused him in obscene languages in a public place to cause annoyance. Accordingly, it was held that the prosecution has failed to bring home the charges under Sections 341, 307, 294/34 of the I.P.C. against the petitioner and the petitioner was therefore acquitted under Section 232 of the Cr.P.C. 2. Now at this stage, learned counsel for the petitioner submits that since none of the prosecution witnesses has supported the case of the prosecution and the learned trial court has acquitted the co-accused under Section 232 of the Cr.P.C., the trial of the present petitioner in the split up case will be a futile exercise? and hence, would cause an abuse of process of law. He further states that when the result is almost known in this case, the petitioner should not have to undergo the ignominy of facing a criminal trial. Hence, he prays that the criminal proceeding against the present petitioner be quashed in exercise of jurisdiction under Section 482 of the Cr.P.C. 3. On the last date, the learned Standing Counsel for the State submitted that in cases where processes under Sections 82 and 83 Cr.P.C. were issued, the petitioners should not be favoured with an order under Section 482 of the Cr.P.C., but he failed to cite any authority in support of his contention. In the case of Satish Mehera v. Delhi Administration and another, 1996 SCC (Cri) 1104; the Supreme Court in paragraph 15 has held as follows: "But when the judgment 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 holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under having pressure of workload...." In the case of Central Bureau of Investigation v. Akhilesh Singh, 2005 (I) OLR (SC) 354, the Supreme Court took note of the fact that in an earlier proceeding the co-accused, who happens to be the main accused and is alleged to have hatched the conspiracy and who had the motive to kilt the deceased was discharged under Section 482 of the Cr.P.C. by the High Court, and the order became final, the same having been challenged by the State, the application to discharge the co-accused by the High Court under Section 482 of the Cr.P.C. should be allowed as no purpose would be served in further proceeding with the case against the co-accused. In case of Kanhu Behera v. State of Orissa, 2005 (II) OLR 386 , this Court confronted with the similar situation and has held as follows: "7. In the present case perusal of the case diary reveals that the petitioner is the uncle-in-law of the deceased and the only allegation against him in the F.I.R. is that he along with other family members demanded additional: dowry of Rs. 5,000/-. Except this allegation, there is no other evidence against him. None of the witnesses' except the informant has even taken the name of the petitioner in their statements before the 1.0. Since there is no prima facie case against the petitioner for the alleged offences and the principal accused persons have already been acquitted after a full-fledged trial, continuance of the criminal proceeding against the petitioner would be undoubtedly abuse of the process of the Court as in the present facts and circumstances of the case, the chance of conviction of the petitioner is totally bleak." 4. In the aforesaid case, this Court taking note of the case of B.S. Joshi and others v. State of Haryana and Others, (2003) 25 OCR (SC) 99, Sridhar Pani v. State of Orissa and Another, (2003) 25 OCR 447 and Kanhu Behera v. State of Orissa, 2005 (H) OLR 386 and Santosh Kumar Maity v. State of Orissa, 2006 (H) OLR 308 has held that the principal accused having been acquitted, continuance of the criminal proceeding against the co-accused will amount to abuse of process of law and the proceeding must be quashed. In the case of Sri Premananda Sahu v. State of Orissa, 2012 (II) OLR 961 , this Court after taking into account alt the relevant decisions on the issue has come to the conclusion and held as follows: "On analyzing the nature of allegations made by the prosecution against the accused persons and the materials collected during investigation, if it is found that in case of trial against the co-accused persons, the Trial Court, on considering such materials and evidence, has found that the prosecution has failed to prove its case against the said accused persons facing trial and it is found that there can be no other material which, if trial is conducted against the absconding accused, will point towards his guilt, allowing the trial to continue against the absconding accused will be nothing but a futile exercise wasting the hours of the Court, which will inevitably end" in acquittal of the accused, who was absconding. In such situation, it will be always appropriate for the Court, for the ends of justice as well as to prevent abuse of the process of law to quash the proceeding against such absconding accused in its entirety by exercising the inherent power under section 482 Cr.P.C." Similar view has been taken by this Court in Sri Nina @ Niranjan Mohapatra v. State of Odisha, 2014 (II) OLR 528 . 5. In applying the principle laid down in the aforesaid cases, this Court finds that the main accused Madhab Chandra Saboo, who had allegedly assaulted the informant on his face by means of a stone with an intention to commit his murder, has already been acquitted. The allegation against the present petitioner if that he caught hold of the informant and threw him on the ground and caught hold of him. When the prosecution could not prove the main allegation of commission of offence under section 307 of the I.P.C. against the co-accused and he has been acquitted of the charges under Section 232 Cr.P.C., there is hardly any possibility of proving the case under section 307/34 of the I.P.C. against the present petitioner. When the prosecution could not prove the main allegation of commission of offence under section 307 of the I.P.C. against the co-accused and he has been acquitted of the charges under Section 232 Cr.P.C., there is hardly any possibility of proving the case under section 307/34 of the I.P.C. against the present petitioner. So, in this view of the material on record, this Court is of the opinion that it will be appropriate for this Court, for ends of justice and to prevent abuse the process of law to quash the proceeding against the absconding accused i.e. the petitioner In its entirety by exercising the inherent power under Section 482 of the Cr.P.C. Hence, the application is allowed. The Criminal proceeding pending against the present petitioner in G.R. Case No. 1237-A of 1992 of the court of S.D.J.M., Puri for commission of offence under Section 341, 307 and 294/34 of the I.P.C. is hereby quashed. The Criminal Misc. Case is accordingly allowed.