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2017 DIGILAW 1162 (ORI)

Bijay Ku. Das v. State of Orissa

2017-10-16

S.K.SAHOO

body2017
JUDGMENT : S.K. SAHOO, J. 1. This is an application under section 482 of Cr.P.C. filed by the petitioners challenging the continuance of proceeding in G.R. Case No. 1874 of 1995 arising out of Lalbag P.S. Case No. 243 of 1995 pending in the Court of learned S.D.J.M., Sadar, Cuttack in which charge sheet has been submitted under sections 147/148/323/341/326/307/337/379/149 of the Indian Penal Code. Out of the eleven petitioners, charge sheet has been only against the petitioners nos.1, 2, 4, 6, 8 and 9. 2. It is submitted by the learned counsel for the petitioners that due to conflict and ill feeling between two neighbouring Sahis namely Balubazar and Budhi Thakurani within Cuttack Town, the occurrence stated to have been taken place on 28.10.1995 night during the immersion procession of goddess ‘Kali’ while passing in between Kazibazar and Ganga Mandir. It is further submitted that in the meantime, not only twenty two years have passed but also the matter has been amicably settled between the parties and to that effect, the learned counsel for the petitioners has relied upon the document as per Annexure-1 which shows that the dispute has been compromised between the parties in presence of the Puja Committee, Cuttack Mahanagar Shanti Committee and D.S.P., Cuttack. 3. The informant has filed an affidavit as per Annexure2 indicating the settlement of dispute between the parties. It is contended by the learned counsel for the informant that in view of the amicable settlement between the parties, peace and goodwill has been restored and the informant is not interested to proceed with the case. 4. Learned counsel for the State has no objection to the prayer made in the petition. 5. In case of Narinder Singh Vrs. State of Punjab reported in (2014) 58 Orissa Criminal Reports (SC) 202, wherein one of the offences for which the accused was proceeded against was under section 307 of the Indian Penal Code and it was submitted that even for such criminal offences, a Court of competent jurisdiction, under section 482 of the Code of Criminal Procedure, could quash the criminal proceedings, Hon’ble Supreme Court held as follows:- “31. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings: ** ** ** ** ** ** (VI). Offences under section 307 Indian Penal Code would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of section 307 Indian Penal Code in the F.I.R. or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of section 307 Indian Penal Code is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under section 307 Indian Penal Code. For this purpose, it would be open to the High court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case, it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. (VII). While deciding whether to exercise its power under section 482 of the Code or not, timings of settlement play a crucial role. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. (VII). While deciding whether to exercise its power under section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial Court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under section 307 Indian Penal Code is committed or not. Similarly, in those cases where the conviction is already recorded by the trial Court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial Court.” 6. On perusal of the case diary, though it is stated that one Ajaya Kumar Hajari and Dhirendra Nath Jee were assaulted during the immersion procession but none of them have been sent for any medical examination on police requisition and no medical documents are also available on record to substantiate such assault. Therefore, I am satisfied that the ingredients of the offences under sections 326 and 307 of the Indian Penal Code are not attracted. The offences under sections 323, 341, 337 and 379 are compoundable in nature. Therefore, I am satisfied that the ingredients of the offences under sections 326 and 307 of the Indian Penal Code are not attracted. The offences under sections 323, 341, 337 and 379 are compoundable in nature. Adverting to the submissions made by the respective parties and after going through the documents annexed, it appears that even though some of the offences are not compoundable in nature but as the parties have settled their dispute and peace and goodwill has been restored between them and their relationship has improved and the occurrence took place during the immersion procession twenty two years back and since in the millennium city of Cuttack, during traditional Puja festivals, such minor disturbances between the Sahis used to happen but the people forget such things very quickly and adopt brotherhood and with progressive attitude, continue to live peacefully and in harmony, I am of the view that no fruitful purpose would be served in allowing the proceeding to continue and it would be a sheer wastage of valuable time of the Court as the chances of conviction is remote and bleak. 7. Therefore, invoking my inherent power under section 482 Cr.P.C., I quash the entire criminal proceeding in G.R. Case No. 1874 of 1995 arising out of Lalbag P.S. Case No. 243 of 1995 pending in the Court of learned S.D.J.M., Sadar, Cuttack. 8. Accordingly, the CRLMC application is allowed.