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2017 DIGILAW 344 (ORI)

BALASORE INDUSTRIAL AREA v. STATE OF ORISSA

2017-03-29

S.PUJAHARI

body2017
JUDGMENT : S. Pujahari, J. - Heard the learned counsel for the petitioner and the learned counsel for the State. 2. This application under Section 482 of the Criminal Procedure Code (for short "Cr.P.C.") has been filed challenging the order dated 03.11.2006 passed by the learned S.D.J.M., Balasore in C.T. No. 254 of 2005 taking cognizance of the offences under Sections 307, 120-B read with Section 34 of I.P C. and under Sections 25 and 27 of the Arms Act against the present petitioner and others. 3. Learned counsel for the petitioner submits that though the petitioner was stated to have indicated in this case in making criminal conspiracy along with his brother and another to commit murder the injured-informant and pursuant to which, his brother and another co-accused had attacked the injured-informant to commit such murder but could not succeed and in the meanwhile both the co-accused persons who stated to have attempted to commit murder of the injured-informant having been acquitted from the charges levelled against them, inasmuch as the injured-informant did not support the case of the prosecution, the continuance of the prosecution against the petitioner in a charge under Section 120-B of IPC will be a futile exercise inasmuch as in the absence of identification of the conspirator with the person who stated to have conspired with the present petitioner, a charge against the petitioner is unsustainable. 4. Learned counsel for the State does not dispute the fact that other co-accused persons have been acquitted in this case. 5. It is not dispute that the prosecution case was lodged indicating the fact that the brother of the petitioner while making preparation to commit dacoity was apprehended by the police, that too on the information provided by the injured-informant in this case and thereafter, it is alleged that the petitioner and his brother bore grudge against him and pursuant to the same they said to have attacked the injured-informant in order to murder him, but could not succeed. The brother of the petitioner faced trial and as the injured-informant did not support the case of the prosecution, he has been acquitted. That order has reached its finality The prosecution allegation against the petitioner that he has entered into a criminal conspiracy with his brother. 6. The brother of the petitioner faced trial and as the injured-informant did not support the case of the prosecution, he has been acquitted. That order has reached its finality The prosecution allegation against the petitioner that he has entered into a criminal conspiracy with his brother. 6. In the case of Central Bureau of Investigation v. Akhilesh Singh, AIR 2005 SC 268 , the Apex Court have held as follows :- "(A) Criminal Procedure Code (2 of 1974), Section 482-Quashing of charge and discharge and discharge of co-accused-Validity-Offence of criminal conspiracy and murder-Main accused who had alleged to have hatched conspiracy and who had motive to kill deceased was already discharged-That matter had attained finality-Discharge of co-accused by High Court by holding that no purpose would be served in further proceeding with case against co-accused-Held, proper. (Para-5) (B) Criminal Procedure Code (2 of 1974), Section 482-Quashing of charge and discharge of co-accused-Offence of criminal conspiracy and murder Order of discharge passed against main accused attaining finality-Co-accused thereafter approached High Court under Section 482-Delay condoned and order quashing charge passed by High Court-Held, power exercised by High Court did not suffer from any illegality or perversity." (Para-6) [Quoted from Placitum] In view of the aforesaid law laid down, the continuance of the prosecution against the petitioner will be a futile exercise of jurisdiction. 7. Accordingly, I allow this Criminal Misc. Case application and quash the impugned order of cognizance. Consequently, the prosecution launched against the petitioner stands quashed. The Trial Court shall do well to comply with this order on production of the certified copy of this order. 8. Issue urgent certified copy as per rules. Final Result : Allowed