Orissa High Court
Sri Premananda Sahu vs State Of Orissa on 10 August, 2012
Author: M.M. Das
Bench: M.M.Das
ORISSA HIGH COURT: CUTTACK
CRLMC NO. 3081 OF 2011
In the matter of an application under section 482 of the Code of
Criminal Procedure.
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Sri Premananda Sahu ...... Petitioner
-Versus-
State of Orissa
...... Opp. Party
For petitioner: M/s. S. Pradhan,
Khiroda Kumar Rout &
T.K.Nayak.
For opp. party : Addl. Government Advocate.
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Date of Judgment: 10.08.2012.
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE M.M.DAS
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M.M. DAS, J.The petitioner has filed this application under section 482 of the Code of Criminal Procedure seeking quashing of the order of cognizance taken against him in Naikanidihi P.S. Case No. 63 of 2010 corresponding to G.R. Case No. 208 of 2010 on the ground that other accused persons, who have faced the trial, save and except him, have already been acquitted by the learned Additional Sessions Judge, F.T.C. - I, Bhadrak, in S.T. No. 89/167 of 2010 vide his judgment dated 11.5.2011 and in the facts and circumstances and background of the case, there is absolutely no prospect of the case against the petitioner ending in conviction. 2
2. The allegation made by the prosecution in a nutshell is that on 25.6.2010, the Officer-in-Charge of Naikanidihi Police Station, namely, one Shri Harekrushna Das was performing his patrolling duty along with Havildar - N.K.Behari of village - Kasia. On getting reliable information that one dead body was buried in the dry pond belonging to one Kusma Bewa in village Sankrushnapur, the O.I.C. preceded to the spot along with his Havildar and found one dead body which was buried there. Accordingly, he sent information to his superiors and requested the S.D.M., Bhadrak to depute the Executive Magistrate to remain present at the time of recovery and inquest of the dead body. As per his request, after arrival of the Tahasildar, Basudevpur, in his presence, the dead body was taken out from the place where it was buried and it was found to be a headless male dead body aged about 35 to 40 years having no wearing apparel. The local people could not identify the dead body. The O.I.C. drew up a plain paper F.I.R. at the spot and he himself took up the investigation against unknown accused persons.
3. In course of investigation, police arrested three accused persons, namely, Jayadev Sahu, Khokan Sahu and Parbati Sahu and could be able to identify the dead body to be that of one Gunadhar Sahu. It is the prosecution case that while in custody, the said accused persons confessed their guilt before the police and accused Jayadev led the police party to Kasia Nala and gave recovery of the 3 detached head of the deceased Gunadhar Sahu. Accused Khokan Sahu gave recovery of one Spade with handle, one wooden baton, one plastic rope, one gunny bag and one napkin. Both the accused persons gave recovery under section 27 of the Evidence. Act. After the investigation was over, the police filed charge sheet against four accused persons, namely, Parbati Sahu, Jayadev Sahu, Khokan Sahu and the present petitioner - Premananda Sahu. Out of them three persons were in judicial custody, whereas the present petitioner - Premananda Sahu was shown as an absconder in the charge sheet. Thereafter, the case against the three accused persons, who were in judicial custody was split up and was committed to the Court of Session. Charge was framed and trial commenced.
4. In course of trial, to prove its case, the prosecution examined as many as 14 witnesses, exhibited 20 documents and six material objects. The defence examined one witness on their behalf, i.e., D.W. 1. The plea of the accused persons, who faced the trial, was a complete denial of the allegations made by the prosecution against them. In their statement under section 313 Cr.P.C. the accused persons stated that the so-called deceased Gunadhar Sahu was not staying with them in their house and left the house since about 8 to 10 years and they do not know whether Gunadhar Sahu is alive or dead.
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5. According to the learned trial court, prosecution relied on circumstantial evidence, that is, the deceased was last seen along with the accused persons (including the present petitioner) just before he met the homicidal death and the second was the recovery given by accused Jayadev and Khokan, while in police custody under section 27 of the Evidence Act and their statements under the said section.
6. The admitted case of both the prosecution as well as the defence is that the deceased Gunadhar Sahu was the husband of Parbati Sahu and father of accused Khokan Sahu. The accused Jayadev Sahu is the son of the brother of the deceased Gunadhar. The present petitioner Premananda Sahu is also the son of the deceased Gunadhar. It is also the prosecution case that deceased was not pulling on well with his wife and children. The deceased had left the house 8 to 10 years back and was residing in the house of one Nayan Mallik of village _ Krushnapur and earning his livelihood by begging.
7. After detail analysis of evidence of the prosecution witnesses, i.e., P. Ws 4, 6, 11 and 14, learned trial court reached at the conclusion that prosecution has failed to establish the fact that the deceased was last seen in the company of accused persons before his death and thereafter his dead body was recovered. In order to establish the second circumstance, that is leading to discovery of 5 incriminating materials by accused Jayadev and Khokan under section 27 of the Evidence Act and their confessional statements in course of leading to discovery, the prosecution relied on the evidence of two prosecution witnesses, i.e., P.W. 11 and P.W. 14. After thread bare detail analysis of the evidence, the learned trial court came to the conclusion that evidence of prosecution witnesses do not inspire confidence, the accused persons could not be connected with the crime on the basis of the recovery made, no blood was detected on the recovered spade and the said alleged weapon of offences has not been sent to the Forensic Laboratory to detect any blood stain. As such, according to the learned trial court, the prosecution has also failed to establish the second circumstance against the accused persons. Concluding thus, the learned trial court acquitted the said three accused persons.
8. It was submitted that leading to discovery by the arrested accused persons under section 27 of the Evidence Act having not been believed so as to warrant their conviction by the learned trial court, by no stretch of imagination, it can form the basis of conviction against the present petitioner.
9. The learned counsel for the petitioner contended that from the judgment of acquittal of the co-accused persons, it is crystal clear that there is no prospect of the case ending in conviction against the petitioner if the trial is held and the same would be a 6 futile exercise only for the purpose of formally completing the procedure to pronounce the inevitable conclusion on a future date. In support of the aforesaid submission, learned counsel for the petitioner relied upon the decision in the case of Satish Mehera v. Delhi Administration and another, 1996 S.C.C. (Cri) 1104. In paragraph-15 whereof, the Hon'ble apex Court 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 Kanhu Behera v. State of Orissa, 2005 (II) OLR, 386, this Court 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 FIR 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 I.O. 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".
In the case of Santosh Kumar Maity v. State of Orissa, 2006 (II) OLR 308, this Court reiterated that in the event the 7 principal accused has already been acquitted after facing trial, the continuance of the criminal proceeding against the petitioner after lapse of six years would undoubtedly amount to abuse of the process of law inasmuch as there is bleak chance of conviction and there is every likelihood that the case will end in acquittal.
10. A similar view was taken by this Court in the case of Ramananda @ Ram Nand @ Rupsingh Naik v. State of Orissa, (2007) 37 OCR 159 by considering the nature of allegations made and the evidence adduced and the further fact that the FIR was registered against 1000 unknown persons in a mob. Considering that no useful purpose would be served in continuance of the criminal proceeding against the petitioner therein, as no specific overt act has been alleged against the petitioner and no nexus was found between the said petitioner and the alleged commission of offences, the Court concluded that no prima facie case has been made out against the petitioner therein. This view has been reiterated again in the case of Babuli @ Arabinda Das v. State of Orissa and others, (2007) 38 OCR 8.
11. With regard to exercise of power under section 482 Cr.P.C., the Supreme Court in the case of Madhabaro Jiwajirao Scindia and another etc. v. Sambhajirao Chandrojirao Angrey and others etc., AIR 1988 SC 709, held as follows:-
"...........where in the opinion of the Court, chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be 8 served by a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding..........."
12. In the case of Central Bureau of Investigation v. Akhilesh Singh, (2005) 30 OCR (SC) 201, the apex Court was considering an appeal filed by the Central Bureau of Investigation against an order passed by the learned Single Judge of the Allahabad High Court by which the learned Single Judge quashed the charges framed against the respondent in the said case on the ground that the main accused having been discharged by the court of session which order was confirmed by the High Court and a Special Leave Petition filed against the said order was also dismissed, no purpose would be served in further proceeding with the case against the respondent therein. In that context, the Supreme Court accepting the contention of the accused - respondent therein, charge against whom was quashed by the leaned Single Judge of the High Court, the Supreme Court categorically held that the power exercised by the High Court did not suffer from any illegality or perversity and dismissed the appeal.
13. Learned counsel for the State, however, relying on the judgment of the Full Bench of the Kerala High Court in the case of T.Moosa and etc. etc. v. Sub-Inspector of Police, Vadakara Police Station, Ernakulam and etc. 2006 CRI.L.J. 1922 submitted that the Kerala High Court in the said case relying upon a number of earlier decisions of the Supreme Court has laid down that the fact 9 that the co-accused have secured acquittal in the trial against them in the absence of absconding co-accused cannot by itself be considered as a relevant circumstance while exercising power under section 482 Cr.P.C. for quashing a proceeding against the absconding accused.
14. In the case of T.Moosa (supra), the Kerala High Court has distinguished the judgment of the apex Court on facts in relation to application of the principle of res judicata/estoppel to a criminal trial as well as application of section 403 Cr.P.C. which governs the principle of autrefois acquit and autrefois convict. It also considered the rule of issue of estoppel in criminal trials evolved by the High Court of Australia approved by the Judicial Committee, which has been applied to criminal trials in India apart from the terms of section 403 Cr.P.C. Discussing the judgment of the Supreme Court and other judgments elaborately, the Kerala High Court in the aforesaid case while summarizing amongst other conclusions, concluded as follows:-
"7. The Rule of estoppel is only a "rule of evidence"
and the contention if any based on rule of estoppel has to be at the stage of trial only. It is his further submission that unlike a case where the FIR or charges framed are liable to be quashed when it does not disclose any of the offences alleged, on the face of it, but when the charges are framed, the case has reached the third stage and normally the Court should be allowed to continue with trial and to reach its logical conclusions. He also submitted that an accused absconder cannot have a better right than those who faced the trial.
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8. Both sides cited various authorities in support of their contentions. It may not be necessary to refer to all of them but we shall refer to some of them which are relevant, while considering the relevant issues.
9. Before we proceed to consider the rival contentions, we may state briefly the history of the legislation behind the incorporation of a provision like Section 482 Cr.P.C. and its object, and the extent of the powers and circumstances under which it is generally exercised. Before the enactment of the present Criminal Procedure Code of 1973, the corresponding provision contained in the 1898 Act is Section 561 A.
10. The inherent power of the High Court to do real and substantial justice between the parties was statutorily recognized by Section 561-A of the Code of Criminal Procedure, 1898. In Emperor v. Sukh Dev, AIR 1929 Lahore 705:
(1930 (31) Cri.L.J 977) it was held that the inherent power cannot be exercised for doing act which would conflict with any of the provisions of law or general principles of criminal jurisprudence. The rule of law is firmly established that when a statute confers upon a Court a specific power the Court cannot by relying upon its inherent jurisdiction extend its scope of that power. The 41st Law Commission Report recommended that the Section may be expanded as follows:-
"561-A. Nothing in this Code shall be deemed to limit or affect the inherent power -
(a) of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice, or
(b) of any other Criminal Court to make such orders as may be necessary to prevent abuse of its process or otherwise to secure the ends of justice".11
15. There is no quarrel over the proposition laid down in the above decision in the case of T. Moosa (supra). However, this Court is of the view that in the facts of a particular case, 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.
16. 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.
It is needless to mention that the inherent powers of the High Court recognized under section 482 Cr.P.C. can always be used to prevent abuse of the process of any court or otherwise to secure 12 the ends of justice and in appropriate cases, such power is required to be exercised to render justice even beyond law.
17. In the above parameters, examining the facts of the present case, this Court is of the view that if the petitioner is required to face the trial, such trial would definitely be a futile exercise and will amount to an abuse of the process of law. This Court further finds that this is an appropriate case where the criminal proceeding against the petitioner is required to be quashed.
Accordingly, the criminal proceeding, being G.R. Case No. 208 of 2010, corresponding to Naiknidhi P.S. Case No. 63 of 2010, pending before the learned J.M.F.C., Basudevpur stands quashed.
The CRLMC is accordingly allowed.
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M.M. Das, J.
Orissa High Court, Cuttack.
August 10th, 2012/Biswal.13