Ganeswar Behera vs State Of Odisha

Dr. A. K. Mishra, J

In this Lis U/s.482 Cr.P.C. prayer has been made to quash the order dtd.01.06.2015 of learned J.M.F.C., Betnoti in G.R. Case No.588 of 2014 in

taking cognizance of offences U/ss.394, 397 of the Indian Penal Code (in short the „I.P.C.‟) and U/s.9(B)(i)(b) of The Explosives Act, 1884 and

the criminal proceeding culminated thereof.

The case of the petitioner, simply said, is that informant Gurupada Pal was the owner of a Jewellery shop situated at Betnoti Bus Stand. On

21.12.2014 at about 10 P.M. he closed his shop and returned with bag containing silver ornaments weighing 2.5 kilograms, gold ornaments weighing

170 grams and cash of Rs.1,27,000/- by his scooter. While he reached near his house, three  unknown culprits threw chiliÂ

powder and captured him. They snatched away the bag containing cash and ornaments. In course of scuffle, one of them dealt a blow to his back

by means of a sharp cutting weapon and all the culprits exploded bomb to take escape route.

The informant was immediately shifted to hospital. On lodging of F.I.R. on the next day morning at about 8.30 A.M. vide annexure-1, Betnoti P.S.

Case No.225 dtd.22.12.2014 was registered. Investigation was ensued. Two accused persons were arrested and test identification parade was

conducted. Recovered articles were left in zima of informant. Charge-sheet was submitted, basing upon which impugned order was passed on

01.06.2015 taking cognizance U/ss.394, 397 of I.P.C. and U/s.9(B)(i)(b) of Explosives Act, 1884. Sufficient ground U/s.204 Cr.P.C. was found to

proceed against four accused persons. Two accused persons, namely, Bapun @ Gopinath Moharana and Abhi @ Abhiram Dalei were in jail custody

by then. Other two accused persons, namely Deba @ Debendra jena and Banguru @ Ganeswar Behera (present petitioner) were found absconding,

hence NBW was issued against them.

As two absconders were not apprehended, the case against them was split up and for rest two UTPs commitment was made to the Court of Sessions.

Trial was taken up. Twenty witnesses were examined. Learned 2nd Additional Sessions Judge, Baripada vide his judgment dtd.22.02.2017 under

Annexure-4 in S.T. Case No.223 of 2015, acquitted both the accused persons extending the benefit of doubt and did not pass any order regarding

disposal of seized properties as the case was pending against the absconding accused persons including present petitioner.

Heard learned counsel for the parties and diligently perused the evidence and the judgment annexure-4 in respect of two co-accused persons who

faced trial.

Amongst several grounds taken by the petitioner in assailing the cognizance order, one of the grounds does not depict any relevancy to the facts of

this case and for that the same is extracted below:-

“E) For that it appears from the Annexure-4 that the P.W.6 and 7 are the mother and father of the deceased, categorically stated that due to the accidental fire, her

daughter died and she was living happily in her matrimonial house and there was no demand of dowry from the side of the petitioners‟ family. So in view of such

matter, the interference of this Hon‟ble Court is highly required to quash the criminal proceeding against the petitioners.â€​

On this score, suffice to note that, for the paradox in the petition, the petitioner should not be deprived of justice if he is otherwise entitled to.

Learned counsel for the petitioner Mr. Satya Ranjan Mulia submitted that as the evidence recorded in course of trial in S.T. Case No.223 of 2015

has not implicated the present petitioner and two accused persons who faced trial were already acquitted of the charges by the learned 2nd Additional

Sessions Judge, Baripada, continuance of the split up proceeding against the present petitioner will be an abuse of process of law, as such the same

should be quashed. In support of his contention, learned counsel for the petitioner relied upon the following decisions:-

i) Kanhu Behera Vrs. State of Orissa reported in 2005 (II) OLR 386;

ii) Santosh Kumar Maity Vrs. State of Orissa reported in 2006 (II) OLR 308; and

iii) Ramananda @ Ram Mandal @ Rupsingh Naik Vrs. State of Orissa reported in (2007) 37 OCR 159.

5-A. Per contra, learned Additional Standing Counsel Mr. S. Dash submitted that the trial court has acquitted the two accused persons giving benefit

of doubt and thereby the incident has not been disbelieved. Further one of the absconding accused, namely Deba @ Debendra Jena is yet to be

apprehended and the present petitioner who has not yet appeared in the court should not be allowed to reap dividend out of his own fault.

In the Ramananda case (supra), relied upon by learned counsel for the petitioner, both the decisions of Kanhu Behera (supra) and Santosh Kumar

Maity (supra) have been referred to. In that case though 1000 unnamed persons were implicated in the F.I.R., neither any specific overt act was

attributed nor was any nexus of the petitioners found for which the Court found no prima facie case and accordingly held that continuance of criminal

proceeding would amount an abuse of the process of the Court.

In the Kanhu Behera case, no prima facie case was found against the petitioner for which the proceeding was quashed. Similarly, in Santosh Kumar

Maity case, the Court found that from the materials of U.D. case and other materials, no specific allegation against the petitioners was revealed.

6-A. In the above three cited decisions, no ratio devidendi has been laid down to the effect that basing upon the acquittal of accused in a trial, the split

up proceeding in respect of co-accused who has not faced trial, can be quashed. it is only the principle laid down in the judgment that is binding Law

under Article 141 of the Constitution. The cited decisions are of no help to the petitioner.

On the other hand, in the decision reported in AIR 2000 SC 1416, Nirmal Singh Vrs. State of Haryana their Lordships of Hon‟ble Apex Court have

held as follows:-

“xxxxxxxxx

Section 299 of the Code of Criminal Procedure consists of two parts. The first part speaks of the circumstances under which witnesses produced by the

prosecution could be examined in the absence of the accused and the second part speaks of the circumstances, when such deposition can be given in evidence

against the accused in any inquiry or trial for the offence with which he is charged. This procedure contemplated under Section 299 of the Code of Criminal

Procedure is thus an exception to the principle embodied in Section 33 of the Evidence Act inasmuch as under Section 33, the evidence of a witness, which a party

has no right or opportunity to cross-examine is not legally admissible. Being an exception, it is necessary, therefore, that all the conditions prescribed, must be

strictly complied with. In other words, before recording the statement of the witnesses, produced by the prosecution, the Court must be satisfied that the accused

has absconded or that there is no immediate prospect of arresting him, as provided under first part of Section 299(1) of the Code of Criminal Procedure. In the

case in hand, there is no grievance about non-compliance of any of the requirements of the first part of sub-section (1)of Section 299 Cr.P.C. When the accused is

arrested and put up for trial, if any, such deposition of any witness is intended to be used as an evidence against the accused in any trial, then the Court must be

satisfied that either the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay,

expense or inconvenience, which would be unreasonable. xxxxxxâ€​

7-A. Apropos the facts at hand, it is profitable to refer a decision of the Court reported in 1997 (II) OLR 426, Smt. Urmila Sahu Vrs. State of Orissa,

wherein it is held authoritatively that:-

“6. Section 299, Cr.P.C. (Section 512 of the Old Code) has a limited application inasmuch as if it is proved that an accused person has absconded and there is

no immediate prospect of arresting him or that it appears that an offence punishable with death or imprisonment for life has been committed by some person or

persons unknown and there is no immediate prospect of arrest of such offenders, the Court competent to try or commit for trial may examine the witnesses

produced on behalf of the prosecution and record their depositions. After apprehension of the accused or when the accused is available to the Court for trial at

that stage if any of such witnesses examined under Section 299, Cr.P.C. is not available being dead or incapable of giving evidence or cannot be found or if his

presence cannot be procured without an amount of delay, expense or inconvenience, then circumstances should be taken into consideration and the evidence

recorded under Section 299, Cr.P.C. may be accepted in evidence to be used against such accused persons. In that sense, Section 299, Cr.P.C. is an exception to

the general rules and criminal jurisprudence regarding recording of evidence in presence of the accused. It thus, follows that even if evidence is recorded under

Section 299, Cr.P.C., but if after the apprehension of the accused if such witnesses are available and are capable of giving evidence, then the evidence recorded

under Section 299, Cr.P.C. cannot be utilised as substantive evidence. The aforesaid legal proposition is apparent on a bare reading of Section 299, Cr.P.C. (i.e.

Section 512 of the Old Code). In the case of State of Hyderabad v. Bhimaraya (AIR 1953 Hyderabad 63) a Munsif-Magistrate, recording statement of witnesses

under Section 512 of the Old Code with respect to certain absconding accused, passed order to delete the name of such absconding accused persons on the

ground that no sufficient proof of their participation was available. On the reference being made by the Sessions Judge, Gulbarga, a Division Bench of the

Hyderabad High Court had examined the legality of the aforesaid order of the Munsif. Magistrate and have held that Section 512of the Code does not authorise

the Magistrate to delete the name of an absconding accused on the basis of evidence so recorded. This Court respectfully agree with the above view and for that

reason the prayer to quash or drop the proceeding is accordingly rejected.â€​

From the Law authoritatively enunciated in the above two decisions, the requirement of Section 299 Cr.P.C. for use of evidence in subsequent trial

cannot be over-looked. At the same breath, it can be said that if the judgment recording acquittal of accused persons, has disproved the substratum of

the prosecution case and the co-accused who had not faced trial is found to have acted bona fide to honour the judicial process, the said factum can

be considered as one of the aspects to quash the criminal proceeding because in that event the continuance of criminal proceeding may amount to an

abuse of the process of Law and there is bleak chance of conviction.

Tested in the touchstone of above principle, in the case at hand the acquittal of two accused persons in the trial has not disproved the alleged

incident at all. The requirements to use the evidence recorded in that trial U/s.299 Cr.P.C. and Section 33 of The Indian Evidence Act are wanting.

The acquittal of co-accused cannot be a fact finding point for cognizance order igniting the process of the Court qua accused.

The materials available on record, reveals prima facie case against the petitioner. The acquittal of co-accused persons in separate trial has not

disproved the substratum of the prosecution case. Ergo the petitioner cannot derive any benefit of that acquittal judgment to quash this proceeding.

Further the petitioner was found to have absconded and thereby allowed the judicial proceeding delayed. For these reasons, this court is not inclined to

invoke the inherent jurisdiction U/s.482 Cr.P.C. to quash the proceeding in question.

Accordingly the CRLMC stands dismissed.

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