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Whether prosecution against absconding accused can be quashed if co-accused is acquitted?

IN THE HIGH COURT OF ORISSA, CUTTACK

CRLMC No. 3031 Of 2006

An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with G.R. Case No.844 of 2003
pending on the file of S.D.J.M., Bhubaneswar.

Ajay Kumar Sethi …….. Petitioner

-Versus-

State of Orissa and Ors. …….. Opposite parties

For Petitioner: – Mr. Prakash Kumar Mishra

For State – Mr. Arupananda Das Addl. Govt. Advocate

For Opp. Party no.2: – Mr. Jyotirmaya Sahoo

P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO

Date of Hearing & Judgment: 09.04.2018

S. K. SAHOO, J.

Heard Mr. Prakash Kumar Mishra, learned counsel for the petitioner, Mr. Arupananda Das, learned counsel for the State and Mr. Jyotirmaya Sahoo, learned counsel appearing for the opposite party no.2.

In this application under section 482 of Cr.P.C., the petitioner Ajay Kumar Sethi has challenged the impugned order dated 19.11.2004 passed by the learned S.D.J.M., Bhubaneswar in G.R. Case No.844 of 2003 in taking cognizance of offences under sections 363/366/376(2)(g)/34 of the Indian Penal Code and section 3 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereafter “SC & ST (PA) Act”) and issuance of process against him. The said case arises out of Jatani P.S. Case No.63 of 2003.

One Madhusudan Naik lodged the first information report before the A.S.I. of Janla outpost which was sent to Jatani police station for registration and accordingly, the case was registered against four unknown persons. It is stated in the F.I.R. that one Rabi Sethi and his wife (hereafter “the victim”) were staying on rent in the house of the informant and on 05.03.2003 at about 8 p.m. four unknown persons came in an Ambassador car and abducted the victim forcibly. The informant intimated Rabi Sethi about the occurrence but in spite of frantic search, the whereabouts of the victim could not be located.

During course of investigation, the statement of the victim was recorded and she was sent for medical examination and her wearing apparels were sent to S.F.S.L., Rasulgarh for chemical examination. The statement of the victim was also recorded under section 164 of Cr.P.C. After conclusion of investigation, prima facie case was found against four accused persons namely, (i) Guna Panda @ Biswanath Pujapanda, (ii) Babu @ Susanta Panda Pankaj Nayak, (iii) Ajay Maharana and

(iv) Ajay Sethi (petitioner) and accordingly, charge sheet was submitted under sections 363/366/376(2)(g)/34 of the Indian Penal Code and section 3 of the SC & ST (PA) Act showing accused Ajay Maharana and Babu @ Susanta Panda Pankaj Nayak and the petitioner as absconders. The case against the absconding accused persons was splitted up and the case of accused Guna Panda @ Biswanath Pujapanda was committed to the Court of Session for trial. Subsequently accused Babu @ Susanta Panda Pankaj Nayak surrendered in Court and his case was also committed to the Court of Session and accordingly, both the accused namely, Guna Panda @ Biswanath Pujapanda and Babu @ Susanta Panda Pankaj Nayak faced trial in the Court of learned Sessions Judge, Khurda at Bhubaneswar in S.T. Case No.102 of 2005 and S.T. Case No.154 of 2005 under sections 363/366/376(2)(g)/34 of the Indian Penal Code and section 3(2)(v) of the SC & ST (PA) Act. The learned trial Court vide judgment and order dated 11.07.2006 has been pleased to hold that there was no evidence against the accused persons to have committed the offence for which they were charged and accordingly, both the accused persons were acquitted of all the charges.

Mr. Prakash Kumar Mishra, learned counsel appearing for the petitioner contended that during course of trial of the co-accused persons, the victim was examined as P.W.5 and he has annexed the evidence of the victim with this CRLMC application. According to the learned counsel, the victim being examined as P.W.5 has stated that he did not know the accused persons who were facing trial and she also did not know anything about the occurrence. She further stated that she was not examined by the police in connection with the case nor she had given any statement before the Magistrate. She further stated that she had signed on some papers but did not remember when and where she had signed on those papers. It is further contended that since the victim did not support the prosecution case and she was declared hostile by the prosecution, the learned trial Court permitted the Prosecutor to put leading questions under section 154 of the Evidence Act. Learned counsel further contended that not only the victim but also the other independent witnesses did not support the prosecution case and they were declared hostile by the prosecution. It is further contended that the learned trial Court in its judgment in respect of the co-accused persons has been pleased to hold that even though the victim’s statement has been recorded under section 164 of Cr.P.C. but such statement is not substantive evidence and further held that since none of the witnesses have supported the case of the prosecution, the evidence of the Investigating Officer or the doctors no way improve the case of the prosecution and accordingly acquitted the co-accused persons of all the charges. It is contended that when the victim has not supported the prosecution case during course of trial in respect of the co-accused persons and she has gone to the extent of deposing that she did not know anything about the occurrence and she was not examined by the police in connection with the case nor she had given any statement before any Magistrate, no fruitful purpose would be served in allowing the proceeding to continue in respect of the petitioner and it would be a sheer wastage of valuable time of the Court and therefore, invoking power under section 482 of Cr.P.C., the criminal proceeding against the petitioner should be quashed. Learned counsel for the petitioner relied upon the decisions of the Hon’ble Supreme Court in cases of Central Bureau of Investigation -Vrs.- Akhilesh Singh reported in A.I.R. 2005 S.C. 268, Ram Chandra Das -Vrs.- State of Orissa reported in 2014 (II) Orissa Law Reviews 510 and Satyaban Pradhan @ Kuna Pradhan -Vrs.- State of Odisha reported in (2016) 63 Orissa Criminal Reports 87.

Mr. Arupananda Das, learned Addl. Government Advocate for the State on the other hand submitted that since the petitioner was an absconder and the allegation is of commission of abduction and gang rape of the victim who is a married lady and during course of investigation, from the statements of the victim as well as from other materials, prima facie case was found against the petitioner and accordingly, charge sheet was submitted, merely because the victim did not support the prosecution case during trial in respect of the co- accused persons, the same cannot be a ground to quash the criminal proceeding against the petitioner.

Mr. Jyotirmaya Sahoo, learned counsel appearing for the informant also supported the impugned order.

It is not in dispute that the F.I.R. was lodged against four unknown persons. However, during course of investigation after the examination of the victim, from her statements recorded under sections 161 and 164 Cr.P.C. and other materials, the investigating officer found prima facie case against four accused persons including the petitioner and accordingly, he submitted charge sheet. It is also not disputed that the petitioner was an absconder as per the charge sheet which was submitted in the year 2004. It is also not disputed that the victim was examined as P.W.5 in the trial Court in respect of the co-accused persons Guna Panda @ Biswanath Pujapanda and Babu @ Susanta Panda Pankaj Nayak and she has not supported the prosecution case for which the co-accused persons have been acquitted by the learned trial Court.

Now the question crops up for consideration is whether in spite of the available prima facie materials on record which were collected during course of investigation against the petitioner regarding his complicity in the crime, merely because the co-accused persons were acquitted of all the charges after facing trial on the ground that the victim and other independent witnesses have not supported the prosecution case, it would be proper to quash the criminal proceeding against the petitioner in an offence of abduction and gang rape.

Let me first take note of the decisions relied upon by the learned counsel for the petitioner. In case of Central Bureau of Investigation -Vrs.- Akhilesh Singh reported in A.I.R. 2005 Supreme Court 268, it is held as follows:-

“5………It is interesting to note that the original accused Dr. Sanjay Singh and Mrs. Amita Kulkarni were implicated as accused, but both of them were discharged by an order passed by the Sessions Judge and that order of discharge was challenged by the State before the High Court unsuccessfully. A Special Leave Petition also was filed before this Court and that too ended in dismissal on 27.1.1994. Therefore, the very basis of the alleged conspiracy by the respondent with Dr. Sanjay Singh lost its substratum. Admittedly, the respondent was not present at Lucknow when the incident happened. Respondent was implicated in the case on the basis of the alleged conspiracy between himself and the original accused Dr. Sanjay Singh. There is no other material placed before the court to prove the complicity of the respondent…… There was no direct evidence to show that the respondent had supplied the weapons and rendered assistance to the assailants in carrying out the common object of killing Syed Modi. Had the conspiracy charge been established, at least some of the acts and conduct of the respondent could have been made admissible under the provisions of Section 10 of the Evidence Act. Once the main accused, who is alleged to have hatched the conspiracy and who had the motive to kill the deceased was discharged, and when that matter had attained finality, the learned Single Judge was fully justified in holding that no purpose would be served in further proceeding with the case against the respondent.”
In case of Satyaban Pradhan @ Kuna Pradhan

-Vrs.- State of Odisha reported in (2016) 63 Orissa Criminal Reports 87, it is held as follows:-

“6. In applying the principle laid down in the aforesaid cases, this Court finds that the main accused Madhab Chandra Sahoo, 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 is 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. 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.”
In case of Ram Chandra Das -Vrs.- State of Orissa reported in 2014(II) Orissa Law Reviews 510, it is held as follows:-

“4. Insofar as the present petitioner is concerned, it appears from the records that the only allegation against him is that, he was present at the spot when the alleged occurrence took place. Two, out of the three persons, who committed the crime of rape, have faced trial and have been acquitted. No such allegation is made out against the present petitioner either in the FIR or in any other evidence recorded in course of trial of the co-accused persons.

Consequently, this Court is of the considered view that the order of cognizance against the present petitioner-Ram Chandra Das under sections 376(2)(g)/201/506 of the IPC cannot be sustained.”

I had the occasion to deal with a similar point in case of Hidayat Khan @ Hidayatullah Khan -Vrs.- State of Orissa reported in (2017) 68 Orissa Criminal Reports 945, wherein I have held as follows:-

“7……There is no settled principle of law that whenever some accused persons are acquitted after facing trial or discharged by the trial Court, the co-accused should also be discharged or the proceeding in respect of such co-accused should also be quashed. Absconding accused cannot be given premium to frustrate the justice or to misuse the process of law by treating him at par with those accused who have shown respect for legal processes and have appeared and have not evaded their arrest…..”
It cannot be lost sight of the fact that it is a case of abduction and gang rape of a married lady. Even if the victim has not supported the prosecution case during trial of the co- accused persons, the possibility of the victim supporting the prosecution case during the course of trial of the petitioner cannot be ruled out. In that event, what would be the evidentiary value of the victim’s statement after confrontation of her previous statement given while deposing as P.W.5 in case of the co-accused persons, is to be assessed by the learned trial Court. The victim may give explanation as to why she did not support the prosecution case while she was examined during trial of the co-accused persons in spite of the fact that she gave her statement before police as well as before the Magistrate implicating the accused persons. The learned trial Court may accept such explanation. If the accused against whom accusation of abduction and gang rape is there remains as an absconder, watches the criminal proceeding in respect of the co-accused persons and after such proceeding ended in acquittal before the learned trial Court, he comes out of his hiding place either because he felt that it had become insecure or because he believed that his presence would sooner nor later be discovered by his pursuers or that in view of the acquittal of the co-accused persons, the prosecution case against him has become weak and the Court accepts his plea on the basis of the evidence adduced in the trial of the co-accused persons and quashes the proceeding against him then it would be a travesty of justice.

What will happen in future in the trial of the petitioner cannot certainly be predicted at this stage. This Court cannot assume a thing and quash the criminal proceeding against the petitioner on the ground that the co-accused persons have been acquitted as the victim has not supported the prosecution case. It cannot be said that the continuance of the criminal proceeding against the petitioner in spite of acquittal of the co-accused persons would be an abuse of process. When prima facie materials are there on record against the petitioner for commission of offences under which the charge sheet has been submitted, I am not inclined to invoke the inherent power under section 482 of Cr.P.C. to quash the impugned order and the criminal proceeding against the petitioner in G.R. Case No.844 of 2003.

The observation made while disposing of this CRLMC application relates to the materials collected during course of investigation of the case and also during trial of co-accused persons. The findings recorded herein are for the purposes of adjudication of this CRLMC application only. This may not be taken as an expression of opinion on the merits of the case. The learned trial Court would be at liberty to decide the matter in the light of evidence which would be adduced by the respective sides de hors any finding recorded in this judgment.

In the result, the CRLMC application being devoid of merits, stands dismissed.

S. K. Sahoo, J.
Orissa High Court, Cuttack
The 9th April 2018

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