Monday, 30 April 2018

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

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:-11
“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 coaccused
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.

 IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No. 3031 Of 2006

Ajay Kumar Sethi Vs State of Orissa and Ors. 

P R E S E N T:

  MR. JUSTICE S.K. SAHOO

Dated : 09.04.2018



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.2.2
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 3
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 4
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 5
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 6
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 coaccused
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 7
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 8
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 9
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 10
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:-11
“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 coaccused
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/Sisir
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