JUDGMENT
A.K. Parichha, J.
1. This petitioner has filed the present application under Section 482, Cr. P.C. for quashing the entire proceeding in G.R. Case No. 605(A) of 1991 pending in the court of Learned SDJM, Bhadrak.
2. On the basis of an F.I.R. lodged on 1.4.1991 by one Santosh Kumar Bagaria, Partner of M/s National Trading Corporation, Bhadrak Town, P.S. Case No. 165 of 1991 was registered by the Inspector in-charge and investigation was undertaken. On completion of investigation, charge-sheet was submitted for the offence under Sections 147, 148, 457, 382, 436, 307, 427, 149, IPC against 18 accused persons. Learned SDJM, Bhadrak took cognizance of those offences an directed issue of process against the accused persons. Out of the 18 accused persons, 8 accused persons entered appearance, but the rest accused persons including the petitioner remained as absconders, as a result of which the case was split up against the absconding accused persons and a separate file G.R. Case No. 605(A) of 1991 was opened where N.B.W. was issued against those persons. Then the original case was committed to the Court of Session in respect of the eight accused persons who were in appearance, trial was undertaken vide S. T. No. 66/182 of 1993 in the court of learned Addl. Sessions Judge, Bhadrak and finally the said accused persons were acquitted by Order dated 22.12.1994. Now, the petitioner has filed this application under Section 482, Cr. P.C. with a prayer to quash the proceeding of G.R. Case No. 605(A) of 1991 pending in the Court of Learned SDJM, Bhadrak on the plea that the proceeding has become meaning less after that order of acquittal in ST. No. 66/182 of 1993.
3. Mr. J.K. Mohapatra. Learned Counsel for the petitioner submits that the witnesses who were examined in S.T. No. 66/182 of 1993 in the Court of Addl. Sessions Judge, Bhadrak did not breath a single work against the present petitioner and in the subsequent trial in respect of the petitioner also evidence to be produced will not be different from the one which was produced earlier and so such trial would be simply abuse of the process of the Court. According to him, this is a fit case where the further proceeding of G.R. Case No. 605(A) of 1991 in respect of the petitioner should be quashed. In support of his contention Learned Counsel places reliance in the case of State of Karnataka v. L. Muniswamy and Ors., AIR 1977 SC 1489 and Mohammed Illias v. State of Karnataka, 2001(4) Crimes, 417 and Ghanashyam Jena v. State of Orissa, (2003) 26 OCR 266.
4. Mr. P.K. Choudhury, Learned Addl. Standing Counsel appearing on behalf of the State, on the other hand, contends that the evidence produced against one set of accused persons in a trial cannot be utilized in the subsequent trial against another set of accused persons. He submits that the petitioner is one of the absconders and has to face de novo trial in his appearance on G.R. Case No. 605-A of 1991. So, basing on the result of S. T. No. 66/182 of 1993 of the court of learned Addl. Sessions Judge, Bhadrak, the proceeding against the petitioner cannot be quashed.
5. A brief narration of the fact of the case would be of some help. There was a clash between Hindus and Muslims at Bhadrak on the day of “Rama Navami” in the year 1991. In the riot that followed several houses, shops, vehicles including the shops, vehicles and house of the informant, Santosh Kumar Bagaria were burnt and destroyed. The informant lodged an F.I.R. and police investigation followed. Basing on the materials collected doing investigation, 18 accused persons were charge-sheeted in G.R. Case No. 605 of 1991, out of whom 8 accused persons faced trial in S.T. Case No. 66/182 of 1993 and ultimately acquitted. The rest accused persons are absconding and for them split up case bearing G.R. Case No. 605 of 1991-A is pending. The petitioner is one of the said absconding accused persons.
6. The simple question is whether the acquittal of the accused persons in S.T. No. 66/182 of 1993 can form the basis for quashing of the proceeding against the remaining accused persons. The specific plea put forth by the Learned Counsel for the petitioner is that when the witnesses have not spoken anything against the petitioner in Sessions Trial No. 66/182 of 1993, they are not likely to speak anything against the petitioner in the subsequent trial, which may follow and therefore, the proceeding should be quashed. In the case of L. Muniswamy (supra), the Sessions Judge discharged some accused persons and adjourned the case for framing specific charges against test of the accused persons. The High Court in revision quashed the proceedings against the rest accused persons. The matter was carried to the Apex Court and the Apex Court observed that in exercise of the wholesome power under Section 482, Cr. P.C. the High Court is entitled to quash the proceeding if it comes to the conclusion that allowing the proceeding to continue would be abuse of the process of the Court or that ends of justice requires that the proceeding ought to be quashed. In that case, there was no material on record on the basis of which any Tribunal reasonably could come to the conclusion that the accused was in any manner connected with the incident leading to the prosecution and for that reason the Apex Court held that the High Court’s decision to quash the proceeding against the remaining accused persons was justified. In the case of Ghanashyam Jena (supra), the order of cognizance against the accused-petitioner was quashed by the High Court. The State Government moved the Apex Court, but the Special Leave Petition was dismissed. Thereafter; the prosecution filed supplementary charge-sheet without prior permission of the Magistrate for reopening of the investigation and basing cognizance was challenged before this Court and this Court ruled that a single accused couldn’t be prosecuted under Section 120-B, IPC for criminal conspiracy, particularly when the other accused persons have been acquitted and for that reason quashed the proceeding against the accused-petitioner. The facts and legal position involved in the above noted cases are materially different from that of the present case and so the ratio of those cases cannot be applied to the present case.
7. In case of Mohammed Ilias (supra), the petitioner was one of the accused in a case under Section 307, IPC. He was shown absconding and the case was split up and other three accused persons were charge-sheeted, and on conclusion of trial, they were acquitted. The prosecution witnesses in the trial all turned hostile. On subsequent arrest of the petitioner, a second round of trial was conducted for him. In that situation the High Court of Karnataka said that in the second round of trial against the petitioner evidence to be produced cannot be different from the one that was produced in the earlier trial and therefore, proceeding against the petitioner should be quashed. Although the fact of this case appears some what similar to the present case, the ratio of the case cannot be applied to the present case, for the simple reason that the witnesses who were examined in Sessions Trial No. 66/182 of 1993 before the Learned Addl. Sessions Judge, Bhadrak, including the informant did not disown the prosecution allegation. They all stated that the violent mob of around 100 persons being armed with swords, knives, bhala, lathis etc. appeared at Chandan Bazar and looted the shops, set fire the shops, vehicles, articles were burnt by the members of that mob. He simply said that he is not sure if the 8 accused persons who were facing the trial were the members of the mob and participated in the crime. The informant and witnesses never said that the present petitioner was not there in the mob. On the contrary in the F.I.R. and in their statement before the I.O. The informant and some witnesses had named some of the miscreants including the petitioner. So there is a possibility that during trial to be followed these witnesses may identify the petitioner. In such a situation, it is premature to give any observation that the witnesses and the informant are not likely to say anything against the petitioner and that the trial against the petitioner will be abuse of the process of the court. In that view of the matter. I am of the considered opinion that the ratio of the reported cases are not applicable to the present case and there is no scope of saying that the subsequent trial against the petitioner will be abuse of the process of the Court.
8. For the aforesaid reasons the proceeding of G.R. Case No. 605(A) of 1991 pending in the Court of Learned SDJM, Bhadrak, against the petitioner cannot be quashed.
9. The CRLMC is accordingly dismissed.