HIGH COURT OF ORISSA : CUTTACK
CRLMC NO.2972 OF 2006
In the matter of an application under section 482' of the Criminal
Procedure Code.
Chirantan Sahu V .... .. Petitioner
--Versus-
State of Orissa .... .. Opp. Party
For Petitioner : Mr. B.B. Routray
For Opp. Party : Additional Government Advocate
PRESENT:
THE HON'BLE MR. JUSTICE IN DRAJIT MAHANTY.
Date of hearing 22.02.2010 Date of Judgment : fig/{Q '5Z&/0
I. Mahanty, J. This application under Section--482 Cr.P.C. has been filed by
the petitioner-Chirantan Sahu with a prayer to quash the proceeding
in G.R. Case No.223(A) of 2003 (Arising out of Sohela P.S. Case No. 103
of 2003) pending before the learned J .M.F.C., Sohela inter alia on the
ground that two of the co--accused persons who have faced trial for
offences under Sections.399, 402 I.P.C. and had been acquitted by the
learned Assistant Sessions Judge, Padmapur videi judgment dated
8.10.2004
in S.T. Case No.150 of 2004.
2. Mr. B.B. Routray, learned counsel appearing for the
petitioner placed reliance on a judgment of this Court in the case of
Kanhu Behera v. State of Orissa, 2005(II) OLR 386 and stated that
since no prima facie case has been made out against the petitioner
and the co-accused persons who faced trial have been acquitted,
chance of conviction of the petitioner being totally bleak, the order of
cognizance and the proceeding against the petitioner in the aforesaid
criminal proceeding pending before the J.M.F.C., Sohela may be
quashed.
3. The learned Standing Counsel appearing on behalf of the
State submitted that the petitioner though was named as a co-accused
in the F.I.R. and was also named as an accused in the charge sheet
submitted in the case, he remained as an absconder and, therefore,
did not face trial and should not be permitted to take advantage of an
order of acquittal passed in the case of co-accused persons.
4. Considering the submissions made by the learned counsel
for the respective parties and also on perusing the judgment in S.T.
Case No.150 of 2004 dated 8.10.2004, rendered by the Assistant
Sessions Judge, Padmapur, I am of the considered view that even
though an absconder ought not to be normally extended the benefit of
the judgment rendered in the case of a co-accused, but on perusing
the judgment, as noted hereinabove, it is found that, P.W.11, a Police
Sub–Inspector not only was the informant but was also the
Investigating Officer. This fact itself is adequate for the purpose of
quashing the criminal proceeding. It is well settled in law that no
police officer ought to be permitted to act both as an “informant” as
well as the “Investigating Officer”, since the rules of natural justice
clearly require that in the event of police officer become the informant,
he should not conduct the investigation into the said case, since the
said case police officer would have to give evidence as a witness in
course of trial. In this case P.W.11’s evidence and his F.I.R. as well as
the filing of charge sheet on completion of the investigation becomes
the basis of the trial.
5. Apart from the above, the trial court has taken into account
the fact that, the prosecution evidence regarding the alleged
“preparation of dacoity” is based on the alleged confession of a co-
accused, Shankar (who had faced trial) which evidence is clearly not
admissible. There exists no other evidence to show that the accused
persons were making any preparation of committing dacoity apart
from the confession of the co-accused. Reliance was correctly placed
by the learned counsel for the petitioner on a judgment of the Supreme
Court in the case of Chaturi Yadav and others v. State of Bihar,
1979 Criminal Law Journal 1090 in this regard. Further, since P.W.l1
admitted that he had first effected the seizure of iron rod and iron
pipes at the cremation ground on the alleged confession of the accused
Shankar leading to recovery of the said articles, obviously the F.I.R.
itself had not been drawn up at that point of time and, therefore, no
investigation could be said to have been taken prior to filing of the
F.I.R. Therefore, since the said co–accused Shankar was admittedly
not in the custody of police as an “accused” at the time of leading to
recovery as required under law, any recovery or confession before the
police regarding the occurrence is clearly not admissible under Section
27 of the Evidence Act.
6. Considering the aforesaid circumstances and the evidence of
the present case, I am of the considered View that no real purpose
would be served by directing the continuance of the criminal
proceeding against the present petitioner, since the chance of
conviction of the petitioner is totally bleak. Apart from the aforesaid
fact, from the judgment passed by the trial court as referred in above,
it is clear therefrom that, noprima facie case has been made out
against the petitioner for the alleged offences and the principal
accused persons who purportedly made the confession before the
P.W.11–Investigating Officer and had purportedly led to the recovery of
various material objects connected to the alleged crime have already
been acquitted, after a full fledged trial.
7. Therefore, the G.R. Case I\lo.223(A) of 2003 (Arising out of
Sohela P.S. Case No.103 of 2003) pending before the learned
J.M.F.C., Sohela is directed to be quashed against the present
petitioner-Chirantan Sahu. 0
Accordingly, the CRLMC is allowed in terms of the direction
noted hereinabove.
SON’ 1. Mo/*10»zf¢I, 17
ORISSA HIGH COURT ; CUTTACK __ P
October, gueej 2010/PKP RUE C0 V
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