ORDER
P.K. Mohanty, J.
1. The petitioner assails the order dated 22-9-1995 passed in G.R. Case No. 313 of 1991 by the learned Judicial Magistrate First Class, Rampur taking cognizance against the petitioner and some others under Sections 147, 452, 364, 302, 201, 120-B/149, IPC and issuing process for appearance on the basis of the supplementary charge-sheet filed by the Investigating Officer in Dunguripali P.S. Case No. 126 of 1991 and the order dated 24-2-1996 rejecting the petitioner’s application to recall the order of cognizance.
2. The short fact of the petitioner’s case is that he had earlier moved this Court in Crl. Misc. Case No. 1119 of 1992 against the order of cognizance and this Court by order dated 24-11-1992 had quashed the cognizance holding that there are no sufficient material on record for a finding that a prima facie case showing criminal conspiracy amongst the applicant and his follower to kill both or any one of the deceased persons. As against the said order, the State Government had moved the Apex Court, but the Special Leave Petition was dismissed. The prosecution case is that, on 11-12-1991 one FIR was lodged alleging therein that the petitioner is the Joint Secretary of Food Corporation of India Workers’ Union and the F.C.I, have its different branches throughout the State of Orissa and the workers of those branches were controlled by their respective Sardars. One such branch is at Dunguripali, where the deceased-Pravakar Swain and Arjun Lenka were workers. On 11-12-1991 at 7 a.m. one Batakrushna Mohanty, who was working as Labour Sardar in Dunguripali Branch reported at Dunguripali P.S. that one Bansidhar Das and Sarbeswar Patra, who were working as labourers in Dunguripali Branch came to their village in the company of some labourers of Jharsuguda Branch and forcibly took away both the deceased persons namely Pravakar Swain and Arjun Lenka in the truck and they apprehended danger to their life, since there were Union rivalry. On 13-11-1991. Pravakar Swain had brought out a news item in the Oriya daily “Sambad” making certain allegation of illegal activities against the present petitioner and other office-bearers. Subsequently, the dead bodies of the two deceased persons were found on the road. The Police registered a case under Sections 147, 149, 452, 364, 302, 201, 114/120-B, IPC on 23-6-1992 against the present petitioner and 32 others. Cognizance of the offences were taken against all the accused persons including the petitioner. The prosecution alleged a criminal conspiracy against the accused persons in forcibly taking away both the deceased in the Truck and in killing them. The dead bodies were thrown on the road running from Dunguripali to Sambalpur.
3. The petitioner preferred Criminal Misc. Case No. 1119 of 1992 as against the order of cognizance and this Court in order dated 24-11-1992 quashed the said order of cognizance against the petitioner. However, the State carried Special Leave Petition (Criminal) No. 1064 of 1993, which was ultimately dismissed on 8-12-1995 by the Hon’ble Supreme Court.
4. Sri Jagannath Pattnaik, learned Senior Advocate for the petitioner contended that the cognizance taken by the learned Magistrate on the basis of the report under Section 173(2) of the Code of Criminal Procedure (in short “Cr. P.C.”) having been quashed by this Court in Crl. Misc. Case No. 1119 of 1992 and affirmed by the Apex Court, fresh cognizance could not be taken on the basis of a report under Section 173(8) of the Cr. P.C. The material, which has been brought on record by way of a report under Section 173(8), Cr. P.C. were very much before the Supreme Court carried at the instance of the prosecution. But the Supreme Court declined to interfere in the matter. The copy of the rejoinder-affidavit filed on behalf of the State in the Apex Court has been annexed with this petition as Annexure-4, which has not been disputed by the State. At paragraph 8 of the statement of Gouranga Charan Mohanty recorded under Section 164, Cr. P.C., the circumstances under which he accompanied the accused to the spot from Balijhari and the reason of not protesting against and subsequently not reporting the matter at the police station has been narrated. The learned counsel submitted that the purported statement of the petitioner at Calcutta office made in front of one Murali Muduli to the effect that “whoever comes on the way, clear him up” was also the basis of prosecution in the earlier occasion when on consideration, this Court quashed the order on the ground that the purported statement was heard by one Murali Muduli and that was open to have been heard from Murali Muduli by the deceased’s brother. Murali has not been examined as a witness and deceased’s brother has stated to have heard from Murali Muduli with regard to the statement made by the petitioner. In the earlier petition, this Court took the view that the purported statement made by a third person and not the person, who had heard the conversion or in whose presence the conversation is made is inadmissible in evidence. Much emphasis is laid by the learned counsel that permission of the Court having not been taken, the submission of the report under Section 173(8), Cr. P.C. in the supplementary charge-sheet was impermissible.
5. Coming to the question as to whether, on the basis of a report under Section 173(8), Cr. P.C. the learned Magistrate could have taken cognizance and as to whether, in absence of prior permission of the Court was absolutely necessary for further investigation into the matter which vitiates the subsequent investigation, charge-sheet and the order of cognizance thereof is no more res integra. This Court in Gobardhan Das v. State of Orissa (2000) 89 Cut LT 509 : (2000 Cri LJ 1641), on consideration of the relevant provision of law and different decisions in the appeal, has taken the view that the cognizance on the basis of the report under Section 173(8). Cr. P.C. without prior permission is neither vitiated nor cognizance taken thereof becomes illegal, but however, it is always desirable that prior permission of the Magistrate is taken before a case is re-opened or re-investigation is taken up. In case of Rajesh alias Chintamani Das v. State of Orissa (2002) 22 OCR 38, similar view has been expressed. The contention, therefore, that without prior permission obtained by the prosecution, no cognizance could be taken on the basis of the supplementary charge-sheet, has to be rejected.
6. The learned counsel next submitted that the only material available against the petitioner on which cognizance appears to have been taken is the statement to the effect that he had heard from Murali Muduli (not examined) that the petitioner had been to Calcutta with regard to the Union activities, where the petitioner had said that “whoever comes in the way of Union and its decision clear him up”. The purported statement was available on record before this Court in the earlier petition and the Court took the view that such a statement is not admissible in law being a hearsay evidence, Murali Muduli, who is said to have heard the statement having not come forward to depose. Statement of a third person with regard to the conversation or statements, if any, was not acceptable. The Court also observed that the general statement during the conversation that “whoever comes on the way will be cleared up” Were taken as an inculpatory statement to rope in the meagre of such statement as an accused of a conspiracy contemplated under Section 120-B of the IPC. This question however, need not detained us and I need not enter into the merit of the contention with regard to the materials against the petitioner to find out the alleged conspiracy under Section 120-B of the IPC. In view of the submission of the learned counsel for the petitioner, that the case as against the co-accused persons have ended in acquittal and thus, the only allegation against the petitioner under Section 120-B of the Indian Penal Code cannot subsist shall decide the issue.
7. The Apex Court in Girija Shankar Misra v, State of U. P. AIR 1993 SC 2618, has laid down that an accused alone cannot be convicted for the offence of conspiracy since the conspiracy cannot be by a single individual inasmuch as if the other alleged conspirators have been acquitted, a single remaining accused cannot be convicted under that section. A reference may also be made to the Constitution Bench decision of the Apex Court in Fakhruddin v. The State of Madhya Pradesh; AIR 1967 SC 1326 : (1967 Cri LJ 1197). In that case, the Apex Court held that the offence of conspiracy cannot survive the acquittal of other alleged conspirators. The present petitioner cannot be convicted unless there is proof that he had conspired with person or persons other than the co-accused. If all the co-accused persons have been acquitted of the charge of conspiracy, the petitioner cannot alone be held guilty. However, at this stage, we are not at the point of conviction or acquittal, but at the threshold.
8. It is true that we are not at the threshold and considering regarding the order of cognizance, but in view of the present fact-situation of the case, if the order of cognizance and trial ultimately cannot stand the scrutiny of law, it would be a futile exercise.
9. In view of the conspectus of the judgment of the Apex Court, that the offence of conspiracy cannot survive, and the other alleged conspirators having been acquitted of the charges, the petitioner alone cannot be prosecuted for the offence pf conspiracy. Undisputedly, all the co-accused persons having been in the meantime acquitted from all charges including the charge under Section 120-B, IPC even if the prosecution continues as against the petitioner, since there is no other conspirator, the petitioner alone cannot be held liable for such an offence and as such, the continuance of the prosecution as against the petitioner otherwise will be a futile exercise. A conspiracy cannot be proved by direct evidence and it can only be inferred from the circumstance of the case, there must be some evidence with regard to hatching up of the conspiracy and the acquittal effected thereon. But since the prosecution claims that the petitioner has hatched the conspiracy with the co-accused persons, acquittal of co-accused persons from the charge under Section 120-B of the IPC unsettles the foundation of the charge.
10. In such view of the matter, the continuance of the present criminal prosecution against the petitioner will be, in my considered opinion, a futile exercise, resulting in an abuse of the process of the Court and as such, the order of the learned Magistrate, taking cognizance under Sections 147, 452, 364, 302, 201, 120-B/149, IPC and issuing process against the petitioner is quashed.
The Criminal Misc. Case is accordingly allowed.
