Alekha Baral @ Alekha Chandra Baral and ors. Vs. State of Orissa and ors. - Court Judgment

I.M. Quddusi, J.

1. Both the petitions have been filed under Section 482 of the Criminal Procedure Code (for short 'the Cr.P.C') for quashing the impugned order dated 12.2.2004 passed by the learned S.D.J.M., Puri taking cognizance under Sections 147/148/336/337/307/427/506/379/149 I.P.C. in G.R. Case No. 1003 of 2003 and in cross case, i.e. G.R. Case No. 1002 under Sections 147/148/336/337/338/307/149 IPC respectively.

2. The brief facts of the case as revealed from the F.I.R. filed in G.R., Case No. 1002 of 2003 are that on 2.9.2004 at about 8.30 A.M., when the informant-party belonging to Dhanakera Panchapana and Egarapana villages were mending temporary ridge accused persons belonging to Saradhapur, Nimakera and Tikarapada villages damaged the ridge constructed with a view to prevent the flow of flood water to their own village. When some villagers challenged the accused-petitioners, latter assaulted them with weapons and threw stones at them, as a result of which, 18 persons belonging to the informant-party sustained injuries including serious wounds. Some of the injured persons were admitted in the Delonga Hospital. Lodging of the F.I.R., at 8.45 A.M., on 4.9.2003 led to institution of the case.

3. The brief facts of the case as revealed from the F.I.R. filed in G.R. Case No. 1003 of 2003 are that the villagers of Dhanakera in order to restrict the flood water had constructed a temporary ridge. The villagers of the informant side apprehending that the flood water might flow to their village, had broken that temporary ridge. Over this issue, on 2.9.2003 villagers of the villages Dhanakera, Haladigorada, Majhipada and Biramukundapur came being armed with lathis, and again tried to construct a ridge there. When the informant side raised opposition against them, the accused side threw stones as a result of which some of the persons of the informant party sustained injuries.

The Investigating Officer after collecting evidence filed two separate charge sheets in both the cases on the basis of which cognizance has been taken by the learned Magistrate quashing of which has been sought in the instant petitions.

4. As observed by the Hon'ble Supreme Court in the case of Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrajirao Angre reported in : 1988CriLJ853 , when prosecution at the initial stage is asked to be quashed, the test to be applied is as to whether the uncontroverted allegations as made, prima facie establish the offence. It is also for the Court to take into consideration any special features appearing in a particular case to find whether it is expedient in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilized for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special features of a case also quash the proceeding even though it may be at a preliminary stage.

In the case of Dhanalakshmi v. R. Prasanna Kumar reported in : 1990CriLJ320 , it was held that in proceedings instituted on complaint, exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate, it is open to the High Court to quash the same in exercise of its inherent power under Section 482.

In the case of J.P. Sharma v. Vinod Kumar Jain reported in : 1986CriLJ917 , it was held by the Apex Court that the High Court erred in quashing the criminal proceedings under Section 482, Cr.P.C. on an erroneous basis that on prima facie being satisfied the Metropolitan Magistrate had taken cognizance of the alleged offences. The question at this stage, is not whether there was any truth in the allegations made but it is whether on the basis of the allegations, a cognizable offence or offences had been alleged to have been committed. The facts subsequently found out to prove the truth or otherwise of the allegations are not ground on the basis of which the complaint can be quashed.

In the case of Zandu Pharmaceutical Works Ltd. and Ors. v. Md. Sharaful Haque and Ors. reported in 2004 AIR SCW 6185, it was observed by the apex Court that Section 482 Cr.P.C. envisages three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Cr.P.C., (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with the procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law, which are necessary for proper discharge of functions and duties imposed upon them by law. It has been further held that in exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of such proceedings would otherwise meet the ends of justice. When no offence is disclosed by the complaint, the Court may examine the questions of fact. When a complaint is sought to be quashed it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

In the case of State of Andhra Pradesh v. Goloconda Linga Swamy and Ors. reported in 2004 AIR SCW 4329 (A) - it was held that the powers possessed by the High Court under Section 482 of the Code of Criminal Procedure are very wide and the very plenitude of the power requires great caution in its exercise, and therefore the Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of the State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction for quashing the proceeding at any stage.

5. In the instant case in view of the law laid down by the Hon'ble Supreme Court as discussed above, in exercise of jurisdiction under Section 482 Cr.P.C., the Court is to see only as to whether on the basis of the allegations made in the charge sheet, a prima facie case has been made out against the petitioner or not. However, at this stage while exercising jurisdiction under Section 482 Cr.P.C., this Court cannot take into account the defence of the accused persons/ petitioners in considering whether a prima facie case has been made out against them or not; and whether it is a case of no evidence or not.

6. In these cases more than one hundred persons are accused from both the sides. The disputes started when some villagers were breaking the temporary ridge apprehending that the flood water might flow to their villages, the other side opposed to it by throwing stones at them. There is no evidence on record to show the intention of the villagers who were opposing the persons constructing the temporary ridge or the persons who were constructing the ridge was to kill any persons of other side.

7. In the case of Hari Kishan and State of Haryana v. Sukhvir Singh and Ors. reported in : 1989CriLJ116 the Supreme Court held that the intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of 'attempt to murder'. Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue.

8. In the instant case there is no evidence on record to show that there was any intention or knowledge of the accused persons to constitute the offence of murder. Therefore it cannot be said that a prima facie case has been made out against the accused persons for attempting to commit murder. However for the rest of the offences mentioned in the charge-sheets, it cannot be said that no prima facie case has been made out against the accused persons of both the sides. Therefore, the charge sheets in respect of the Section 307 I.P.C. filed against the accused persons is quashed, but so far as other offences shown in the charge sheets are concerned, no order is liable to be passed.

9. In Criminal Misc. Case No. 1528 of 2004, Ratnakar Barik opposite party No. 2 has filed an affidavit that a compromise between the parties was effected out of the Court in the month of January, 2004 in the temple of Lord Kumareswar Dev. The well-wishers of both sides, the Bhadraloks and the accused persons so also the informant party amicably decided to put an end to their litigation and they will forget their disputes and shall maintain a good relationship among them. Both the parties decided not to proceed against each other.

10. In Criminal Misc. Case No. 1529 of 2004, Bhaskar Swain, opposite party No. 2 has also filed an affidavit to the above effect and stated that a compromise was effected in the month of January 2004 in the temple of Lord Kumareswar Dev.

11. Since this Court has quashed the charges under Section 307 I.P.C. against the accused persons of both sides in the charge-sheets, the rest of the offences can be compounded, accused persons may move application to this effect before the concerned Magistrate. If such an application is moved the learned Magistrate will consider the question of compounding offence and pass appropriate order thereon.

12. In the above mentioned facts and circumstances, both the cases are disposed of with the direction that if an application is moved before the learned Magistrate on behalf of the parties for effecting a compromise and getting the offences compounded, learned Magistrate shall consider and dispose of the same after providing opportunity of hearing to the parties concerned.