Orissa High Court
Sanjib Kumar Nayak And vs State Of Odisha on 24 November, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 1186 of 2021
Sanjib Kumar Nayak and .... Petitioners
another
Ms. A. Pal, Advocate
-Versus -
State of Odisha .... Opposite Party
Mr. M.K. Mohanty, Addl.
Standing Counsel.
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER_
24.11.2021
Order No.
4.
1.
This matter is taken up through hybrid mode.
2. In this application filed under Section 482 Cr.P.C., the
petitioners seek to challenge the order dated 03.03.2020
passed by learned S.D.J.M., Jagatsinghpur in G.R. Case
No.470/2018 in taking cognizance of the offence under
Sections 294/323/336/395/427/506/34 of IPC read with
Sections 25/ 27 of Arms Act.
3. The prosecution case, in brief, is that an FIR was
lodged on 28.05.2018 by one Kanhu Barik alleging therein
that the present petitioners along with others abused him in
filthy language, fired two round from their guns, threatened
to kill him, took away Rs.20,000/- and caused damage to
their two wheelers. Basing on such FIR, Jagatsinghpur P.S.
Case No.118 of 2018 was registered, followed by
investigation. Upon completion of investigation, charge sheet
was submitted showing the present petitioners as absconders.
By order dated 03.03.2020, learned S.D.J.M., Jagatsinghpur,
took cognizance of the offence as aforesaid and directed
issuance of NBW against the absconding accused persons
including the present petitioners, which is impugned in the
present application.
4. Heard Ms. A. Pal, learned counsel for the petitioner
and Mr. M.K. Mohanty, learned Addl. Standing Counsel.
5. It is submitted by Ms. Pal that one of the four accused
persons, namely, Milan @ Sujit Kumar Swain was put to
trial, wherein, all the witnesses examined by prosecution said
nothing about the occurrence, as a result of which, he was
acquitted. It is further submitted that the informant, who was
examined as P.W.-1 in the said case categorically deposed
that he does not know the accused nor has any knowledge
about the case and only on the instructions of his contractor
he had put his LTI on the FIR. On such basis it is submitted
by Ms. Pal that when the informant and other witnesses had
not implicated the accused persons nor stated anything about
the occurrence, continuing the trial against the present
petitioners would amount to an abuse of the process of Court.
6. Mr. M.K. Mohanty, learned Addl. Standing Counsel
on the other hand contends that the offences alleged are
serious in nature and that only because the informant and
other witnesses did not support the prosecution case in the
original case, does not necessarily mean that they will not do
so in the split-up trial against the present accused persons.
7. Learned counsel for the petitioners has filed certified
copies of the depositions of seven witnesses examined in CT
Case No. 95 of 2020, in which Milan @ Sujit Ku. Swain was
tried. She has also filed certified copy of the judgment passed
in C.T. Case No. 120 of 2020 relating to accused Kalia @
Ranjan Behera, in which the said accused has been acquitted
for want of evidence. While it is true that in the said cases,
the witnesses have not stated anything in support of the
prosecution case, the same cannot, ipso facto lead to a
definite conclusion that the witnesses to be examined in the
split-up trial against the present petitioners would also turn
hostile and not support the prosecution case. It would be
speculative to hold so at this stage.
8. Having regard to the above facts, this Court is not
inclined to accept the contentions put forth on behalf of the
petitioners and therefore, is not inclined to interfere in the
matter. It is open to the petitioners to surrender before the
court below and move for bail, which shall be considered on
its own merit.
9. 1ssue urgent certified copy as per rules.
(Sashikanta Mishra)
Judge
A.K. Rana
