GANGADHAR PANDA Vs. STATE
HIGH COURT OF ORISSA
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(1.) THIS petition is to quash the charges framed against the petitioner in G. R. Case No. 960 of 1974 of the Court of the Chief Judicial Magistrate, Sambalpur.
(2.) THE undisputed facts are that during course of investigation about the misappropriation said to have been done by the petitioner the alleged misappropriation relating to the present case wag detected. This is apparent from para 3 of the order dated 15 -3 -77 of the learned Chief Judicial Magistrate. While investigation was made and admittedly when the items of defalcation relating to this, case had already been noticed, a case on other items was started which ultimately ended in acquittal. Those items admittedly relate to the very same period.
It is contended on behalf of the petitioner that though legally speaking the present case is maintainable, the Court should exercise its inherent jurisdiction in quashing the charges, as the same will prejudicially affect the petitioner. Reliance is placed on a Division Bench decision in AIR 1969 Bombay 1 : (1969 Cri LJ 105), Chudaman Narayan Patil v. State of Maharshtra which follows the earlier decisions reported in AIR 1945 Bombay 413 : (47 Cri LJ 138), Emperor v. Anant Narayan, AIR 1929 Calcutta 457 : (31 Cri LJ 747), Sidh Nath v. Emperor (1986) ILR 29 Mad 126 : (3 Cri LJ 274), Emperor v. Chinna Kaliappa. It has been held that though prosecution is not barred under Section 403 Criminal Procedure Code, yet it would not be in the interest of justice to allow the case to proceed. It has further been held that High Court has such power by virtue of Section 561A of the old Code. As has been held in AIR 1964 SC 703 : ((1964) 1 Cri LJ 549), State of U. P. v. Mohammad Naim, Section 561A confers no new powers on the High Court and it merely safeguards all existing inherent powers possessed by the High Court which are necessary, among other purposes, to secure the ends of justice. The object of the section, is to provide that these powers which the Court inherently possesses shall be preserved lest it be considered that the only powers possessed by the Court are those expressly conferred by the Code and that no inherent powers had survived the passing of the Code. There is, no express provision in the Code under which proceedings can be quashed in circumstances before the Court and the inherent power of the Court to act in the interests of justice has been preserved by Section 561 A. In the case of R. P. Kapur v. State of Punjab, AIR 1960 SC 866 : (1960 Cri LJ 1239), it has been held that inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper percase either to prevent the abuse of the process of any Court or to secure the ends of justice. Ultimately, the Division Bench of the Bombay High Court held that though there is no legal bar to the prosecution pending against the petitioner, it is not necessary to subject him to fresh trials and the proceedings against the petitioner were quashed. This Court also relied on the principles enumerated in AIR 1945 Bombay 413 : ((1946) 47 Cri LJ 138) (supra) and it was held in the case of Narasingha Rout v. Rameshwar Mohapatra, AIR 1958 Ori 141 : (1958 Cri LJ 794), that there may be occasions when it would not be appropriate to order a second trial even though the second trial may not he barred by the letter of Section 483 Criminal Procedure Code The High Court in its revisional jurisdiction being concerned also with the propriety of the order passed, under the particular circumstances of the case will interfere and when necessary will quash the proceeding with the second trial. A Division Bench of the Patna High Court also considered this question in AIR 1960 Patna 168 : (1960 Cri LJ 503), Chittaranjan Sana v. State. This was a case of embezzlement. It was held that the trial in respect of a gross sum alleged to have been embezzled between two specified dates does not bar a second trial in respect of another sum embezzled on intermediate days but not included in the gross sum for which the earlier charge was framed in terms of Section 222 (2). But if there is nothing on record to show that the items of defalcation for which the accused had been subsequently charged were not within the knowledge of the prosecution end why these items were not included in the previous trial, and in the absence of any adequate explanation for their non -inclusion in the previous trial in spite of resort to Section 222 (2) it will not be conducive to justice; rather it will be vexatious, to have a piecemeal trial. In the instant case, it is not disputed that the items of defalcation were within the knowledge of the prosecution and there has been no explanation why these items were not included in the previous trial. In absence of such explanation, as has been observed by the Division Bench of the Patna High Court (1960 Cri LJ 503) (supra), it will not be conducive to proper justice and the petitioner would thereby be prejudiced and harassed even though a fresh trial is not legally barred.
In view of the principles stated above, I hold that the impugned proceedings should be quashed.
(3.) IN the result, the revision is allowed and the impugned proceedings in G. R. Case No. 960 of 1974 of the Court of the Chief Judicial Magistrate, Sambalpur are quashed. Petition allowed.;
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