No Universal Rule To Acquit An ‘Absconding Accused’ Upon Acquittal Of Other Co-Accused: Orissa High Court

The Orissa High Court has clarified that there is no strict rule that an ‘absconding accused’ must be given the benefit of acquittal in case his co-accused are acquitted of the same charges.

While denying relief to a person accused of committing culpable homicide, the Single Judge Bench of Justice Savitri Ratho said,

“…it is apparent that there is no universal rule that in each and every case of acquittal of a co accused, the case against an absconding co accused has to be quashed. When the conclusion in the subsequent trial can be predicted with certainty that there is no chance of conviction of such co accused, valuable time and resources of the trial court should not be wasted for holding such a trial.”

Brief Facts

Five co-accused persons of the petitioner stood trial for commission of offences under Sections 304/379/ 511/201/34 of the IPC for death of one Panchanan Oram. They were acquitted by the Trial Court. Two years after the said judgment, the petitioner filed this application under Section 482 of CrPC seeking to quash the pending criminal proceedings against him on the ground that his co-accused are already acquitted.

Contentions of Parties

It was contended for the petitioner that the case against him was split up. The non-bailable warrant issued against him was quashed by the Court and he was directed to be released on bail. Subsequently, the five co-accused persons who faced trial were acquitted. As the allegations against the acquitted persons and the petitioner are the same, no useful purpose will be served if the petitioner is made to face trial, it was argued.

It was submitted for the State that the petitioner should not be given any relief as he absconded for almost ten years since 2006 for which the case had to be split up and five co-accused persons stood trial. Although the judgment of acquittal has been passed in 2014, he approached the Court only in the year 2016. As the petitioner did not come to the Court with clean hands, it was urged that his case should be dismissed.

Court’s Observations

The moot question which was posed before the Court for decision was whether acquittal of co-accused should necessarily end in acquittal of an ‘absconding accused’ as well. For answering the question, the Court referred to a catena of judicial precedents including a Full Bench decision of the Kerala High Court in Moosa vs. Sub Inspector Of Police.

In the above case, it was held that only because co-accused have secured acquittal in the trial against them in the absence of absconding co-accused cannot by itself be reckoned as a relevant circumstance while considering invocation of the powers under Section 482 of the CrPC.

It also made a reference to Hidayat Khan @ Hidayatullah Khan v. State of Orissa where the following observation was made.

“There is no settled principle of law that whenever some accused persons are acquitted after facing trial or discharged by the trial Court, the co-accused should also be discharged or the proceeding in respect of such co-accused should also be quashed. Absconding accused cannot be given premium to frustrate the justice or to misuse the process of law by treating him at par with those accused who have shown respect for legal processes and have appeared and have not evaded their arrest...”

Having regard for the above principle of law, the Court held that there can be no quarrel over the proposition that no useful purpose would be served by compelling an accused to face a trial subsequently, where the main accused who has been tried earlier, has been acquitted or discharged due to paucity or non-availability of evidence.

“But for arriving at such a conclusion and quashing the proceedings, the High Court has to carefully examine the nature of evidence already adduced in the concluded trial and the nature of materials available against the absconding accused and the type of evidence which may or can be adduced against the accused who has not faced the trial. If the fate of the trial cannot be predicted with certainty, the proceeding should not be quashed”, the Court added.

The Court also held that in the trial of the co-accused, the prosecution does not have the opportunity or obligation to adduce all evidence against the absconding co-accused.

“The fact that the testimony of a witness was not accepted or acted upon in that trial against the co-accused is no reason to assume that such witness shall not tender incriminating evidence or that his evidence will not be accepted in such later trial… But this does not mean that such a witness will never implicate the accused in the subsequent trial. Similarly, a witness who has not come to the witness box in the first trial, may appear and depose against an accused who has not faced the previous trial”, it added.

Conduct Of Accused A Relevant Factor

It was clarified that it is open to the High Court to take into account, the bona-fides and conduct of the accused who seeks to invoke exercise of the extraordinary power under Section 482 of the CrPC.

“Whether such accused absconded or jumped bail, the reasons for doing so and whether he has waited “for manipulation of hostility of witnesses”? Conduct of an accused can be a justifiable reason for the court to refuse to exercise its power under Section 482 of the Code of Criminal Procedure,” the Court said.

Taking into consideration the conduct of the accused in the case in hand, the Court deemed it proper to not to quash the pending criminal proceedings against him. Accordingly, the petition was dismissed.

Case Title: Deepak Oram v. State of Orissa

Case No.: CRLMC No. 3482 of 2016

Date of Judgment: June 6, 2023

Counsel for the Petitioner: Mr. L.N. Patel, Advocate

Counsel for the State: Mr. Janmejaya Katikia, Addl. Govt. Advocate

Citation: 2023 LiveLaw (Ori) 73

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