Orissa High Court
Dhrubadutta Patel (Expired) vs State Of Orissa on 26 March, 2026
THE HIGH COURT OF ORISSA AT CUTTACK
CRA No. 222 of 1999
(In the matter of an application under Section 374 (2) of the Criminal
Procedure Code, 1973)
1. Dhrubadutta Patel (expired)
2. Sanjay Patel ...... Appellants
-Versus-
State of Orissa ....... Respondent
For the Appellants : Mr. Purna Chandra Das,
Amicus Curiae
For the Respondent : Mr. Sobhan Panigrahi, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 19.03.2026 : Date of Judgment: 26.03.2026
S.S. Mishra, J. Two appellants have jointly filed the present
appeal assailing the judgment of conviction and order of sentence
dated 10.08.1999/28.08.1999 passed by the learned Judge, Special
Court, Sambalpur in T.R. Case No. 52 of 1997, whereby the learned
trial court convicted the appellants under Sections 332/34 of IPC andsentenced them to undergo R.I. for six months each.
During pendency of the appeal, the appellant no.1 (Dhrubadutta
Patel) has expired. Therefore, the present appeal qua him stood abated
vide order dated 10.10.2025 in the absence of any motion under
Section 394 Cr.P.C. either on behalf of the legal heirs or the next
friend of the deceased appellant to press this appeal. Therefore, the
appeal for consideration is confined to appellant no.2 only.
2. This appeal is pending since 1999 and none appeared for the
appellants on several dates of hearing. Therefore, vide order dated
17.03.2026, this Court requested Mr. Purna Chandra Das, who was
present in Court to assist the Court in the capacity of Amicus Curiae
and he has readily accepted the same and after obtaining the entire
record, assisted the Court very effectively.
3. Heard Mr. Purna Chandra Das, learned Amicus Curiae for the
appellant and Mr. Sobhan Panigrahi, learned Additional Standing
Counsel for the State.
4. The prosecution case, in brief, is that one Gobinda Ram Patel
(P.W.6) had filed a suit bearing Title Suit No. 22 of 1996 against the
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accused Dhrubadutta Patel. He prayed for injunction in that suit,
which was granted, The Process Server (P. W. 4) was ordered to serve
the injunction order on the case land and accordingly on 31.10.97 the
Process Server (P.W.4) went to the case land to serve the injunction
order passed in Misc. Case No. 14 of 1997 arising out of Title Suit
No. 22 of 1996. He took the assistance of the plaintiff (P. W.6) to
identify the case land. When he reached near the case land, the
accused Sanjay was found sitting on the ridge. Some villagers had
also accompanied with him. While the Process Server was going to
serve the notice by placing flags, the accused Dhrubadutta came
behind him and gave a slap on the back side of his head catching hold
of his hair and he also threatened the Process Server. The other
accused Sanjaya, who was sitting on the ridge also came there and
caught hold of his right hand and the other accused caught hold of his
left hand and dealt kicks blows on his back. Both the accused persons
dragged the Process Server to their house where he was forced to
write a document on a plain paper. He refused but when he was
threatened, he gave a writing on a separate paper putting his signature
thereon. In spite of his request, none came forward to save him from
Page 3 of 16
the clutches of the accused persons. The accused persons also
matched away the red banners numbering five which were taken with
him to fix in the case land as token of service of injunction order.
5. On the basis of the aforementioned, a report was made on
24.10.1997, as the Process Server (P.W.4) had to serve notices in
other villages; hence there was delay in lodging the F.I.R. On receipt
of the written report, which was forwarded by the Judge-in-charge,
Nizarat, Civil Courts, Kuchinda, police registered the case and
investigation was conducted and charge sheet was filed against the
accused persons for the alleged commission of offence
u/s.341/332/426/379/34 of IPC read with Section 3(1)(x) of the S.C.
& S.T. (PoA) Act. The appellants took a stance of complete denial
and claimed trial. Accordingly, they were put to trial on the charges,
as mentioned above.
6. The prosecution in order to bring home the charges examined
as many as seven witnesses and exhibited nine documents. Out of
seven witnesses, P.Ws.1, 2 and 3 were the eye witnesses to the
occurrence; P.W.4 was the Process Server, who had been to the case
land for service of injunction Order; P.W.5 was a witness to the
Page 4 of 16
seizure; P.W.6 is the plaintiff, who filed the suit and in whose favour
the order of injunction was granted; and P.W.7 was the I.O. of the
present case.
7. The learned trial court eventually after analyzing the
prosecution evidence found that the appellants are guilty of offence
under Sections 332/34 of IPC and acquitted them of the charges under
sections 341/426/379/34 of IPC as well as the offence under Section
3(x) of S.C. & S.T. (PoA) Act and accordingly sentenced them to
undergo R.I. for six months each for the offence under Sections
332/34 of IPC.
8. Aggrieved by the aforementioned judgment of conviction and
order of sentence, both the appellants have filed conjoint appeal. The
present appeal is set for consideration vis-Ã -vis appellant no.2-Sanjay
Patel, as against the appellant no.1 the appeal has already been abated.
9. In the instant case, P.Ws.4 and 6 are the vital witnesses. The
appellant no.1 is the son of P.W.6 from the first wife, whereas
appellant no.2 is the grandson of P.W.6. There was certain land
dispute, hence P.W.6 filed Title Suit No.22 of 1996. The learned Civil
Page 5 of 16
Judge, Senior Division, Kuchinda passed an injunction order in Misc.
Case No. 14 of 1997 in Title Suit No.22 of 1996 in favour of P.W.6.
P.W.4 is the Court Peon/Process Server, who went to the spot for
serving the injunction order at the spot, where the occurrence has
taken place.
P.W.6 in his testimony has stated that the land has been under
his occupation, whereas his son appellant no.1 wanted to construct a
pond over the land. Therefore, P.W.6 filed a suit before the learned
Civil Judge, Senior Division, Kuchinda and obtained an injunction
order. On 31.10.1997, P.W.4 went to the spot to serve the notice of
injunction and there were many other villagers accompanied the court
peon and he himself was also present in the spot. Both the appellants
prevented P.W.4 to perform his official duty. The appellant no.1
caught hold of the head hair of P.W.4 and appellant no.2 also caught
hold of the hair and right hand of P.W.4. Both of them challenged
P.W.4 and assaulted him and also took away the flags from P.W.4.
P.W.4 was also dragged by both the appellants from the spot and
manhandled. This witness was extensively cross-examined by the
defence, but his testimony could not be dented in any manner
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whatsoever. This part of the evidence of P.W.6 directly stood
corroborated with the evidence of the informant P.W.4, who deposed
before the court that he had gone to serve the injunction notice, at that
time, appellant no.2 was sitting on the ridge of the land, fifteen to
twenty persons accompanied with him whose names he does not
know were also there at the spot. Appellant no.1 came behind and
gave a slap on the back side of his head after catching hold of his hair.
Appellant no.1 also threatened him saying that his officer also cannot
do anything. Appellant no.2 then came and caught hold of his right
hand and kicked him from the back. He narrated as to how both the
appellants have manhandled him.
P.Ws.1, 2 and 3 were the eye witnesses. All three of them
although turned hostile, but from their evidence it could be elucidated
that the incident indeed had taken place on the date and time as has
been deposed by P.Ws.4 and 6. At the spot, both the appellants,
P.Ws.4 and 6 were also present.
10. The learned trial court by taking into account the evidence of
P.Ws.1, 2, 3, 4 and 6 have arrived at the following conclusion:-
Page 7 of 16
“9. Coming to the offence u/s. 332/34 1.P.C, it has been
contended on behalf of the accused persons that the evidence
of P.Ws. 1 and 6 should not be relied upon when part of
their evidence has been disbelieved particularly when their
evidence does not receive independent corroboration from
the other independent witnesses i.e. P.Ws. 1, 2 and 3.On the
other hand it has been contended on behalf of the
prosecution that the evidence of P.W.4 who in a public
servant should not be disbelieved because it does not receive
independent corroboration when his evidence stands un-
challenged in the cross examination. I am not inclined to
accept the submission made on behalf of the defence that the
evidence of a witness cannot be acted upon when his
evidence has not been accepted in respect of some other
offence. Part of the evidence of a witness can be relied upon
if it is found acceptable and dependable even if the other
part has been discarded. Similarly the evidence of P.W.4
cannot be thrown out of consideration because it does not
receive independent corroboration. P.W.4 is a public
servant who was working as a Process Server in the Civil
Court at Kuchinda. He had no prior enmity with the accused
persons. So, there would be presumption that he acts
honestly. So in that case his evidence, even if does not get
corroboration, can be relied upon if it is found to be
trustworthy, convincing and free from infirmities. In this
case, no doubt, P. Ws. 1, 2 and 3 have not come forward to
support the prosecution allegation and they have been cross-
examined by the prosecution with the leave of the Court. The
evidence of the witnesses who are cross-examined by the
prosecution being declared hostile should not be disbelieved
in toto. The Court after careful consideration if finds that
any part of the evidence is trustworthy, the Court can act
upon. All the P.Ws, 1, 2 and 3 have deposed that the Court
peon had gone to the village to serve injunction order on the
case land and they had accompanied with him and when
they reached at the spot both the accused persons forbade
then not to enter upon the land. Their evidence to this effect
stands unchallenged and can be acted upon, P.W.4 has
categorically stated that both the accused persons caught
hold of his both hands, assaulted him and dragged him to
their house and forced him to put his signature on a plainPage 8 of 16
paper. His evidence stands unchallenged in the cross-
examination. Nothing has been brought out from his mouth
to discredit his testimony. His evidence finds corroboration
from the evidence of PW.6 who had filed the suit and got the
injunction order and had been to the case land with P.W.4 to
identify the case land for causing service of the injunction
order. There is no material before the Court to suggest that
the process Server (P.W.4) had any way inimical to the
accused persons to bring false allegation against them.
There is a ring of truth in the evidence of P. W. 4. So, I am of
the opinion that both the accused persons assaulted the
P.W.4 causing hurt to him while he was discharging public
duty as a public servant. Mr. Behera has contended that
when there is no evidence that any hurt was caused to the
process server in absence of any medical evidence an
offence u/s 332 I..P.C. is not made out. I am not prepared to
accept the above submission. Hurt means bodily pain as
defined u/s. 319 I.P.C. In this case though there is no
medical evidence but the P.W.4 has categorically stated that
he was assaulted by slaps and kicks and was dragged from
the case land to the house of the accused persons and in my
opinion it is sufficient to come to the conclusion that bodily
pain was caused to the Process Server. The Process Server
(P.W.4) was not a party to the suit. He is a public servant.
He had been to the case land to serve the notice of
injunction on the strength of an order passed by the Civil
Court. But both the accused persons voluntarily caused hurt
to him while he was discharging his duty as a public servant.
So, they would be liable u/s. 332/34 I.P.C. In my opinion, the
prosecution has succeeded in proving it’s case beyond all
reasonable doubt that both the accused persons had
committed an offence u/s. 332/34 1.P.C. The case law i. e.
Thakur Tanty Vs. State, reported in A.I.R. 1964 Patna 493
which has been pressed in to service by the defence is not
applicable in this case as the facts of the said case are quite
different from the facts of the present case. In the Patna case
the search warrant which was issued was illegal. So, the
accused objected for execution of the warrant, So, it was
held that when the search warrant which was issued was
illegal, the accused had a right of private defence of his
person. But in this case, the order of the Court was notPage 9 of 16
illegal. P.W.6, had filed the suit and the Court after
consideration of the facts had ordered for the injunction. So,
it cannot be said that the P.W.4 had armed with an illegal
order for which the accused persons had right to obstruct
him.”
11. The reasonings recorded by the learned trial court on the
analysis of the evidence on record sounds plausible and cannot be
found fault with. Since I have already analyzed the evidence of all the
witnesses on the preceeding paragraphs, on the basis of which this
Court has no hesitation to affirm the findings recorded by the learned
trial court convicting the appellants for the offence under Sections
332/34 of IPC.
12. At this stage, Mr. Das, learned Amicus Curiae for the
appellants submitted that keeping in view the procrastinated judicial
process undergone by the appellant no.2 in this case and the ordeal of
trial faced by him; he would rather confine his argument to the
quantum of sentence. He submitted that the incident pertains to the
year 1997. The appellant no.2 has undergone the rigors of trial for
more than two years. Thereafter, the appeal was preferred in the year
1999. The appeal has been prolonging to be heard for more than 26
years. The appellant no.2, who was in his early twenties then, is now
Page 10 of 16
aged about forty-eight years and therefore, sending him to custody for
fulfilling his remaining sentence at this belated stage would serve no
purpose. The learned Counsel further submitted that the appellant
no.2 has no criminal antecedents, and no other case of a similar nature
or otherwise is stated to be pending against him. Over the years, he
has led a dignified life, integrated well into society, and is presently
leading a settled family life. Incarcerating him after such a long delay,
it is argued, would serve little penological purpose and may in fact be
counter-productive, casting a needless stigma not only upon him but
also upon his family members, especially when there is no suggestion
of any repeat violation or ongoing non-compliance with regulatory
norms. Therefore, in the fitness of situation, the appellant no.2 may be
extended the benefit of Probation of Offenders Act read with Section
360 Cr.P.C. I am inclined to accede to the prayer made by Mr. Das,
learned Amicus Curiae for the appellant on the facts scenario of the
case.
13. The Hon’ble Supreme Court in Chellammal and Another v.
State represented by the Inspector of Police1 has elaborately
1
2025 INSC 540
Page 11 of 16
explained the scope, object and significance of the Probation of
Offenders Act, 1958 while considering the question of extending the
benefit of probation to a convict. The Hon’ble Supreme Court has
underscored that the legislative intent behind the enactment of the
Probation of Offenders Act is essentially reformative in nature,
aiming to provide an opportunity to first-time or less serious offenders
to reform themselves rather than subjecting them to incarceration. It
has been emphasized that the provisions of the Act are intended to
prevent the deleterious effects of imprisonment on individuals who
can otherwise be rehabilitated as responsible members of society. The
Court has further highlighted that Section 4 of the Probation of
Offenders Act confers a wide discretion upon the courts to release an
offender on probation in appropriate cases and that the said provision
has a broader and more expansive ambit than Section 360 of the Code
of Criminal Procedure, 1973.
While discussing the interplay between the aforesaid
provisions, the Hon’ble Supreme Court has also clarified that courts
are duty-bound to consider the applicability of the Probation of
Offenders Act in cases where the circumstances justify such
Page 12 of 16
consideration, and if the court decides not to extend the benefit of
probation, it must record special reasons for such refusal. The relevant
observations of the Hon’ble Supreme Court are reproduced
hereunder:
“26. On consideration of the precedents and based on a
comparative study of Section 360, Cr. PC and sub-section (1) of
Section 4 of the Probation Act, what is revealed is that the latter
is wider and expansive in its coverage than the former. Inter alia,
while Section 360 permits release of an offender, more twenty-one
years old, on probation when he is sentenced to imprisonment for
less than seven years or fine, Section 4 of the Probation Act
enables a court to exercise its discretion in any case where the
offender is found to have committed an offence such that he is
punishable with any sentence other than death or life
imprisonment. Additionally, the non-obstante clause in sub-
section gives overriding effect to sub-section (1) of Section 4 over
any other law for the time being in force. Also, it is noteworthy
that Section 361, Cr. PC itself, being a subsequent legislation,
engrafts a provision that in any case where the court could have
dealt with an accused under the provisions of the Probation Act
but has not done so, it shall record in its judgment the special
reasons therefor.
27. What logically follows from a conjoint reading of sub-section
(1) of Section 4 of the Probation Act and Section 361, Cr. PC is
that if Section 360, Cr. PC were not applicable in a particular
case, there is no reason why Section 4 of the Probation Act would
not be attracted.
28. Summing up the legal position, it can be said that while an
offender cannot seek an order for grant of probation as a matter
of right but having noticed the object that the statutory provisions
seek to achieve by grant of probation and the several decisions of
this Court on the point of applicability of Section 4 of the
Probation Act, we hold that, unless applicability is excluded, in a
case where the circumstances stated in subsection (1) of Section 4
of the Probation Act are attracted, the court has no discretion to
omit from its consideration release of the offender on probation;
on the contrary, a mandatory duty is cast upon the court to
consider whether the case before it warrants releasing the
Page 13 of 16
offender upon fulfilment of the stated circumstances. The question
of grant of probation could be decided either way. In the event,
the court in its discretion decides to extend the benefit of
probation, it may upon considering the report of the probation
officer impose such conditions as deemed just and proper.
However, if the answer be in the negative, it would only be just
and proper for the court to record the reasons therefor.”
Regard being had to the facts of the present case, particularly
the long lapse of time since the occurrence, the absence of criminal
antecedents of the appellant no.2 and the overall circumstances
emerging from the record, this Court is of the considered view that
the case of the appellant no.2 deserves consideration under the
beneficial provisions of the Probation of Offenders Act. The said
view also finds support from the decisions of this Court in Pathani
Parida & another vs. Abhaya Kumar Jagdevmohapatra2 and Dhani
@ Dhaneswar Sahu vs. State of Orissa3 wherein in somewhat similar
circumstances the benefit of probation was extended to the convicts.
In view of the aforesaid legal position and the peculiar facts and
circumstances of the case, this Court is inclined to extend to the
appellant no.2 the benefit contemplated under Section 4 of the
Probation of Offenders Act.
2
2012 (Supp-II) OLR 469
3
2007 (Supp.II) OLR 250
Page 14 of 16
14. In such view of the matter, the present Criminal Appeal in so
far as the conviction is concerned is turned down. But instead of
sentencing the appellant no.2 to suffer imprisonment, this Court
directs the appellant no.2 to be released under Section 4 of the
Probation of Offenders Act for a period of six months on his
executing bond of Rs.5,000/- (Rupees Five Thousand) within one
month with one surety for the like amount to appear and receive the
sentence when called upon during such period and in the meantime,
the appellant no.2 shall keep peace and good behavior and he shall
remain under the supervision of the concerned Probation Officer
during the aforementioned period of six months.
Although the appellant no.2 has been extended the benefit of
Section 4 of the Probation of Offenders Act for the reason stated in
the penultimate paragraph of this judgment, but still the appellant no.2
is liable to pay Rs.5000/- (rupees five thousand) as compensation to
the victim under Section 5 of the P.O. Act within one month hence.
15. Accordingly, the Criminal Appeal is partly allowed.
16. This Court records the appreciation for the effective and
meaningful assistance rendered by Mr. Purna Chandra Das, learned
Page 15 of 16
Amicus Curiae. He is entitled to an honorarium of Rs.7,500/- (Rupees
seven thousand five hundred) to be paid as token of appreciation.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack.
Dated the 26th of March, 2026/Ashok
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR JAGADEB MOHAPATRA
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa
Date: 26-Mar-2026 13:18:47 Page 16 of 16