Dhrubadutta Patel (Expired) vs State Of Orissa on 26 March, 2026

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    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

    SPONSORED

    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 and

    sentenced 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

    Page 2 of 16
    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-à-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

    Page 6 of 16
    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 plain

    Page 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 not

    Page 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



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