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2013 DIGILAW 441 (ORI)

Akula Chandra Parida v. State of Orissa

2013-10-09

BISWAJIT MOHANTY, PRADIP MOHANTY

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JUDGMENT BISWAJIT MOHANTY, J. The present writ petition has been filed with prayer to protect the lives and properties of the petitioner and his family members and further to transfer the investigation of the cases under FIR No. 175/13 dated 18.05.2013 under Section 341/323/294/384/506/34 of IPC (Anexure-2) and FIR No. 212/2013 dated 20.06.2013 under Sections 341/323/294/379/506/34 of IPC read with Section 25 of the Arms Act 1959 (Annexure-4) registered at Pipili Police Station to State Crime Branch or to an independent agency like Central Bureau of Investigation (in short the C.B.I.). 2. Shortly stated the facts of the case are as follows : While the petitioner, who is a Special Class Contractor, was undertaking the construction of Madhipur Bridge at Bharatipur Panchayat, on 27.02.2013, one Judhistir Samantaray (Kedar), Ex-M.L.A., Pipili Constituency and his son, Priyabrata Samantaray (Raja), resident of Pipili came to the place of construction and allegedly abused the petitioner in filthy language and snatched away Rs. 5,00,000/- (five lakhs) from the petitioner. They also directed the petitioner to pay Rs. 15,00,000/- (fifteen lakhs) more by March, 2013 or else they would destroy the house of the petitioner by bombing. On 18.05.2013, at about 1.00 P.M., it is alleged that the said Judhistir Samantaray along with two others came on a motorcycle and caught hold of the shirt collar of the petitioner and asked him as to why after receiving payment of Rs. 30,00,000/- (thirty lakhs), he has not paid Rs. 15,00,000/- (fifteen lakhs) to him (Judhistir Samantaray). Saying this, it is alleged that the said Judhistir Samantaray started assaulting the petitioner and threatened to finish him and his family by firing and bombing. When this alleged incident was taking place, the partners of the petitioner, Abhaya Samantaray and Dhruba Samantaray separated the petitioner and Judhistir Samantaray. Finding no alternative, the petitioner lodged FIR which has been registered as Pipili P.S. Case No. 175 of 2013 (Annexure-2), as indicated earlier. According to the petitioner, the police intentionally registered the above noted FIR under minor offences. 3. Again, on 20.06.2013, while the petitioner was returning home driving his vehicle bearing registration No. OR-02-BV-1111, Shri Judhistir Samantaray and his son, Priyabrata Samantaray intercepted his vehicle and allegedly dragged the petitioner out. At that time, Priyabrata Samantaray allegedly put one mouser on the head of the petitioner and Judhistir Samantaray allegedly assaulted the petitioner and snatched away the key of the vehicle. At that time, Priyabrata Samantaray allegedly put one mouser on the head of the petitioner and Judhistir Samantaray allegedly assaulted the petitioner and snatched away the key of the vehicle. Thereafter Priyabrata Samantaray drove away the above noted vehicle. At this stage, Judhistir Samantaray allegedly put a gun on the head of the petitioner and threatened that if the petitioner discloses all these things to anybody, he would kill the petitioner. Alleging all the above noted things, the petitioner lodged an FIR at Pipili P.S. on 20.06.2013, which has been registered as Pipili P.S. Case No. 212 of 2013 (Annexure-4). 4. It is the case of the petitioner that despite registration of two FIRs under Annexures-2 and 4, opp. party No. 4 is doing nothing and sitting over the matter while accused persons named in both the FIRs are going on threatening the witnesses and tampering the evidence. According to the petitioner, several criminal cases are pending against Judhistir Samantaray and his son, Priyabrata Samantaray and since he (Judhistir Samantaray) is an influential person, the police have no courage to arrest them. 5. Vide letter dated 28.06.2013 (Annexure-6) the petitioner also requested the opp. parties 2, 3, 6 and Secretary, Home Department, Government of Odisha to take prompt action to provide police protection to him and his family. Alleging the inaction of opp. party No. 4 and the investigating officers, the petitioner has filed the present writ petition. His main grievance is that the investigating officers with an ulterior motive and mala fide intention are not deliberately investigating the case and not examining the witnesses properly. They are also not seizing the car of the petitioner bearing registration No. OR-02-BV-1111 and not taking steps for arresting the accused persons, namely, Judhistir Samantaray and his son, Priyabrata Samantaray. In such background, the petitioner makes two prayers, viz., for issuance of appropriate writ to protect his life and property and also the lives of his family members and secondly to transfer the investigation to State Crime Branch or to an independent agency, like C.B.I. 6. On being directed, Mr. Pradhan, learned Addl. Government Advocate produced the Case Diaries of both the cases and further, Shri Judhistir Samantaray has also filed an intervention application stating his side of story denying the allegations made by the petitioner. On being questioned, Mr. On being directed, Mr. Pradhan, learned Addl. Government Advocate produced the Case Diaries of both the cases and further, Shri Judhistir Samantaray has also filed an intervention application stating his side of story denying the allegations made by the petitioner. On being questioned, Mr. H.M. Dhal, learned counsel appearing for Judhistir Samantaray admitted that now the vehicle is with Judhistir Samantaray in a running condition. Mr. Dhal also produced the Original Registration Certificate and Smart Card of the vehicle in question before us. The stand of the intervenor (Judhistir Samantaray) is that all through out he was having cordial relationship with the petitioner for last 30 years. According to him, the petitioner used to supply labourers to him while he was doing contract work. On account of good relationship, a J.C.B. machine bearing registration No. OR-02-BA-8924 was purchased by him (Judhistir Samantaray) in the name of the petitioner, which was financed by Sundaram Finance Ltd. in the year 2009 and the petitioner was the registered owner of the same. After the loan was liquidated, the present petitioner transferred the said J.C.B. machine in the name of Shri Narendra Pradhan, who happens to be the son-in-law of the elder brother of Judhistir Samantaray. On account of good relationship of petitioner with Sundaram Finance Ltd.; the vehicle in question, OR-02-BV-1111, was purchased by Judhistir Samantaray in the name of the petitioner. He (Judhistir Samantaray) initially gave Rs. 1,00,000/- (one lakh) for booking of the vehicle and also made payments to the tune of Rs. 10,00,000/- (ten lakhs) towards down payment and the balance amount was financed by Sundaram Finance Ltd. Mr. Dhal, learned counsel for the intervenor submits that though the vehicle in question was purchased in the name of the petitioner, entire investment was made by his client, Judhistir Samantaray. The retail invoice and the delivery letter of the vehicle by the dealer were signed by Sanjay Kumar Samantaray, his nephew. Notwithstanding the fact that the petitioner was the registered owner of the vehicle in question, but from the date of purchase, Judhistir Samantaray has been making use of the vehicle. Mr. Dhal, further submits that his client, Judhistir Samantaray through his relatives used to deposit the E.M.Is. regularly in the S.B.I. Savings Bank Account of the petitioner, who in truth was depositing the same with financier. Mr. Dhal, further submits that his client, Judhistir Samantaray through his relatives used to deposit the E.M.Is. regularly in the S.B.I. Savings Bank Account of the petitioner, who in truth was depositing the same with financier. He also submitted that the petitioner in the FIR under Annexure-2 has nowhere alleged that original documents pertaining to the vehicle in question were inside the vehicle. In fact, from the very beginning the original documents, like registration certificate and other ancillary documents relating to the vehicle have been in possession of the petitioner. Hence, according to him, the allegations made in the FIR are absolutely false and concocted. 7. A perusal of the Case Diary relating to the FIR dated 18.05.2013 (Annexure-2) reveals that immediately after filing of the FIR, the police authorities have taken up investigation and by 23.07.2013 they have examined as many as 10 (ten) witnesses including the present petitioner. Except the present petitioner, none of the witnesses examined by the police, has supported the version of the petitioner. Rather, most of them have stated that for construction of the bridge, there was requirement of some land and it was Judhistir Samantaray who helped the petitioner in getting land from the villagers. But, till date neither the land has been returned to the villagers nor any money has been paid to the villagers by the petitioner as promised. It is in such background the villagers wanted to do "Rasta Roka". But after intervention of Judhistir Samantaray and after his assurance relating to payment from petitioner, the villagers calmed down. Despite this, when no payment was made, time and again villagers approached Judhistir Samantaray in order to get their payments. On 18.05.2013, while returning from Pipili, Judhistir Samantaray asked the petitioner at the construction spot as to why he was not paying the dues of villagers despite getting Rs. 30,00,000/- (thirty lakhs). At this stage, the petitioner got infuriated and hot words were exchanged between them. At the intervention of the villagers, they got separated. It is also pertinent to note here that most of the witnesses, examined under Section 161 Cr.P.C., have stated that Judhistir Samantaray was there at the spot in his own vehicle, OR-02-BV-1111 and his driver was driving the vehicle. This shows the disputed vehicle was with Judhsitir Samantaray even on 18.05.2013 in tune with the stand taken by him. It is also pertinent to note here that most of the witnesses, examined under Section 161 Cr.P.C., have stated that Judhistir Samantaray was there at the spot in his own vehicle, OR-02-BV-1111 and his driver was driving the vehicle. This shows the disputed vehicle was with Judhsitir Samantaray even on 18.05.2013 in tune with the stand taken by him. This casts doubt on allegation made in second FIR under Annexure-4 relating to forcible taking away of the said vehicle by intervenor and his son. Secondly, on perusal of the records, it further revealed that though the petitioner indicated the name of the partners, namely, Dhirendra Samantaray and Abhay Samantaray in the FIR under Annexure-2, however, both the persons in their statements under Section 161 Cr.P.C. have not supported the version of the petitioner either under the FIR or under Section 161 Cr.P.C. While reiterating the earlier indicated version of the witnesses, Dhirendra Samantaray, Abhay Samantaray in their 161 statements have made it clear that petitioner never told about 27.02.2013 snatching incident to them. 8. So far as FIR under Annexure-4 is concerned, Case Diary reveals that here also investigation was taken up immediately and on 21.06.2013 original R.C. Book, Smart Card, Original Insurance Certificate, Original Warrant Register, Original Service Tax Receipts, Original Receipt of Deposit Installments and Original Counter Foil were seized from Sanjay Kumar Samantaray nephew of Judhistira Samantaray. Perusal of Case Diary relating to Annexure-4 reveals that around 12 (twelve) witnesses including the petitioner have been examined under 161 Cr.P.C. Again like the earlier F.I.R., except the petitioner, none of the witnesses present at the spot on 20.06.2013 has supported the version of the petitioner as has been made out in the FIR under Annexure-4. Rather, the witnesses present at the spot have stated that no such incident as alleged in the FIR took place on 20.06.2013. Secondly, from the Case Diary it is revealed that though on several occasions, the petitioner was directed to produce the documents relating to vehicle bearing registration No. OR-02-BV-1111, the petitioner did not respond to the same. Further from the Case Diary, it is clear that though the police are continuing with their search for Judhistir Samantaray, Priyabrata Samantaray and the vehicle in question, but they have not been successful in their endeavour. Further from the Case Diary, it is clear that though the police are continuing with their search for Judhistir Samantaray, Priyabrata Samantaray and the vehicle in question, but they have not been successful in their endeavour. In such background, we have to see whether prayer of the petitioner for transferring the investigation to State Crime Branch/C.B.I. merits acceptance? 9. Heard Mr. K.N. Jena, learned counsel for the petitioner, Mr. H.M. Dhal, learned counsel for the intervenor, Mr. S.K. Padhi, learned Senior Counsel for C.B.I. and Mr. Pradhan, learned Addl. Government Advocate. 10. Mr. Jena, learned counsel for the petitioner while reiterating the allegations made in the writ petition, relied on decisions reported in AIR 2013 Kerala 24 (Sreekala and another v. State of Kerala) and (2013) 54 OCR (SC) 561 (Vinay Tyagi v. Irshad Ali @ Deepak and others) 12013 (I) OLR (SC) 753. On the basis of the decision in Sreekala's case (supra), learned counsel for the petitioner made a fervent plea for protecting the life of the petitioner so also the lives of his family members and property. Relying on the decision in Vinay Tyagi's case (supra), he strenuously made a prayer to handover the investigation to State Crime Branch or to C.B.I. 11. Mr. H.M. Dhal, learned counsel appearing for the intervenor (Judhistir Samantaray) while opposing the prayer made in the writ petition relied on the decision AIR 2008 SC 1614 (Divine Retreat Centre v. State of Kerala and others) and submits that interference in criminal investigation by Writ Court is not advisable under law. Such interference can only be made when investigating officer acts mala fide and that too in a rarest of rare case. But in such cases he submitted that the High Court cannot direct the police as to how the investigation is to be conducted. 12. Mr. Pradhan, learned Addl. Government Advocate vehemently defended the investigation done by the police and submitted that this is not a case which needs interference by this Court in its writ jurisdiction Further, he submitted that as per the settled principle of law, an aggrieved person has no right to claim that the case be investigated by a particular agency of his choice. In this context, he relies on a decision of the Hon'ble Supreme Court as reported in 2008 (I) OLR (SC) 105 (Sakiri Vasu v. State of U.P. and others). 13. Mr. In this context, he relies on a decision of the Hon'ble Supreme Court as reported in 2008 (I) OLR (SC) 105 (Sakiri Vasu v. State of U.P. and others). 13. Mr. S.K. Padhi, learned Senior Counsel appearing for the C.B.I. submitted that under the facts and circumstances, an investigation by C.B.I. is not warranted. 14. At this stage, an analysis of materials as indicated earlier reveals that the police authorities are going on with their investigation in right earnest pertaining to both the FIRs. They have examined a number of witnesses, who have not supported the version of the petitioner. Rather, so far as the FIR under Annexure-4 is concerned, the witnesses present at spot have stated that no such incident took place as alleged in the said FIR. Further, as indicated earlier, the police have also seized many documents during the course of their investigation. Also, the Case Diary reveals that though they are searching for the vehicle and the accused they have not been able to lay hands on them. 15. The petitioner has also filed an additional affidavit stating that though on 29.7.2013, Judhistir Samantaray has gone to Pipili P.S. to lodge the FIR against the Hon'ble Chief Minister, Shri Naveen Pattnaik, the investigating officers did not apprehend him. Without making any observation as to truth or otherwise of such allegation at this stage, it can only be said that the petitioner is labouring under a wrong impression that whenever an FIR is filed alleging commission of cognizable and non-bailable offences, police should straight away arrest the alleged accused. Section 41 of Cr.P.C. gives enough discretion to the police officer in the matter of arrest of a person. It is well settled by our Supreme Court that no arrest can be made because it is lawful for the police officer to do so. The existence of power to arrest is one thing and the justification for the exercise of it is quite another. No arrest can be made in a routine manner as that would amount to denying a person of his liberty, which is a serious matter. As indicated earlier, till date, the evidence against the accused person appears to be deficient. 16. No arrest can be made in a routine manner as that would amount to denying a person of his liberty, which is a serious matter. As indicated earlier, till date, the evidence against the accused person appears to be deficient. 16. So far as the decision cited by the petitioner reported in Vinay Tyagi (supra) is concerned; the same makes it clear that where the investigation is ex facie unfair, tainted, mala fide and smacks of foul play, the Court should set aside such investigation and if necessary can direct for fresh investigation by an another independent investigating agency. Since this is a power of wide amplitude, the same has to be exercised sparingly. The principle of rarest of rare case is squarely applicable to such cases. Unless the fairness of the investigation is such that it pricks judicial conscience, the Court should be reluctant to interfere in such matter to the extent of quashing investigation and directing for fresh investigation. The Hon'ble Supreme Court has also made it clear that superior Courts are vested with power of transferring investigation from one agency to another, provided the ends of justice so demands. Even this power has to be exercised very sparingly and with great circumspection. In this case, the facts as delineated above do not show that the investigation of the police authority is not in a proper direction or is tainted with mala fide and smacks of foul play. As already noticed, most of the witnesses have not supported the version of the petitioner. Further, the Supreme Court in the case of Divine Retreat Centre (supra) has also made it clear that even if in a rarest of rare case where this Court can interfere in exercise of its power under Article 226 of the Constitution, even then this Court cannot direct the police as to how the investigation is to be conducted. It can only insist for an observation of process as provided in the Cr.P.C. Even in cases where no action is taken by the police on information given to them, the informant's remedy lies under Section 190, 200 Cr.P.C. not in a writ petition. 17. It can only insist for an observation of process as provided in the Cr.P.C. Even in cases where no action is taken by the police on information given to them, the informant's remedy lies under Section 190, 200 Cr.P.C. not in a writ petition. 17. In the case of Sakiri Vasu (supra), the Hon'ble Supreme Court has gone to the extent of saying that practice of rushing to High Court on the ground of proper investigation not being done by the police should not be encouraged and High Court should ordinarily refuse to interfere in such matter and relegate the petitioners to avail alternative remedy under Section 156(3) of Cr.P.C. Moreover, the informant has a further remedy of filing of a criminal complaint under Section 200 of Cr.P.C. 18. In the background of above noted settled principle of law and in the background facts indicated earlier, present is not a rarest of rare case for accepting the prayer of the petitioner to transfer the investigation to State Crime Branch or to C.B.I. However, in order to allay the apprehension of the petitioner, this Court directs that from now onwards the opp. party No. 3 should directly supervise the investigation. 19. So far as the prayer of the petitioner for protecting his life and lives of his family members are concerned, it may be noted here that a number of criminal cases are pending against the intervenor and his son. In such background, we direct the intervenor, Judhistir Samantaray not to cause any harm to the petitioner or any of his family members directly or through anybody else. However, in future if there is any threat held out to the life of the petitioner or to the lives of his family members by Judhistir Samantaray or his son, then the petitioner may intimate the same to opp. parties 3 and 4 and upon such intimations, the opp. parties 3 and 4 should immediately extend police protection in order to protect the lives of the petitioner and his immediate family members. 20. Before parting with the case, it is made clear that none of the observations made in this judgment and none of the directions given hereinabove, would in any way influence the investigation/enquiry or trial of the case, if trial is required to be held in future. With the above observation and direction, the writ petition is disposed of accordingly. 20. Before parting with the case, it is made clear that none of the observations made in this judgment and none of the directions given hereinabove, would in any way influence the investigation/enquiry or trial of the case, if trial is required to be held in future. With the above observation and direction, the writ petition is disposed of accordingly. No cost. PRADIP MOHANTY, ACJ. I agree. Petition disposed of.