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2018 DIGILAW 261 (ORI)

Dibyalochan Behera v. State of Odisha

2018-03-16

S.K.SAHOO

body2018
JUDGMENT S.K. SAHOO, J. - The petitioner Dibyalochan Behera who is now serving as Sub-Inspector of Police, Boudh Police Station has filed this application under Section 438 Cr.P.C. seeking for pre-arrest bail in connection with Jagannath Prasad P.S. Case No.61 of 2015 registered under Sections 302/34 of the Indian Penal Code. The first information report was lodged by Smt. Kunilata Swain, widow of Gourahari Swain of village – Patadhar, P.S. Jagannath Prasad, Dist. –Ganjam on 09.06.2015 before the officer in charge of Jagannath Prasad Police Station wherein it is stated that on 08.06.2015 at about 10.00 p.m. her husband Gourahari Swain (hereafter ‘the deceased’) was taken from the house by the Police Officials of Jagannath Prasad Police Station and on 09.06.2015 morning at about 10.30 a.m., she came to know that the deceased was subjected to physical torture in police custody and was killed. It is further stated that the informant noticed marks of physical violence on the body of her deceased husband. In connection with the death of the deceased, Jagannath Prasad P.S. U.D. Case No.1 of 2015 was registered on 09.06.2015 prior to the lodging of the F.I.R,. by the widow of the deceased. The inquest was held and the dead body was sent for post mortem examination. Number of external injuries was noticed on the person of the deceased. Injuries Nos.1 to 16 were opined to be ante mortem in nature and might have been caused by hard and blunt weapon and the injuries nos. 17 to 20 were the post mortem injuries. The exact cause of death could not be ascertained and the viscera were preserved for analysis. Subsequently, after considering the viscera report, final opinion regarding the cause of death was opined to be shock due to neurogenic/cardiogenic on account of multiple injuries over body. It was further opined that the ante mortem injuries described as per the post mortem report were sufficient to cause of death in ordinary course of nature. The statements of witnesses Arun Kumar Panda and Prasanna Kumar Jena were recorded under Section 164 Cr.P.C. Witness Arun Kumar Panda stated that on 08.06.2015 night, the police officials including the petitioner brought the deceased from his house in connection with a theft case and he was severely assaulted by the petitioner by means of a stick. The statements of witnesses Arun Kumar Panda and Prasanna Kumar Jena were recorded under Section 164 Cr.P.C. Witness Arun Kumar Panda stated that on 08.06.2015 night, the police officials including the petitioner brought the deceased from his house in connection with a theft case and he was severely assaulted by the petitioner by means of a stick. The witness Prasanna Kumar Jena has stated that he found the deceased lying on the verandah of the Police Station and he was in severe pain and on being confronted, the deceased told that the petitioner severally assaulted him. Mr. Himansu Sekhar Mishra, learned Counsel for the petitioner submitted that the deceased was a suspect in Jagannath Prasad P.S. Case No.59 of 2015 which was registered under Sections 457/380 of the Indian Penal Code and in course of investigation, the Police raided the house of the deceased and the deceased confessed to have committed the crime with one Banya Swain and when the deceased was being taken to the house of the said Banya Swain for recovery of cash and articles, the deceased escaped from the police clutches and ran away at a high speed but the Police officials chased him and he fell down on the village danda and sustained multiple injuries. It is further stated that after reaching at the police station, the deceased was sent to the hospital for examination where he complained of abdominal pain and while undergoing treatment, he died. It is further contended by the learned Counsel for the petitioner that after the death of the deceased, Jagannath Prasad P.S. U.D. Case No.1 dated 09.06.2015 was registered and the matter was inquired into by the Police and there is absolutely no material collected during inquiry or even during investigation of the case against the petitioner to have any role in the death of the deceased and a false case has been foisted against the petitioner with an oblique motive. The learned Counsel for the petitioner further submitted that the petitioner is a Government servant and there is no chance of his absconding and the investigation which is continuing since 2015 has made substantial progress. It is further submitted that during U.D. Case inquiry, the statement of Dr. The learned Counsel for the petitioner further submitted that the petitioner is a Government servant and there is no chance of his absconding and the investigation which is continuing since 2015 has made substantial progress. It is further submitted that during U.D. Case inquiry, the statement of Dr. Narayan Behera, Medical Officer, Jagannath Prasad C.H.C. was recorded and he has stated that the Havildar of Jagannath Prasad Police Station brought a patient who disclosed his name as Gourahari Swain (deceased) and he complained pain in his abdomen for which he prescribed some medicines and after some time, he complained further pain for which he gave him saline and the patient disclosed that while he was attempting to flee away from the custody of the Police, he fell down for which he sustained injuries on his body. He further stated that the doctor has noticed six simple injuries on the person of the deceased while treating him on 09.06.2015 but opined that injuries might have been caused due to assault and therefore, the bail application may be favourably considered. Learned Counsel for the petitioner placed reliance in case of Dataram Singh vs. State of Uttar Pradesh and Ors. Reported in 2018 (2) SCALE 285 wherein it is held as follows : “3.There is no doubt that the grant or denial of bail is entirely the discretion of the Judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigation when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigation, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigation to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer.” Mr. Similarly, it is important to ascertain whether the accused was participating in the investigation to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer.” Mr. Chitta Ranjan Swain learned Addl. Standing Counsel on the other hand contended that it is a case of custodial death and the materials available on record prima facie indicates that the deceased was taken from his house in the night of occurrence and for the sake of interrogation in connection with a theft case, he was brutally assaulted by the petitioner which is stated by witness Arun Kumar Panda. He further stated that the dying declaration made before Prasanna Kumar Jena is also very clear in that respect. It is further contended that the post mortem examination report clearly indicates the brutal manner of assault on the deceased. He further submitted that the matter was investigated by Deputy Superintendent of Police, State HRPC and during course of investigation, it was ascertained as to how the crime was committed. Her further stated that the investigation is under progress and at this stage, if the petitioner is granted anticipatory bail, there is every chance of tampering with the evidence and therefore, the bail application of the petitioner should be rejected. It appears that the petitioner earlier approached this Court in an application under Section 438 of Cr.P.C. in ABLAPL No.11920 of 2016 and on 19.10.2016, the bail application was dismissed as not pressed. After going through the case record, it appears that there are prima facie materials to show that the deceased was taken from his house by the petitioner and other police officials for interrogation in a theft case where after he was assaulted by the petitioner and he sustained number of injuries and then taken to hospital where during treatment, he died. The post mortem report indicates the brutal manner in which the deceased was assaulted on different parts of his body. The injuries sustained were opined to be sufficient in ordinary course of nature to cause death. The direct evidence and the circumstantial evidence collected so far are very clinching. The post mortem report indicates the brutal manner in which the deceased was assaulted on different parts of his body. The injuries sustained were opined to be sufficient in ordinary course of nature to cause death. The direct evidence and the circumstantial evidence collected so far are very clinching. Considering the submission made by the learned Counsels for the respective parties, the nature and gravity of the accusation, the statement of the widow of the deceased regarding taking of her husband by the police officials including the petitioner on the date of occurrence for interrogation, the statement of the eye witness Arun Kumar Panda regarding assault by the petitioner to the deceased with a stick, the statement of Prasanna Kumar Jena regarding dying declaration made by the deceased implicating the petitioner in his assault, the post mortem report finding indicating multiple injuries sustained all over the body of the deceased, the final opinion of the doctor that the injuries were ante mortem in nature and sufficient to cause of death in ordinary course of nature, impact of the offence on the society, the severity of punishment in case of conviction, reasonable apprehension of tampering with the evidence and availability of prima facie materials against the petitioner regarding his involvement in the commission of offences, I am not inclined to release the petitioner on anticipatory bail. Though rarely in cases of custodial death, direct evidence of the complicity of the police personnel could be available but in this particular case, there is not only direct evidence but also circumstantial evidence against the petitioner to have participated in the assault of the deceased. The Apex Court in several decisions has viewed the custodial death to be one of the worst crimes in a civilized society governed by the rule of law. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution of India, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading top anarchism. (Ref: D.K. Basu Vrs. State of West Bengal: (1997) 13 Orissa Criminal Reports (SC) 214). In case of K.K. Jerath Vrs. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading top anarchism. (Ref: D.K. Basu Vrs. State of West Bengal: (1997) 13 Orissa Criminal Reports (SC) 214). In case of K.K. Jerath Vrs. Union Territory reported in A.I.R. 1998 S.C. 1934, while dealing with a case for anticipatory bail under Section 438 Cr.P.C., the Hon’ble Apex Court held that in considering a petition for grant of bail necessarily, if public interest requires detention of citizen in custody for purpose of investigation, it could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence. In view of the foregoing discussions, the ABLAPL application sans merit and hence stands rejected. Application rejected.