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2019 DIGILAW 390 (ORI)

Sobha Pattanaik v. State Of Odisha

2019-05-14

D.DASH

body2019
JUDGMENT D. Dash, J. - The petitioner, by filing this revision, has assailed the order dated 12.05.2008 passed by the learned S.D.J.M., Talcher in GR.Case No. 72 of 2004 arising out of Vikrampur P.S. Case No. 8 of 2004 in taking cognizance of the offence under Sections 342 and 306 read with Section 34 of the Indian Penal Code (in short, a~the IPC') and issuing process against the petitioner in particular with two others to face the said criminal proceeding. 2. Facts necessary for the purpose of the present revision are stated as under: On 03.02.2004, one Bijay Kumar Mohanty, Inspector of Police, HRPC, Orissa, Cuttack-cum-Additional Circle Inspector, Talcher lodged the first information report leading to registration of Vikrampur P.S. Case No. 8 of 2004 for the offence under Section 342 read with Section 34 of the IPC showing the A S.I. of Police, namely, Dwari Muduli and the Sub-Inspector of Police Smt. Sobha Pattanaik, the present petitioner as accused. It has been stated therein that in course of inquiry in connection with Vikrampur P.S. U.D. Case No.3 of 2003 on the strength of the office order as also the order of the Superintendent of Police, Angul dated 31.12.2003, it came to the light that on 29.12.2003 around 3.30 A.M., the A S.I. of Police of Kalinga beat house and the present petitioner, who was the Officer-in-Charge of Vikrampur Police-Station, brought Narayan Behera, the deceased in connection with investigation of Vikrampur P.S. Case No.70 of 2003 registered for the offence under Section 147/148/302 read with Section 149 of the IPC. The deceased was kept in that beat house and finally he met his death on 31.12.2003 around 10.45 A.M.. He committed suicide in the said beat house by hanging himself from a ceiling fan by means of a rope in the inspection room of the said beat house. The opinion of the Medical Officer, who conducted the autopsy over the dead body of deceased, is definite on the score that the death was on account of asphyxia resulting from hanging without any other marks of injury on the entire body of the deceased. The opinion of the Medical Officer, who conducted the autopsy over the dead body of deceased, is definite on the score that the death was on account of asphyxia resulting from hanging without any other marks of injury on the entire body of the deceased. So the allegation in the FIR is to the extent that the death has been kept under wrongful confinement at the instance of AS.I. of Police who was in charge of that beat house and the S. I. of Police, the present petitioner, who was then the Officer-in-Charge of Vikrampur Police-Station under whose jurisdiction said beat house i.e. the police out post is situated. In course of investigation, family members of the deceased have been examined, who have supported the case of detention of the deceased Narayan Behera in Kalinga beat house from 3.42 A.M. on 29.12.2003 to 10.45 A.M. on 31.12.2003 by the petitioner and other accused, i.e. the A.S.I. Police being brought to the place in connection with Vikrampur P.S. Case No.70 of 2003. It has been the inference that by such detention, the deceased was subjected to mental tortue and he being shocked, committed suicide when he was under detention when no such safety measures had been taken to avoid such untoward situation. On completion of the investigation, the charge-sheet was however submitted against the petitioner and the A S.I. Of Police on 5.5.2008 to stand their trial in the Court of law for commission of offence under Section 342/306/34 of the IPC by the investigating officer, who happens to be another Inspector of Police attached to the HRPC, Orissa, Cuttack. Learned Magistrate having received the charge-sheet and upon perusal of the FIR and other documents as also the sanction order, took cognizance of the offence under Section 342/306 read with Section 34 of the IPC and issued process against the petitioner, which has been impugned in this revision. 3. Mr. D. Dhal, learned counsel for the petitioner, in attacking the impugned order, submitted that even upon acceptance of the entire prosecution case, as placed and assuming the same to be true, the ingredients of the offence under Section 342 and 306 of the I.PC. are not made out against the petitioner. He submitted that the deceased Narayan Behera was brought to the beat house in course of investigation of Vikrampur P.S.Case No. 70 of 2003. are not made out against the petitioner. He submitted that the deceased Narayan Behera was brought to the beat house in course of investigation of Vikrampur P.S.Case No. 70 of 2003. This petitioner was not the investigating officer of the said case. One Rabindranath Deo, the Circle Inspector of Talcher being the I.O., had so Instructed to bring the deceased and getting information about such detention of the deceased at Kalinga beat house, he had arrived there on 29.12.2003 at around 11.30 A.M. and interrogated the deceased. He was then taken to village Kantribida to the house of Tikan Pradhan in police jeep for verification of his statement. All the police officials along with the deceased returned to the beat house around 4.00 P.M.. The A.S.I. of Police, namely, Dwari Muduli was the officer-in-charge of said police out-post. He was directed by the Circle Inspector to allow the deceased to go to his house if the driver of the jeep in which the deceased was alleged to have helped the accused persons of that Vikrampur P.S. Case No.70 of 2003 to escape, did not Own up for confrontation. This petitioner was then the Officer-in-Charge of the police station within whose jurisdiction the police out-post is situated. He further submitted that the materials available on record indicate that on 31.12.2003 around 9.00 A.M., the deceased was moving in the beat house campus and at 10.00A.M., the brother of the deceased had come to meet him with tiffin, which he had taken. Thereafter, he approached the A.S.I. of Police, Dwari Muduli to leave him who in turn told that after confrontation with that jeep driver, he would be allowed to go home in the afternoon but suddenly thereafter he entered inside the inspection room of the beat house, bolted the doors from inside and committed suicide. Hearing some sound, when the A.S.I. Of Police and others rushed and knocked the door of the inspection room of the beat house, the deceased did not respond. So, they broke open the same and found the deceased in a hanging condition. The rope was cut, the dead body was brought down the floor and intimation being given by the A.S.I. Of Police to his superior officials, they arrived at the spot. So, they broke open the same and found the deceased in a hanging condition. The rope was cut, the dead body was brought down the floor and intimation being given by the A.S.I. Of Police to his superior officials, they arrived at the spot. He further contended that Vikrampur P.S. U.D. Case No.3 of 2003 being registered in connection with said unnatural death of the deceased, the inquest over the dead body was conducted and the dead body was sent for post mortem examination. The doctor has opined that the death was on account of suicidal hanging and he has noticed no such mark of injury on any part of the body of deceased and this FIR has been lodged one month thereafter. He further submitted that the deceased was brought to the Beat house in connection with investigation of a case under Section 302 of the I.P. and it was under the instruction of that Circle Inspector of Police being the Investigating Officer of the said murder case was after making necessary interrogation of the deceased, had asked the A.S.I. Of Police Dwari Muduli to leave the deceased if the driver of the jeep did not turn up for confrontation. It was submitted that this petitioner being the Officer-in-Charge of Vikarampur P.S. within whose jurisdiction, the beat house falls, having' played no role in the matter of detention of the deceased at Kalinga beat house and in the absence of any such overt-act being attributed to the petitioner either in the matter of detention of the deceased or in abetment of commission of suicide by the deceased, submission of charge-sheet in a mechanical manner showing her as an accused is unjustified and the Court below without applying mind has passed the order of issuance of process against her to face the criminal proceeding. He, therefore, contends that it is a fit case for exercise of revisional jurisdiction to set aside the impugned order of issuance of process in so far as this petitioner is concerned. 4. Mr. K.K. Nayak, learned Additional Standing Counsel for the State submitted that the deceased should not have been detained for the purpose of investigation and interrogation in the beat house and this petitioner being in overall charge of the said beat house, ought to have followed the guidelines laid down in D.K. Basu vs. State of West Bengal; (1997) 13 OCR (SC) 214. He submitted that there was no justification for detention of the deceased for three days in the beat house and the plea that the detention was for (ftp purpose of confrontation with the driver of jeep, which was used for sending the accused persons of that murder case to a distant place and therefore, it has to be taken that the detention of the deceased was wrongful and there being sufficient mental pressure upon the deceased, who having undergone mental agony for the said detention, when has committed suicide, the liability as to abetment of commission of suicide by the deceased has to be shouldered by the petitioner. In support of his submission, he has invited the attention of the Court to the statements of Ranjan Behera, the driver of the jeep recorded under Section 161 Cr.P.C., 1973 as also those of Sujata Pradhan, Duriabha Prusty, Sanjay Behera, Rajballava Pradhan, Kastu Behera, Golak Pradhan, Narasundar Mishra and Sitakanta Dash. 5. On the above rival submission, this Court is called upon to examine the legallity and propriety of the impugned order of issuance of process against the petitioner to face the criminal proceeding within the scope and ambit of revisional jurisdiction. 6. The inquest over the dead body of the deceased has been held in Vikrampur P.S. U.D. Case No.3 of 2003. The report prepared therein indicates that there was a ligature mark over the upper part of the neck above the thyroid cartilage and the cause of death is asphyxia as a result of hanging. That has been the opinion of the doctor, who had conducted the autopsy over the dead body. From the materials placed before the Court from the side of prosecution, the following facts emerge (i) the petitioner and that A.S.I. Of police in charge of Kalinga beat house being instructed by the Circle Inspector of Police, who was the I.O. of Vikrampur P.S. Case No. 70 of 2003 registered for commission of offence under Section 147/148/302/149 of the IPC had brought the deceased to the beat house in the intervening night of 28/29.12.2003; (ii) the then Circle Inspector of Police who was the Investigating Officer of that Vikrampur P.S. Case No.70 of 2003 had come to the beat house on 29.12.2003 around 11.30 A.M.. He had interrogated the deceased and had taken him to the house of Tikan Pradhan where Tikan's wife was interrogated and they all had returned to the beat house; (iii) the A.S.I. Of Police in-charge of the beat house was instructed by the Investigating Officer of Vikrampur P.S. Case No. 70 of 2003 to leave the deceased from the beat house, if the driver of the jeep did not turn up for confrontation; (iv) the deceased was in the beat house on 29.12.2003 from around 3.00 A M, till his death on 31.12.2003 except during the period when he had been taken to the house of Tikam Pradhan; and (v) the deceased committed suicide by hanging himself from a ceiling fan by means of a rope closing the door from inside." 7. It is pertinent to mention here that in obedience to the order of this Court dated 04.12.2006 passed in W.R(C) No. 8373 of 2004, learned Additional Sessions Judge, Talcher had conducted an inquiry as to the circumstances under which the unfortunate incident of death of Narayan Behera had taken place. It has been reported that the petitioner and the A.S.I. Of Police, Dwari Muduli had raided the house of deceased Narayan Behera and then he was brought to the beat house and was detained there. The Investigating Officer of that Vikrampur P.S. Case No.70 of 2003 had interrogated the deceased and took him to village Kantribida so as to apprehend the accused, which did not materialise and then deceased Narayan Behera was brought back to the beat house and left there with the instruction to the A.S.I. Police in-charge of the beat house to confront the deceased with the jeep driver in view of the allegation that in that jeep the accused persons of the Vikrampur P.S. Case No.70 of 2003 had escaped. The driver of jeep did not arrive and there was no confrontation. However, on 31.12.2003, when it was expected that Narayan Behera would be confronted with the driver as he was likely to come, he committed suicide. The report is also to the effect that there was no physical torture upon the deceased during his stay in the beat house. The driver of jeep did not arrive and there was no confrontation. However, on 31.12.2003, when it was expected that Narayan Behera would be confronted with the driver as he was likely to come, he committed suicide. The report is also to the effect that there was no physical torture upon the deceased during his stay in the beat house. So this Court while disposing W.P.(C) No. 8373 of 2004 by judgment dated 6.9.2007, has found the fact to have been established that the deceased Narayan Behera was detained in the beat house from 528.12.2003 to 31.12.2003. He was not arrested and thus, his detention was illegal. This petitioner is not the person-in-charge of that Kalinga beat house and she was the Officer-in-Charge of Vikrampur PS. within whose jurisdiction the beat house situated. The person being detained in the beat house was under the direct control of the Officer-in-Charge of beat house and here is a case where the Circle Inspector, who happens to be the Investigating Officer of Vikrampur PS. Case No. 70 of 2003 in connection of which the deceased was brought to the beat house for interrogation, had instructed the A S.I. of Police, in-charge of that beat house and this petitioner although had at the initial stage played the role, that too under the instruction of that Investigating Officer in conducting the raid of the house of deceased and in bringing him to the beat house for interrogation by the Investigating Officer, yet the detention of the deceased after interrogation was neither under her direction nor the deceased was left under her control or custody. The element of wrongful confinement is thus not getting attracted in so far as the petitioner is concerned. Keeping in view the part played by her, she cannot be attributed with any such act in the direction of keeping the deceased under detention when the role Talayed by her in bringing the deceased to beat house is based upon the instruction of her superior officer in-charge of the investigation of Vikrampur P.S. Case No.70 of 2003 and in carrying out the same, that too he has been made aware of the said action immediately and has sprang into action thereafter. 8. 8. The essential ingrdients for the offence under Section 306 I.P.C. are the followings :- (i) the abetment; (ii) the intention of the accused to aid or instruct or abet the deceased to commit suicide." 9. In order to attract culpability for commission of offence under Section 306 I.P.C., there should be materials on record which are capable of suggesting that the accused did any such act and thereby intended or instigated the deceased to commit suicide. Unless the ingredients as to abetment and intention of the accused to aid or instigate or abate the deceased to commit suicide come to surface, the offence under Section 306 I.P.C. is not made out. Ref:- M. Arjuna vs. State (2019) 3 SCC-315. It is worthwhile to note here that the order passed by the Court below as to issuance of process against that Circle Inspector of Police who is the Investigating Officer of Vikrampur PS. Case No.70 of 2003 in connection of which the deceased had been brought, and detained, and who had interrogated the deceased giving further instruction to flag A.S, I. of Police in-charge of the beat house in the matter of further detention of the deceased, has been quashed by order dated 6.2.2017 passed by this Court in Criminal Revision No.750 of 2008 and thus, he is now beyond the arena of the present criminal proceeding running for the death of Narayan Behera. 10. On going through the materials available on record and accepting those on their face value as to the role played by the petitioner, neither the ingredients of offence under Section 342 I.P.C. nor Section 306 I.P.C. are getting attracted in so far as the petitioner is concerned. The act of the petitioner in bringing the deceased to the beat house in obedience to the direction of her superior officer, the then Investigating Officer of Vikrampur P.S. Case No.70 of 2003 in connection of investigation of which the direction had been to bring that deceased for interrogation and then leaving the deceased there in presence of the police officer in-charge of the beat house for being further dealt, by itself does not constitute offence of abatement of suicide. In that view of the matter, the impugned order in so far as the issuance of process against the petitioner to face the criminal proceeding vide G.R. Case No. 72 of 2004 arising out of Vikrampur P.S. Case No.8 of 2004 holding that there are sufficient grounds to proceed against the petitioner for commission of offence under Sections 342 and 306 I.P.C. is not sustainable in the eye of law. 11. For all the aforesaid discussion and reasons, the revision is allowed. The interim order of stay of further proceeding of G.R. Case No.72 of 2004 on the file of S.D.J.M., Talcher is hereby vacated. The impugned order dated 12.5.2008 passed by the learned S.D.J.M., Talcher in G.R. Case No.72 of 2004 corresponding to Vikrampur P.S. Case No.8 of 2004 in so far as issuance of process against the petitioner is concerned is set aside. It is, however, made clear that any expression, observation or opinion made here-in-above would be taken to have been so made only for the limited purpose of disposing this revision and not as the expression, observation or opinion on the merit of the case qua the other coaccused.