Research › Search › Judgment

Orissa High Court · body

2020 DIGILAW 16 (ORI)

Dinesh Kumar Biswal v. State of Odisha

2020-01-14

B.R.SARANGI

body2020
JUDGMENT : Dr. B.R. Sarangi, J. 1. The petitioner has filed this application seeking following reliefs: "It is therefore, prayed to this Hon'ble Court may graciously be please to admit this case for issuance of an appropriate writs/orders/directions or writ in nature of mandamus commanding upon the opposite party No. 4 or any other independent investigating agency to conduct the investigation in connection with Badagada RS. Case No. 141 of 2019 or in alternative to conduct independent and impartial inquiry to the complaint of the petitioner under annexure-1. And to pass any other order/orders as the Hon'ble Court deems fit and proper." 2. The background facts leading to filing of this case are that the petitioner got married on 11.05.2018 to one Iteshree Choudhury on the mediation of his brother-in-law (Sadhu). But, immediately after two days of the marriage, the petitioner in his house found his wife in a compromise mode along with his brother-in-law (Sadhu), who is a police officer working at Governor House. Due to such unwarranted situation, there was quarrel between the petitioner and his wife, which was carried to the local police station. On 18.05.2018, IIC, Badagada Police Station made a compromise between the petitioner and his wife, and both of them returned to the house of the petitioner with an assurance that brother-in-law (Sadhu) of the petitioner would not go to the house of the petitioner any further. But in the next morning, Sadhu of the petitioner came to his house in police dress along with police van and threatened the petitioner and his family members with dire consequences. On 12.06.2018, the brother-in-law and sister-in-law of the wife of the petitioner took the wife of the petitioner to their parental house and in spite of several request made by the petitioner, the wife of the petitioner was not back to his house. Thereafter, all on a sudden, on 14.07.2018 at about 08.30 A.M., Sadhu of the petitioner, namely, Ranjan Kumar Mohanty, along with two to three miscreants, entered into the house of the petitioner and beaten the petitioner and his family members. Thereafter, all on a sudden, on 14.07.2018 at about 08.30 A.M., Sadhu of the petitioner, namely, Ranjan Kumar Mohanty, along with two to three miscreants, entered into the house of the petitioner and beaten the petitioner and his family members. He also shouted that he has illicit relationship with the wife of the petitioner since, last eight years and he being a police personnel, petitioner cannot do anything against him, and that if the petitioner wants to keep his wife with him, then he will not object to the relationship of his wife with him (Sadhu), otherwise he will implicate him in a false case and recover rupees 50 lakhs from him. When the petitioner tried to make a phone call to the police station, his Sadhu snatched away the phone from the hands of the petitioner, completely broken the same and told the petitioner that he would implicate the petitioner in a false Ganja case and, if required, he would kill the petitioner and his family members through hooligans. Though written report was lodged before opposite party No. 3-IIC, Badagada police station, the same was not registered. Consequentially, the petitioner was compelled to approach the Court and in pursuance of direction given by the Court, opposite party No.3 registered the complaint of the petitioner, but no progress was made, as his brother-in-law has got strong influence, and he was not arrested by the police authority. Therefore, it is alleged that the present police authorities, who are part and parcel of the investigating agency and against whom accusation of commission of offence has been levelled, may not exhibit any keen interest in the investigation, which will be found to be tainted and biased. In such premises, it is prayed that investigation of Badagada P.S. Case No. 141 of 2019 should be handed over to any other independent investigating agency like Crime Branch to investigate into the matter in a fair, effective and a transparent manner in order to reveal the truth and justice to the petitioner. 3. Mr. B.P.B. Bahali, learned counsel for the petitioner has contended that as the investigation in Badagada P.S. Case No. 141 of 2019 has lacked credibility, it is a fit case to transfer the same to Crime Branch-opposite party No. 4 to do complete justice. 3. Mr. B.P.B. Bahali, learned counsel for the petitioner has contended that as the investigation in Badagada P.S. Case No. 141 of 2019 has lacked credibility, it is a fit case to transfer the same to Crime Branch-opposite party No. 4 to do complete justice. It is further contended that a fair and proper investigation of a case by the investigating authority is required to unveil the truth and to give justice to the citizen of the country in order to protect their fundamental rights guaranteed under the Constitution of India. In order to substantiate his contention, learned counsel for the petitioner has relied upon the judgments of the apex Court in Secretary, Minor Irrigation and Rural Engineering Services, U.P. v. Sahngoo Ram Arya, (2002) 5 SCC 521 ; Ramesh Kumari v. State of (NCT of Delhi), AIR 2006 SC 1322 ; State of West Bengal v. The Committee for Protection of Democratic Rights, West Bengal, AIR 2010 SC 1476 : 2010 (I) OLR (SC) 584; Prof. K.V. Rajendran v. Superintendent of Police, CB, CID, South Zone, Chennai, AIR 2013 SC 208; and Bimal Gurung v. Union of India, AIR 2018 SC 481 . 4. Mr. S.P. Panda, learned Addl. Government Advocate, referring to the affidavit filed by opposite party Nos. 2 and 3, has specifically contended that on the basis of the written report submitted by the petitioner Badagada P.S. Case No. 141 dated 20.06.2019 was registered under Sections 448/506/323/34 IPC against Rajanikanta @ Ranjan Kumar Mohanty and others. It is admitted that the petitioner was married to one Itishree Choudhury on 11.05.2018 in presence of family and relatives and, as such, no material is available to indicate that there was any compromise between the petitioner and the so called Ranjan Kumar Mohanty and Itishree Choudhury. It is contended that Ranjan Kumar Mohanty married to the elder sister of Itishree Choudhury, and that though it was alleged that Itishree Choudhury had kept illicit relationship with Ranjan Kumar Mohanty prior to the marriage, but, during investigation, nobody has given any statement about such illicit relationship. It is further contended that on the basis of the FIR lodged on 20.06.2019, investigation commenced and in course of it, as evidence against accused Ranjan Kumar Mohanty came up under Sections 448/506/323 IPC, notice under Section 41(A) Cr.P.C. has been issued to him. It is further contended that on the basis of the FIR lodged on 20.06.2019, investigation commenced and in course of it, as evidence against accused Ranjan Kumar Mohanty came up under Sections 448/506/323 IPC, notice under Section 41(A) Cr.P.C. has been issued to him. During recording of 161 Cr.P.C. statement of several material witnesses, till date none of the witnesses expressed anything against Ranjan Kumar Mohanty, but the investigation in the case is still under progress. It is further contended that pursuant to notice under Section 41(A) Cr.P.C., investigation was conducted and spot was visited immediately and, as such, the complainant and witnesses have been examined and their statements have been recorded under Section 161 Cr.P.C. Therefore, it is contended that since investigation is continuing, there is no valid and justifiable reason to transferee case from the police authority to any other independent investigating agency. To substantiate his contention, learned Addl. Government Advocate has relied upon the judgments of the apex Court in the case of Sakiri Vasu v. State of Uttar Pradesh, (2008) 2 SCC 409 : 2008 (I) OLR (SC) 105; and Sudhir Bhaskar Rao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277 . 5. This Court heard Mr. B.P.B. Bahali, learned counsel for the petitioner; Mr. S.P. Panda, learned Addl. Government Advocate for the State opposite parties No. 1 to 4; and perused the record. Pleadings having been exchanged, with the consent of learned counsel for the parties, this application is being disposed of finally at the stage of admission. 6. In view of the facts narrated above, the only consideration is to be made by this Court whether at the instance of the petitioner investigating agency can be changed or not on the sole allegation that one of the accused is a police personnel working at Governor House and, therefore, the local police cannot have a free and fair investigation in the matter. 7. As has been already mentioned, the petitioner in support of his contention has relied upon the judgments of the apex Court in the case of Secretary, Minor irrigation and Rural Engineering Services, U.P. v. Sahngoo Ram Arya, (2002) 5 SCC 521 ; Ramesh Kumari v. State of (NCT of Delhi), AIR 2006 SC 1322 ; State of West Bengal v. The Committee for Protection of Democratic Rights, West Bengal, AIR 2010 SC 1476 : 2010 (I) OLR (SC) 584; Prof. K.V. Rajendran v. Superintendent of Police, CB, CID, South Zone, Chennai, AIR 2013 SC 208; and Bimal Gurung v. Union of India, AIR 2018 SC 481 . In Secretary, Minor Irrigation and Rural Engineering Services, U.P. (supra), the apex Court while considering the fact that when can a High Court direct for CBI inquiry, it has been held that High Court must reach a conclusion on the basis of the pleadings and materials on record that prima facie case is made out against the person and merely because a party makes allegation against a person, the High Court cannot direct the CBI to investigate as to whether the person committed offence as alleged or not. In Ramesh Kumari (Supra), where allegation of non-registration of FIR in a cognizable offence was made, the apex Court held that the police authority is duty bound to register the case on the basis of information under Section 154, Cr.P.C., and with the concession of learned Addl. Solicitor General further held that if at all the case be registered and investigation is to be carried out, the CBI would be appropriate authority to register a case and cause investigation as there is an allegation against a police personnel. In The Committee for Protection of Democratic Rights, West Bengal (supra), the apex Court held that power of judicial review conferred on the High Court is in a way wider scope. The High Courts are authorized under Article 226 of the Constitution to issue directions, orders or writs to any person or authority, including any government to enforce fundamental rights and, "for any other purpose". The power of judicial review is an integral part of the basic structure of the Constitution and that cannot be curtailed by act of Parliament. Therefore, direction may be given by writ Court to CBI to cause investigation even in absence of consent of the State. But while exercising such power, the same shall be exercised sparingly, cautiously and in extraordinary situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such or order may be necessary for doing complete justice and enforcing the fundamental rights. In Prof. But while exercising such power, the same shall be exercised sparingly, cautiously and in extraordinary situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such or order may be necessary for doing complete justice and enforcing the fundamental rights. In Prof. K.V. Rajendran (supra), the apex Court held that Court could exercise its Constitutional powers for transferring an investigation from the State investigating agency like CBI only in rare and exceptional cases, such as, where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation and further that it is so necessary to do justice and to instill confidence in the investigation or where the investigation is prima facie found to be tainted/biased. In Bimal Gurung (supra), the apex Court held that commencement of trial and examination of some witness cannot be an absolute impediment for exercising the constitutional power vested in the High Court and the apex Court to ensure a fair and just investigation. Therefore, in exercise of powers under Article 32 of the Constitution of India to transfer the investigation in large number of cases enmass registered against the petitioner. The petitioner has also relied upon the judgment in the case of Pooja Pal v. Union of India, AIR 2016 SC 1345 : (2016) 3 SCC 135 : 2016 (Supp. I) OLR (SC) 663. In the said case, since there was delay in conducting the investigation, the party has approached the apex Court where direction has been given to call for justice and, therefore, the matter was handed over to CBI for investigation. Similarly, the petitioner has also relied upon the judgment in the, case of Subrat Chattoraj v. Union of India, (2014) 8 SCC 795 , wherein the apex Court while taking into consideration the fact that in order to avoid unnecessary to multiply decisions on the subject/directed for transfer of investigation from State police to CBI in cases where such transfer is considered necessary to discover the truth and to meet the ends of justice or because of the complexity of the issues arising for examination or where the case involves national or international ramifications of where people holding high positions of power and influence or political clout are involved. The petitioner has also placed reliance in the case of Union of India v. Junu Gayary, AIR 2019 SC 4550 , wherein since the case was a old case, the apex Court directed the CBI to undertake and conclude the investigation at the earliest so that the real culprits are punished. Similarly, in the case of Subrat Chattoraj v. Union of India, (2014) 8 SCC 768 , the apex Court has taken into consideration the scope of transferring the case to CBI under Article 32 and 226 of the Constitution of India to take up the investigation and principles have been summarized, like (a) it is necessary to discover the truth or to meet the ends of justice or to examine complex issued (like in present case role and involvement, if any, of regulatory authorities like SEBI, Registrar of Companies (RoC) and RBI were required to be found out and State investigation having failed to explain the huge gap between the amount collected and investment made), (b) where the case involves national or international ramifications (like in present case international money laundering dimensions were required to be investigated), or (c) where people holding high positions of power and influence or political clout are involved (like in present case larger conspiracy angle was required to be unearthed and also the alleged involvement of political/influential persons like MPs. Etc.) What is important is that while the power to transfer is exercised sparingly and with utmost care and circumspection, the apex Court has more often than not directed transfer of cases where the fact situations so demand. In Subrat Chattoraj (supra), the apex Court has also taken note of The Committee for Protection of Democratic Rights, West Bengal (supra) and summed up the conclusions in paragraphs-68, 69 and 70, which read as under:- "68. Thus, having examined the rival contentions in the context of the Constitutional Scheme, we conclude as follows: (i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure. (ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State. (iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of "the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review". Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of "the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review". (iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure. (v) Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution. (vi) If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers In fact, if in such a situation the court fails to grant relief it would be failing in its constitutional duty. (vii) When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure. 69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly". (emphasis supplied) 70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations." (emphasis supplied) The judgments which have been relied upon by learned counsel for the petitioner, as discussed above, has no assistance to him, rather the said judgments are decided on their own facts and circumstances. 8. In State of Orissa v. Sudhansu Sekhar Mishra, AIR 1968 SC 647 , the apex Court held that:- "a decision is only an authority for what is actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it." 9. Applying the above mentioned principles and keeping in view the Constitution Bench judgment in The Committee for Protection of Democratic Rights, West Bengal (supra), the apex Court had given a caution which has been mentioned in paragraph-70 of the said judgment lying emphasis that despite wide power conferred under Article 32 and 226 of the Constitution of India, while passing any order, the Court must bear in mind certain self imposed limitations on the exercise of these constitutional powers. The very plentitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confident in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. 10. Therefore, the allegations, which have been placed on record on the basis of the complaint lodged and registered as FIR, does not come within the purview of any of the conditions, more particularly, the conditions which have been enshrined in Subrata Chhattoraj mentioned supra so as to issue direction to transfer the investigation to CBI or any other independent investigating agency. Merely because some allegations have been made in the FIR against the brother-in-law, who claims to be a police officer, which has been denied in the counter affidavit filed by the State, the claim of the petitioner can not have any justification to transfer the investigation to an independent investigating agency as a matter of routine. As such, it is not coming within the meaning of rare case or exceptional case so that such direction can be issued for transfer of the case to CBI or any other independent investigating agency at the behest of the petitioner. 11. In Sakiri Vasu mentioned supra, the apex Court has categorically held that an aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice. Further, referring to the judgment in Dilawar Singh v. State of Delhi, (2007) 12 SCC 641 , the apex Court has clarified that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156 (3) Cr.P.C., and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C. 12. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C. 12. In Sudhir Bhaskar Rao Tambe (supra), the settled position laid down in Sakiri Vasu (supra) has been reiterated and the apex Court clarified that remedy in such matters does not lie before the High Court under Article 226 of the Constitution of India, but before the Magistrate concerned under Section 156(3) Cr.P.C. If on an application under Section 156(3) Cr.P.C., the Magistrate is prima facie satisfied, (i) he can direct for registration of FIR, (ii) if FIR has already been registered, issue direction for proper investigation to be made, which includes, if he deems it necessary, recommending change of investigating officer, and can also (iii) monitor the investigation. Thereby, in the aforesaid case, the direction given by the High Court for change of investigation, was set aside by the apex Court. 13. Taking into consideration the factual matrix, as mentioned above, and the law laid down by the apex Court, as discussed above, this Court is of the considered view that though in the present case, prayer was made for direction to opposite party No. 4 or any other independent investigating agency to conduct the investigation in connection with Badagada P.S. Case No. 141 of 2019 or in alternative to conduct independent and impartial inquiry to the complaint of the petitioner, but that should be in consonance with the provisions contained under Section 156(3) Cr.P.C. and, as such, Article 32 and 226 of the Constitution can only be exercised sparingly, cautiously and in exceptional situations with regard to change of investigation, as has already been discussed above. 14. In view of such position, this Court is not inclined to issue any direction to change the investigation of Badagada P.S. Case No. 141 of 2019 or handover it to Crime Branch, as the factual matrix of the case does not satisfy the law, as discussed above. However, liberty is granted to the petitioner to approach the appropriate forum in consonance with law laid down by the apex Court in Sakiri Vasu and Sudhir Bhaskar Rao Tambe mentioned supra. 15. With the aforesaid observation and direction, the CRLMP stands disposed of. However, there shall be no order as to cost.