TRIDEBESWAR DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner, who is the Deputy Superintendent of Police, Central Bureau of Investigation, Bhubaneswar, has filed this application under S. 482 of the Code of Criminal Procedure, 1973 (in short 'Cr. P.C.') with a prayer to quash the order dated 28-6-1997 passed by the learned Sub-Divisional Judicial Magistrate, Bhubaneswar, in G.R. Case No. 928 of 1997 taking cognizance against him of the offences punishable under Ss. 341, 343 and306 of the Indian Penal Code ('IPC' in short) as well as the entire criminal proceeding.

(2.) The brief facts leading to this application, as reveal from the petition as well as the records of the Court below, are thus :- On 24-7-1993 certain persons belonging to a particular political party had forcibly taken away one Shyamapada Rout, a trade union leader belong to a political group, namely, Socialist Unit Centre of India, for which an FIR was lodged at the Tamka Police Station and the same was registered as Tamka Police Station case No. 50(10) of 1993 under Ss. 147, 148, 149, 368, 302, 325, 506, IPC read with S. 27 of the Arms Act. Investigation of the case was subsequently taken over by the Crime Branch of the State Police. On the basis of an application made by the wife of the said Shyamapada Rout, the Supreme Court by order dated 19-10-1994 directed the Central Bureau of Investigation ('C.B.I.' in short) to take up investigation of the aforesaid case. Accordingly, the CBI registered the FIR in RC No. 67(S) of 1994 corresponding to SPE No. 44/1994 and took up the investigation. The petitioner, who was the Deputy Superintendent of Police attached to the CBI, Bhubaneswar, was appointed as the Investigating Officer to investigate into the aforesaid case. During the course of investigation, the petitioner as the I.O. interrogated several person including one Gopal Behera of Octopol village under Tamka P.S. as a witness. According to the petitioner, Gopal Behera was a star witness for the prosecution. Notice under S. 160, Cr. P.C. was accordingly issued to said Gopal Behera to appear before the I.O. on 2-1-1995 in the office of the CBI, Bhubaneswar, for the purpose of investigation and pursuant to the aforesaid notice, Gopal Behera appeared before the I.O. on 2-1-1995 in the CBI office at Bhubaneswar and his statement was recorded by the petitioner. After recording the statement, the I.O. asked Gopal Behera to come again on 5-1-1995 for his further examination. On 5-1-1995 Gopal Behera appeared before the I.O. and his statement was recorded by the I.O. On the same day, the I.O. again instructed Gopal Behera to come to CBI Office 3/4 days after with a view to decide whether his statement would be recorded under S. 164, Cr. P.C. The petitioner's further case is that Gopal Behera came to the CBI Office at about 4.30 p.m. on 8-1-1995 on which day the petitioner was away from his headquarters for which the witness (Gopal Behera) waited for the arrival of the petitioner at the reception counter of the C.B.I. office at Bhubaneswar. The petitioner returned to the headquarters at about 6 p.m. on that day and on coming to know the presence of Gopal Behera, he came to the CBI office and had a discussion with Gopal Behera for about 45 minutes. Thereafter the petitioner returned to his quarters at about 7-30 p.m. As it was heavily raining, Gopal Behera could not go outside the CBI office and stayed in that office, where two Constables and one APR guard were on duty on rotation at every two hours. In the meantime, Gopal Behera in order to attend the call of nature enquired from the CBI constable about the location of the toilet and on being shown he moved towards the toilet. After some time when the Constable on duty went round the building to check up the rooms and property, he found that Gopal Behera was hanging inside Room No. 11, which was kept open for repair. The body was immediately brought down and information was sent to the poetitioner, who immediately rushed to the spot and reported the matter to the Superintendent of Police, C.B.I. On the same day, information was also given to the Capital Police Station, which registered the same as U.D. Case No. 5 dated 9-1-1995 and took up investigation. Inquest was made on 9-1-1995 and post-mortem of the dead body of Gopal Behera was conducted twice one by the Capital Govt. Hospital and the other by the FMT Department of the SCB Medical College Hospital. According to the petitioner, there was no sign of any external or internal injury on the body of the deceased Gopal Behera as per the post-mortem reports. On receipt of information about the death of Gopal Behera, Kalpana Behera, the wife of the deceased Gopal Behera, came to Bhubaneswar and lodged an information at the Capital Police Station alleging therein that her husband had been killed. The aforesaid information was entered in the Station Diary as S.D. No. 390 dated 10-1-1995. While the matter stood thus, the wife of Gopal Behera sent a Fax message to the Supreme Court and the same was registered as W.P. (Crl) No. 176 of 1995. In the meanwhile, the State Govt. directed for a judicial enquiry into the death of Gopal Behera and the learned District Judge, Cuttack, wasentrusted to enquiry into the matter. By an order passed on 15-3-1996 in the aforesaid writ petition, the Supreme Court directed the District Judge, Cuttack, to complete the enquiry by June, 1996 and to submit a report of such enquiry to it. Accordingly, the District Judge conducted the enquiry and submitted his report on 28-6-1996 with the following findings :-(a) The death of Gopal Behera inside the CBI building was not homicidal but suicidal.(b) The deceased Gopal Behera was brought from his village by the CBI authorities in the night of 29-12-1994 under duress and kept in detention in the CBI premises Bhubaneswar till his death.(c) No clear cut finding is practicable, on the basis of the materials collected in regard to the cause of suicide.(d) The deceased having been kept in detention from the night of 29-12-1994 till his death against the mandate under Art. 22 of the Constitution the CBI cannot but be held responsible for his death.(e) Even if the deceased voluntarily came to the CBI Office on 8-1-96 as a witness on the earlier direction of the Investigating Officer, still the CBI is responsible for the negligence of the I.O. and the 2 Sentries in not taking care of the safety of the deceased inside the CBI building and thus preventing him from committing suicide.(f) The Government is liable to pay compensation to the dependents of the deceased, i.e. widow and 5 children.Apart from the aforesaid enquiry conducted by the District Judge, the National Human Rights Commission had also conducted an enquiry and disposed of the proceeding on 10-6-1996 with a direction to the CBI establishment to compensate Gopal Behera's death and recommended for payment of Rs. 1 lakh to the next kins of the said Gopal Behera.On the basis of the findings arrived at by the learned District Judge and on his own information, the Inspector-in-charge of the Capital police station drew up an FIR on 25-3-1997 and registered the same as Capital P.S. Case No. 169 dated 25-3-1997 corresponding to G.R. Case No. 928 of 1997 on the file of the learned S.D.J.M., Bhubaneswar. It was alleged in the FIR that during investigation into R.C. no. 67(S) of 1994, i.e., the murder of Shyamapada Rout, the present petitioner as the I.O. brought Gopal Behera from his house and confined him wrongfully in the CBI office building to extract information. It was further alleged that the two CBI. Constables, who were on sentry duty, and the petitioner committed the offence under Ss. 343/348/34, IPC. When the matter stood thus, the CID, (Crime Branch), Orissa, took over the investigation of the case and on completion of the investigation, submitted charge-sheet on 28-6-1997 alleging therein that the petitioner had committed the offences under Ss. 341, 343, 306, IPC. On the basis of the charge-sheet, the leaned S.D.J.M. by order dated 28-6-1997 took cognizance of the offences under Ss. 341, 343 and 306, IPC. The petitioner has challenged the aforesaid order taking cognizance against him in the present application.

(3.) The petitioner submits that in response to the notice issued under S. 160, Cr. P.C., the witness-Gopal Behera appeared before him in the CBI office on 2-1-1995 and on 5-1-1995 and his statement was recorded. It is stated that on 5-1-1995 the witness was asked to come 3-4 days after and accordingly on 8-1-1995 the witness came to the CBI office at Bhubaneswar on his own. According to the petitioner, the question of wrongful restraint and wrongful confinement for more than three days absolutely does not arise in view of the fact that the deceased-Gopal Behera first appeared on 2-1-1995 and then on 5-1-1995 on his own and he was never kept in the office of the CBI for more than three days in order to attract the criminal liability of S. 343, IPC.Perusal of the statements of Kalpana Behera, the widow of Gopal Behera and Gopabandhu Pati, the Inspector of CBI attached to the office of the Superintendent of Police, CBI, Bhubaneswar, belies the claim of the petitioner that Gopal Behera came to the CBI office on his own on receipt of the notice issued under S. 160, Cr. P.C. Therefore, without expressing any opinion on the merits of the case, I am not inclined to quash the cognizance so taken under Ss. 341 and 343, CPC.