RABINDRANATH DEO Vs. STATE OF ORISSA

JUDGEMENT

(1.) " Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, 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 to anarchism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him Can the right to life of a citizen be put in abeyance on his arrest These questions touch the spinal cord of human rights' jurisprudence. The answer, indeed, has to be an emphatic 'No'. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law." (Ref:-D.K. Basu -Vrs.- State of West Bengal reported in (1997) 13 OCR(SC) 214) The petitioner Rabindranath Deo who was Ex-Circle Inspector of Police, Talcher has challenged the impugned order dated 12.05.2008 passed by the learned S.D.J.M., Talcher in G.R. Case No. 72 of 2004 in taking cognizance of the offences under sections 342, 306 read with section 34 of the Indian Penal Code and issuance of process against him. The said case arises out of Vikrampur P.S. Case No.08 of 2004.

(2.) On 3.2.2004 on the First Information Report submitted by Bijaya Kumar Mohanty, Inspector of Police, HRPC, Orissa, Cuttack -cum- Addl. C.I., Talcher, the aforesaid Vikrampur P.S. Case No. 08 of 2004 was registered under sections 342/34 of the Indian Penal Code against A.S.I. of police Dwari Muduli and S.I. of Police Sobha Patnaik.

(3.) Mr. Satyabrata Pradhan, learned counsel for the petitioner while challenging the impugned order contended that even accepting the entire prosecution case for the sake of argument, the ingredients of the offences under sections 342 and 306 of the Indian Penal Code are not made out against the petitioner. It is further contended that the Investigating Officer of the case sought for sanction for prosecution of the petitioner only for the offence under sections 342/34 of the Indian Penal Code from DG and IG of Police, Orissa, Cuttack who is the appropriate authority to accord sanction and accordingly, sanction was granted to file charge sheet and therefore, the Investigating Officer was not justified in submitting charge sheet by adding offence under section 306 of the Indian Penal Code along with sections 342/34 of the Indian Penal Code. It is contended that there having been no sanction to prosecute the petitioner for the offence under section 306 of the Indian Penal Code, the submission of charge sheet for such offence and consequential order of taking cognizance is vitiated in the eye of law. It was further urged that so far as the offence under section 342 of the Indian Penal Code is concerned, since the offence prescribes punishment for one year, charge sheet having been filed four years after the lodging of the First Information Report, the order of cognizance could not have been taken in view of the bar under section 468 of the Cr.P.C. The learned counsel further submitted that the deceased Narayan Behera was brought to the Kalinga Beat House under Vikrampur police station by the Officer in charge of Vikrampur police station along with Beat House in charge in connection with Vikrampur P.S. Case No.70 of 2003 at about 3.00 a.m. on 28/29.12.2003. The petitioner was the Circle Inspector of Police, Talcher and he was the Investigating Officer of the said case having office at Talcher which is around 25 kms. away from Vikrampur police station. After getting information about the detention of the deceased at Kalinga Beat House, the petitioner reached there at about 11.30. a.m. on 29.12.2003, interrogated and examined the deceased and then the deceased was taken to village Kantribida to the house of one Tikan Pradhan in police jeep for verification of his statement. All the police officials along with the deceased returned to Kalinga Beat House at about 4.00 p.m. on 29.12.2003. The petitioner specifically instructed A.S.I. of police Dwari Muduli who was the in charge of the outpost to allow the deceased to go to his house if the driver of Marshal jeep in which the deceased allegedly helped the accused persons of Vikrampur P.S. Case No.70 of 2003 to escape, did not turn up for confrontation. The petitioner then returned back to Talcher and remained busy in other law and order duty as per the direction of the Superintendent of Police. The learned counsel Mr. Pradhan further contended that the materials available on record further indicate that on 31.12.2003 at about 9.00 a.m., the deceased was moving inside the Kalinga Beat House campus and at about 10.00 a.m. the brother of the deceased had come to meet him with tiffin which the deceased took and then the deceased approached the A.S.I. of police Dwari Muduli to leave him who told him that after confrontation with Marshal jeep driver, he would be allowed to go home in the afternoon and then at about 11.00 a.m., the deceased suddenly entered inside the inspection room of the Beat House, bolted the door from inside and committed suicide. Hearing some sound, A.S.I. of police Dwari Muduli and others came near that room, knocked the door and when the deceased did not respond, they broke open the door and found that the deceased had hanged himself in a ceiling fan. The rope was cut and the deceased was brought on the floor of the room. Intimation was immediately given by A.S.I. of police Dwari Muduli to different Senior Officers including the petitioner who arrived at the spot. Mr. Pradhan further contended that Vikrampur P.S.U.D. Case No.2 of 2003 was registered in connection with the unnatural death of the deceased. The inquest over the dead body was conducted and it was sent for post mortem examination and the post mortem report clearly reveals that it is a case of suicidal hanging. Learned counsel further submitted that a month after the deceased committed suicide, First Information Report was lodged on 03.02.2004 against A.S.I. of police Dwari Muduli and S.I. of police Sobha Patnaik. The learned counsel further urged that in view of the fact that the deceased was brought to the Beat House in connection with investigation of an offence under section 302 of the Indian Penal Code and the petitioner being the investigating officer of the murder case, 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 Marshal Jeep did not turn up for confrontation and the petitioner having played no role in the detention of the deceased at the Kalinga Beat House which was allegedly done by the other two police officials against whom the F.I.R. was lodged and in absence of any specific overtact attributed to the petitioner either in the wrongful detention of the deceased at Kalinga Beat House or in the abetment of commission of suicide by the deceased, submission of charge sheet in a mechanical manner is unjustified and therefore, this Court should exercise its revisional jurisdiction and set aside the impugned order so far as the petitioner is concerned. The learned counsel for the petitioner placed reliance in the cases of M. Mohan -Vrs.- State reported in (2011) 48 Orissa Criminal Reports (SC) 961, Madan Mohan Singh - Vrs. State of Gujurat report in (2010) 8 Supreme Court Cases 628, Ramesh Kumar -Vrs.- State of Chhatisgarh reported in (2001) 21 Orissa Criminal Reports (SC) 667.