Rajib Kumar Behera vs State Of Odisha And Others
2021 Latest Caselaw 452 Ori

                  ORISSA HIGH COURT: CUTTACK

                         W.P.(C) No. 671 of 2021

       In the matter of an application under Articles 226 & 227 of
       the Constitution of India.
                                  ----------

       Rajib Kumar Behera                    .........         Petitioner

                                  -versus-

       State of Odisha and others            .........        Opp. Parties

               For Petitioner   : M/s. P.K. Satapathy,
                                  P. Panda and B. Das,
                                  Advocates

              For Opp.Parties : Mr. A.K. Sharma,
                                 Addl. Government Advocate
                                (Opposite Parties no.1 to 3)



       PRESENT:

            THE HONOURABLE DR. JUSTICE B.R.SARANGI

                         DECIDED ON : 13.01.2021


DR. B.R.SARANGI, J.         The petitioner, Rajib Kumar Behera, the

then S.I. of Police (IO in Aska PS Case No. 9 of 2013), has filed

this writ petition to quash the order dated 11.11.2020 passed

by the Odisha Human Rights Commission, Bhubaneswar in

OHRC Case No.1650 of 2013 under Annexure-1, and further

seeks direction to exonerate him from the charges levelled

against him.

2. The factual matrix of the case, in hand, is that

opposite party no.4-Minakshi Pattnaik, being the complainant

before the Odisha Human Rights Commission (OHRC), filed a

petition on 22.05.2013 making certain allegations against the

present writ petitioner and his staff, who have been harassing

and inflicting atrocities on her and her family members. She

specifically alleged that on 04/05.05.2013, some police

personnel came to her house at 2.00 A.M. in the night and

forcibly took her husband to the police station and tortured

him physically and mentally.

2.1 On receipt of such complaint dated 22.05.2013,

copy of the same was sent to Superintendent of Police,

Ganjam with a request to get the matter enquired into and

submit a factual report to the Commission. In response to the

same, a report was received, which was also sent to opposite

party no.4 for her information and response. In the said

report it was mentioned that the allegations made by opposite

party no.4 are found to be false. The report which was called

for from the Superintendent of Police, Ganjam would show

that he had conducted the enquiry through Bichitrananda

Samal, Ex-IIC, Aska Police Station, who is the same police

officer, who was inquiry officer of the case. Considering the

lacuna in the report of the Superintendent of Police, Ganjam

and the allegations made in the complaint being serious in

nature, even after five years have lapsed, the Commission

thought it proper to cause an independent enquiry to the

allegations. Accordingly, requested the Addl. D.G. of Police-

cum-Director Investigation, OHRC to entrust the inquiry to

any of the officers at his disposal. Consequently, inquiry was

conducted by Deputy Superintendent of Police, Investigation

Wing of the Commission, who submitted report to the

Commission and in order to give an opportunity of hearing

before passing any order, notice was issued to Bichitrananda

Samal, the then IIC, Aska police station and the petitioner

(Rajib Kumar Behera, I.O. in Aska P.S. Case No.9 of 2013) to

appear in person before the Commission on 19.11.2019.

2.2 Pursuant to such notice, the petitioner appeared

before the Commission on 13.12.2019 and copies of the

inquiry report of the investigation wing of OHRC was supplied

to him. But he took a plea that opposite party no.4 had paid a

sum of Rs.1,10,000/- to one Manjula Bahadur with an

assurance to provide government job to the daughter of

opposite party no.4 in the railway department on oral

agreement. Even after lapse of assured time, there was failure

on the part of Manjula Bahadur to provide job. Therefore, on

22.10.2012 evening at about 6.00 P.M., opposite party no.4

came to Raghunath Nagar with an auto rickshaw and with

dishonest intention lifted the CBZ Xtreme motor cycle of

Manjula Bahadur, without her knowledge and consent, while

it was parked in front of the house of Raghunath Choudhury

at Raghunath Nagar, Aska. Opposite party no.4 also

threatened with dire consequences to Manjula Bahadur and

demanded to return the cash she paid to her. On examination

of Majula Bahadur, her son and other witnesses, the

petitioner registered the case. But opposite party no.4 was

absconded from the locality and this Court in BLAPL No. 1358

of 2013 granted bail and accordingly she was released on bail

in obedience to the order of the High Court. Therefore, being

aggrieved by registration of theft case against opposite party

no.4 by Manjula Bahadur, she filed false case against the

petitioner.

2.3 On the basis of above reply given by the

petitioner and the FIR lodged, the same was referred to

opposite party no.4 for her response to the report of

Superintendent of Police, Ganjam, who enquired into the

matter by the same I.O. and submitted a report before the

Commission which was not accepted and, as such, opposite

party no.4 denied the same. Thereby, the Commission

conducted an independent inquiry and on the basis of such

inquiry report of the investigation wing of the Commission

submitted by the Deputy Superintendent of Police, proceeded

with the matter by affording opportunity of hearing to all the

parties. The Commission relying upon the judgment of the

apex Court in the case of Nandini Satpathy v. Dani (P.L.),

AIR 1978 SC 1025 and after perusal of records as well as the

report submitted by the Deputy Superintendent of Police,

investigation wing of Commission, came to a definite

conclusion that there is violation of human rights of Purna

Chandra Pattnaik, the husband of opposite party no.4, for

which he is entitled to get compensation. As such, taking the

entire report into consideration, the Commission

recommended as follows:-

"(1) A sum of Rs.2,00,000/- (Rupes two lakhs) be paid to the victim Shri Purna Chandra Pattnaik by the State and the same be recovered from Shri Rajib Kumar Behera, the then SI of Police (IO in Aska PS Case No.9 of 2013).

(2) Shri Bichitrananda Samal, the then IIC, Aska Police Station be cautioned not to file statement before the Commission or any other authority which is against the material available on record.

(3) Let the Director General of Police, Odisha Cuttack issue a circular/advisory to all the Police Stations in the State to keep the CCTV cameras in fullest operation. Any plea of non-fucntioning of the CCTV cameras will certainly be viewed adversely agaisnt the In-Charge of the Police Station. This is a common recommendation.

(4) The Director General of Police, Odisha, Cuttack may consider to take any other action as deem fit and proper."

The Commission also further directed that compliance be

made within a period of two months of receipt of the order and

report compliance be submitted to the Commission by

29.01.2021. Hence this application.

3. Mr. P.K. Satpathy, learned counsel for the

petitioner contended that the impugned order dated

11.11.2020 passed in OHRC Case No.1650 of 2013 by the

Commission imposing liability on the petitioner is liable to be

set aside as it has not accepted the explanation given by the

petitioner and ignored the vital witnesses as well as committed

procedural irregularity, for which the said order cannot

sustain in the eye of law. It is further contended that the

Commission, while passing the order impugned, relied upon

the inquiry report of the Deputy Superintendent of Police,

OHRC and not taken into consideration the explanation given

by the petitioner and also the station dairy records of Aska

Police Station. As such, there was no raid on 04/05.05.2013

in the night for arresting the accused in Aska P.S. Case No.9 of

2013. It is further contended that the evidence of Smt. R.

Chhatoi, who is the vital witness to the inquiry, has not been

taken into consideration by the Commission in proper

perspective. Thereby, he seeks for quashing of the order

impugned by exercising the extraordinary power under Articles

226 and 227 of the Constitution of India.

4. Mr. A.K. Sharma, learned Addl. Government

Advocate justifying the action taken by the OHRC contended

that there is no illegality or irregularity committed by the

Commission by taking into consideration the inquiry report

submitted by the Deputy Superintendent of Police, OHRC, who

conducted an independent inquiry and submitted its report to

the Commission on the basis of the direction given. More so,

the petitioner was also given opportunity and having availed

the same by participating in the process of hearing without

any objection, if the Commission has passed the order

impugned, that cannot be found to be faulted with so as to

cause interference by this Court at this stage. Therefore, the

writ petition has no merit and the same should be dismissed

with cost.

5. This Court head Mr. P.K. Satapathy, learned

counsel for the petitioner and Mr. A.K. Sharma, learned Addl.

Government Advocate through virtual mode, and perused the

record. As the matter is being decided at the stage of fresh

admission, this Court is not inclined to issue notice to

opposite party no.2-Secretary, OHRC or to private opposite

party no.4. As it is a certiorari proceeding, on the basis of

materials available on record, this writ petition is being

disposed of finally with the consent of learned counsel for the

parties.

6. The facts delineated above are not in dispute.

On perusal of the order dated 11.11.2020 passed by the OHRC

it appears that the Commission acted with due diligence to

find out the truthfulness of the allegations and initially though

inquiry was conducted by the Superintendent of Police,

Ganjam, who relying upon the inquiry conducted by IIC,

Bichitrananda Samal, submitted the report vide Annexure-3

dated 27.06.2013, in which it has been stated that opposite

party no.4 had given a sum of Rs.1,10,000/- to one Manjula

Bahadur of Aska Sugar Factory, Nuagaon as hand loan, but

she did not return the same and, therefore, opposite partyno.4

forcibly kept the motor cycle of Manjula Bahadur. On the other

hand, on the written report of Manjula Bahadur, Aska P.S.

Case No.9 of 13.01.2013 under Sections 341/379/506/34 IPC

was registered against opposite party no.4 and, as such, the

case is under investigation. The Commission having not

satisfied with such report, requested the Addl. D.G.-cum-

Director Investigation to entrust the inquiry to any of the

officer at his disposal. On that basis, the Deputy

Superintendent of Police, OHRC conducted inquiry and

examined seven witnesses, one of whom is Purna Chandra

Pattnaik, the husband of opposite party no.4. The inquiring

officer also verified the documents like station diary entries

and recorded that CCTV footage of Aska police station of the

relevant period was not available. The inquiry officer has

submitted its report in extenso and in the conclusion of the

said report, it has been stated as under:-

"CONCLUSION

(i) Sri Rajib Kumar Behera, the then SI of Aska police station and the Investigating Officer of that PS case No.09 dated 13.01.2013 u/s 341/379/506/34 IPC, being accompanied by three other staff of that police station, entered into the house of Smt. Minakshi Pattnaik, the complainant of this OHRC case, located at village Karatali under Aska Police Station limit of Ganjam District on 05.05.2013 at about 2AM and forcibly brought her husband Sri Purna Chandra Pattnaik, a senior citizen and old man, to Aska Police Station and detailed him illegally inside that Police Station till 10 AM on that day, violating his human rights. He was not involved in any case and there was no reason for such bringing on the part of police. Law does not mandate to detain any person to effect arrest of his/her spouse, involved in any case.

(ii) Though Sri Bichitrananda Samal, the then IIC of Aska PS, denied his knowledge of such illegal detention, his version is not believable in support of the fact that he was present at the Police Station during that period of detention as per the station diary of that Police Station. But neither the complainant Smt. Minakshi Pattnaik, nor her husband Sri Purna Chandra Pattnaik has made allegation against him."

7. After perusal of the report of the Deputy

Superintendent of Police, OHRC, the Commission observed

that due to non-functioning of CCTV in the police station and

in number of cases, where allegation of this nature comes to

the notice of the Commission, it has been seen that the CCTV

is either gone out order or footage are not available. More so,

when the allegation of Section 379 IPC has been raised against

a lady, opposite party no.4 herein, what promoted the police

officers to raid her house at 2.00 A.M., which itself creates a

doubt in the mind of Commission to proceed with the matter.

Thereby, the Commission has accepted the report submitted

by Deputy Superintendent of Police, OHRC and relying upon

the decision of the apex Court in Nandini Satpathy

mentioned supra has come to a conclusion that there is

violation of human rights of Purna Chandra Pattnaik and

made recommendation as has already been quoted

hereinbefore.

8. The contention raised by learned counsel for

the petitioner that the explanation submitted by the petitioner

has not been taken into consideration, is not correct. So far as

examination of vital witnesses are concerned, since the

Commission has relied upon the independent inquiry report

submitted by Deputy Superintendent of Police, OHRC, who

has taken evidence of seven witness, it cannot be said that

there is procedural irregularity committed by the Commission

so as to cause interference by this Court at this stage.

Therefore, the contention so raised cannot sustain in the eye

of law.

9. It is not in dispute that this Court is exercising

the power under Article 226 of the Constitution of India in writ of

certiorari.

Relying upon Ryots of Garabandho v. Raja of

Paralakhimedi, AIR 1943 PC 164, the apex Court in T.C.

Basappa v. T. Nagappa, AIR 1954 SC 440 held as follows:

"The writ of certiorari is so named because in its original form it required that the King should "be certified" of the proceedings to be investigated and the object was to secure by the authority of the superior Court, that the jurisdiction of the inferior tribunal should be properly exercised."

10. In Halsbury's Law of England, 4th Ed., vol.1,

Para 1531 it is stated as follows:

"The order of certiorari issues out of High Court, and is directed to the Judge or officer of an inferior tribunal to bring proceedings in a cause or matter pending before the tribunal into the High Court to be dealt with in order to ensure that the applicant for the order may have the more sure and speedy justice. It may be had in either civil or criminal proceedings."

11. Halsbury's Laws of England, (Fourth Edition)

(2001 Re-issue) Vol.1(1) Para-123 have explained Certiorari

(quashing order) is an order of the superior Court by which

decisions of an inferior Court, tribunal, public authority or any

other body of persons who are susceptible to judicial review may

be quashed.

The supervision of the superior Court exercised

through writs of certiorari goes on two points. One is the area of

inferior jurisdiction and the qualifications and conditions of its

exercise; the other is the observance of law in the course of its

exercise. These two heads normally cover all the grounds on

which a writ of certiorari could be demanded.

12. Certiorari, under Article 226, is issued for correcting

gross errors of jurisdiction, i.e., when a subordinate Court is

found to have acted (i) without jurisdiction by assuming

jurisdiction where there exits none, or (ii) in excess of its

jurisdiction by overstepping or crossing the limits of jurisdiction,

or (iii) acting in flagrant disregard of law or the rules of procedure

or acting in violation of principles of natural justice where there is

no procedure specified, and thereby occasioning failure of justice.

13. In Bharat Bank v. Employees of Bharat Bank, AIR

1950 SC 188, the apex Court held that the object of the writ of

certiorari is to keep the exercise of powers by inferior judicial and

quasi-judicial tribunals within the limits of the jurisdiction

assigned to them by law and to restrain from acting in excess of

their authority.

14. A Constitution Bench of seven learned judges in

Hari Vishnu v. Ahmad Ishaque, AIR 1955 SC 223, laid down

the following propositions as well settled and beyond dispute:

"(1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it.

(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.

(3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well a right, and when the legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence, and substitute its own findings in certiorari."

15. In Nagendra Nath Bora v. Commr. of Hills

Division, AIR 1958 SC 398, the apex Court held as follows:

"The jurisdiction under Article 226 of the Constitution is limited to seeing that the judicial or quasi-judicial tribunals or administrative bodies exercising quasi judicial powers do not exercise their powers in excess of their statutory jurisdiction, but correctly administer the law within the ambit of the statute creating them or entrusting those functions to them. In other words, its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even through of law, will not be sufficient to attract this extraordinary jurisdiction.

16. In State of Andhra v. Chitra Venkata Rao, AIR 1975

SC 2151 : (1975) 2 SCC 557, the apex Court held that since the

function of the superior Court in a proceeding for certiorari is

supervisory and not appellate, the superior Court will not review

in intra vires findings of the inferior tribunal, even if they are

erroneous.

17. In Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC

675 : AIR 2003 SC 3044, relying upon T.C. Basappa v. T.

Nagappa, AIR 1954 SC 440; Province of Bombay v.

Khushaldas S. Advani, AIR 1950 SC 222 and Dwarka Nath v.

ITO, AIR 1996 SC 81, the apex Court held that a writ of certiorari

is issued against the acts or proceedings of a judicial or quasi-

judicial body conferred with power to determine questions

affecting the rights of a subjects and obliged to act judicially.

Since the writ of certiorari is directed against the acts, order or

proceedings of the subordinate Courts, it can issue even if the lis

is between two private parties.

This Court has also considered the same in its

judgments in the cases of Santosh Kumar Sahoo v. Secretary,

State Transport Authority, Odisha, Cuttack, 2020 (II) OLR

238; General Manager, East Coast Railway and others v.

Surendra Jal and others, 2020 (II) OLR -747 and Bidyut

Manjari Sethi v. State of Odisha and others, 2020 (I) CLR

474.

18. Applying the principles laid down by the apex

Court as well as this Court mentioned supra, this Court is of the

considered view that none of the conditions for issuance of writ of

certiorari has been satisfied in interfering with the order

impugned passed by the Orissa Human Rights Commission.

19. Apart from the same, the expression 'human

rights' has its origin in international law, appertaining to the

development of the status of an individual in the international

legal system, which was originally confined to the relation

between sovereign States, who were regarded as the only persons

in international law.

20. The concept of human rights, embodied the

minimum rights of an individual versus his own State. When

human rights are guaranteed by a written Constitution, they are

called 'Fundamental Rights' because a written Constitution is the

fundamental law of a State.

21. Though the concept of human rights is as old as

the ancient doctrine of 'natural rights' founded on natural law,

the expression 'human rights' is of recent origin, emerging from

(post Second World War) international Charters and Conventions.

22. India is a party to the International Covenant on

Civil and Political Rights and the International Covenant on

Economic, Social and Cultural Rights, adopted by the General

Assembly of the United Nations on the 16th December, 1966. The

human rights embodied in the aforesaid Covenants stand

substantially protected by the Constitution. There has been

growing concern in the country and abroad about issues relating

to human rights. Having regard to this, changing social realities

and the emerging trends in the nature of crime and violence,

Government has been reviewing the existing laws, procedures and

system of administration of justice; with a view to bringing about

greater accountability and transparency in them, and devising

efficient and effective methods of dealing with the situation.

Therefore, an act to provide for the constitution of a National

Human Rights Commission, State Human Rights Commissions in

States and Human Rights Courts for better protection of human

rights and for matter connected therewith or incidental thereto,

the parliament enacted a law, called "The Protection of Human

Rights Act, 1993".

23. Human rights are rights available against the

State. There must, therefore, be cases of conflict between the

interests of the individual and of the State. Hence, a guarantee of

human rights must necessarily contain the limitations or

exceptions; the guarantee of human rights will prevail subject to

these limitations, so that the collective interests may not be

jeopardized. The Indian constitution acknowledges that there

cannot be any such thing as absolute or uncontrolled liberty, for

that would lead to anarchy and disorder.

24. In Santokh Singh v. Delhi Administration,

AIR 1973 SC 1091, it has been held that liberty has to be limited

in order to be effectively possessed. The question, therefore, arises

an each case of adjusting the conflicting interests of the

individual and of the society.

25. In Re Kerala Education Bill, AIR 1958 SC 956,

the apex Court held that any element without which a guaranteed

Fundamental Right cannot be 'effectively exercised', cannot be

taken away by the State in exercise of its power to regulate or

restrict the exercise of the Fundamental Right.

26. Applying the principles of law, as discussed

above, to the present factual position, this Court is of the

considered view that no error has been committed by the Odisha

Human Rights Commission by passing the impugned order dated

11.01.2020 in Annexure-1 so as to cause interference of this

Court in the present proceeding.

Therefore, this Court does not find any merit in this

writ petition, which is accordingly dismissed. No order to costs.

..............................

DR. B.R.SARANGI, JUDGE

Orissa High Court, Cuttack The 13th January, 2021 GDS/Alok/Ashok/Ajaya.