Orissa High Court
Madan Mohan Pani vs State Of Orissa & Others on 29 July, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO.8283 of 2015
(Application under Articles-226 and 227 of the Constitution of
India, 1950)
Madan Mohan Pani .... Petitioner
-versus-
State of Orissa & Others .... Opposite Parties
For Petitioner : Ms. Saswati Mohapatra,
Advocate.
For Opposite Parties : Mr. D. Mund, AGA
CORAM:
JUSTICE V. NARASINGH
DATE OF HEARING :24.06.2022
DATE OF JUDGMENT :29.07.2022
V. Narasingh, J.
1. Assailing the Order of the Odisha Human Rights
Commission, hereinafter referred to as "OHRC" dtd. 12.01.2015
in OHRC Case No. 1388 of 2014, at the instance of Amrita
Padhy (Opposite Party No.5) recommending exemplary
punishment against the petitioner - the Investigating Officer
in Jarada P.S. Case No.42 of 2014, the present writ petition has
been filed under Article-226 of the Constitution of India.
2. The complainant before the OHRC has been arrayed as
Opposite Party No.-5 and her mother as Opposite Party No. 6
and the Registrar, Odisha Human Rights Commission is
impleaded as Opposite Party No.4. The complaint-Opposite
Party No.5 before the OHRC filed a written memo indicating her
stand in the case at hand.
2.(a) By way of an additional affidavit filed on 23.06.2022, the
petitioner has placed on record initiation of BPR Dist. Prog.
No.02/2015 against him (ASI/372 M.M.Pani) in terms of the
order passed by the HRC as communicated by the
Superintendent of Police, Berhampur under Letter No. 832/RO
Date.13.05.2015 (Annexure-9).
2(b) Copy of the memorandum of charges inter alia refers to
the impugned direction of the HRC recommending "exemplary
punishment" for the alleged dereliction of duty as stated in the
charge memo.
3. The factual background germane for just adjudication is
stated hereunder;
(i) On 26.04.2014 at about 4.05A.M. requisition was
received in Baidyanathpur Police Station in connection with
investigation of Jarada P.S. Case No. 42 of 2014, dtd. 12.03.2014
U/s.341/294/323/355/506/34, I.P.C.
(ii) Pursuant to such requisition a Station Diary Entry No.
623, dtd. 26.04.2014 (4.05 A.M) was made in Baidyanathpur
P.S. and ASI of Police one Sri R.K. Dash of Baidyanathpur P.S.
accompanied the police officers of Jarada Police Station ASIs of
police M.M. Pani (the petitioner) and P.C. Panigrahi, Havildar-
N.C. Mishra and Women Constable-167 as per Station Diary
Entry No. 624 (4.15 A.M.).
Station Diary Entry Nos. 623, 624 and 625 dtd.
26.04.2014 are quoted hereunder for convenience for ready
reference.
623 - 4.05 A.M. At this hour ASI Madan Mohan Pani
of Jarada P.S. appeared at P.S. and presented a
requisition for apprehending the accused 01. Dilu
Padhi, S/O. B.Padhi, 02. Amrita Padhi D/O B.Padhi
and 3. Smt. Indira Padhi W/O B. Padhi of Khodasingi
Banchanindhi Nagarin Jarada P.S. Case No. 42 dt.
12.03.2014 U/S. 341 / 294 / 323 / 355 / 506/34 I.P.C.
On this intimated to IIC who directed to depute local
staff for assistance noted the fact in SD for further
reference". (Part of Annexure-2 in the connected W.P.
(c) No. 8283 of 2015).
624- 4.15A.M. At this hour ASI R.K. Dash was
deputed to render assistance to ASI M.M.Pani to
Jarada PS for apprehending the accused persons at
Banchanindhi Nagar, 5th Lane, Khodasingi,
Berhampur.
625-5.30 A.M- At this time ASI R.K. Dash returned
to PS after making proper assistance to the staff as
well as ASI M.M. Pani of Jarada PS in raid but get no
success for at Berhampur of the accused persons.
4. It is stated that since the Opposite Parties-5 and 6 are
cited as Accused Nos.2 and 3 in Jarada P.S. Case No. 42 of 2014
and as part of the ongoing investigation, the raid was conducted.
5. The H.R.C. took serious exception to the factum of the
raid by the officials of the Jarada Police Station including the
petitioner who was the I.O. without obtaining any permission
of the Magistrate as envisaged under Section-46 (4) of Cr.P.C.,
1973. Also taking note of the violation of the mandate of the
Apex Court in the case of Joginder Kumar Vrs. State of U.P.
AIR (1994) SC 1349 = (1994) 4 SCC 260 and Arnesh Kumar
Vrs. State of Bihar & Another reported in (2014) 8 SCC 273,
OHRC directed for exemplary punishment to the police
Officer who were involved in the raid including the petitioner.
6. There is nothing on record to show that the petitioner as
I.O has made any attempt to serve a notice as envisaged under
Section 41-A Cr.P.C. from the date of institution of the case on
12..03.2014 till the raid was conducted on 26.04.2014.
7. In fact, in Paragraph-11 of the Counter affidavit filed by
the State, it is stated that the petitioner (M.M. Pani) on
17.11.2014 filed a declaration to the following effect;
"It is not out of place to mention here that the present
petitioner Sri Madan Mohan Pani, ASI of police,
appeared before the learned Commission on 17.11.2014
and filed a declaration mentioning therein that he had
written the names of lady accused persons by mistake in
the requisition submitted at B.N. Pur Police Station and
had prayed for unqualified apology for his such
mistake."
8. Hence, this Court as such does not find any merit in the
contention of the writ petitioner for absolving him from the
accusation of violation of human rights which is established
beyond iota of doubt. .
9. So far as violation of Arnesh Kumar (Supra), it is noted
that the said decision was rendered on 02.07.2014 and the
incident in question had admittedly taken place prior to rendering
of such decision on 26.04.2014. Hence, the said dictum cannot
have any application in the case at hand and the HRC's reliance
on the same oblivious of the factual matrix is outcome of
fallacious appreciation.
10. The finding of the HRC relating to violation of Section-
46(4) of the Cr.P.C cannot be faulted, merely because, no arrest
has been made, since, language of Section-46(4) Cr.P.C takes
within its fold both arrest or intended arrest.
"46 [(4) Cr.P.C.. Save in execeptional circumstances,
no woman shall be arrested after sunset and before
sunrise, and where such exceptional circumstances
exist, the woman police officer shall, by making a
written report, obtain the prior permission of the
Judicial Magistrate of the first class within whose
local jurisdiction the offence is committed or the
arrest is to be made.]"
It has to be borne in mind that keeping in view the status
of women, the legislature has consciously not prescribed any
such dichotomy, when the Sub Section-4 of Section-46 of the
Cr.P.C. was inserted by Section-6 of Act, 25 of 2005 w.e.f.
23.06.2006.)
The submission of the learned counsel for the petitioner
that while passing in the impugned order the non-arrest of
Opposite Party Nos. 5 and 6 ought to have weighed with the
commission does not merit consideration.
11. Hence, the non-arrest of the Opposite Parties-5 and 6
cannot in any way dilute the infraction of Section-46 (4) Cr.P.C.
In this context, the salutory principles of interpretation of statute
stating that when a Provision is clear, it must be given its full
play, succinctly stated in the following decisions can be gainfully
referred.
(i) Hiralal Rattanlal v. State of U.P. AIR 1973 SC 1034 =
1973 1 SCC 1034.
" 22 In construing a statutory provision, the first and
the foremost rule of construction is the literary
construction. All that the court has to see at the very
outset is what does that provision say. If the provision is
unambiguous and if from that provision the legislative
intent is clear, the court need not call into aid the other
rules of construction of statues. The other rules of
construction of statutes are called into aid only when the
legislative intention is not clear (p.1035)"
(ii) Prakash Nath Khanna v. CIT (2004) 9 SCC 686.
12. It is apposite to state here that after conclusion of the
investigation the petitioner has submitted Final Form No.67, dtd.
23.05.2014 absolving the Opposite Parties 5 and 6 of the
accusations and assailing the same the informant has filed 1.C.C.
No. 9 of 2014 in the Court of Jurisdictional Magistyrate (J.M.F.C.,
Patrapur, Ganjam), which is at Annexure-4.
13. It is apt to note here that by Order dtd. 13.05.2015 in
Misc. Case No. 8091 of 2015 this Court stayed the operation of the
impugned order of the OHRC relating to the petitioner and the
same is still in vogue and in the meanwhile the petitioner has
retired.
It is submitted by the learned counsel for the petitioner
though petitioner has retired in 2014, is not getting any pensionary
benefits because in terms of the impugned order passed by the
OHRC, Departmental Proceeding ( BPR Dist. Prog. No.02/2015)
has been instituted against the petitioner and is pending.
14.(A) The prayer in the writ petition is extracted hereunder for
convenience of ready reference;
"Under the aforesaid facts and circumstances, it is
therefore, prayed that this Hon'ble Court may graciously
be pleased to:
(i) Quash the order, dated 12.01.2015 passed in O.H.R.C.
Case No. 1388 of 2015 under Annexure-7 by
concurrently holding the same as bad, illegal and not
sustainable in the eye of law;
(ii) Pass such other order(s)/ or issue direction (s) as may be
deemed fit and proper in the bonafide interest of justice;
And for which act of kindness, the petitioner as in duty
bound, shall ever pray."
On a bare perusal, it can be seen that the petitioner
has not prayed for quashing of Departmental Proceeding.
14(B) Law is no longer res integra that, this Court in exercise
of its plenary powers can mould the relief to sub-serve justice.
On this aspect, decision of the Apex Court in Dwarka Nath V.
Income-tax Officer, Special Circle, D.Ward, Kanpur and
another reported in AIR 1966 Supreme Court -81 is relied upon.
"That apart High Courts can also issue directions,
orders or writs other than the prerogative writs . The
High Courts are enabled to mould the reliefs to meet the
peculiar and complicated requirement of this Country."
In Pasupuleti Venkateswarlu V. The Motor and General
Trader reported in AIR 1975 Supreme Court 1409 the Apex
Court held as under;
"Equity justifies bending the rules of procedure, where no
specific provision or fairplay in violated with a view to
promote substantial justice - subject, of course, in the
absence of other disentitling factors or just
circumstances."
In B.C. Chaturvedi vs. Union of India And Others (1995) 6
Supreme Court Cases 749, the Apex Court held thus;
"xxx xxx xxx a High Court would be within its
jurisdiction to modify the punishment/penalty by
moulding the relief. xxx xxx xxx "(Page-763).
15. In view of the law laid down in the aforementioned cases,
this Court feels that in the facts of the present case, the ends of
justice and equity will be sub-served, if the petitioner is directed
to pay a sum of Rs.50,000/- (Rupees Fifty Thousand) to the
Opposite Party Nos.5 and 6 as compensation in lieu of
Departmental Proceeding as directed by HRC.
16. Such compensation of Rs.50,000/- (Rupees Fifty
Thousand) should be paid by the State Authorities within a
period of six weeks from today and the pensionary benefits of
the petitioner be released within a period of eight (8) weeks
hence, after deducting the sum of Rs.50,000/- (Rupees Fifty
Thousand) on account of payment of compensation by the State.
17. The Order of the HRC is modified accordingly. The
Departmental Proceeding (BPR Dist. Prog. No.02/2015) shall
stand quashed vis-à-vis the petitioner.
18. The Writ Petition thus stands disposed of. No cost(s).
( V. Narasingh )
Judge
Orissa High Court, Cuttack,
Dated the 29th of July, 2022/Balaram
