Ajaya Kumar Mishra vs State Of Orissa & Others
2022 Latest Caselaw 3582 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

                      W.P.(C) NO.9993 of 2015

      (Application under Articles-226 and 227 of the Constitution of
      India, 1950)

Ajaya Kumar Mishra                            ....         Petitioner

                                  -versus-

State of Orissa & Others                      ....    Opposite Parties


For Petitioner                    :   Ms. Saswati Mohapatra,
                                      Advocate.



For Opposite Parties              :   Mr. D. Mund, AGA &
                                      Smt. Padmaja Pattnaik Advocate
                                      for the Opposite Party No.-6

      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 (Annexure-2), at the instance of Amrita Padhy (Opposite Party No.5) recommending exemplary punishment against the petitioner

(the then I.I.C., B.N.Pur P.S., Dist: Ganjam), 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.

3. The complaint-Opposite Party No.5 before the OHRC filed a written memo indicating her stand in the case at hand.

4. Counter Affidavit has been filed by the Opposite Party No.4. Though the learned State Counsel controverting the allegations made in the writ petition and supporting the Order passed by the OHRC.

5. 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. Pursuant to such requisition a Station Diary Entry No. 623, dtd. 26.04.2014 (4.15 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 and P.C. Panigrahi, Havildar- N.C. Mishra and Women Constable- 167as per Station Diary Entry No. 624.

6. 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, as part of investigation, the raid was conducted. Alleging that there has been violation of Human Rights in such raid and more particularly Sub-Section-4 of Section-46 of the Code of Criminal Procedure, 1973 dealing with the safeguards relating to arrest of women, the Opposite Party No.5 approached the OHRC by instituting a complaint.

7. Admittedly, before the OHRC, the petitioner (the then I.I.C of Baidyanathpur P.S.) under whose jurisdiction raid was conducted along with other officials were given opportunity to defend themselves.

8. All the officials of both Jarada P.S. in which case was filed against Opposite Party Nos.5 and 6 (Jarada P.S. Case No.42 of 2014 ) and of Baidyanathpur P.S. under whose jurisdiction Opposite Party Nos. 5 and 6 reside admitted the raid which was the subject matter of the grievance of the Opposite Party Nos. 5 and 6. It is alleged by the said

Opposite Parties 5 and 6, the manner in which the raid was conducted amounted to violation of human rights, as noted.

9. By the impugned Order dtd. 12.01.2015 at Annexure-2 the OHRC came to the finding that, the action of the officials of Jarada P.S. and the B.N. Pur P.S. "at the dead of the night of 16/17.04.2014, without any order of the learned Judicial Magistrate First Class, Patrapur and in utter derogation of the cannons of law cannot be viewed very lightly."

It is apt to state that, the date of the raid has been wrongly stated in the impugned order. Instead of 26/27.04.2014, it has been erroneously reflected as 16/17.04.2014.

10. The Commission took serious exception to the fact that the I.I.C, B.N. Pur Police Station, the present petitioner though admittedly did not accompany the raiding party of Jarada P.S. directed one of his Officers to go along with the raiding party. Thereby, violating the mandate of law as envisaged under Section-46 (4) of Cr.P.C., 1973. Also taking note of the violation of the Judgments 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 held the petitioner to be vicariously liable and accordingly directed for exemplary punishment to the police Officer who were involved in the raid including the petitioner.

11. The learned counsel for the petitioner Ms. Mohapatra urged that in arriving at a conclusion relating to violation of human rights vis-à-vis the petitioner, the learned Court failed to appreciate the limited role played by the petitioner. Also the factum of admitted non-arrest of the Opposite Parties 4 and 5 escaped the attention of the OHRC and therefore prayed for setting aside the order of the OHRC at Annexure-2 relating to the petitioner.

12. Learned counsel for the State relying upon the said counter affidavit sought for dismissal of the writ petition.

13. Admittedly, as noted, the Opposite Parties 5 and 6 were arrayed as accused persons 2 and 3 in Jarada P.S. Case No. 42 of 2014, registered under Sections-341 / 294 / 323 / 355 / 506/34 of the I.P.C. and their residential address was stated to be within the jurisdiction of B.N.Pur Police Station of which the present petitioner was the then I.I.C.

14. The Station Diary Entry No. 623 of B.N.Pur P.S. which was also noted by the OHRC is quoted hereunder;

"dtd.26.04.2014 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)."

15. The Station Diary Entry Nos. 624 & 625 of B.N.Pur P.S. dealing with the deputation of ASI R.K. Dash to render assistance is also extracted hereunder; " dtd. 26.04.2014 624 - 4.15 A.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."

16. The power of police to arrest without warrant, has been extensively dealt with by the Apex Court in the Case of Arnesh Kumar Vrs. State of Bihar & Another reported in (2014) 8 SCC 273. In Paragraph-10 of the said judgment, the Apex Court deals with power of the Police Officers to

arrest an accused without an order from a Magistrate, which was the subject matter of consideration before the OHRC.

"We are of the opinion that if the provisions of Section-41 Cr.P.C. which authorizes the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section-41 Cr.P.C. for effecting arrest be discouraged and discontinued. "

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.

17. Provisions contained Sub-Section-4 of Section-46 of the Cr.P.C. provides additional safeguards relating to apprehension of ladies.

The same is extracted hereunder for convenience of ready reference.

"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.]"

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.

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.)

18. It is seen from the undisputed facts that the petitioner was the then I.I.C. of the Police Station within the jurisdiction of which the Opposite Parties-5 and 6 were admittedly residing. The Station Diary Entries (623 & 624) quoted above lend credence to such contention of the petitioner that on being informed he instructed assistance to be provided and accordingly deputed one ASI.

Admittedly petitioner was not part of the raiding party.

19. The duty of a Police Officer rendering assistance for apprehension of an accused persons, who is stated to be residing within his jurisdiction has been stated in the Cr.P.C. Considering the role played by the petitioner, he cannot be treated at par with the I.O, Sri Madan Mohan Pani who was leading the raid for apprehension of the accused, notwithstanding, the safeguards contained under Section-41-A Cr. P.C. which was inserted by Section-6 of the Code of Criminal Procedure Amendment Act, 2008 (5 of 2009) making it mandatory for issuance of notice.

20. But while appreciating the factual matrix and the Sections under which the Opposite Parties 5 and 6 were facing the accusations, the HRC treated the present petitioner at par with the Investigating Officer, who was leading the raid and at whose instance the petitioner rendered the assistance, which is enjoined upon him in terms of Cr.P.C.

21. In doing so, the HRC has applied the doctrine of vicarious liability which in the considered opinion of this Court has no application in the case at hand. In as much as, admittedly no overt act is attributed to the petitioner.

22. All the same, keeping in view that, the petitoner was the Inspector-in-Charge of the Police Station, he was expected

to act more responsibly, being sensitive to his onerous duties, keeping, in view the enormous powers vested in an Inspector-in-Charge, under the Criminal dispensation, the petitioner ought to have been more careful.

23. In fitness of things, warning the petitioner would meet the ends of justice and the impugned direction of HRC relating to initiation of Departmental Proceedings stands modified accordingly vis-à-vis the petitioner and the Principal Secretary to Government of Odisha (Opposite Party No.1) and Director General & Inspector General of Police (Opposite Party No.2) respectively are accordingly directed.

24. The writ petition thus stands disposed of.

( V.Narasingh ) Judge

Orissa High Court, Cuttack, Dated the 29th of July, 2022/Balaram