Chhabirani Panda vs State Of Odisha And Ors
2023 Latest Caselaw 5190 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                        CRLMP No.789 of 2020
     (In the matter of an application under Articles 226 and 227 of
     the Constitution of India, 1950)


     Chhabirani Panda                        ....          Petitioner

                                -versus-

     State of Odisha and Ors.                ....       Opp. Parties

     Advocates appeared in the case:
     For Petitioner            :               Ms. Sujata Jena, Adv.

                                -versus-



     For Opp. Parties           :          Mr. H. K. Panigrahi, ASC



                 CORAM:
                 DR. JUSTICE S.K. PANIGRAHI
                   DATE OF HEARING:-02.12.2022
                  DATE OF JUDGMENT:-05.05.2023

       Dr. S.K. Panigrahi, J.

1. The Petitioner has filed this Petition seeking a direction for

investigation of Baliguda P.S. Case No.188 of 2019 by an

independent agency since the State investigating agency has

miserably failed to investigate the case in its proper

perspective, specifically when the deceased was put to death

in front of his house by the miscreants at the behest of some pg. 1 local people who have given threat to the deceased before the

incident.

I. FACTUAL MATRIX OF THE CASE:

2. The brief facts of the case are that the Petitioner is the wife of

late Abhimanyu Panda (hereinafter "the deceased") who was

put to death by some unknown persons by gun in front of his

house in her presence. She has filed this Petition for proper

investigation of the case by an independent investigating

agency since the local police has failed to do it and has filed

the charge sheet against some persons although many other

persons are involved in the crime. Thus, it smacks a shoddy

investigation.

3. On 10th May 2019 at about 7.30 A.M. when the deceased was

in his residence, two unknown persons came to his house and

called him to come to the gate. At that point in time, the

Petitioner was very much present near the gate. Those

unknown persons started arguing with the deceased about

Jagannath Temple issue and also told him that since he is

taking steps against the big sorts they will kill him and

immediately fired at him and accordingly fled from the spot.

Consequently, the deceased fell on the spot with bullet injury.

There was a hue and cry in the locality and he was shifted to

the nearby hospital by the locals in an Auto-rickshaw.

However, the doctors declared him dead.

pg. 2

4. The F.I.R. was lodged by the cousin brother of the deceased

namely Nirmal Kumar Sahu who came to the spot soon after

the occurrence on being informed by his domestic help. On

the basis of the F.I.R., Baliguda P.S. Case No.188 of 2019 was

registered under Sections 302/120B/109/34 of the I.P.C. read

with Sections 25 and 27 of Indian Arms Act as against

Biswanath Patra, Gopal Krushna Patra, Rama Chandra Patra

and Shyamsundar Patra who are four brothers along with two

unknown persons. In the F.I.R., it was specifically alleged that

the deceased was a non-hereditary member of Shri Jagannath

Mandir Trust of Baliguda. After he became the member, there

was dispute as against Shyamsundar Patra, the Ex-Secretary

of the temple and his brothers with respect to the shop rooms

of the temple. Moreover, the deceased was threatened by

Shyamsundar Patra due to his proactive role relating to

temple administration, eviction from shop rooms of Shri

Jagannath Complex, as Shyamsundar Patra was the secretary

before the temple was indexed and he refused to hand over

the detail charges of the properties of the temple in spite of

specific direction of the Endowment Commissioner. All these

facts were mentioned by the informant in the F.I.R. That

apart, it has also been mentioned about the involvement of

the Patra brothers in the crime as they have given the threat to

the deceased.

pg. 3 II. PETITIONER'S SUBMISSIONS:

5. Learned counsel for the Petitioner earnestly made the

following submissions in support of her contentions:

During investigation, on verification of CCTV footage

and mobile data, shooters namely Golaka @ Ramnarayan

Nahaka and rider of the motorcycle Kanhu Charan Sahu as

well as conspirator K. Biswajit Patra, S. Balaji Achary were

forwarded to the Court. Another conspirator namely Babuli

Muni was absconding from his village and ultimately charge

sheet was submitted as against them under Sections 302/34 of

the I.P.C. read with Sections 25 and 27 of the Indian Arms Act.

In the charge sheet, the investigating officer has specifically

mentioned that the informant mentioned about the

involvement of the four brothers of the said Patra family.

However, he was not the eye witnesses to the occurrence.

Thus, the investigating agency has concluded that Patra

brothers are not the perpetrators of the crime.

6. While investigating the matter, the investigating agency has

lost sight of the material facts which are also relevant to

unearth the crime. As a matter of fact, Shyamsundar Patra

was the Secretary of Shri Jagannath Temple of Baligada and

misappropriated the funds and also sold away the properties

pg. 4 of the deity. His three brothers have taken the shop rooms in

the temple campus and were not paying the rent.

7. The deceased was put to death at the instance of

Shyamsundar Patra, Gopal Kurshna Patra, Biswanath Patra,

Ramchandra Patra who are four brothers and K. Biswajit

Patra, Ananda Acharya and others due to his proactive action

as against them. In this regard, it is mentioned that the whole

issue revolves around the formation of non-hereditary Trust

Board of Shri Shri Jagannath Temple, Baliguda. The general

public of Baliguda moved the Commissioner Endowment to

declare that the Shri Shri Jagannath Temple, Baliguda as

public deity as aforementioned Patra brothers i.e.

Shyamsundar Patra being the Secretary of the Temple has

misappropriated the properties of the deity. Considering the

demand of the people at large, the temple was indexed and

non-hereditary Trust Board was formed on 26.07.2016 by the

State Government. In the said Trust Board, one Madhusuan

Dash has been made as Managing Trustee and deceased

Abhimanyu Panda as the member of the Trust Board. In spite

of the formation of the non-hereditary Trust Board, as

Shyamsundar Patra, the Ex-Secretary of the temple did not

handover the charges and records of the temple.

Consequently, W.P.(C) No.13847 of 2017 was filed and by

virtue of the order dated 20.07.2017 of this Court in the said

pg. 5 Writ Petition, the non-hereditary Trust Board could enter into

the premises of the temple and started looking after the Seva

Puja (worshipping) of the deity. However, as on date, the

detailed charges have not been handed over by Shyamsundar

Patra for which W.P.(C) No.12691 of 2018 has been filed

before this Court which is pending for disposal. It may be

pointed out here that the Commissioner of Endowments,

Odisha has not taken any step in the matter although it has

been brought to his notice several times.

8. Shyamsundar Patra, K. Biswajit Patra and others have

protested about the formation of the non-hereditary Trust

Board and they also did not allow the Trust Board to celebrate

the Rathayatra in the year 2017 and with their help the then

Sub-Collector, Baliguda, who is one of the member of the

Trust Board, forcibly conducted the Rathayatra.

Consequently, the matter was brought to the notice of the

Additional Assistant Commissioner of Endowment,

Berhampur. The matter was inquired into and found to be

true and the then Sub-Collector was directed not to interfere

with in the day to day management of the temple.

9. Being the member of the non-hereditary Trust Board,

deceased Abhimanyu Panda and the Managing Trustee

Madhusudan Dash took step for collection of rent from 43

shops of Shri Jagannath Temple Complex. Out of it, about 18

pg. 6 numbers are adjacent to N.H. Prior to the formation of non-

hereditary Trust Board the shop room owners were paying

rent to Shyamsundar Patra. Even his brothers namely Gopal

Krushna Patra was in occupation of shop room No-9. When

the shop owners did not pay rent to the Trust Board, cases

were filed before the Additional Assistant Endowment

Commissioner for their eviction under Section 68 of OHRE

Act and eviction order has been passed, brother of

Shyamsundar Patra namely Gopal Krushna Patra was evicted

from shop room on 23.10.2019 and K.Biswajit Patra and

Ananda Acharya have sublet their shop rooms and are not

paying anything to the Trust Board. Against them also cases

are pending and both of them have approached this Court

challenging the steps taken by the Trust Board for their

eviction.

10. In this case, being dissatisfied with the manner in which

investigation has been done, some local inhabitants have

approached the Governor of Odisha by filing a petition dated

22.06.2020 requesting His Excellency to intervene in the

matter and to direct for investigation of the case by Special

Investigating Team or by Crime Branch of Odisha. Besides,

they have also approached the Hon'ble Chief Justice of this

Court to look into the matter and on receipt of the said

request, Assistant Secretary, Odisha State Legal Service

pg. 7 Authority, Cuttack sent a copy of the grievance petition to the

Superintendent of Police, Kandhamal to take step in the

matter.

11. Shri Jagannath Temple Complex is situated on the side of

National Highway No-59. After extension of N.H No-59,

Temple Trust Board was informed by the Sub-Collector and

the I.I.C., Baliguda Police Station not to keep the Chariot

outside the Temple Complex as it will create problem in

smooth movement of the vehicles. Thus, the Managing

Trustee and the Trust Board Member Late Abhimanyu Panda

along with other Trust Board Member have decided to

demolish shop room Nos.6 and 7 of the Market Complex by

which there will be enough space to take the Chariot inside

the Temple premises. This was intimated to the Additional

Assistant Endowment Commissioner, Berhampur by Letter

No.65 dated 29.08.2019, Letter No-84 dated 15.11.2019. As per

the decision of the Managing Committee, the deceased had

also sought for information from the Executive Engineer (R &

B Division), Baliguda to provide him the inspection report of

the existing structural condition of the surrounding building

of the Jagannath Market of the Jagannath Temple from

Trivedi Park to N.H.-59. Only after 15 days, the Petitioner's

husband Abhimanyu Panda was murdered in front of his

house on 10.12.2019.

pg. 8

12. Non-submission of record of the deity and detailed accounts

of the money collected from different sources of the temple by

Shyamsundar Patra was reported to the Baliguda Police

Station on 20.04.2018. However, no steps were taken by the

police, as they are hand in glove with him. The said action of

Shyamsundar Patra and his fellowmen and the conduct of the

police in not taking any step against him and others in-spite

of specific allegations made in the F.I.R. dated 10.12.2019 does

not create a reasonable doubt in the mind about the manner in

which the investigation has been done and charge sheet has

been submitted.

13. It is revealed from the F.I.R. that being the member of the

Trust Board of Shri Jagannath Temple, Baliguda, the deceased

was targeted as he has taken steps for eviction of the shop

owners from the temple market complex. But the

investigating agency has not examined Madhusudan Dash,

the Managing Trustee of the Temple who is a key witness in

the matter although he was ready and willing for

examination.

14. In the F.I.R itself it has been specifically mentioned that the

Ex-Secretary of the previous Managing Committee namely

Shyamsundar Patra has taken the shops on rent in his

brother's name and relating to the eviction from rented shop

rooms the deceased was threatened by the Shyamsundar

pg. 9 Patra and his brothers which was also informed to the Police.

This has not been taken care of by the investigating officer.

While submitting charge sheet, the investigating officer has

stated that the F.I.R. was lodged by the brother of the

deceased who has no direct or indirect knowledge about the

accused person and the F.I.R. was lodged by naming the Patra

brothers as there was bitter family rivalry between the Patra

brothers and the deceased. In this regard, it is submitted that

the conclusion drawn by the investigating agency is a cooked

up story, just to shield the Patra brothers who are moneyed

and influential people of Baliguda. This fact can be verified

from the conduct of the Patra brothers who have forcibly

conducted Rathayatra in the year 2017, although by that time

the deceased and Shri Mdhusudan Dash have been notified

by the State Government/Endowment Department as the

Trust Board members. Even at the instance of Shyamsundar

Patra and his followers, the effigy of the deceased was burnt

at Baliguda, after he became the member of the Trust Board.

The C.D. of it is also available and if necessary it will be

produced at the time of hearing.

15. Moreover, the statement made in the F.I.R. by the cousin

brother of the deceased has not been accepted by the

investigating agency as truth because he is not an eye witness

to the said occurrence, which is revealed from the narratives

pg. 10 of the charge sheet of the investigating agency. While taking

up investigation, the investigating officer has not made

proper investigation of the case as facts have not been

reflected correctly in the charge sheet. In fact, K.Biswajit Patra

who has been made as one of the main accused has taken a

shop room on rent in Jagannath Market Complex and other

accused namely Ananda Prasad Acharya @ Chintu has also

taken a shop room on rent in the Jagannath Market Complex.

K. Biswajit Patra has been made as the prime accused whereas

Chintu @ Ananda Prasad Acharya who has given shelter to

the suparee killer in his house has been made an accomplish.

This creates a doubt about the proper investigation of the

case.

16. In fact, ten days prior to the incident, the deceased was

threatened by Patra brothers, K. Biswajit Ananda Acharya

and Debendra Panda to kill him. The investigating agency has

not done the investigation from all angles and diverted it and

confined it to only one angle and very cunningly submitted

the charge sheet without involving the Patra brothers and

many other who are the master mind of the crime. The fact

speaks for itself, because they are the persons who are being

affected due to the proactive action of the deceased who was

energetic honest and took active role in managing the affairs

of the temple.

pg. 11

17. The Petitioner, thus, getting no other alternative remedy has

filed this petition for redressal of her grievances and justice.

III. COURT'S REASONING AND ANALYSIS:

18. The conduct of the police in the investigative process has not

been so satisfactory as prima facie appear in the present case.

The Supreme Court in Rubabbuddin Sheikh v. State of

Gujarat & Ors.1, dealt with a case where the accusation had

been against high officials of the Police Department of the

State of Gujarat in respect of killing of persons in a fake

encounter and the Gujarat Police after the conclusion of the

investigation, submitted charge sheet before the competent

criminal court. The Court came to the conclusion that as the

allegations of committing murder under the garb of an

encounter are not against any third party but against the top

police personnel of the State of Gujarat, the investigation

concluded by the State investigating agency may not be

satisfactorily held. Thus, in order to do justice and instill

confidence in the minds of the victims as well as of the public,

the State police authority could not be allowed to continue

with the investigation when allegations and offences were

mostly against top officials. Thus, the Court held that even if a

charge-sheet has been filed by the State investigating agency,

(2010) 2 SCC 200

pg. 12 there is no prohibition for transferring the investigation to any

other independent investigating agency.

19. However, in State of West Bengal v. Committee for

Protection of Democratic Rights2, a Constitution Bench of

Supreme Court has clarified that extraordinary power to

transfer the investigation from State investigating agency to

any other investigating agency must be exercised sparingly,

cautiously and in exceptional situations where it becomes

necessary to provide credibility and instill confidence in

investigation or where the incident may have national and

international ramifications or where such an order may be

necessary for doing complete justice and enforcing the

fundamental rights.

20. In K.V. Rajendran v. Superintendent of Police, CBCID,

Chennai & Ors3 wherein it was held that transfer of an

investigation must be in rare and exceptional cases to do

complete justice between the parties and to instill confidence

in the public mind. The following may be extracted:

"This Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it

AIR 2010 SC 1476

(2013) 12 SCC 480, pg. 13 impossible to properly investigate all of them." (Emphasis added)

21. In view of the above, the law can be summarised to the effect

that the Court could exercise its Constitutional powers for

transferring an investigation from the State investigating

agency to any other independent investigating agency like

CB/CID or CBI only in rare and exceptional cases. Such as

where high officials of State authorities are involved, or the

accusation itself is against the top officials of the investigating

agency thereby allowing them to influence the investigation,

and further it is so necessary to do justice and to instill

confidence in the investigation or where the investigation is

prima facie found to be tainted/biased.

22. In the present case, the Petitioner has not been able to prove

that the State investigating agency has derailed the course of

investigation or if there is a conflict of interest. Moreover, the

investigation is currently at an early stage and transferring

such cases would lead to opening of floodgate of cases before

this Court.

23. In assessing the contention for the transfer of the investigation

to CBI, it has been factored into the decision-making system,

the averments on the record and submissions urged on behalf

of the Petitioner. However, there is no such reason that

warrants a transfer of the investigation to CBI. In holding

thus, this Court has applied the tests spelt out in the

pg. 14 consistent line of precedent of the apex Court. They have not

been fulfilled. An individual under investigation has a

legitimate expectation of a fair process which accords with

law. The displeasure of the Petitioner about the manner in

which the investigation proceeds or an unsubstantiated

allegation (as in the present case) of a conflict of interest

against the police conducting the investigation must not

derail the legitimate course of law and warrant the invocation

of the extraordinary power of this Court to transfer an

investigation to CBI. Courts assume the extraordinary

jurisdiction to transfer an investigation in exceptional

situations to ensure that the sanctity of the administration of

criminal justice is preserved. While no inflexible guidelines

are laid down, the notion that such a transfer is an

"extraordinary power to be used "sparingly" and "in

exceptional circumstances" comports with the idea that

routine transfers would belie not just public confidence in the

normal course of law but also render meaningless the

extraordinary situations that warrant the exercise of the

power to transfer the investigation. Having balanced and

considered the material on record as well as the averments

and submissions urged by the Petitioner, this Court finds that

no case of such nature which falls within the ambit of the tests

pg. 15 enunciated in the precedents of this Court has been

established for the transfer of the investigation.

24. In the light of the aforesaid discussion and having regard to

the present position of law, this Court has no hesitation in

coming to the conclusion that the Petitioner cannot be granted

any relief by way of this petition.

25. Accordingly, the CRLMP is dismissed.

( Dr. S.K. Panigrahi ) Judge Orissa High Court, Cuttack, Dated the 5th May, 2023/ B. Jhankar

BHABAG Digitally signed by BHABAGRAHI RAHI JHANKAR Date: 2023.05.10 JHANKAR 17:26:11 +05'30'

pg. 16