Eliza Priyadarshini @ Elina vs State Of Odisha And Ors
2023 Latest Caselaw 5197 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                        CRLMP No.2223 of 2021
     (In the matter of an application under Articles 226 and 227 of
     the Constitution of India, 1950)


     Eliza Priyadarshini @ Elina                ....             Petitioner
                                   -versus-
     State of Odisha and Ors.                   ....         Opp. Parties

     Advocates appeared in the case:
     For Petitioner            :     Mr. Bijaya Kumar Parida, Adv.
                                   -versus-

     For Opp. Parties              :                 Mr. D. Mund, AGA



                 CORAM:
                 DR. JUSTICE S.K. PANIGRAHI
                      DATE OF HEARING:-22.02.2023
                     DATE OF JUDGMENT:-05.05.2023

       Dr. S.K. Panigrahi, J.

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

from this Court to the Opposite Parties to award

compensation for illegal detention period in jail custody in

connection with 1CC No.9 of 2014 pending in the court of the

learned J.M.F.C., Jatni in the district of Khurda.

I. FACTUAL MATRIX OF THE CASE:

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

civil dispute between one Harekrushna Satpathy (grand

uncle-in-law of the Petitioner) with the Petitioner, he has filed pg. 1 a complaint petition before the J.M.F.C. (O), Bhubaneswar

alleging therein that the petitioner and six other family

members committed fraud and forgery by manufacturing a

forged sale deed of Sub-Registrar, Jatni behind the back

without his knowledge.

3. On the basis of this complaint case, the learned J.M.F.C. (O),

Bhubaneswar has registered a case i.e. 1CC No.9 of 2014 for

commission of offence punishable under Sections

420/468/471/506/34 of the I.P.C. Thereafter, the learned

J.M.F.C. (O), Bhubaneswar vide order dated 13.02.2019 issued

summons to the Petitioner and other accused persons fixing

the date on 15.03.2019 for their appearance. Lastly, the case

record was transferred from the court of the learned J.M.F.C.

(O), Bhubaneswar to the court of the learned J.M.F.C., Jatni.

However, on the date of posting of the said case, the

Petitioner did not appear in the court. Hence, the learned

J.M.F.C., Jatni issued BW against her on 31.01.2020.

4. On knowing about issuance of the BW by the learned

J.M.F.C., Jatni, the Petitioner and other two persons, namely,

Sasmita Rajguru and Alok Ranjan Satpathy voluntarily

surrendered and were released on bail on 04.03.2020 and the

recall order has already been communicated to the I.I.C.,

Balikuda Police Station on the same date. However, when the

said case was put up on 14.04.2020 for evidence before charge,

pg. 2 on 23.10.2021 also as no steps were taken on behalf of the

parties due to local bar accommodation, the case was then

posted to 09.12.2021 for evidence before charge.

5. While the 1CC Case stood thus, surprisingly on 11.11.2021 at

about 4.45 P.M., the police of Balikuda Police Station arrested

and forwarded the Petitioner on 12.11.2021 to the court of the

learned Executive Magistrate, Balikuda on the strength of BW

issued by the learned J.M.F.C., Jatni in 1CC No.9 of 2014. The

learned Executive Magistrate, Balikuda whimsically and

wrongly and illegally remanded the Petitioner to jail custody

when the learned J.M.F.C., Jatni has issued bailable warrant.

6. During the jail custody, the Petitioner finding no other

alternative, moved a bail application before the learned Chief

Judicial Magistrate, Jagatsinghpur on 15.11.2021. Learned

Chief Judicial Magistrate, Jagatsinghpur after receiving the

LCR from the court of the learned Executive Magistrate,

Balikuda and the certified copy of the order of the learned

J.M.F.C., Jatni, passed the order dated 18.11.2021 to release the

Petitioner on bail.

II. PETITIONER'S SUBMISSIONS:

7. Learned counsel for the Petitioner earnestly made the

following submissions in support of his/her contentions:

8. There was no NBW issued against her in the above complaint

case. However, due to callous attitude of the police officer,

pg. 3 Balikuda Police Station, the Petitioner was unnecessary

detained for 8 days in custody on account of illegal and

wrong action of the Opposite Party Nos.3 and 4 violating the

fundamental rights guaranteed under Article 21 of the

Constitution of India.

9. Even though the BW was issued against the Petitioner, the

Investigating Officer has not properly applied the law and

provision of the Cr.P.C. and effected arrest of the Petitioner

which not only violates the fundamental rights of the

Petitioner but also violates the principle of natural justice and

vacates the provisions of law for which the police authority is

liable to be punished.

10. During the period of custody, the Petitioner sustained mental

and physical torture which flouts the basic rights of the

citizens recognized by the Constitution and is an affront to

human dignity. So, the action of the police by arresting the

Petitioner and forwarding to jail custody without reasonable

cause and reason is violating the principle of fundamental

constitutional rights. Therefore, the Petitioner is liable to be

compensated. In this regard, the Petitioner is entitled to get

compensation of Rs.12,00,000/- for violation of her

fundamental rights under Article 21 of the Constitution of

India.

pg. 4 III. SUBMISSIONS BY OPPOSITE PARTY NO.3 (INSPECTOR-IN-

CHARGE, BALIKUDA):

11. Per contra, learned counsel for the State intently made the

following submissions on behalf of the Opposite Party No.3:

12. Pursuant to the order of the learned J.M.F.C., Jatni regarding

issuance of bailable warrant, copy of the warrant of arrest was

received at Balikuda P.S. on 10.02.2020 in which it was

mentioned regarding execution of warrant and for production

of the accused person before the learned J.M.F.C., Jatni on

15.02.2020. However, in the said warrant of arrest nothing

was mentioned regarding releasing the accused on bail with

such surety and for her appearance.

13. After receiving the warrant of arrest, the predecessor of the

deponent executed the same through his A.S.I., J.R. Das on

11.11.2021 and produced the Petitioner before the learned

Executive Magistrate, Balikuda on the next date i.e. on

12.11.2021 as per the provision of Section 80 of the Cr.P.C.

Since the alleged offences are non-bailable in nature and there

is nowhere mentioned in the warrant of arrest regarding

release of the accused on bail. Therefore, the Executive

Magistrate, Balikuda forwarded the Petitioner to judicial

custody in view of Section 81 of the Cr.P.C.

14. While the Petitioner was arrested in view of execution of

warrant of arrest, she never disclosed before the police

authorities that she was already released on bail by the pg. 5 Magistrate. Moreover, she did not produce any document to

that effect. Therefore, the contention of the Petitioner in the

Writ Petition due to illegal action of the police officer of

Balikuda Police Station, the Petitioner was forwarded to jail

custody is not correct. Once warrant of arrest is issued by the

Magistrate, the same is to be executed unless the same is

cancelled by the same court.

15. As per Section-70(2) of the Cr.P.C., every such warrant shall

remain in force until it is cancelled by the court which issued

it or until it is executed. In the case in hand, admittedly,

warrant of arrest was issued by the learned J.M.F.C., Jatni and

the same was not cancelled by the said court. Therefore, the

Police Officer Balikuda Police Station executed the same.

16. It is not a fact that the Petitioner had disclosed before the

police that she had already been granted bail by the

Magistrate. Even she could not produce any piece of

document regarding grant of bail by the Magistrate and also

she could not produce any document regarding recalling of

warrant of arrest by the Magistrate.

17. It is not a fact that due to callousness action of the police

officers of Balikuda P.S., the Petitioner was detained in jail

custody for a period of 8 days. Rather, the police officer of

Balikuda P.S. executed the warrant of arrest in order to

pg. 6 comply the order of the Magistrate. Therefore, there is no

illegality committed by the police officer of Balikuda P.S.

18. There is nothing mentioned in the warrant of arrest regarding

release of the accused on bail on such terms and conditions.

From the last part of the warrant of arrest, it appears that

nothing has been mentioned that the accused after being

arrested shall be released on bail on such terms and

conditions. Since nothing has been mentioned in the warrant

of arrest to release the accused on bail, therefore, the

Petitioner was arrested and forwarded to the Court of

Executive Magistrate, Balikuda.

19. Since the police officers of Balikuda P.S. have only complied

the order of the learned J.M.F.C., Jatni by executing the

warrant of arrest, therefore, there is no occasion that due to

negligence on the part of the Balikuda P.S., the Petitioner

suffered mental and physical torture and, therefore, she needs

compensation. Since there is no illegality committed on the

part of the officers of the Balikuda P.S., the prayer of the

Petitioner for awarding compensation does not arise and,

therefore, the Writ Petition is liable to be dismissed.

IV. SUBMISSIONS BY OPPOSITE PARTY NO.4 (EXECUTIVE MAGISTRATE, BALIKUDA):

20. Learned counsel for the State intently made the following

submissions on behalf of the Opposite Party No.4:

pg. 7

21. Pursuant to the issuance of warrant by the learned J.M.F.C.,

Jatni, the same was executed by the I.I.C., Balikuda P.S and

the accused/Petitioner was apprehended and produced before

the deponent being the Executive Magistrate on 12.11.2021

with a warrant of arrest issued by the learned J.M.F.C., Jatni,

Khurda in respect of 1CC No.09 of 2014 wherein the accused

has been charged for the offences under Sections

420/468/471/506/34 of the I.P.C.. Since the offences are non-

bailable in nature, the bail application was rejected and the

accused was remanded to judicial custody by this deponent.

22. The accused has nowhere in his bail application mentioned

that the accused was released on bail on 04.03.2020 and has

also not submitted any document thereof in support of the

above claim. Rather, the learned counsel for the accused has

submitted in writing that the accused person is ready and

willing to submit solvent surety regarding her bail and abide

by the terms and conditions as imposed by the court of the

Executive Magistrate Balikuda.

23. While the accused/Petitioner was forwarded, a bail

application was filed by the learned Advocate for the accused

praying for release her on bail. In the said bail petition

nowhere it was mentioned that the accused was already

granted bail by the Magistrate. Rather, it is mentioned that in

the event she is granted bail, accused is ready and willing to

pg. 8 abide by any terms and conditions imposed by the Executive

Magistrate.

24. The Opposite Party has acted as per the provision of Section

81 of the Cr.P.C. since the alleged offences are non-bailable in

nature and also in the warrant of arrest, there is nowhere

mentioned by the issuing court regarding release of the

Petitioner on bail on furnishing surety. At the time of

forwarding of the accused before the deponent, neither the

Petitioner /accused nor the conducting counsel appearing on

her behalf has filed any piece of document showing release of

the Petitioner on bail by the Magistrate or recalling of warrant

of arrest by the Magistrate. The Petitioner has acted as per the

power conferred under the provision of the Cr.P.C. Therefore,

the Writ Petition filed by the Petitioner is liable to be

dismissed.

V. COURT'S REASONING AND ANALYSIS:

25. "Bail" remains an undefined term in the Cr.P.C. Nowhere else

the term has been statutorily defined. Conceptually, it

continues to be understood as a right for assertion of freedom

against the State imposing restraints since the U.N.

Declaration of Human Rights of 1948, to which Indian is a

signatory, the concept of bail has found a place within the

scope of human rights. The dictionary meaning of the

expression `bail' denotes a security for appearance of a

pg. 9 prisoner for his release. Etymologically, the word is derived

from an old French verb `bailer' which means to `give' or `to

deliver', although another view is that its derivation is from

the Latin term baiulare, meaning `to bear a burden'. Bail is a

conditional liberty. Strouds' Judicial Dictionary (Fourth

Edition 1971) spells out certain other details. It states:

"When a man is taken or arrested for felony, suspicion of felony, indicated of felony, or any such case, so that he is restrained of his liberty - And being by law bailable, offence surety to those which have authority to bail him, which sureties are bound for him to the Kings use in a certain sums of money, or body for body, that he shall appear before the Justices of Goale delivery at the next sessions etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed, that is to say, set at liberty until the day appointed for his appearance."

26. Bail may thus be regarded as a mechanism whereby the State

devolutes upon the community the function of securing the

presence of the prisoners, and at the same time involves

participation of the community in administration of justice.

27. Personal liberty is fundamental and can be circumscribed

only by some process sanctioned by law. Liberty of a citizen is

undoubtedly important but this is to balance with the security

of the community. A balance is required to be maintained

between the personal liberty of the accused and the

investigational right of the police. It must result in minimum

pg. 10 interference with the personal liberty of the accused and the

right of the police to investigate the case. It has to dovetail

two conflicting demands, namely, on one hand, the

requirements of the society for being shielded from the

hazards of being exposed to the mis-adventures of a person

alleged to have committed a crime; and on the other hand, the

fundamental cannon of criminal jurisprudence, viz, the

presumption of innocence of an accused till he is found guilty.

Liberty exists in proportion to wholesome restrain, the more

restraint on others to keep off from us, the more liberty we

have.

28. The law of bail, like any other branch of law, has its own

philosophy, and occupies an important place in the

administration of justice and the concept of bail emerges from

the conflict between the police power to restrict liberty of a

man who is alleged to have committed a crime, and

presumption of innocence in favour of the alleged criminal.

An accused is not detained in custody with the object of

punishing him on the assumption of his guilt.

29. In the present case, the Petitioner had already been released

on bail on 04.03.2020 and was unnecessarily detained for 8

days in custody on account of wrongful action of the Opposite

Party Nos.3 and 4. Additionally, it is pertinent to add that

even though the BW was issued against her, the Investigating

pg. 11 Officer has not properly applied the law and provision of the

Cr.P.C. and arrested the Petitioner.

30. In this regard, the Opposite Party No.3 has contended that

after receiving the warrant of arrest, the predecessor of the

deponent executed the same through his A.S.I., J.R. Das on

11.11.2021 and produced the Petitioner before the Executive

Magistrate, Balikuda on the next date i.e. on 12.11.2021 as per

the provision of Section 80 of the Cr.P.C. Since the alleged

offences are non-bailable in nature and there is nowhere

mentioned in the warrant of arrest regarding release of the

accused on bail, therefore, the Executive Magistrate, Balikuda

forwarded the Petitioner to judicial custody in view of Section

81 of the Cr.P.C.

31. While the Petitioner was arrested in view of execution of

warrant of arrest, she never disclosed before the police

authorities that she was already released on bail by the

Magistrate. Moreover, she did not produce any document to

that effect. Therefore, the contention of the Petitioner in the

Writ Petition that due to illegal action of the police officer of

Balikuda P.S., the Petitioner was forwarded to jail custody is

not correct because once warrant of arrest is issued by the

Magistrate, the same is to be executed unless the same is

cancelled by the same court.

pg. 12

32. The present matter seems to have arisen out of

misunderstanding and lack of timely deposition of

documents. Irrespective of the fact whether the Petitioner was

able to timely disclose before the police authorities that she

was already released on bail by the Magistrate, the

curtailment of her personal liberty arises out of wrongful

arrest made by the Opposite Parties.

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

present position of law, the present Writ Petition is liable to be

dismissed. However, the police authorities need to be careful

and vigilant while executing the arrest warrants.

34. Accordingly, this CRLMP is dismissed.

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

Digitally signed by BHABAGRA BHABAGRAHI JHANKAR HI JHANKAR Date: 2023.05.10 17:27:05 +05'30'

pg. 13