Md. Suhel vs State Of Odisha & Others ... Opposite ...
2025 Latest Caselaw 4132 Ori

Orissa High Court

Md. Suhel vs State Of Odisha & Others ... Opposite ... on 18 February, 2025

Author: G. Satapathy

Bench: G. Satapathy

       IN THE HIGH COURT OF ORISSA AT CUTTACK
  CRLMP No.218 of 2025 & I.A. Nos.38 & 39 of 2025

      (An application under Article 226 of the Constitution of
      India).

      Md. Suhel                       ...                 Petitioner
                                -versus-

      State of Odisha & Others        ...         Opposite Parties

      For Petitioner              :   Mr. M.M. Ansari, Advocate

      For Opposite Parties        :    Mr. A. Pradhan, Addl. PP


          CORAM:
                    JUSTICE G. SATAPATHY

  F             DATE OF HEARING & JUDGMENT:18.02.2025

G. Satapathy, J.

1. The petitioner by means of this Criminal

Misc. Petition has invoked the extraordinary

jurisdiction of this Court under Articles 226 & 227 of

the Constitution of India with the following prayer:-

(a)Issue a writ of mandamus or any other appropriate writ, order or direction of this Hon'ble Court directing:

(i) The O.P No. 3 & 4 to submit the CCTV footage of the Plantsite P.S, Rourkela for the intervening period starting dated 05.11.2024 to 07.11.2024 without any excuses;

(ii) The O.P No. 6 to investigate into the allegations of unlawful detention and confinement at the P.S followed by the false implication, illegal arrest and unwarranted judicial custody of the medically unfit petitioner and his old aged ailing father in Plantsite P.S Case No. 919 dated 07.11.2024 for committing offence U/s 20(b](ii)(c)/29 NDPS Act, 1989 corresponding to Spl. GR Case No. 43 of 2024;

(iii) The O.P No. 6 to substantiate the mechanism put in place to ensure that the investigation shall be performed with equal alacrity and fairness irrespective of the status of the persons involved and in an expeditious manner under the supervision of this Hon'ble Court.

(iv) In the alternative, the State Government to constitute. SIT preferably headed by an officer of honesty, integrity and impeccable service record of IPS Rank to probe out the extremely unfortunate and malicious action performed during the intervening period from 05.11.2024 to 07.11.2024 at Plantsite P.S, Rourkela."

2. The facts in precise are that on

05.11.2024 at about 1.40 P.M., one Md. Nawaz Ansari

lodged an FIR against the petitioner and two others for

an incident occurring on 04.11.2024 with allegation of

assault on him by means of iron rod resulting in injury

to his eyes and also threatening him of dire

consequence. On the above FIR, Rourkela Plantsite PS

Case No.909 dated 05.11.2024 was registered.

Similarly, the sister of the petitioner lodged an FIR

against Md. Nawaz Ansari, the informant in Plantsite

PS Case No.909 of 2024 and four others for an

incident occurring on 05.11.2024 at about 10 A.M.

with allegation of tearing her clothes as well as assault

to her neck by means of sword, bhujali, steel pipe and

iron rods, resulting in injuries to her hand, chest and

neck. Accordingly, Rourkela Plantsite P.S. Case No.911

dated 05.11.2024 was registered against Md. Nawaz

Ansari, the informant in Plantsite PS Case No.909 of

2024 and others. According to the petitioner, since

Rourkela Plantsite PS Case No.909 of 2024 has been

registered against him and his family members, his

father first went to the Police Station followed by him

and his family members to meet the IIC and IO for

necessary information and assistance. On their arrival,

both the parties were questioned and allowed to go,

save and except, the petitioner and his father and

thereby, they were kept in unlawful custody, but

suddenly on 07.11.2024, at about 4 P.M. to 4.30 PM,

the petitioner and his father were brought out of the

Police Station to Reserve Police Office, Rourkela and

their medical examination was done in RGH and they

were finally forwarded to the Court of learned 1st Addl.

Sessions Judge-cum-Special Judge, Rourkela alleging

their involvement in Plantsite PS Case No. 919 dated

07.11.2024 corresponding to Special G.R. Case No.43

of 2024 for committing offence U/Ss. 20(b)(ii)(C)/29

of the NDPS Act. Accordingly, claiming unlawful

detention, false implication, illegal arrest and

unwarranted judicial custody, the petitioner has

approached this Court in this application with prayers

indicated in the preceding paragraph.

3. In the course of hearing, Mr. Md. Mustaq

Ansari, learned counsel for the petitioner appearing

virtually submits by reiterating the facts as stated in

the CRLMP application that the petitioner has been

falsely implicated in this case and unlawfully detained

in police custody for a period of two days. Accordingly,

Mr. Md. Mustaq Ansari prays to direct a fair and

impartial probe by the CBI in the matter. Mr. Ansari

further presses I.A. Nos.38 & 39 of 2025 for directing

the OP Nos.3 & 4 to submit the CCTV footage of the

Rourkela Plantsite PS for the intervening period of

05.11.2024 to 07.11.2024 and to stay the

investigation or any further action in Plantsite PS Case

No.919 dated 07.11.2024. It is also submitted by Mr.

Ansari that the facts involved in this case reveals a

classic case of unlawful detention, false implication

and illegal arrest of the petitioner and thereby, the

State Government may kindly be directed to constitute

an SIT preferably headed by an Officer in the cadre of

IPS to probe the matter.

3.2. On the other hand, Mr. A. Pradhan,

learned Addl. Public Prosecutor, however, highlighting

the facts of the case submits that the petitioner has

brought out allegation against the administration

without producing any valid document and thereby,

the petitioner be penalized with heavy cost for wasting

the valuable time of the Court

4. After having considered the rival

submissions, upon perusal of the materials placed on

record, since the petitioner in his prayer has sought

for a direction to OP No.6(CBI) to investigate into the

allegations of unlawful detention and confinement at

the Police Station followed by false implication, illegal

arrest and unlawful detention in custody, but whether

an accused can claim such relief as of right, this Court

considers it useful to refer to the following precedents

in the matter relating to right of the parties to ask for

investigation:-

4.1. In Preeti Singh v. State of U.P.; 2023

SCC Online Allahabad 1410, while answering a

question whether the accused person has any right or

hearing at the investigation stage or to question the

manner in which evidence is being collected by claiming

a direction for fair investigation, a Division Bench of

Allahabad High Court after surveying a catena of

decisions of Apex Court has held thus:-

"26. Thus, it is very much clear that at the stage of investigation, the accused has no

right to be heard or she cannot forward to claim fair investigation only on the ground that according to her the matter was has been wrongly handed over to Crime Branch and simply for the reason that initially the petitioner was informant and subsequently she had been arrayed as accused in the First Information Report in question. From perusal of record of petition we do not find any ground worth withdrawing the investigation from the Crime Branch and to transfer the same to some other agency in view of the law as discussed hereinabove.

4.2 In Romila Thaper & others v. Union of

India; (2018) 10 SCC 753, the Apex Court has held

thus:-

"30 xx xx xx xxx xxx the accused cannot ask for changing the investigating agency, or to do investigation in a particular manner including for court-monitored investigation."

4.3 In Union of India & another vrs. W.N.

Chadha; 1993 SCC (Cri) 1171, the Apex has held

thus:-

"120. Xx xx The respondent who is a named accused in the FIR has no locus standi at this stage to question the manner in which the evidence is to be collected. However, it is open for the respondent to challenge the admissibility and reliability of the evidence only at the stage of trial in case the investigation ends up in filing a

final report under Section 173 of the Code indicating that an offence appears to have been committed."

4.4. In C.B.I v. Rajesh Gandhi; (1996) 11

SCC 253, the Apex Court has held thus:-

"8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with xx xx."

4.5. In Anant Thanur Karmuse v. State of

Maharashtra; (2023) 5 SCC 802, the Apex Court in

paragraph-34 has quoted with approval the paragraph-

54 of the decision in Himanshu Kumar & others vrs.

State of Chhatisgarh and others; (2023) 12 SCC

592 wherein it has been held thus:-

"54. It has been held by this Court in CBI Vrs. Rajesh Gandhi(supra) that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice."

5. From an analysis of the precedents as

laid down in the cases referred to above, it can

certainly be said that the accused cannot ask as of

right for fresh or further investigation in a particular

matter or manner. It is also clear that the accused has

no locus standi to question the manner in which

evidence is to be collected, but he has right to

challenge the admissibility and reliability of the

evidence only at the trial in case the investigation

resulted in submission of final form indicating that an

offence appears to have been committed by the

accused. The accused cannot have any say as to who

should investigate the offences with which he is

charged, nor can it be claimed as a matter of right by

the accused to conduct the investigation in a particular

manner.

6. It is of course true that the petitioner

who is an accused in Plantsite PS Case No.909 of 2024

has sought for a direction to the CBI to conduct

investigation in this case, but the petitioner has not

produced a single scrap of paper to show that they

have been unlawfully arrested or detained in custody.

Had there been any unlawful arrest and detention of

the petitioner in custody, he/they could have raised

those issues before the Court concerned, to which

he/they have been forwarded at the first instance, but

it is not known as to whether the petitioner has raised

or alleged their grievance/excesses committed on

them before the Court concerned, to which he/they

has/have been forwarded in the matter relating to

Plantsite PS Case No. 919 of 2024 for commission of

alleged offence U/Ss.20(b)(ii)(C)/29 of the NDPS Act

in Special G.R. Case No.43 of 2024. This Court is also

conscious of the right of an accused for free and fair

investigation, but there is serious allegation against

the Police authority for unlawful arrest and detention

of the petitioner in custody, but the same is without

any document or materials, rather the petitioner prays

for a direction to OP Nos. 3 & 4 to submit the CCTV

footage of Rourkela Plantsite Police Station for the

intervening period from 05.11.2024 to 07.11.2024,

but the petitioner himself has stated in paragraph-III

in CRLMP that the petitioner and his father had

voluntarily went to the Police Station along with others

in connection with Rourkela Plantsite PS Case No. 909

dated 05.11.2024 which presupposes that the

petitioner was never lifted to the Police Station by the

Police from their house or from anywhere.

7. Additionally, it is never disputed by the

petitioner that a criminal case was registered against

him and two others in Rourkela Plantsite PS Case

No.909 of 2024. It is also not disputed that Plantsite

PS Case No.919 of 2024 has been registered against

the petitioner, his father and another for possessing

and transporting commercial quantity of Contraband

Ganja and they were accordingly detained by the

Police party. It is, however, true that the petitioner

alleges false implication in the case, but could not

substantiate the same by producing any material, save

and except by averring the same in his Criminal Misc.

Petition. On the other hand, the copy FIR and other

papers produced by the petitioner in Plantsite PS Case

No.919 of 2025 reveals about the allegation against

the petitioner for unauthorized possession and

transportation of commercial quantity of Contraband

Ganja and some independent persons as well as

officials like Executive Magistrate have been involved

in the recovery, search and seizure of the Contraband

Ganja in the matter. A copy of the paper stated to be

a notice U/S.50(1) of the NDPS Act served to the

petitioner also reveals endorsement in Hindi "he

understand the subject written in the said notice and

he is desirous of his personal search by a Magistrate"

and accordingly, the documents annexed with the

CRLMP also reveals about the search of the petitioner

in presence of Executive Magistrate and therefore, at

this stage, without any document on material, this

Court cannot consider false implication for the

petitioner in NDPS case.

8. It is also not known as to how the CCTV

footage would help the petitioner in establishing the

wrongful confinement and illegal detention, since the

petitioner himself stated in his application that he had

voluntarily visited the Police Station in connection with

Plantsite PS Case No. 909 of 2024 and that too, no

allegation of assault has been made against the Police

party. In any event, had there been any wrongful

confinement of the petitioner, he could have

independently approached the concerned Court for

declaring his detention in custody illegal for violation

of Article 22 of the Constitution of India. It is also

equally true that the petitioner could have produced

the arrest memo to show as to when he was taken

into custody by the Police, but the petitioner has not

filed such arrest memo or forwarding report in this

case. The initiation of NDPS case against the petitioner

discloses the involvement of independent and impartial

person like private witnesses so also official witnesses

in the investigation, but nothing has been produced to

indicate about false implication of the petitioner in this

case. In absence of any documents or materials, this

Court is not in a position to comment in the matter

relating for false implication of the petitioner. In the

sequel events, this Court also does not find any reason

to stay the further investigation in the matter in

Plantsite PS Case No.919 of 2024.

9. On a careful analysis of the facts

narrated in the CRLMP petition together with the

documents supplied by the petitioner and taking into

account the law laid down by different Constitutional

Courts in the decisions referred to above, this Court is

of the considered opinion that the claim of the

petitioner for investigation by CBI at this stage is

untenable nor the Court considers it in the interest of

justice to direct the State Government to constitute

SIT headed by an Officer of IPS cadre for probe in the

matter and therefore, prima facie there is no

justification to direct OP Nos.3 & 4 to submit the CCTV

footage of Rourkela Plantsite Police Station in the

intervening period from 05.11.2024 to 07.11.2024.

10. In the sequence of events, since no

ground is made out by the petitioner to persuade this

Court to exercise the jurisdiction under Articles 226 &

227 of the Constitution of India to direct the CBI to

probe in the matter, there is no need for the Court to

direct for such investigation. However, this Court must

advise the Investigating Agency to perform its duty in

a free, fair and transparent manner.

11. In the result, the CRLMP so also I.A.

Nos.38 & 39 of 2025 being devoid of merit, stand

dismissed on contest, but in the circumstance, there is

no order as to costs.

(G. Satapathy) Judge

Orissa High Court, Cuttack, Dated the 18th day of February, 2025/S.Sasmal

Location: High Court of Orissa