Sukadev Naik vs State Of Orissa ... Opposite Party on 27 January, 2023

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Orissa High Court

Sukadev Naik vs State Of Orissa ... Opposite Party on 27 January, 2023

1. Since the common petitioner-Sukadev Naik in CRLMC No. 1773 of 2017 and CRLMC No. 2555 of CRLMC Nos.1773& 2555 of 2017 Page 1 of 22 2017 prays to quash the two criminal cases instituted against him and another in Moroda P.S. Case No. 36 dated 23.05.2012 (S.T. Case No. 31 of 2014, now pending in the Court of learned Sessions Judge, Mayurbhanj at Baripada) and against him and others in Moroda P.S. Case No. 11 of 2015 on the allegations of murder of two adult females as claimed separately by respective informants within a gap of two years in respect of one and only adult female dead body recovered from a unused well on 23.05.2012 and there being some overlapping of facts in the two criminal cases, both the CRLMCs are heard together simultaneously for better appreciation and disposed of by this common order with consent of parties.

2. Facts involved in both the CRLMCs in nutshell are, on 23.05.2012 one dead body of a adult married female being cladded with saree was found floating facing upward in the unused well situated on the side of road in front of Dhadasahi Anganwadi CRLMC Nos.1773& 2555 of 2017 Page 2 of 22 School and many persons had gathered there including Pitambar Das and Ajaya Kumar Titiria of village Dhadasahi. On receipt of such information, the Grama Rakhi of Moroda Police Station namely, Dasarathi Hembram immediately reached at the spot and on looking at the floating dead body, they could identify it to be the dead body of wife of Sukadev Naik namely, Lili Naik, who was reported to be missing from 11.05.2012 as per the missing report submitted by her husband Sukadev Naik on 18.05.2012 at Police Station, but it was reliably learnt by the said Grama Rakhi that since Lili Naik had kept illicit relationship with another person of her parental village, her husband Sukadev was warning as well as assaulting her and on this issue, there was a meeting between the family members of Sukadev and Lili in their presence on 16.05.2012 and accordingly, the Gram Rakhi lodged an FIR suspecting Sukadeb Naik to have killed Lili and threw the dead body in the well to destroy evidence. CRLMC Nos.1773& 2555 of 2017 Page 3 of 22 2.1 On the FIR of Grama Rakhi, Moroda P.S. Case No. 36 dated 23.05.2012 was registered and the matter was investigated into by OIC, Moroda P.S., Rashmi Ranjan Das who in the course of investigation on finding the involvement of Sukadev and another person namely, Sudam Si, arrested and forwarded both of them to Court on 24.05.2012, but petitioner-Sudam Si was granted bail by learned Sessions Judge and he was released on bail on 04.08.2012. After completing the investigation, the OIC accordingly placed charge sheet against Sukadeb Naik for offence U/Ss. 302/201 of IPC and against Sudam Si for offence U/Ss. 302/201/109 of IPC and on receipt of charge sheet, the learned S.D.J.M., Baripada took cognizance of offences U/Ss.302/201/109 of IPC, whereafter, the petitioner Sukadev Naik was granted bail by this Court on 26.09.2012 in BLAPL No. 23029 of 2012 and he was accordingly released on bail on 01.10.2012. On 24.01.2014, the petitioners together with the case CRLMC Nos.1773& 2555 of 2017 Page 4 of 22 records were committed to the Court of Sessions Judge, Baripada in S.T. Case No. 31 of 2014 in which two discharge petitions U/S. 227 of Cr.P.C. were filed separately by both the accused persons on 26.09.2014 and 17.10.2014 on the ground that the deceased Lily Naik is alive and in support of such claim, two affidavits stated to be sworn in by said Lili Naik and her father were accordingly filed in the Court along with discharge petitions, but after receipt of objection from the prosecution, the learned Sessions Judge, Mayurbhanj called for a report from the OIC, Moroda P.S. for consideration of the discharge petition of the petitioners fixing the case to 15.12.2014 and before the said discharge petitions could be taken up on 15.12.2014, the OIC- in-Charge Moroda P.S. filed a petition on 27.11.2014 before the Sessions Judge seeking permission for further investigation in this case U/S. 173(8) of Cr.P.C. and the learned Sessions Judge, Mayurbhanj at Baripada by an order passed on 03.12.2014 CRLMC Nos.1773& 2555 of 2017 Page 5 of 22 accordingly disposed of such petition of the OIC by observing that there is no necessity to take permission or order from the Court for further investigation U/S. 173(8) of Cr.P.C. and the Police is empowered to conduct further investigation and accordingly, the IIC Moroda P.S. vide Memo No. 1306 dated 11.12.2014 prayed the Court to hold up the trial on the ground that the further investigation of this case has commenced.

2.2 While the matter stood thus, on 23.02.2015 one Krushna Dhungia presented a report before S.P., Mayurbhanj at Baripada against the petitioner Sukadev Naik and family members of Sukadev Naik as well as father of Lili Naik and others for commission of murder of his sister namely, Mandakini Dhungia by stating that the dead body recovered from the unused well on 23.05.2012 referred to above belonged to his sister which was identified earlier to be dead body of Lili Naik by Sukadev Naik himself and his family members as CRLMC Nos.1773& 2555 of 2017 Page 6 of 22 well as the father of Lili Naik for which he remained silent but his sister was also missing from 22.05.2012 and after two years, he came to know about Lili Naik to be alive and, thereby, he assumed the said dead body recovered from the well belonged to his sister and since his deceased sister was working in the house of Sukadev Naik and was also using the wearing apparels of wife of Sukadev Naik, there was frequent quarrel between Sukadev and Lili for suspicion entertained on this issue by Lili Naik. On the above allegations, suspecting Sukadev Naik to have killed his sister, Krushna Dhungia considered that Sukadev Naik in this way will screen himself from the criminal liability by telling falsehood. On the report of Krushna Dhungia, Moroda P.S. Case No. 11 of 2015 was registered against Sukadev Naik and his family members as well as father of Lili Naik and others and the IIC, Moroda P.S. namely, Siba Charan Thakur was entrusted to investigate the matter.

CRLMC Nos.1773& 2555 of 2017 Page 7 of 22 2.3 Pursuant to the affidavits of Lili Naik and her father, the further investigation U/S. 173(8) of Cr.P.C. in the case lodged by the Grama Rakhi on the allegation of murder of Lili Naik commenced on 11.12.2014 and for the selfsame dead body, another investigation was carried on the FIR of Krushna Dhungia on 24.02.2015 and in the meantime, considering the importance of the case in the background of aforesaid facts, on 08.06.2015 the CID, CB took up the investigation of both the case by registering CID CB P.S. Case No. 13 for offence U/Ss. 302/201 of IPC & 14 for offence U/Ss.302/201/34 of IPC in respect of Moroda P.S. Case No. 36 of 2012 and 11 of 2015 respectively and the DSP of Police CID, CB Sri Alok Das was entrusted with the investigation in respect of Moroda P.S. Case No. 36 of 2012 for murder of Lili Naik, who was stated to be found alive.

2.4. In the aforesaid facts and circumstance, challenging the entire criminal proceeding against CRLMC Nos.1773& 2555 of 2017 Page 8 of 22 him and another in S.T. Case No. 31 of 2014 arising out of Moroda P.S. Case No. 36 of 2012 (which is further investigated U/S. 173(8) of Cr.P.C. by Crime Branch in CID CB Case No. 13 of 2015) the petitioner Sukadev Naik has filed CRLMC No. 1773 of 2017. Similarly, challenging the other criminal proceeding against them in G.R.Case No. 221 of 2015 corresponding to CID CB Case No. 14 of 2015, the petitioner Sukadev Naik and others have filed another CRLMC No. 2555 of 2017.

3. In the course of hearing of the CRLMCs, Mr.D.P.Dhal, learned Senior Counsel appearing for the petitioners in both the CRLMCs submits that the petitioners are suffering from the brunt of improper and faulty investigation which is palpable from the arrest and detention of petitioner Sukadev Naik and another namely, Sudam Si for murder of a alive lady namely, Lily Naik who was time and again claimed by her husband-cum-petitioner-Sukadev Naik to be alive and the petitioner-Sukadev Naik had pleaded CRLMC Nos.1773& 2555 of 2017 Page 9 of 22 before the I.O. that her wife Lily Naik had eloped with her paramour and left the village but the I.O. put a deaf ear to such plea of the petitioner and submitted charge sheet against the petitioner- Sukadev Naik and another for murder of Lily Naik, who subsequently appeared alive after two years of aforesaid false case and by then, the valuable personal liberty of the petitioner-Sukadev Naik had been crushed by the whimsical and casual investigation of the I.O. and the petitioner-Sukadev Naik had already suffered incarceration for a period of near about five months, which itself speaks in volume against the conduct of investigating police officer and at this stage, the plight of petitioner did not come to an end because of registration of another case against the petitioner and others by the police for the murder of another person against the same dead body which was earlier identified to be of Lily Naik was again claimed to be dead body of Mandakini Dhungia and the police has done this by CRLMC Nos.1773& 2555 of 2017 Page 10 of 22 setting another person to save their skin for faulty investigation, but the petitioner's liberty was worst sufferer for the above conduct of police. Learned Senior Counsel further submits that after order of this Court, now the Crime Branch has come up with the affidavit that both the criminal cases registered against the petitioner and others are "mistake of fact" and the dead body recovered from the unused well belonged to the sister of Krushna Dhungia who had suffered an unnatural death on account of drowning, but the aforesaid action of the Crime Branch cannot compensate the sufferings of the petitioner-Sukadev Naik who not only suffered physically in jail custody but also got traumatized mentally and such sufferings of the petitioner cannot be compensated. Learned Senior Counsel further submits that in the facts and circumstance, especially when Lily Naik is alive and the dead body recovered stated to be the sister of Krushna Dhungia, who had suffered an unnatural death on CRLMC Nos.1773& 2555 of 2017 Page 11 of 22 account of drowning and the Crime Branch having submitted final report in both the criminal cases, allowing the criminal proceeding against the petitioners in both the CRLMCs are nothing but serious abuse of process of Court and to secure ends of justice, the entire Criminal Proceedings in both the cases may kindly be quashed in the interest of justice with appropriate observation against the erring police official for depriving the petitioner from enjoying his personal liberty and for blatant misuse of powers to wrongfully detaining innocent persons in jail custody.

3.1 Mr.S.R.Roul, learned ASC by producing the downloaded copy of affidavit filed on behalf of S.P., CID, Crime Branch, Orissa along with Annexures-A to D submits that the IO after duly further investigating in C.I.D., C.B. P.S. Case No. 13 and conducting fresh investigation in C.I.D., C.B. P.S. Case No. 14 had already submitted final report as "mistake of fact" in both the cases and thereby, the CRLMC Nos.1773& 2555 of 2017 Page 12 of 22 criminal proceedings against the petitioners in both the cases have already come to an end and the same can be quashed.

4. After having considered rival submissions upon perusal of copy of affidavit and documents produced by learned ASC and on going through the materials placed on record, the undisputed facts as emanate from the record that one adult female dead body was recovered from an unused well by side of road near Anganwadi School at Dhadasai on 23.05.2012 and such dead body was initially identified to be of Lily Naik and on the report of Gramarakhi, an FIR was registered against Sukadev Naik in Moroda P.S. Case No. 36 of 2012 for offences U/Ss. 302/201 of IPC on the allegation of murder of Lily Naik and causing disappearance of evidence and during investigation, Sukadev Naik and Sudam Si were arrested and forwarded to the Court in this case and subsequently, cognizance was taken for offences U/Ss. 302/201/109 of IPC after submission of CRLMC Nos.1773& 2555 of 2017 Page 13 of 22 charge sheet and the case was committed to the Court of Sessions Judge, Mayurbhanj at Baripada in S.T.Case No. 31 of 2014, but the so called dead person Lily Naik stated to have filed an affidavit and, thereby, the said case was further investigated U/S. 173(8) of Cr.P.C. on registration of CID CB P.S. Case No. 13 of 2015 by the IO-Sri Alok Das,Dy.SP CID, CB who submitted final form as "mistake of fact" and lodged a complaint in CID P.S. Case No. 8 of 2016 against the initial IO of Moroda P.S. Case No. 36 of 2012 namely, Sri Rasmiranjan Das for perfunctory investigation and wrongfully confining Sukadev Naik and Sudam Si. On 24.02.2015, Moroda P.S. Case No. 11 was registered for offence U/Ss. 302/201/34 of IPC on the report of Krushna Dhungia who had alleged therein against Sukadev Naik and others for the murder of his sister namely, Mandakini Dhungia in respect of same dead body, which was earlier identified to be of Lily Naik, but subsequently, Crime Branch took up the investigation of the said case by CRLMC Nos.1773& 2555 of 2017 Page 14 of 22 registering CID, CB P.S. Case No. 14 of 2015 and the cause of death of the dead body recovered was obtained by sending the bone of the deceased along with blood sample of informant for DNA profiling to the expert as well as to the Professor-cum-HOD, FM&T, SCB MCH, Cuttack who after examining opined as follows:-

"Basing on all the above facts and findings on perusal of the aforementioned documents, investigation findings, and also considering the opinion of the P.M. reports, it appears to be a case of accidental drowning in all probability."

In the aforesaid case, the IO after conducting investigation and examining number of witnesses come to a conclusion that the death of the deceased whose dead body was recovered from the well was due to accidental drowning in all probability and she accordingly submitted a final report as a "mistake of fact" vide FF No. 23 dated 05.12.2019 in CID, CB P.S. Case No. 14 of 2015.

CRLMC Nos.1773& 2555 of 2017 Page 15 of 22

5. A perusal of the copy of affidavit together with documents produced under Annexures-A to D goes to show that the bone of the dead body recovered from the well on 23.05.2012 matched with the blood sample of the informant-Krushna Dhungia in DNA profiling and accordingly, the IO has stated in her report U/S. 173(8) of Cr.P.C. that the dead body was of a female and belonged to the missing sister of the informant-cum-deceased Mandakini Dhungia and the deceased had died out of an accidental drowning in all probability excluding the possibility of throttling as no ante mortem injury was found over the dead body especially in absence of fracture of hyoid bone in throat region as per the expert medical opinion. The above narration of facts clearly demonstrate that the criminal proceedings against the petitioner are nothing but abuse of process of Court in as much as the petitioner-Sukadev Naik has been roped in a case of murder of one Lily Naik, who is stated to have appeared alive and subsequently, CRLMC Nos.1773& 2555 of 2017 Page 16 of 22 the police on further investigation submitted final report against the petitioner-Sukadev Naik and in the other criminal case, which was for murder of another lady against the same dead body recovered from the unused well and which was earlier identified to be of said Lily Naik, the police on investigation found the dead body to have suffered an unnatural death due to drowning, but in both the criminal cases, the complicity of the petitioners or any body was not found by the police. In the aforesaid eventuality, allowing the further criminal prosecution of the petitioners to continue would be unnecessary harassment and suffering to them and that too, against the persons who had suffered the brunt of perfunctory/faulted police investigation.

6. In Rudul Sah Vrs. State of Bihar and another; (1983)4 SCC 141, the Apex Court while dealing in a matter in which the petitioner was detained in custody even after 14 years of his acquittal, has been pleased to observe that CRLMC Nos.1773& 2555 of 2017 Page 17 of 22 administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to judiciary to adopt and the right to compensation is some palliative for the unlawful acts of instrumentalities, which act in the name of public interest and which present for their protection the powers of the State as a shield.

7. In this case, the narration of facts and subsequent developments thereto, undoubtedly demonstrates a casual and slip shod approach of the initial investigating officer and the personal liberty of the petitioner which is his fundamental right has been seriously violated, but the essence of Article 21 of the Constitution of India is primarily a safeguard to protect a person against deprivation of personal liberty except according to procedure established by law. It may be stated, the I.O. in Moroda P.S. Case No. 36 of 2012 may claim that he has bonafidely proceeded with the investigation of the case, but his CRLMC Nos.1773& 2555 of 2017 Page 18 of 22 action in extracting a confession of petitioner Sukadev Naik itself speaks a lot about his bias in conducting perfunctory investigation, no matter the criminal proceeding against him together cognizance has been quashed by this Court. In a civilized society like ours, the personal liberty of a person is sacrosanct and precious, and deprivation of the personal liberty of an individual in a casual and cavalier manner results in serious infringement/infractions of the fundamental rights as guaranteed to him under Constitution of India. By any stretch of imagination, can the petitioner be returned back with his liberty which was deprived of by the whims of the instrumentalities of the State including the IO in this case. One can imagine the suffering and trauma of the petitioner during the period of his wrongful detention, but such sufferings cannot be experienced by purely on imagination in which a person can reasonably feel the trauma or sufferings of such person. In peculiar facts of this CRLMC Nos.1773& 2555 of 2017 Page 19 of 22 case on the face of observations of Apex Court in Rudul Sah(supra), the State being responsible for the action of its instrumentalities is vicariously liable for the actions of the erring officer who had arrested and forwarded the petitioner-Sukadev Naik to Court depriving him of his personal liberty in the form of wrongful detention on the accusation of murder of his wife, who is stated to be alive by extracting a confession from him and thereby, the petitioner has a right to compensation, which is some kind of palliative panacea, for violation of his personal liberty as guaranteed under Article 21 of Constitution of India, but the petitioner is entitled to recover the cost of these present proceedings as compensation in addition to his right to compensation for violation of his fundamental right in the form of personal liberty, which can be sought for and redressed to in accordance with law in an appropriate proceeding. The petitioner-Sukadev Naik is accordingly awarded compensation of Rs.10,000/- CRLMC Nos.1773& 2555 of 2017 Page 20 of 22 (Ten Thousand) as costs for these two proceedings and the same has to be paid by the State first and subsequently, to realize the same from the concerned erring officer who had arrested and forwarded the petitioner-Sukadev Naik to the Court. However, the petitioner is at liberty to bring appropriate proceeding against the State and its erring officers for damages on account of unlawful acts of the instrumentalities of the State.

8. In the result, both the CRLMCs. are allowed on contest with cost of Rs.10,000/-(Ten Thousand) to be paid by the State to the petitioner-Sukadev Naik first and subsequently, the State shall realize the cost from the concerned erring officer who had arrested and forwarded the petitioner-Sukadev Naik to the Court. As a logical sequitur, the entire criminal proceeding in S.T. Case No. 31 of 2014, arising out of Moroda P.S. Case No. 36 of 2012 (CID, CB P.S. Case No. 13 of 2015) now pending in the file of learned Sessions Judge, Mayurbhanj at Baripada CRLMC Nos.1773& 2555 of 2017 Page 21 of 22 and the entire criminal proceeding in G.R.Case No.221 of 2015 arising out of Moroda P.S. Case No. 11 of 2015 corresponding to CID, CB P.S. Case No. 14 of 2015 pending in the file of learned S.D.J.M., Baripada are hereby quashed.

9. Accordingly, CRLMC No. 1773 of 2017 and CRLMC No. 2555 of 2017 are disposed of.

Order be communicated to the concerned Court and Department of State Government for compliance.

(G. Satapathy) Judge Kishore CRLMC Nos.1773& 2555 of 2017 Page 22 of 22

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