Orissa High Court
Pradeep Kumar Shrestha vs State Of Odisha & Others .... Opp. ... on 11 September, 2023
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(CRL)No.42 of 2022
Pradeep Kumar Shrestha .... Petitioner
Mr. Subhashis Mishra, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Ms. Saswata Patnaik
Addl. Govt. Advocate for opp.
parties nos.1 to 5
Mr. Satyabrata Panda, Central
Government Counsel for opp.
party no.6
CORAM:
JUSTICE S.K. SAHOO
JUSTICE S.S. MISHRA
ORDER
Order No. 11.09.2023 16. This matter is taken up through Hybrid
arrangement (video conferencing/physical Mode).
Heard learned counsel for the petitioner, learned Addl. Govt. Advocate appearing for opp. parties nos. 1 to 5 and learned Central Govt. Counsel appearing for opp. party no.6.
The petitioner Pradeep Kumar Shrestha has filed this writ petition in the nature of habeas corpus with a prayer as to why the detention of his brother Pratap Kumar Shrestha by the Inspector in-charge of Aska police station shall not be declared as illegal and why proper // 2 // direction should not be issued to release him from police custody forthwith.
In the writ petition, it is averred that the brother of the petitioner is an ex-army personnel and during his service period, one disciplinary proceeding was initiated against him by the Commandant of his wing and in the meantime, the brother of the petitioner retired from his service and on 17.03.2022 around 7.15 p.m., all of a sudden four local police personnel of Aska police station came to the house of the petitioner and forcibly dragged his brother from the house even though it was objected to by the petitioner and his family members. Though it was intimated to the family members that there is a cognizable offence pending against Pratap Kumar Shrestha and vide Court order, they were bound to arrest him but when the petitioner demanded the copy of such order, neither the Inspector in-charge of Aska police station nor any of his staff shown any such copy. No document or order or letter was shown to the petitioner and his brother was forcibly taken into custody. It is the further case of the petitioner that he and his family members came to Aska police station and tried to meet his brother but the Inspector in-charge of Aska police station refused to allow them to meet and asked them to come on the next day i.e. 18.03.2022. On the next day again, when the petitioner and his family members came to the police station and tried to meet Pratap Kumar Page 2 of 12 // 3 // Shrestha, they were told that he was not in their custody and had been handed over to army personnel who came from New Delhi. It is further stated that the petitioner and his family members were kept in darkness regarding the whereabouts of Pratap Kumar Shrestha till filing of the writ petition and the opposite party no.5 has detained him without any allegation and that the police officials of the Aska police station exceeded their jurisdiction.
After notice was issued, the opposite party no.5, i.e. the Inspector in-charge of Aska police station filed the counter affidavit dated 07.07.2022 wherein it is indicated as follows:
"2. That the brief fact of the matter is that, in obidence to the letter number 224/CR/ 60/298/22 dtd. 02/02/2022 of IGP, Southern Range, Berhampur in connection with the letter no. CF/308103/83/A dtd. 14.01.2022 of Captain Sanyam Kaushal, Officiating Adjutant for Commanding Officer, 109 light Air Defence Regiment (Self Propelled), CO, APO-56 and Letter no.430/Jud./XXXI-4/2022 Dtd. 18.02.2022 of Collector & District Magistrate, Ganjam, Chatrapur for early apprehension of Sri Pratap Chandra Shrestha, No.15785916H (Ex Hav (OPR), S/o- Sri Lingaraj Shrestha, Vill- Bada Kharida, PS- Kabisuryanagar, District- Ganjam, PIN-761041 (Odisha) and to produce Page 3 of 12 // 4 // him at nearest Military Station (Ad College / Army AD Centre), Sri Pratap Chandra Shrestha was apprehended on 18.03.2022 at 12.15 PM from his present house at College Square, Aska by Kabisuryanagar P.S. staff and with proper intimation to his family members. In this regard Kabisuryanagar PS GD no.011 dtd. 18.03.2022 has been prepared. After his apprehension on the same day i.e. on 18.03.2022 he was immediately taken to the nearest military camp i.e. the Commanding Officer, Army AD College, Golabandha and handed over to Major, Adjutant, 28 Air Defence Regiment with proper handing taking charge.
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5. That, in reply to the averments made in Paragraph Nos.5 & 6 of the petition, it is humbly submitted that Pratap Chandra Shrestha was not arrested in any cognizable offence, case rather he was apprehended as per the direction of the Army Authority vide Memo No.431 dtd. 18.02.2022 of Additional District Magistrate, Ganjam, Chhatrapur and was handed over to them on the same day.
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7. That, in reply to the averments made in Paragraph No.8 of the petition, it is humbly Page 4 of 12 // 5 // submitted that the brother of the petitioner was apprehended on 18.03.2022 as per the direction of the Army authority and he was also handed over to the Army authority on the same date and was not detained more than 24 hours.
8. That, in reply to the averments made in Paragraph No.9 of the petition, it is humbly submitted that at the time of the apprehension of Sri Pratap Chandra Shrestha, intimation was given to his family members immediately as regard to the cause of his apprehension and by whom apprehended."
The opposite party no.6, i.e. the Commanding Officer, 109 Light Air Defence Regiment (Self Propelled) has filed an affidavit dated 28.11.2022 wherein it is mentioned as follows:
"2. That it is humbly submitted here that number 15785916H Havildar (Operator) Pratap Chandra Shrestha of 109 Light Air Defence Regiment (Self Propelled) was arrested due to non compliance of orders to surrender himself for implementation of orders of inquiry, in which the above mentioned persons was found to be guilty for the offence on 26.07.2020.
i) Maintaining an illicit physical Page 5 of 12 // 6 // relation with Mrs X, wife of Sep Samaresh Ghosh, integrated Head Quarter of Ministry of Defence (Army) Transport Company.
ii) Association with M/s, Naswiz Retail Pt Ltd. & engaging in to activities involving financial transactions in contravention to Para 339 of regulations for the Army (Revised Edition) 1987.
3. That it is humbly submitted here that, the above mentioned matter has been dealt in accordance with direction of the Higher Formation/ Head Quarter as per Army Rules and Regulation. 109 Light Air Defence Regiment (Self Propelled) had given sufficient time to Pratap Chandra Shrestha to report to Military Authority for pending discipline proceeding which he committed while he was in service and as per Army Act 123 is liable to face discipline proceedings even after discharge from service. However, the petitioner brother (Pratap Chandra Shrestha) neither reported nor intimated his present location to avoid undergoing the discipline proceeding. Thereafter 109 Light Air Defence Regiment (Self Propelled) was left with no Page 6 of 12 // 7 // option but to approach Civil Administration to apprehend the brother of the petitioner legally who was require by Military Court for further disciplinary proceeding.
4. That it is humbly submitted here that, the Pratap Chandra Shrestha was well aware that a Court of Inquiry is pending against him before proceeding on retirement, once the Court of proceedings were received, after obtaining sanction from competent authority to invoke Army Act Section 123 this unit had directed the Pratap Chandra Shrestha to report the unit by 20.07.2021 vide unit letter No 308103/XX/A dated 10.07.2021.
5. That it is humbly submitted here that, the Pratap Chandra Shrestha called of then commanding officer colonel Ankur Vikas Vaidya, SM and confirmed his inability to report the unit on 20.07.2021 being unwell and that he will report to the unit on 02.08.2021. However, on 02.08.2021 unit record a call further stating that he is unable to report to unit as he is suffering from fever. He will be able to report after being declared healthy the same was reported to higher formation. Head Quarter vide unit letter No 308103/X/A dated Page 7 of 12 // 8 // 02.08.2021.
6. That it is humbly submitted here that, the Pratap Chandra Shrestha sought a copy of Court of Inquiry before reporting to the unit vide his personal application No 15785916H/XX/Pers dated 19.08.2021. In reply to letter dated 10.07.2021 by the unit.
7. That it is humbly submitted here that, a number of time he was called to appear himself for implementation of orders of the Court of Inquiry, however he never reported. 109 Light Air Defence Regiment (Self Propelled) forwarded a set of documents to his home address but the same was returned back to the unit with an endorsement of address not found and also the new home address was not available with the unit.
8. That it is humbly submitted here that, vide letter No CF/308103/83/A dated 14.01.2022 Captain Sanyam Kaushal, Officiating Adjutant for commanding officer 109 Light Air Defence Regiment (Self Propelled), CIO, APO-56 and letter No 430/Jud/XXXI-4/2022 dated 18.02.2022 of collector & District Magistrate, Ganjam, Chatrapur and letter No 224/CR 60/298/22 dated 02.02.2022 of IGP, Southern Range, Berhampur for early Page 8 of 12 // 9 // apprehension of Pratap Chandra Shrestha No 15785916H (Ex. Hav OPR) and to produce him at nearest Military Station."
A further affidavit has been filed by the opposite party no.5 on behalf of opposite parties nos.1 to 5 pursuant to the order of this Court dated 09.03.2023 wherein it is mentioned as follows:
"4. That, it is humbly submitted that the brother of the petitioner Sri Pratap Chandra Srestha belongs to Village Bada Kharida of Ganjam District, which comes under Kabisuryanagar Police Station.
It is submitted that said Pratap Cahndra Shrestha was working as 15786916-H - Havildar (Operator) due to his involvement in a Disciplinary Proceeding, Captain Officiating Adjutant for Commanding Officer vide Annexures A/S & D/S requested the Superintendent of Police, Ganjam and the Dist. Maigatrate, Ganjam to initiate requisite measures at the earliest to apprehend Sri Pratap Chandra Srestha for completion of pending disciplinary proceeding under Section 123 of the Army Act.
Thereafter, the IIC Kabisuryanagar, being instructed by the Addl. District Magistrate, Ganjam vide memo No. 431 18.2.2022 to apprehend Sri Pratap and to ensure his Page 9 of 12 // 10 // appearance before the Colonel Commanding Officer, 109 LADR proceeded to apprehend Sri Pratap Chandra Srestha.
On the date of apprehension, the IIC, Kabisuryanagar got reliable information that Sri Pratap Chandra Srestha is taking shelter at College Square, Aska, which comes under Aska Police Station. Accordingly, the IIC, Kabisuryanagar apprehended Sri Pratap Chandra Srestha on 18.3.2022 at Aska and handed over him to Major, Adjutant, 28 ADR.
It is further submitted that the petitioner was apprehended and handed over to the authority concerned as per the letter dated 6.12.2021 (vide Annexure-A/5 of the Counter Affidavit) of the Colonel Commanding Officer, 109 LADR under Section 104 of the Army Act. Copy of extract of relevant provisions of Army Act is annexed herewith as ANNEXURE-E/5."
After hearing learned counsel for the respective parties, we find that the brother of the petitioner, namely, Pratap Chandra Srestha who was the Havildar (Operator) of 109 Light Air Defence Regiment (Self Propelled) was arrested due to non-compliance of the orders to surrender himself for implementation of orders of inquiry, in which he was found to be guilty for the offence on 26.07.2020. We further found that the matter Page 10 of 12 // 11 // has been dealt in accordance with the direction of the Higher Formation/ Headquarter as per Army Rules and Regulation. 109 Light Air Defence Regiment (Self Propelled) had given sufficient time to Pratap Chandra Srestha to report to Military Authority for pending disciplinary proceeding and as per section 123 of the Army Act, he is liable to face disciplinary proceedings even after discharge from service. However, the brother of the petitioner neither reported nor intimated his present location to avoid undergoing the disciplinary proceeding for which 109 Light Air Defence Regiment (Self Propelled) was left with no option but to approach Civil Administration to apprehend the brother of the petitioner legally who was required by military Court for further disciplinary proceeding.
Though the learned counsel for the petitioner urged that at the time of arrest, it was not intimated to the family members of the petitioner as to why his brother was taken into custody and the arrest memo was not prepared and the brother of the petitioner was not produced before the Magistrate's Court within 24 hours and therefore, the ratio laid down by the Hon'ble Supreme Court in the case of D.K. Basu -Vrs.- State of West Bengal and others reported in (1997) 1 Supreme Court Cases 416 has been flouted in the case but we find that there is no specific pleading to that effect in the writ petition.
Page 11 of 12// 12 // In view of the foregoing discussion, we find that the brother of the petitioner has been taken into custody in accordance with law and his detention by the army authorities cannot be said to be illegal or unlawful in view of the series of letters annexed to the counter affidavits and keeping in view the provisions under sections 104 and 123 of the Army Act, 1950, we are of the humble view that the writ petition is not maintainable in the eye of law and accordingly stands dismissed.
Issue urgent certified copy as per Rules. The original inquiry report of Pratap Chandra Srestha, the brother of the petitioner submitted by the learned Central Govt. Counsel be returned to him on being substituted by a xerox copy of the same.
( S.K. Sahoo) Judge (S.S. Mishra) Judge sipun Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Sep-2023 15:32:05 Page 12 of 12