Orissa High Court
Ramakanta Mallick vs State Of Odisha .... Opposite Party on 5 April, 2023
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.3534 of 2011
Ramakanta Mallick .... Petitioner
Mr. D.P. Dhal, Senior Advocate
-Versus-
State of Odisha .... Opposite Party
Mr. Tapas Kumar Praharaj, SC
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:05.04.2023
1.The petitioner has approached this Court invoking its inherent jurisdiction for quashing of the criminal proceeding in connection with G.R. Case No.145 of 1998 pending in the file of learned S.D.J.M., Sambalpur corresponding to Burla P.S. Case No.16 of 1998 on the grounds inter alia that no prima facie case is established against him by considering the materials on record.
2. On a report lodged by the IIC, Burla P.S. Case No.16 (16) dated 31st January, 1998 was registered under Sections 336 and 304-A IPC with regard to an incident dated 30th January, 1998 during which the Engineering students of UCE, Burla died in river Mahanadi while they were taking bath after release of water from Hirakud dam. The allegation against the petitioner and other officials was that there was serious negligence in not taking adequate measures before opening the sluice gates of the dam. After completion of investigation, the petitioner was chargesheeted along with others, whereupon, the learned court CRLMC No.3534 of 2011 Page 1 of 6 Ramakanta Mallick Vrs. State of Odisha below took cognizance of the offences vide order dated 25th January, 2000.
3. Heard Mr. Dhal, learned Senior Advocate appearing for the petitioner and Mr. Praharaj, learned counsel for the opposite party State,
4. It is submitted by Mr. Dhal, learned Senior Advocate that there was no serious negligence on the part of the petitioner and the water was released from the dam with the siren blown which was ignored by the deceased students. It is further submitted that in course of investigation, it was revealed that one of the students, who survived stated about the siren sound heard by them but they did not pay much importance to it because in odd season, water is rarely released from the dam into the river and they were also under impression that the siren might be of any factory situated nearby normally blown at the time of change of shifts and in such view of the matter, the petitioner, who was by then posted as Assistant Executive Engineer, cannot be alleged of any negligence and moreover, it was a decision, which was taken after spot visit and due deliberation. According to Mr. Dhal, the deceased students had been to the middle of the river bed and could not return back in time, whereas, the survivor managed to reach the shore. It is also revealed from the evidence that the victims were under the influence of alcohol which was detected later. Since normal procedure was followed before release of water from the dam, Mr. Dhal, learned Senior Advocate finally submits that no case of any gross negligence is proved and therefore, the criminal prosecution against the petitioner should be quashed as its continuance would amount abuse of process of law.
5. Mr. Praharaj, learned counsel for the State submits that proper care and caution was not taken by the petitioner and CRLMC No.3534 of 2011 Page 2 of 6 Ramakanta Mallick Vrs. State of Odisha other officials as the level of water was rising in the dam from previous night which was not duly taken cognizance of and no adequate measure was in place before the gates were opened which resulted in death of innocent young Engineering students.
6. As per the prosecution case, on 31st January, 1998, eight students of UCE, Burla had gone to river Mahanadi to take their bath at one of its ghat and suddenly at around at 1.30- 2.00 P.M., water was released from Hirakud dam through two sluice gates, as a result of which, seven of them were swept away and lost their lives with a lone survivor, who could manage to reach to the shore. It was ascertained during enquiry that the local PS was not informed about such release of water and the water level was not properly monitored as it was increasing from previous night and that apart, without taking precautionary measure, the gates were opened by the dam authority which could have given public announcement.
7. Having gone through the chargesheet, it is made to appear that seven students of the Engineering College lost their lives on the date of occurrence while they were taking bath at the middle of the river when water was released from the dam. The death of the students is on account of drowning as revealed from the post mortem reports. The allegation against the dam authority is that no precaution was taken and before that the water level was not properly monitored and for the sudden release of water, the students died. The survivor, a friend of the deceased students deposed that they were taking bath in the river and heard the siren but did not pay importance to it and thought that the same was of some nearby factory but when he realized that the water level was increasing managed to reach the shore in time whereas the CRLMC No.3534 of 2011 Page 3 of 6 Ramakanta Mallick Vrs. State of Odisha fellow students stuck at the middle of the river standing over the top of a rock and finally swept away. The other witnesses whose statements have been recoded under Section 161 Cr.P.C. admitted of having heard about the siren blown before release of the water from the dam. The allegation is about gross negligence of the petitioner and other officials. The evidence collected during investigation though revealed that the increasing water level from the previous night was noticed by the Guage Reader, who was on duty along with another official and when he took charge at 6.AM, found the water level at a particular height and measured it and again, after one hour noticed that the level had increased and by 8 AM, it was above the danger point, whereafter, informed the petitioner and other higher officials and ultimately, with the order received, the sluice gates were opened at about 2.00 PM. It is clearly revealed from the evidence on record that the siren was blown before release of the water which was heard by the student who survived and also others present nearby. However, the record is conspicuously silent as to if the petitioner was in any manner breached standard protocol or had not followed due procedure at the time of release of water from the dam. There is no material on record to suggest that the monitoring of the water level was not duly done by the dam authority. Rather there has been evidence to show due monitoring was taken up on the increase in water level and the petitioner had been to the spot for inspection and thereafter, it was reported to the higher officials and then, the siren was blown and dam gates were opened. On a reading of the FIR, it appears that it has been lodged due to lack of due diligence and adequate precaution. Nevertheless, a procedure seems to have been followed and the petitioner on duty has not been alleged of not confirming to any protocol or established CRLMC No.3534 of 2011 Page 4 of 6 Ramakanta Mallick Vrs. State of Odisha procedure before release of water from dam. In absence of any such material on record to show that there was gross negligence by not following protocol, whether, it would be justified to criminally prosecute the petitioner merely for the reason that some additional measures were required to be taken before the gates of the dam were opened.
8. A case of gross negligence is to be made out against the petitioner, who was on duty at the relevant point of time. The petitioner had inspected the dam on the date of occurrence. The water level in the dam started increasing from previous night which reached the danger point at 8.00 AM and finally water was released during the noon. What protocol is normally followed in such a situation is not revealed or disclosed in the chargesheet. It is also not discernable, as to if, any such protocol or procedure was violated or breached. In usual course, a procedure must be in place. Admittedly, the local PS was not aware of. Is that a procedure or a part of protocol which was to be followed before release of water? The water level increased which was monitored on hourly basis from previous night and as it appears, the same was recorded and in that respect, no lapses found during investigation. It is alleged that the monitoring should have been well in advance since there was unprecedented rain fall in the upper catchment of the reservoir and hence the precautionary measure was needed. Mere absence of additional precaution beyond protocol cannot be a ground to fasten the criminal culpability. It is not a case of gross negligence on the part of the petitioner to be the cause for the casualty. The siren was blown which was ignored or was not seriously taken by the students which rather proved to be fatal. It is also made to appear that there was time left for reaching to the shore but the students failed to do so rather panicked and stuck at the middle of the river. As CRLMC No.3534 of 2011 Page 5 of 6 Ramakanta Mallick Vrs. State of Odisha earlier stated, the evidence revealed that the students were under the influence of liquor which at times might affect one's cognitive faculty and that could possibly be a reason in failing to respond to the call of emergency. But without attributing any contributory negligence against the deceased students which may not be fair and justified, nevertheless, the Court is of the view that the petitioner should not be held grossly negligent in absence of serious breach in protocol. What is the protocol which was required to be followed since not clearly revealed, though the unfortunate incident resulted in the death of young students but in the peculiar facts and circumstances of the case, for not taking additional measures like public announcement or intimation to the local PS, it would not be proper and justified to fasten the liability on the petitioner, who had inspected the spot and had discussions with officials and even intimated the superiors which was followed by an order to the operational staff to open the gates of the dam to release water after observing the normal procedure.
9. Accordingly, it is ordered.
10. In the result, the CRLMC stands allowed. Consequently, the criminal proceeding in connection with G.R. Case No.145 of 1998 pending in the file of learned S.D.J.M., Sambalpur corresponding to Burla P.S. Case No.16 of 1998 is hereby quashed vis-à-vis the petitioner.
(R. K.Pattanaik) Judge Tudu CRLMC No.3534 of 2011 Page 6 of 6