Orissa High Court
Debi Prasad Pattnaik vs State Of Orissa And Others ... Opposite ... on 14 November, 2018
Author: C.R. Dash
Bench: C.R. Dash
ORISSA HIGH COURT, CUTTACK.
CRLMP No.1115 of 2018
Debi Prasad Pattnaik ... Petitioner
Versus
State of Orissa and Others ... Opposite Parties
For Petitioner : M/s. Soura Ch. Mohapatra, D. Panda,
D. Mohapatra, S. Mahanty and G. Mishra,
Advocates.
For Opp. Partiees : Mr. Soubhagya Ketan Nayak, Addl. Govt. Advocate
and Mr. Tapas Ku. Praharaj, Addl. Standing Counsel.
-----------------
PRESENT:
THE HONOURABLE MR. JUSTICE C.R. DASH
-----------------------------------------------------------------------------------------------------------------------------
Order No. 06. Date of Order : 14.11.2018
-----------------------------------------------------------------------------------------------------------------------------
C.R. Dash, J. It was about 4.30 P.M. on 28.08.2018. A four-wheeler (Maruti 800
Car) bearing Registration No.OR-14C-3810 lightly hit a two-wheeler bearing
Registration No.OR-05V-7774. The spot was at Nayabazar (Cuttack town).
Owing to the impact of the light collision, the occupants / riders of the aforesaid
two-wheeler fell down on the road. The incident was followed by a public
commotion. The driver of the four-wheeler (Maruti 800 car) was man-handled by
the local people. Some from the public made a call to the Police. The P.C.R.
Van arrived there at the spot. But, before arrival of the P.C.R. Van, one Dillip
Singh is alleged to have taken away forcibly the ignition key of the Maruti 800
2
car in question, and he is alleged to have beaten the driver of the car on his
head and other parts of the body. The Police personnels present in the P.C.R.
Van asked the driver of the Maruti 800 car to come with them to the Police
Station. He protested by saying that he being innocent and he having been
man-handled and beaten by the public, why should he go to the Police Station.
There was commotion on the road paralyzing the traffic. Some of the police
personnels of the P.C.R. Van are alleged to have beaten the driver of the said
Maruti 800 car with lathi and the driver of the car was alleged to have been taken
to the Police Station forcibly. The said driver of the four-wheeler (Maruti 800 car)
was Mr. Debi Prasad Pattnaik, who is a practicing advocate of Orissa High
Court. This news spreaded to the advocates' fraternity. Many Advocates
rushed to the concerned Police Station in groups and Mr. Debi Prasad Pattnaik
was allowed to leave the Police Station by the police.
2. On 29.08.2018, i.e. on the next day itself of the occurrence, a call
for strike was given by the Orissa High Court Bar Association along with other
Bar Associations of Cuttack town demanding arrest of five accused persons
including the police personnels, a Home-guard and aforesaid Dillip Singh.
Subsequently the other Bar Associations of the entire State were invited to the
Orissa High Court Bar Association, a meeting was held, a Joint Action
Committee was formed and the strike continued, and even today, i.e. on
14.11.2018 the strike is on, demanding arrest of the three police personnels
namely Prasanna Kumar Behera (Havildar), Dillip Kumar Samal (Constable) and
Udaya Bhuyan (Constable), who are alleged to have beaten advocate Mr. Debi
Prasad Pattnaik (the driver of the car in question). In the meantime, accused
Dillip Singh and the Home-Guard Kishor Jena have been arrested and released
on bail.
3
3. Many attempts by Hon'ble the Chief Justice, Orissa with his good
gesture along with his companion judges failed to break the impasse. Order
passed by the Hon'ble Supreme Court of India directing the lawyers' fraternity to
end the strike also could not yield any positive result. When there was sight for
a slight hope of joining the members of the Bar in Court work, some untoward
incidents happened and the matter still aggravated prolonging the unfortunate
impasse.
4. The Division Bench presided by Hon'ble the Chief Justice, Orissa
also judicially dealt with the matter, passed different orders and ultimately
passed order for supervision of the investigation conducted by the I.G. of Police,
CID (Crime Branch), as per the direction of the Hon'ble Supreme Court, by a
sitting judge of the Orissa High Court. Though the lawyers of the Bar undertook
to call off the strike on passing of that order by Hon'ble the Chief Justice,
somehow or other the leadership could not impress upon the General Body of
the Bar and thus the strike continued further.
5. During continuance of the strike, an unfortunate incident
happened on 29.10.2018 when some lawyers allegedly belonging to a particular
political party tried to force their entry to the Court to conduct cases in spite of
the strike call by different Bar Associations of the State. On that day, in the
corridor of the Court of the Hon'ble Chief Justice (in the heritage building of the
High Court) some police personnels, who were on duty in civil dress (plain
clothes) were allegedly beaten by some of the advocates, pictures (videos) of
which have been captured by different Close-Circuit Cameras installed in the
Court's corridor. One of the police personnels is stated to have been severely
injured and some of them narrowly escaped with minor injuries on their person.
4
6. As I understand from the arguments advanced by the learned
counsels from the Bar, since the police personnels were in civil dress, they were
mistaken to be the members of the particular political party who had come to the
Court premises in guise to create problems in the peaceful strike run by the
advocates, and for that reason they were beaten up. It is further submitted that,
the advocates so accused had no intention to hurt any police personnel and
whatever had been done, was done for mis-identity.
7. In the meantime, the D.G. of Police initiated an endeavour from
his side to hold talk with the Office Bearers of the Orissa High Court Bar
Association and invited them for a talk to be held in the premises of the office of
the D.G.P. The invitation letter was put for consideration of the General Body of
the Bar and the General Body agreed to initiate / join in the talk, provided the
meeting is held in a third place (an impartial place). Ultimately, the meeting was
held at about 5.00 P.M. on 11.11.2018 to resolve the issue and it continued for
about three hours. As I understood, the meeting was conducted under the
Chairmanship of Dr. R.P. Sharma, D.G. of Police in presence of the President,
Secretary of the High Court Bar Association and other members of the Action
Committee of different Bars of the State, learned Commissioner of Police
(Bhubaneswar-Cuttack), learned I.G. (Headquarters), learned D.C.P., Cuttack
and the Office Bearers of the Constable, Sepoys & Havildar Confederation,
Odisha (as they were also the stake holders in the meeting). The discussion in
the meeting revolved round three principles mainly, i.e. :-
(i) The dignity of the Lawyers as a community should be preserved;
(ii) The moral of the Force (Police) should not be down; and
(iii) Modalities for checking recurrence of such type of incident in
future.
5
8. The discussions in the aforesaid meeting, as I understand, was
positive and it was conducted in a cordial and friendly manner. The larger
interest of the general public was the driving force for all the participants in the
meeting. The following mutual acceptable solutions with follow up modalities
and sequences were to be worked out, as decided in the meeting :-
(i) The alleged erring police personnels shall feel sorry for their act
relating to the incident dated 28.08.2018 and shall apologise;
(ii) Two of the lawyers from amongst the accused lawyers, who are
alleged to have beaten the police personnels on 29.10.2018 in the
High Court's corridor, shall feel sorry for their act and shall
apologise.
(iii) All the cases and counter cases relating to the alleged incident
dated 28.08.2018 and 29.10.2018 shall be withdrawn.
(iv) The modalities, as aforesaid, shall be taken up after the strike is
called off.
9. Still the strike was not called off, the Division Bench presided by
Hon'ble the Chief Justice on 12.11.2018 passed order keeping in abeyance the
order passed by competent Authority, revoking the suspension order of the so
called three erring police personnels. On the same day itself in this CRLMP,
prayer was made to give effect to the compromise reached in the meeting dated
11.11.2018, by a judicial order in the larger public interest. Accordingly, the case
(CRLMP) is taken up today on the basis of the composition reached in the
meeting dated 11.11.2018 under the Chairmanship of the learned D.G. of Police.
10. Sri Prasanna Kumar Behera (Havildar No.163), Sri Dillip Kumar
Samal (Constable No.C/447) and Sri Udaya Bhuyan (Constable No.OAPF/58)
being personally present in Court felt sorry for the alleged incident dated
6
28.08.2018 and begged unqualified apology before the Court for the said
unfortunate incident dated 28.08.2018. They have also filed a written memo to
that effect in Court today, which be kept on record.
11. Mr. Satyabrata Mohanty, learned Secretary of the Orissa High
Court Bar Association, who is stated to be an accused in the alleged incident
dated 29.10.2018, with much magnanimity, apologized before this Court for the
unfortunate incident dated 29.10.2018. He also files a written memo to that
effect, which be kept on record. It is specifically submitted that, though the
lawyers have gone on strike for a cause, they have no grudge against the entire
police force, and the incident dated 29.10.2018 happened unfortunately under a
peculiar circumstance.
12. I feel appropriate to reproduce here a quote of Bishop Robert
South, which I think is apt to the situation and convey the idea that nobody
belittle himself by saying "sorry" -
" Repentance hath a purifying
power, and every tear is of a
cleansing virtue; but these
penitential clouds must be
still kept dropping; one
shower will not suffice; for
repentance is not one single
action, but a course."
Repentance or feeling sorry for a particular act is not the act of a
coward. It needs courage, it needs dignity, it needs proper human values in a
7
person. A man, who can feel sorry, is undoubtedly a courageous and dignified
human being.
As quoted supra, if repentance would be a course and not a single
action, the act for which we repent shall not get repeated in future. I must
appreciate the wisdom of Dr. R.P. Sharma, learned D.G. of Police, who confined
the discussion among the stake holders in the meeting dated 11.11.2018 to two
cardinal principles :-
(i) Preservation of the dignity of the Lawyers as a community,
and
(ii) Preservation of the moral of the Force.
13. The dignity of a lawyer is everything to him (lawyer). The dignity
of the Court also depends on the dignity of the lawyers in the society. Much
credibility of the Bar Associations in the public eye has had been lost for this
prolonged strike, and I must appreciate the efforts of learned members of the
Bar who had participated in the meeting dated 11.11.2018 for conducting
themselves in the meeting in a dignified manner exhibiting their broadness of
mind than meanness of heart. Such an appreciation must also be bestowed on
the Office Bearers of the Odisha Constable, Sepoys & Havildar Confederation.
14. If the dignity of a lawyer is lost, everything is lost for him. It is like
the virtue of a chaste woman and the health of a living being. If that one is lost,
everything is lost. Who is an advocate ? A man of dignity, a man who is
disciplined in his utterance and conduct, one who is suave, a man who
commands respect in the society, a wise man, a logical man, a prudent man,
one who is brilliant in his work and steady in his perseverance, one who is
courageous, broad and level headed, one who has all the human qualities of
benchmark value like compassion, empathy, love for truth and justice, and so
8
on, and in one word, someone who is a gentleman. If one claims himself to be
an advocate, he must ask himself whether he has any of the above qualities,
whether he is disciplined in his conduct and utterances and whether he is a
gentleman.
15. Whatever was done, was done. But the damage that has been
done to the general public by a prolonged strike cannot be compensated in any
way. I can also feel the plight of marginal advocates and the new entrants to the
Bar, who are still working as Juniors, for this prolonged strike. The dignity of the
lawyers have however been preserved because of their sincere attempt to settle
all the matters, respecting the larger interest of the public by shifting their stand.
I trust and hope that the learned lawyers must be satisfied with the result that
came after the prolonged strike.
Critics with a myopic vision and a narrow perspective may
question, "who won or who lost ultimately ?" They may say if the strike could
have been called off on the ground of unqualified apology tendered by the erring
police officials, why such prolongation of the strike period ? I would say, it was
not a battle or war between the lawyers and the police. It was a fight for a
cause. Much efforts were put by Hon'ble the Chief Justice (who is totally new to
the State), by the leadership of the Bar and the agencies of the State to bring
down the matter to today's situation, which would not have been possible, but for
the perseverance and continuous efforts of all the stake holders. The matter is
ultimately going to be resolved not in a "win-loss situation" but a "win-win
situation" for all in the larger public interest. I therefore appreciate the courage
of both the Bar Association and the Constable, Sepoys & Havildar Confederation
to bring the matter to an end in a "win-win situation". None has won, none has
lost, but the beam of a win is there in everybody's face and that is the power of
reaching a composition.
9
16. Moral of the Force, according to me, is the prime mover for the
police personnels to act against injustice, control law and order situation and to
fight against the criminals and the extremist elements. If that morale is down for
any reason today, tomorrow there may be anarchy in the society. The way the
matter has been brought to an end by efforts of all deserve appreciation.
According to Lassiez Fair Theory, no doubt, the police is a necessary evil for a
developed society. But they are necessary to preserve law and order and to
provide security to us, so that we can live peacefully and enjoy our liberty in a
free and fearless manner.
17. The meeting dated 11.11.2018 held under the Chairmanship of
the learned D.G. of Police having resolved to take certain steps, I feel it proper,
in the larger public interest and for the benefit of the litigant public who are
yearning for the protection of their rights, to give judicial stamp to the
composition reached. Extraordinary situation not only needs extraordinary
remedy but also needs extraordinary approach. I, therefore, invoke my plenary
powers under Article 226 of the Constitution of India to ordain the composition
reached on 11.11.2018, by judicial clothing.
18. Regarding the alleged incident dated 28.08.2018, the following
cases have been initiated :-
(i) Chauliaganj P.S. Case No.215 of 2018 / CID-CB Case
No.17 of 2018 (Siba Prasad Sahu - informant vrs. Debi
Prasad Pattnaik - accused) - Offence under Sections
279/337/338/294/323/506, I.P.C.
(ii) Chauliaganj P.S. Case No.216 of 2018 / CID-CB Case
No.18 of 2018 (Hav. Prasanna Kumar Behera - informant
10
vrs. Debi Prasad Pattnaik - accused), Offence under
Sections 294/323/353/506, I.P.C.
(iii) Chauliaganj P.S. Case No.217 of 2018 / CID-CB Case
No.19 of 2018 (Debi Prasad Pattnaik - informant vrs. Hav.
Prasanna Kumar Behera, Dillip Kumar Samal, Udaya
Bhuyan, Kishor Jena and Dillip Singh - accused), Offence
under Sections 294/325/307/34, I.P.C.
(iv) Chauliaganj P.S. Case No.218 of 2018 / CID-CB Case
No.20 of 2018 (Dillip Singh - informant vrs. Debi Prasad
Pattnaik - accused), Offence under Sections
279/323/294/506, I.P.C.
In all the aforesaid four cases, Notice by the Police was given to
the accused persons under Section 41-A, Cr.P.C. Sri Prasanna Kumar Behera,
Havildar, Dillip Kumar Samal, Constable and Udaya Bhuyan, Constable
appeared before the Police in obedience to the Notice under Section 41-A,
Cr.P.C. and their statements under Section 161, Cr.P.C. were recorded.
Accused Dillip Singh and Kishor Jena (Home-Guard) however did not appear in
obedience to the Notice under Section 41-A, Cr.P.C. Therefore, both of them
were arrested, their statements were recorded, they were produced before the
Magistrate and released on bail.
19. In course of supervision of the cases, I have found that no offence
under Section 307, I.P.C. is made out prima facie against any of the accused
persons. However, the I.O. was directed to look into that aspect taking into
consideration the entire materials on record, at the time of filing of charge-sheet.
Notice having been given to the accused persons in all the cases under Section
41-A, Cr.P.C., it can be held that, no accused person(s) is involved in any
11
serious offence. Therefore, taking into consideration the larger interest of the
public and especially the interest of the litigants, the F.I.Rs. in all the aforesaid
four cases are quashed.
20. So far as the unfortunate incident dated 29.10.2018 is concerned,
on the basis of F.I.R. lodged by one Jitu Nemai, Lalbag P.S. Case No.167 of
2018 for the offence under Sections 341/323/325/294/427/365/506/395/34,
I.P.C. has been initiated. Similarly, on the basis of F.I.R. lodged by one Satya
Narayan Chhualsingh, Lalbag P.S. Case No.166 of 2018 for the offence under
Sections 332/294/365/395/34, I.P.C. has been initiated.
It is fairly submitted at the Bar that, addition of Section 395, I.P.C.
in the F.I.R. is a technical addition, as the incident happened in a mob frenzy
and offence under Section 365, I.P.C. in both the cases has been added, as the
police personnels were dragged to the Bar Association Hall on the ground of
mis-identity that they are members of a political party. However, the matter
having been settled between the parties and apology having been tendered by
one of the supposed accused persons and especially the Secretary of the High
Court Bar Association, the F.I.Rs. in both the aforesaid cases are also quashed.
21. Competent petition may be filed by the State before the Division
Bench of Hon'ble the Chief Justice for recalling the order dated 12.11.2018,
keeping in abeyance the administrative order of revocation of the suspension in
respect of Havildar Sri Prasanna Kumar Behera, Constable Sri Dillip Kumar
Samal and Constable Udaya Bhuyan, and the same may / shall be dealt with
judicially in view of quashing of the F.I.Rs. in all the aforesaid cases. Any
consequential administrative proceeding initiated against the alleged erring
police personnels be dropped by the competent authority in the administrative
side.
12
22. I feel persuaded to observe here that the magnanimity of the
parties in saying "sorry" before the Court and tendering apology for the
respective incidents shall not be treated as "Admission" for any subsequent legal
proceeding, if any.
23. Though the talk among the parties was initiated mainly on three
principles, the minutes of the meeting supplied to me by the State does not
address the third principle, i.e. checking of recurrence of such incident in future.
Now-a-days, if someone throws a stone, that may land on the head of a person,
who may claim himself to be an advocate, though he may not be a real advocate
in the true sense of the term. Any person having a license granted by the Bar
Council is technically treated as an advocate. But, in fact, an advocate is one
who has got a standing practice in litigation side. If I address the issue on my
own without assistance from experts, the guidelines so framed may be a cloak
for some unwanted persons to take undue benefit by diminishing the morale of
the force.
In view of such fact, I direct the appropriate Government to
constitute a Committee under the Chairmanship of a retired High Court Judge of
the choice of the Government within 7 (seven) days from today. The Additional
Chief Secretary to Govt. in Home Department shall be the Member Secretary of
the said Committee and other official members shall be (1) Secretary to Govt. in
Law Department, (2) D.G. of Police, (3) I.G. of Police (Headquarters) and (4)
Commissioner of Police, Bhubaneswar-Cuttack. Further, the President and
Secretary of the Orissa High Court Bar Association in their official capacity shall
be the Ex-officio Members of the Committee. Besides them, 3 (three) advocates
selected by the Executive Body of the Orissa High Court Bar Association shall
be the Members of the Committee, out of whom 2 (two) Members must be
13
recognized Senior Advocates with minimum 35/40 years of practice experience,
who, in my view, have seen transition of law, lawyers and lawyering. No
Advocate member of the proposed Committee should be a member of any
political party. The Committee should be constituted within 7 (seven) days from
the date of receipt of this order, and they shall give their report within 2 (two)
months of their first meeting. The non-official Members of the Committee shall
be given T.A. and D.A. at the rate applicable to the learned Advocate General
for each day's sitting. The recommendation of the Committee shall be
scrutinized judicially after it is received with the assistance and submissions by
Members of the Bar, who may volunteer to submit before the Court in the matter.
It is reiterated here that, the Committee shall suggest ways and means and
modalities for checking recurrence of such incident in future.
24. Before parting with the order, I may mention here that the
Constitution Bench of the Hon'ble Supreme Court, in the case of EX-CAPT.
HARISH UPPAL vrs. UNION OF INDIA AND ANOTHER, (2003) 2 Supreme
Court Cases 45, have held that Lawyers have no right to go on strike or even
token strike or to give a call for boycott of Court. Hon'ble Supreme Court having
given the reason for such a conclusion, I do not find it proper to reiterate the
same by extraction. I, however, request the Orissa High Court Bar Association
to take appropriate measures not to jump on unnecessary strike on prima facie
picture of a particular incident, without applying wisdom on the entire issue.
25. Fraction in the Bar on party line is not a good sign for the Bar and
Bench. Though I have no advisory jurisdiction to advise the Bar Association
regarding the aftermath that followed the incident dated 29.10.2018, I hope and
trust that, forgetting all past bickering, all members of the Bar crossing party-line
shall be one again for the larger interest of the Bar.
14
26. I also appreciate the assistance rendered by all concerned in
course of hearing of the case, including the assistance by the Addl. Government
Advocate and the Addl. Standing Counsel.
27. List this matter in the last week of January, 2019 for further orders.
28. Five free copies of this order be supplied to the learned Advocate
General, Odisha for onward transmission of the same to different Government
Authorities.
........................
C.R. Dash, J.
Orissa High Court, Cuttack. The 14th November, 2018. S.K. Parida, Secretary.