Orissa High Court
Kalyani Behera vs State Of Odisha And Others .... Opp. ... on 7 May, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 08-May-2024 19:16:09
IN THE HIGH COURT OF ORISSA AT CUTTACK
Misc. Case No.17725 of 2015
[arising out of W.P.(C) No. 1639 OF 2014]
(An application under Order VI Rule 17 CPC read with
Chapter VI Rule 27(A) of the Orissa High Court Rules
******
Kalyani Behera .... Petitioner
-versus-
State of Odisha and others .... Opp. Parties
Advocates appeared:
For Petitioners : Mr. Himansu Sekhar Mishra, Advocate
For Opp. Parties : Mr. Samiya Kumar Mishra,
Additional Government Advocate
(For Opposite Party No.1)
Mr. Santanu Kumar Sarangi, Senior Advocate
being assisted by Mr. Sudeep Kumar Sarangi,
Advocate
(For Opposite Party Nos.2 to 4
CORAM:
JUSTICE K.R. MOHAPATRA
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Date of Order : 07.05.2024
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ORDER
1. This matter is taken up through hybrid mode.
2. This is an application for amendment of the Writ Petition. The Petitioner prays for following amendment to the averments of the writ petition.
"SCHEDULE Proposed amendment -
In para- 3 After the words "She brought the accused persons Gupta Prasad Satpathy, Basanti Satpathy and Kajal Satapathy to P.S. I.A.No.17725 OF 2015 Page 1 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 08-May-2024 19:16:09 // 2 // around' and before 'and arrested', 5.30 P.M. to be substituted in place of 8.30 Ρ.Μ. After the words "and arrested them at' and before the words 'she forwarded them to Court', 5.30 P.M. to be substituted in place of 8.30 P.M. In para 5- After the words 'house of the accused persons at 5 P.M. and before the words 'brought THEM' the words 'apprehended/arrest' at 5 P.M., be added. The words 'and arrested them at 8.30 P.M. at Mahila P.S., Bhubaneswar be deleted. In para 8- After the words 'police station at' and before the words 'after completion' 5.30 P.M. be substituted in place of '6 P.M.'. In para 8- After the words "all formalities" the word 'prepared the arrest memo and inspection Memo' be added."
3. Mr. Mishra, learned counsel for the Petitioner submitted that the writ petition has been filed assailing the order dated 12th July, 2013 (Annexure-3) passed by Odisha Human Rights Commission in OHRC Case No.3206 of 2012. While drafting the writ petition, some advertent errors crept in the averments of the writ petition, which necessitates amendment failing which the Petitioner will be highly prejudiced and will suffer irreparable loss.
4. The background of the case is that an FIR was lodged by one Lipi Puspa Rojalina in the Mahila Police Station, Bhubaneswar, which was registered as Bhubaneswar Mahila PS Case No.215 dated 11th May, 2012. On receipt of the FIR, the IIC, Mahila PS directed the Petitioner to take up the investigation of the case. The Petitioner took up charge of the case on 11th May, 2012 at 1.00 PM After opening the case diary and recording the basis of the FIR took up the I.A.No.17725 OF 2015 Page 2 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 08-May-2024 19:16:09 // 3 // investigation and examined the informant; seized the articles. She also examined witness present in the PS. Mentioning the same in the case diary, she proceeded to Khemalata ApartmEnt, Vivekananda Marg and reached there at 2.30 PM. On search, she could not find the accused persons, namely, Opposite Party Nos.2 to 4. On enquiry, she learnt that the accused persons are staying at Flat No.508, Block-E, Falcon Residency, Patia, Bhubaneswar. She left Khemalata Apartment at 4.15 PM and reached the Falcon Residency at 5.15 PM. On reaching Falcon Residency, she apprehended accused persons immediately and brought them to the Police Station. She also informed the same to IIC, Mahila PS. However, due to inadvertent typing mistake, it has been stated in the writ petition that 'she arrested the accused persons at 8.30 PM'. Since the accused persons were apprehended at 5.15 PM, i.e., much before the sunset, as reflected in the case diary itself, the inadvertent error in the writ petition requires necessary amendment. 4.1 It is further submitted that although the accused persons were already arrested at 5.15 PM, but the formalities were to be completed by preparing arrest memo and inspection memo at Police Station only. Those were prepared at 8.30 PM as reflected in the case diary. Hence, the Petitioner sought for amendment of the averments of the writ petition, as proposed above.
I.A.No.17725 OF 2015 Page 3 of 9 Signature Not Verified Digitally SignedSigned by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 08-May-2024 19:16:09 // 4 // 4.2 It is also submitted that the amendment proposed is formal in nature and it does not change the nature and character of the writ petition. Only typographical errors and certain clarifications are proposed to be incorporated by virtue of amendment. Opposite Party Nos.2 to 4 are not going to be prejudiced in any manner if the amendment is allowed. The words 'apprehension' and 'arrest' are synonymous. It is clearly stated in the case diary annexed to the petition for amendment that the accused persons were arrested at 5.15 PM on 11th May, 2012, i.e., much before the sunset. 4.3 He further submitted that the objection filed by the Opposite Party Nos.2 to 4 to the Misc. Case if considered would result in delving into the merit of the writ petition, which is not permissible while considering an application for amendment. Even if the amendment is allowed, it would not amount to allowing the writ petition itself. The burden is still on the Petitioner to prove the averments made in the writ petition. Hence, the proposed amendment should be allowed for just adjudication of the writ petition.
5. Mr. Sarangi, learned Senior Advocate appearing for Opposite Party Nos.2 to 4 vehemently objects to the above. He submits that if the proposed amendment is allowed, it will change the very foundation of the case. By virtue of the amendment, the Petitioner proposes to withdraw the admission made in the writ petition, which is not permissible in law. Drawing attention of the Court to the copy of the case I.A.No.17725 OF 2015 Page 4 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 08-May-2024 19:16:09 // 5 // diary annexed to the petition for amendment, Mr. Sarangi, learned Senior Advocate submitted that it is clearly stated therein that on reaching the Police station, with the accused persons, Petitioner informed the grounds of arrest, prepared the arrest memo and inspection memo and arrested them at PS at 8.30 PM. The case diary is hand-written document by the Petitioner herself. As such, any amendment to the averments of the writ petition to the contrary is not permissible in the eye of law. It is further submitted that the Petitioner in her statement filed before the National Human Rights Commission in NHRC Case No.5401/18/28/2012 OC (Annexure-2) stated as under:-
".......I left Khemalata Apartment towards Patia at about 5.00 PM and reached at Falcon Residency, Patia. As prima facie evidence well established against the accd. person Gupta Prasad Satpathy, Basanti Satpathy and Jajal Satpathy., I apprehended them on dt.11.5.12 at 8.30 PM at Mahila PS, BBSR observing all formalities of arrest and forwarded them to the Hon'ble Court of SDJM, BBSR on 12.5.12 at 3.00 PM after their medical examination and opinion......"
Thus, it is clear that although accused persons were apprehended at 5.15 PM at Falcon Residency, but they were in fact arrested at 8.30 PM on 11th May, 2012 after preparing arrest memo and inspection memo. Thus, by no stretch of imagination, it can be said that Opposite Party Nos.2 and 4 were in fact arrested at 5.15 PM as proposed to be amended. Petitioner on affidavit as stated in the writ petition that accused persons were arrested at 8.30 PM. Any submission I.A.No.17725 OF 2015 Page 5 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 08-May-2024 19:16:09 // 6 // contrary to the same would be withdrawal of the admission. Law is well-settled that amendment seeking withdrawal of admission is not permissible. He also drew attention to the affidavit filed by Opposite Party No.2 enclosing the arrest memo of Opposite Party Nos.2 to 4 as Enclosure-'A'. The arrest memo of Opposite Party Nos.2 to 4 clearly disclosed that the Petitioner arrested them in connection with Bhubaneswar Mahila PS Case No.215 dated 11th May, 2012 at 8.30 PM on 11th May, 2012 at Mahila PS, which is registered under Section 498(A)/294/323/506/34 IPC read with Section 4 of D.P. Act. The forwarding report of Opposite Party Nos.2 to 4 also disclosed that they were arrested on 11th May, 2012 at 8.30 PM. Further, the charge sheet at Enclosure-'C' also corroborates the fact that Opposite Party Nos.2 to 4 (accused persons) were arrested on 11th May, 2012 at 8.30 PM.
5.1 Mr. Sarangi, learned Senior Advocate also drew attention of this Court to Annexure-2/C series to the counter affidavit filed by Opposite party Nos.2 to 4 in the writ petition. The RTI information obtained under Annexure-2/C series also disclosed that as per the information available at the PS, the accused persons including Smt. Basanti Satpathy who sought for information was arrested on 11 th May, 2012 at 8.30 PM in connection with Mahila PS Case No.215 of 2012. Thus, in view of the overwhelming materials to the effect that Opposite Party Nos.2 to 4 were arrested by the Petitioner on I.A.No.17725 OF 2015 Page 6 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 08-May-2024 19:16:09 // 7 // 11th May, 2012 at 8.30 PM, any averment to the contrary proposed to be incorporated by way of amendment will certainly take away the basis of the case of the Petitioner and resultantly prejudice the Opposite Party Nos.2 to 4. He, therefore, prays for dismissal of the Misc. Case filed for amendment of averments of the writ petition.
6. Heard learned counsel for the parties. Perused the materials on record.
7. Mr. Mishra, learned counsel for the Petitioner vehemently argued that the Petitioner intended to file the writ petition with the averments, which she wants to incorporate by way of amendment, but due to inadvertent typographical errors crept in while drafting the writ petition, the Petitioner is constrained to file the amendment petition for just and proper adjudication of the writ petition.
8. On perusal of the averments made in the writ petition, it is apparent that the Petitioner in clear terms has stated that she apprehended the accused persons, namely, Opposite Party Nos.2 to 4 on 11th May, 2012 at Falcon Residency, Patia and brought them to Police Station and on reaching the Police Station, she informed the grounds of arrest to Opposite Party Nos.2 to 4, prepared the arrest memo and inspection memo. It is also clearly stated that the accused persons were arrested on 11th May, 2012 at 8.30 PM in connection with Bhubaneswar Mahila PS Case No.215 dated 11th May, 2012. The crux of the matter is the timing of arrest of the accused persons. Mr. I.A.No.17725 OF 2015 Page 7 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 08-May-2024 19:16:09 // 8 // Mishra, learned counsel for the Petitioner made an endeavor to persuade the Court submitting that 'apprehension' and 'arrest' are synonymous terms and that Opposite Party Nos.2 to 4 are arrested at 5.30 PM at Flat No.508 at Falcon Residency, Patia, Bhubaneswar. Formalities were only completed at the PS on the same at 8.30 PM. If such submission is accepted then the very foundation of the case will change. Amendment seeking to change the foundation of the case cannot be allowed. Further, when the Petitioner herself on affidavit has admitted that Opposite Party Nos.2 to 4 were arrested on 11th May, 2012 at 8.30 PM, any submission to the contrary would amount to withdrawal of admission. Not only in the writ petition but also in the documents, i.e., the case diary annexed to the Misc. Case for amendment clearly disclosed that Opposite Party Nos.2 to 4 were arrested at 8.30 PM on 11th May, 2012 in connection with Bhubaneswar Mahila PS Case No.215 dated 11 th May, 2012.
9. The amendment sought to be introduced is apparently an afterthought. The Petitioner contested the case both before the Odisha Human Right Commission as well as before this Court on the plea that she arrested the accused persons- Opposite Party Nos. 2 to 4 at 8.30 PM at Police Station after informing them the grounds of arrest and preparing Memo of Arrest and Memo of Inspection. Thus, such an amendment cannot be stated to be formal as submitted by Mr. Mishra, I.A.No.17725 OF 2015 Page 8 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 08-May-2024 19:16:09 // 9 // learned counsel for the Petitioner. Further, the terms 'apprehension' and 'arrest' may appear to be synonymous, but both the terms have separate effects in law.
10. As such, the petition for amendment merits no consideration and is accordingly dismissed.
Issue urgent certified copy of the order on proper application.
(K.R. Mohapatra) Judge Orissa High Court, Cuttack, Dated 7th May, 2024/s.s.satapathy I.A.No.17725 OF 2015 Page 9 of 9