Orissa High Court
Sushil Kumar Nayak vs State Of Odisha on 21 August, 2017
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 8012 Of 2016
An application under section 439 of the Code of Criminal
Procedure, 1973 in connection with Sessions Case No.44 of 2016
pending in the Court of Sessions Judge, Sonepur.
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Sushil Kumar Nayak ........ Petitioner
-Versus-
State of Odisha ......... Opp. Party
For Petitioner: - Mr. Nrusingh Charan Pati
M.R. Dash, B. Das
B. Pati, B.K. Swain
For Opp. party: - Mr. Arupananda Das
Addl. Govt. Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Argument: 18.08.2017 Date of Order: 21.08.2017
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S. K. SAHOO, J.The petitioner Sushil Kumar Nayak who was the officer in charge of Bheden police station has re-knocked the doors of this Court for bail in connection with Ulunda P.S. Case No.84 of 2015 in which charge sheet has been submitted under sections 342/302/201/218/120-B of the Indian Penal Code which 2 corresponds to Sessions Case No.44 of 2016 pending in the court of learned Sessions Judge, Sonepur.
The earlier bail application of the petitioner in BLAPL No.6858 of 2015 was rejected by this Court on 29.06.2016 with the following observations:-
"5. Adverting to the contentions raised by the learned counsels for the respective parties, looking at the oral as well as documentary evidence available on record against the petitioner relating to the commission of the offences under which charge sheet has been submitted, the nature and gravity of the accusation against the petitioner, the manner in which the petitioner being the Officer in Charge of Bheden Police Station abused his power, called one innocent person like the deceased to the police station, wrongfully confined and tortured him in order to ascertain the whereabouts of his son, assaulted him to death and then disposed of the dead body inside the jungle and attempted to cover such death and particularly when such type of crimes are rampant in the society which portrays the misuse of powers by the police officers on the poor and backward section of the society and toying with their lives and particularly when chance of tampering with the evidence cannot be ruled out, it would not be proper to release 3 the petitioner on bail in the larger interests of public and State."
The petitioner approached the Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No.7659 of 2016 against the order of this Court dated 29.06.2016 passed in BLAPL No.6858 of 2015. The Hon'ble Supreme Court dismissed the Special Leave petition vide order dated 17.06.2016 holding therein that there was no ground to interfere with the impugned order in exercise of jurisdiction under Article 136 of the Constitution.
The case was instituted on the basis of the first information report submitted by one Biju Bag, son of Makhnu Bag (hereafter 'the deceased') on 24.09.2015 before the Inspector in Charge, Ulunda Police Station vide Ulunda P.S. Case No.84 of 2015 registered under sections 302/201 of the Indian penal Code and after completion of investigation, charge sheet was submitted on 23.02.2016 under sections 342/302/201/218/120-B of the Indian Penal Code against the petitioner and others.
After the commitment of the case to the Court of Session, the petitioner filed an application for bail before the learned Sessions Judge, Sonepur in Sessions Case No.44 of 2016 4 which was rejected on 28.11.2016 holding that there are sufficient materials to warrant strong suspicion about the involvement of the petitioner in the commission of heinous offences like 302/201/120-B of the Indian Penal Code, inter alia, other offences and that the offence of murder appeared to have been committed inside the police hazat of Bheden Police Station.
Mr. Nrusingh Charan Pati, learned counsel appearing for the petitioner contended that the petitioner is in custody since 02.11.2015 and in the meantime after rejection of the earlier bail application, the case has been committed to the Court of Session for trial and some of the co-accused persons have already been released on bail by this Court and an inquiry as contemplated under section 176(1-A) of Cr.P.C. has been conducted by the learned S.D.J.M., Bargarh and he has submitted his report dated 26.05.2016 which was forwarded by the learned Chief Judicial Magistrate, Bargarh to the Superintendent of Police, Bargarh on 20.12.2016 wherein the findings have been recorded that the police officials of Bheden Police Station including the petitioner are no way connected with the death of deceased Makhnu Bag. He further submitted that in view of the change in the circumstances, the bail application of 5 the petitioner needs re-consideration as there is no chance of absconding of the petitioner.
Mr. Arupananda Das, learned counsel appearing for the State on the other hand vehemently opposed the prayer for bail and contended that the petitioner is the main accused in the case and being the Officer in Charge of Bheden Police Station, he called the deceased for interrogation, wrongfully confined him and assaulted him to death and ultimately the dead body was disposed of and fabricated documents were created. He further contended that the chemical analysis test report as well as DNA test report and the other clinching materials available on record make out prima facie case against the petitioner. He further contended that the co-accused persons who have been granted bail stand in a different footing and such contentions were also raised when the earlier bail application of the petitioner was moved. He further contended that the inquiry report was also submitted by the learned S.D.J.M., Bargarh on dated 26.05.2016 which is prior to the rejection of the earlier bail application. He further contended that the learned S.D.J.M., Bargarh while conducting inquiry under section 176(1-A) of Cr.P.C. has given such finding which is not permissible within the scope of inquiry and therefore, on the basis of such finding, the petitioner should 6 not be released on bail particularly when there is every chance of tampering with the evidence by the petitioner.
Therefore, this successive bail application of the petitioner has been filed for re-consideration of the prayer for bail on the following grounds:-
(i) The learned S.D.J.M., Bargarh conducting an inquiry contemplated under section 176(1-A) of Cr.P.C. has given a clean chit to the petitioner regarding his involvement in the death of the deceased;
(ii) The case has been committed to the Court of Session and the petitioner has remained in jail custody since 02.11.2015 and there is no progress of trial;
(iii) Some of the co-accused persons have been enlarged on bail.
The principle relating to entertaining successive bail applications of the accused has been dealt in a catena of decisions of the Hon'ble Supreme Court, different High Courts including this Court. In case of Deepak Gupta -Vrs.- State of Orissa (Vigilance) reported in (2016) 64 Orissa Criminal Reports 102, it is held as follows:-
7
"5. Law is well settled that an accused has a right to make successive applications for grant of bail but successive bail applications are permissible under the changed circumstances.
The change of circumstances must be substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Without the change in the circumstances, the subsequent bail application would be deemed to be seeking review of the earlier rejection order which is not permissible under criminal law.
While entertaining such subsequent bail applications, the Court has a duty to consider the reasons and grounds on which the earlier bail applications were rejected and what are the fresh grounds which persuade it warranting the evaluation and consideration of the bail application afresh and to take a view different from the one taken in the earlier applications. There must be change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which the application for bail of an accused that has been rejected earlier can be reconsidered.
Section 176 of Cr.P.C. deals with inquiry by Magistrate into cause of death as mentioned under section 174 8 of Cr.P.C. Section 176(1-A) of Cr.P.C. came into force w.e.f.
23.6.2006 which reads as follows:-
"176. (1-A) Where-
(a) any person dies or disappears, or
(b) rape is alleged to have been committed on any woman, while such person or woman is in the custody of the police or in any other custody authorised by the Magistrate or the Court, under this Code, in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed."
Section 176(1-A) of Cr.P.C. contemplates for conducting an independent inquiry by a Judicial Magistrate or by a Metropolitan Magistrate, as the case may be, within whose local jurisdiction the custodial death or disappearance of a person or rape of a woman while in police custody or in any other custody authorised by the Magistrate or the Court. This inquiry is in addition to the inquiry or investigation by the police. The manner in which the inquiry has to be conducted has been dealt with in section 176 of Cr.P.C. This scope of inquiry by the Magistrate is to ascertain the 'cause of death'. 9
'Cause of death' is a term which is used to indicate the medical cause of death. It lists the disease(s) or injuries that caused death. The manner of death is determined by the medical examiner. In law and medicine, cause of death is a term which refers to an official determination of conditions resulting in a human's death. The cause of death means the thing that made the death happened. Death may be natural, accidental, suicidal and homicidal. When the information is that death of a person has taken place either by suicide or he has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence or that a woman has committed suicide within seven years of marriage or that there are circumstances raising a reasonable suspicion relating to the death of such woman within seven years of marriage period that some other person committed an offence in relation to such woman as envisaged under section 174 of Cr.P.C., it comes within the scope and ambit of the inquiry contemplated under section 176 of Cr.P.C. The custodial death may be in the custody of the police or in any other custody authorized by the Magistrate or the Court. Therefore, the inquiry contemplated under section 176(1-A) of Cr.P.C. is restricted only to ascertain 10 the cause of death. A Magistrate holding such inquiry cannot go beyond its scope. There is no scope for a Magistrate conducting such inquiry to give a finding in his inquiry report as to who are persons responsible for the death and the manner in which the injuries were caused. To ascertain the names of the assailants are within the scope and ambit of investigation conducted by police. Rule 203(b) of Orissa Police Rules which deals with death in police custody states that when a person dies in police custody, the officer empowered to investigate unnatural deaths, who receives notice of his death, shall send information at once to the nearest Magistrate empowered to hold inquests, but he shall not refrain from commencing an investigation under section 174 Cr.P.C. and he shall also inform the Superintendent and Inspector by the quickest means and the Inspector shall at once proceed to the spot and take over the investigation and he shall carry it on till the arrival of the Magistrate and shall be present during the inquiry by the Magistrate.
In case of Radha Mohan Singh @ Lal Saheb and Ors. -Vrs.- State of U.P. reported in (2006) 2 Supreme Court Cases 450, it is held as follows:-
"14.....The language of the aforesaid statutory provision is plain and simple and there is no ambiguity therein. An investigation under 11 Section 174 is limited in scope and is confined to the ascertainment of the apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal or caused by animal and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. It is for this limited purpose that persons acquainted with the facts of the case are summoned and examined under Section
175. The details of the overt acts are not necessary to be recorded in the inquest report. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who are the witnesses of the assault is foreign to the ambit and scope of proceedings under Section 174. Neither in practice nor in law it is necessary for the person holding the inquest to mention all these details."
In case of Tmt. R. Kasthuri -Vrs.- State reported in 2015 (1) Madras Law J0urnal (Crl) 455, it is held as follows:-
"24. As it has been explicitly stated in sub-
section (1A), the inquiry by a Judicial Magistrate/Metropolitan Magistrate shall be in addition to the inquiry or investigation conducted by the police. It needs to be 12 mentioned that an inquiry by an Executive Magistrate under sub-section (1) of Section 176 of the Code is either instead of or in addition to the investigation by the police. Therefore, the inquiry held by a Judicial Magistrate/Metropolitan Magistrate shall not be a bar for the police to investigate simultaneously. Since an inquiry held by a Judicial Magistrate, though has got a wider scope than an inquiry held by an Executive Magistrate under sub- section (1) of Section 176 of Cr.P.C., such judicial inquiry cannot be equated to an investigation done by the police in respect of the crime. The inquiry by the Judicial Magistrate/Metropolitan Magistrate may not be a full-fledged one in all respects. For example, he cannot go to various places to recover the material objects involved/connected to the crime or the criminal. Nowhere, it is stated in the Code, that simply because the Judicial Magistrate is holding an inquiry under sub- section (1A) of Section 176 of the Code, the police shall stop investigating the matter. It is needless to point out that after holding inquest under sub-section (1) of Section 176 of the Code, in respect of the cause of death, the Executive Magistrate shall submit a report only to the police as per PSO 151 (Old PSO 145). The police without stopping the investigation or awaiting for the report of the Metropolitan 13 Magistrate or Judicial Magistrate, as the case may be, shall simultaneously conduct investigation to unearth the truth and to bring to book the real perpetrators of the crime. Under sub-section (1A) of Section 176, inquiry held by the Judicial Magistrate or Metropolitan Magistrate is in addition to the investigation held by the police and not in substitution of the police investigation. Neither the investigation made by the police shall preclude a Judicial Magistrate/Metropolitan Magistrate from holding an inquiry under sub-section (1A) of Section 176 nor such inquiry by Judicial Magistrate/Metropolitan Magistrate shall preclude the police from investigating the case. In this regard, I may refer to Chapter VII of the Code. If any case is registered under Section 154 in Chapter VII of the Code, it should reach the logical end with the filing of a report under Section 173 of the Code before the jurisdictional Magistrate. There is no provision in the Code enabling the police to drop the investigation without taking the same to the logical end. Even in a case where the investigating officer finds that either there was no offence committed or for any other reason, no further action could be taken against any individual, he is required to file a negative final report before the jurisdictional Judicial Magistrate/Metropolitan Magistrate and it is for the said Magistrate to 14 consider as to whether to take cognizance from out of materials available or to order for further investigation; or to accept the negative report. Therefore, if there is any death or disappearance or rape, while in police custody, and if it is an offence [as per the expression used in sub-
section (1A)] the investigation shall be conducted by the police without being hindered in any manner by the inquiry held by the Judicial Magistrate or Metropolitan Magistrate, as the case may be, and the investigating officer on completing the investigation, shall submit a final report to the Judicial Magistrate or Metropolitan Magistrate under Section 173 of Cr.P.C."
In the case of State of Gujarat -Vrs.- Union of India which was decided by the Gujarat High Court on 12.08.2010 in a batch of applications including Criminal Misc. Application No. 10625 of 2009 in Special Criminal Application No. 822 of 2004 wherein it is held that the report of the Judicial/Metropolitan Magistrate under section 176 of Cr.P.C., is having a recommendatory value by way of opinion of fact finding inquiry for the cause of the death.
The nature and scope of inquiry contemplated under section 176 of Cr.P.C. being to ascertain the cause of death, any 15 finding given in the inquiry report relating to the names of the assailants of the deceased, how he was assaulted or under what circumstances he was assaulted or who are the witnesses of the assault or that the accused persons named in the police report are not involved in the death of the deceased are without jurisdiction. Such finding or parts of the observations about which the Magistrate does not have any jurisdiction can be held to be a nullity. The entire inquiry report cannot be said to be without jurisdiction. Therefore, only that part of the inquiry report which deals with matters beyond the scope of his inquiry can be said to be without jurisdiction and such part does not have any recommendatory value.
The Inspector in charge, Ulunda police station after conducting investigation of Ulunda P.S. case no. 84 of 2015 submitted chagesheet on 23.02.2016 indicating therein that there is evidence under sections 342/302/201/218/120-B of Indian Penal Code against the petitioner and other police officials to face their trial in the Court of law. The finding of the learned S.D.J.M., Bargarh in the inquiry report dated 26.05.2016 that the police officials of Bheden police Station including the petitioner are no way connected with the death of deceased 16 Makhanu Bag are wholly without jurisdiction and it is a nullity and non est in the eye of law.
Therefore, even if it is held that such an inquiry report of the learned S.D.J.M., Bargarh dated 26.05.2016 was not within the knowledge of the petitioner at the time of rejection of the first bail application of the petitioner by this Court on 29.06.2016 in BLAPL No. 6858 of 2015 and also by the Hon'ble Supreme Court on 17.10.2016 in Special Leave to Appeal (Crl.) No.7659 of 2016, it cannot be said to be a change in the circumstances inasmuch as giving clean chit to the petitioner regarding his involvement in the death of the deceased in the inquiry report is wholly without jurisdiction. Change in the circumstances must be such a change which is legally acceptable. Therefore, the first contention of the learned counsel for the petitioner in seeking for reconsideration of the bail application on the basis of the findings mentioned in the inquiry report is not acceptable and accordingly discarded.
The second contention raised by the learned counsel for the petitioner that case has been committed to the Court of Session and the petitioner has remained in jail custody since 02.11.2015 and there is no progress of trial and therefore, the 17 petitioner's bail application needs reconsideration is also not acceptable.
In case of Kalyan Chandra Sarkar -Vrs.- Rajesh Ranjan @ Pappu Yadav and Anr. reported in A.I.R. 2004 S.C. 1866, it is held as follows:-
"14......This Court also in specific terms held that condition laid down under section 437(1)(1) is sine qua non for granting bail even under section 439 of the Code. In the impugned order, it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe....."18
Therefore, the mere period of incarceration as contended by the learned counsel for the petitioner would not be a factor, by itself, to release the petitioner on bail particularly taking into consideration the seriousness of the offences with which the petitioner is charged and the severity of the punishment that would entail, if the petitioner is convicted. The gravity of the offences in which the petitioner is alleged to have been involved cannot be ignored only because of the period of incarceration.
The third contention raised by the learned counsel for the petitioner is that some of the co-accused persons have been enlarged on bail and therefore, on the ground of parity and equity, the petitioner should be enlarged on bail.
It is the contention of the learned counsel for the petitioner that co-accused Somya @ Soumya Ranjan Patra who was the S.I. of police of Bheden police station in BLAPL No.6825 of 2015, co-accused Pitambar Behera who was the A.S.I. of police of Bheden Police Station in BLAPL No.7365 of 2015, co- accused Gita @ Geetanjali Bhue who was the lady constable in Bheden Police Station in BLAPL No.6799 of 2015, co-accused Pramod Sahoo who was posted as HG driver in BLAPL No. 6892 19 of 2015 have been enlarged on bail. He has filed the bail order copies which are taken on record.
It cannot be lost sight of the fact that the bail orders of the co-accused persons were passed by this Court prior to the rejection of the bail application of the petitioner by this Court as well as by the Hon'ble Supreme Court and such contention was also raised at the time of moving the earlier bail application. On perusal of the case diary and charge sheet produced by the learned counsel for the State, it appears that the petitioner who was the Officer in charge of Bheden police station called the deceased Makhunu Bag to the police station on 17.07.2015 at about 10.00 a.m. to put pressure on him to disclose the present whereabouts of his son Raju who was wanted in another case of Bheden police station. Though the station diary reflects that the deceased left the police station on 18.07.2015 at about 5.15 p.m., he did not return home and was found missing. A human skeleton was found in the jungle and it was found to be the skeleton of the deceased. The petitioner and other police official were present in police station on 18.07.2015. The call details of the petitioner were seized from which his complicity in the crime was found out. The petitioner not only created a written undertaking of the deceased to produce his son Raju Bag within 20 two to three days at Bheden police station in which one thumb impression alleged to be that of the deceased found place.
The co-accused persons Pitambar Behera, Pramod Sahu and Somya @ Soumya Ranjan Patra have been enlarged on bail on the ground that the only involvement against them is the disposal of the dead body which is an offence under section 201 of I.P.C. being bailable in nature. The other co-accused Gita @ Geetanjali Bhue has been released on bail on the ground that she was a sentry remained in charge of hazat and a woman and a local person having no chance of absconding or tampering with the prosecution evidence. The nature and gravity of accusation against the petitioner being the officer in charge of Bheden police station where the custodial death of the deceased took place, appears to be more serious. The petitioner not only called the deceased to the police station but everything done in the police station and outside in the jungle appears to be under his control. On an overall analysis of the materials available on record against the petitioner, I am of the view that his case is not identically similar to the co-accused persons on the facts and circumstances and he stands in a different footing than the co- accused persons who have been enlarged on bail and therefore, the claim of parity and equity as advanced by the learned 21 counsel for the petitioner is not accepted and accordingly the same is rejected.
Considering the nature and seriousness of accusation and its impact on the society, the severity of punishment in case of conviction, reasonable apprehension of tampering with the evidence and availability of prima facie materials against the petitioner regarding his involvement in the commission of offences and above all taking into account his earlier bail rejection order by this Court which was confirmed by the Hon'ble Supreme Court and in absence of any substantial change in the circumstances, I am not inclined to accept the prayer for bail of the petitioner. However, taking into account the period of detention of the petitioner in judicial custody and commitment of the case to the Court of Session, I direct the learned Sessions Judge, Sonepur to expedite the trial.
Accordingly, the bail application sans merit and hence stands rejected.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 21st August, 2017/Pravakar