Orissa High Court
Sushil Kumar Nayak vs State Of Orissa on 29 June, 2016
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL NO. 6858 OF 2015
An application under section 439 of the Code of Criminal
Procedure.
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Sushil Kumar Nayak ......... Petitioner
-Versus-
State of Orissa ........ Opp. Party
For Petitioner - M/s. Sidhartha Das
P. R. Singh
A. K. Mohanty
For Opp. party - Mr. Prem Kumar Patnaik
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- 29.06.2016 Date of order- 29.06.2016
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S. K. SAHOO, J. "Injustice anywhere is a threat to justice
everywhere"
-Martin Luther King, Jr.
More than two decades after the pronouncement of the much celebrated judgment by the Hon'ble Supreme Court in 2 case of Nilabati Behera -Vrs.- State of Orissa reported in AIR 1993 SC 1960 awarding compensation against the State to the mother of a young man consequent upon his death in police custody and even after the amendment to section 41 Cr.P.C. in the year 2010, the civilized society has not been spared with one of worst form of crimes which is called "custodial death". The protectors of the life and liberty of a citizen continue to behave inhumanly resulting the happenings of such crime. Article 21 of the Constitution of India no way bothers them and they act dehors such statutory provision. Here is a case where not only there is accusation of custodial death but the culprits have gone a step ahead by disposing of the dead body to cause disappearance of evidence.
2. The petitioner who was the officer in charge of Bheden Police Station, Bargarh is an accused in Ulunda P.S. Case No. 84 of 2015 which corresponds to G.R. Case No. 297 of 2015 pending in the Court of learned S.D.J.M., Biramaharajpur for offences punishable under sections 342, 302, 201, 218 and 120-B of the Indian Penal Code. He has filed this application under section 439 Cr.P.C. for bail as his prayer for grant of bail was turned down by the learned Sessions Judge in charge, Sonepur vide order dated 23.11.2015.
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3. On 24.09.2015 one Biju Bag, son of Makhnu Bag (hereafter 'the deceased') of village Dekulba presented a written report before the Inspector in Charge of Ulunda Police Station alleging therein that on 17.07.2015, his father had been to Bheden Police Station, Bargarh and did not return back and he was wearing a ghee coloured shirt and check lungi. The informant along with others searched for the deceased and after much enquiry, they received information that one human skeleton was lying in the Metakani Jungle near Ulunda. Basing on such information and with the assistance of local people, they searched and detected a skeleton and seeing the shirt attached to it and the lungi lying near it, they identified the skeleton to be that of the deceased. It is stated in the First Information Report that the police officials of Bheden Police Station tortured the deceased and committed his murder and disposed of the dead body in Metakani Jungle to conceal the offence.
On the basis of such First Information Report, Ulunda P.S. Case No.84 of 2015 was registered on 24.09.2015 under sections 302/201 of the Indian Penal Code.
The Investigating Officer visited the spot along with other police officials and Tahasildar-cum-Executive Magistrate, Ulunda and other independent witnesses and found bones, printed lungi, ghee coloured shirt, printed blanket etc. were lying 4 at the spot. The Investigating Officer conducted inquest over the eight-one pieces of bones lying at the spot in a scattered manner and seized the same in presence the witnesses and prepared the inquest report as well as seizure list. He sent the seized bones and other seized articles to the Professor-cum-Head of the Department, FMT, VSS Medical College and Hospital, Burla to conduct autopsy over the collected bones and also prayed for DNA test. After post-mortem examination, the samples of three numbers of molar teeth, a bunch of hairs and a femur bone kept in three envelops collected by the Medical Officer were produced by the constable which were seized. The Investigating Officer arrived at the DNA Division of SFSL, Rasulgarh, Bhubaneswar and submitted requisition to the Director for issue of two numbers of FTA cards for collection of blood sample of the mother and son of the deceased for DNA profiling test to ascertain whether the bones found from Panichhapar Jungle belonged to the deceased or not. The Investigating Officer contacted the SDMO, Birmaharajpur to depute one Medical Officer for collection of blood sample of the mother and son of the deceased and accordingly the same was done.
The doctors who conducted post-mortem examination opined that all the bones belonged to a single human being, the age of the human being was approximately 5 between 55 to 65 years, the height of the individual was approximately 185 cms., cause of death could not be opined, however, time since death was approximately within three months at the time of autopsy. The Investigating Officer subsequently received the DNA test report which indicated that the molar tooth was of the deceased and accordingly, it was held that the bones collected from Panichhapar Jungle belonged to the deceased Makhnu Bag. The call details report of the accused persons including the petitioner were collected and the accused persons were arrested who confessed their guilt and described as to how the deceased died in the police custody and how his dead body was disposed of in the jungle in order to cause disappearance the evidence. The Investigating Officer seized the Station Diary book of Bheden Police Station and other relevant documents. The petitioner was arrested on 02.11.2015 and he was forwarded to Court on the very day as prima facie evidence under sections 342, 302, 201, 218 and 120-B of the Indian Penal Code was made out against him.
4. The learned counsel for the petitioner Mr. Sidhartha Das contended that the petitioner who was last posted as Officer in Charge of Bheden Police Station is in custody since 02.11.2015 and he has been charge sheeted under sections 342/302/201/218 and 120-B of the Indian Penal Code and that 6 one of the co-accused namely, Pitambar Behera has already been released on bail in BLAPL 7365 of 2015 vide order dated 12.05.2016 and the allegations against the petitioner are similar in nature. He further submitted that there are no eye witnesses to the occurrence and the only material available on record is the confessional statement of co-accused Gitanjali Bhoi and therefore, the bail application of the petitioner may be favourably considered. It is the further contention of the learned counsel for the petitioner that the son of the deceased namely, Raju Bag was involved in case of rape of a deaf and dumb girl and was absconding for which the deceased was called to the police station for interrogation and thereafter the whereabouts of the deceased was not found for which a false case has been foisted against the petitioner.
Learned counsel for the State Mr. Prem Kumar Patnaik, Additional Government Advocate on the other hand opposed the prayer for bail and submitted that it is a case of custodial death and placed the statement of Biju Bag, who is the son of the deceased and he has stated that on 17.07.2015 morning at about 10.00 a.m., the petitioner called the deceased through Grama Rakshi Kusal Chattar who had taken the deceased to the police station on his motorcycle and since then 7 the deceased had not returned home. Learned counsel for the State further placed the statement of witness Laxman Suna who had stated that on 18.07.2015 he had seen the deceased at Bheden Police Station who told him that the petitioner had called him for interrogation in connection with the rape case since 17.07.2015 and was not allowing him to leave the police station. The witness has further stated that the petitioner told him that as the son of the deceased was absconding, therefore they had brought the deceased to the police station for interrogation. The learned counsel for the State further placed the statement of one Nabin Kishore Thakur who was the ASI of Police, Bheden Police Station and he stated that on 17.07.2015, the deceased was called to the police station by the petitioner in connection with the absconding of the son of the deceased who was an accused in a rape case. The witness has further stated that the petitioner himself made the station diary entry. He has further stated that on 18.07.2015, he had also seen the presence of the deceased in the police station. The learned counsel for the State placed the station diary entry dated 17.07.2015 of Bheden Police Station wherein it is mentioned that the deceased appeared at Police Station for inquiry in connection with the rape case in which his son was an accused and after inquiry, the deceased assured that he would produce his son and thereafter he left the police 8 station. Another station diary entry dated 18.07.2015 was placed which indicated that the deceased had appeared in the police station. Learned counsel for the State contended that the confessional statement of the co-accused persons implicate the petitioner in the crime and he placed the statement of co- accused Smt. Gita @ Gitanjali Bhoi who stated as to how the deceased was detained at Bheden Police Station from 17.07.2015 to 18.07.2015 and was not allowed to leave the police station to go to his house and how the deceased was being assaulted by the petitioner and A.S.I. Pitambar Behera for which he became senseless and died and how the dead body was disposed of during the intervening night of 18/19.07.2015. Learned counsel for the State vehemently urged that not only 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, assaulted him to death and ultimately the dead body was disposed of. The learned counsel for the State further submitted that the call records of the petitioner indicates that he had attended twenty-six phone calls in the night of 18/19.07.2015 with some of the co-accused persons. The learned counsel for the State submitted that the petitioner was present in the police station and monitoring the movement of the other accused persons who were asked to 9 dispose of the dead body in the jungle. It is the further contention of the learned counsel for the State that the manner in which the petitioner called the deceased to the Bheden police station and being the officer in charge, he assaulted the deceased and disposed of the dead body inside the jungle in order to cause disappearance of evidence coupled with the chemical analysis test report as well as DNA test report, prima facie material is clearly made out against the petitioner and once the petitioner is released on bail, there is every chance of tampering with the evidence and therefore, the bail application should be dismissed.
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 10 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 the petitioner on bail in the larger interests of public and State.
Accordingly, the bail application sans merit and hence stands rejected.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 29th June, 2016/ Sisir