Bipin Bihari Behera Vs State of Odisha

-------------------------------------------------------------------------Dates of hearing: 24^th April, 2024 and 17^th May, 2024 Date of judgment: 17^th May, 2024.

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ARINDAM SINHA, J.

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1. Two sons of petitioner are in jail custody following order made by the competent Court for their detention on and from 17^th March, 2024. The writ petition carrying prayer for

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issuance of habeas corpus was presented on 16^th April, 2024.

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Petitioner’s case is, his sons were picked up on 12^th March, 2024 by personnel from Chhendipada P.S. They were in illegal police custody since then. They could not have committed alleged offence under sections 399 and 402 of Indian Penal Code, 1860 as on the intervening night of 16^th and 17^th March, 2024. Sons of petitioner along with seven others were allegedly picked up by the police on said intervening night. We reproduce paragraph-4 from our order made, upon the writ moved on 24^th April, 2024.

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“4. It appears from FIR registered on 17^th March, 2024 by the SI of Chhendipada PS that, inter alia, said opposite party nos.5 and 6 were picked up in the intervening night of 16^th and 17^th March, 2024 on being approached by the authorized police party along with witnesses. The SI heard the persons discussing their plan in committing highway dacoity. Considering petitioner’s allegations that said opposite parties were, since prior to 16^th /17^th March, 2024, in illegal police custody (without arrest), we require report in sealed cover to be filed by State through concerned PS/Officer.”

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Report in sealed cover was filed. The report did not say anything

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new or apart from what was already known by Court.

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WPCRL no.36 of 2024

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2. Upon petitioner prosecuting the writ petition we had called it on 8^th May, 2024. Mr. Nanda, learned advocate, Additional Government Advocate appearing on behalf of State had handed up his instruction dated 5^th May, 2024, penned by I.I.C., Chhendipada P.S. We had extracted a paragraph therefrom in our order made that day, for information of petitioner. The extracted paragraph is reproduced below.

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“With reference to the above cited WPCRL reference and subject, I have the honour to report that I verified the CCTV footage installed in the PS and its premises, but unfortunately it was found not functioning during the alleged date i.e. from 12.3.2024 to 17.3.2024, due to some technical issues. I have entered the fact in PS station diary about the non-functioning of CCTV installed in PS and intimated SP Angul accordingly. Further to clarify about the presence of Babun Kumar Behera and Papun Kumar Behera in the period from 12.3.2024 to 17.3.2024, I examined five local individuals namely, Chhabindra Majhi, S/oPadmanave Majhi of village Kankurupal, Pramod Naik S/o- Late Biswanath Naik of Badaberena, Sahadev Behera, S/o- Late Kanduru Behera of Chhendipada, Tankadhar Behera S/o- Late Krushna Chandra Behera of Chhendipada, and Sibaram Majhi S/o- Late Hrusikesh Majhi of village Kankurupal, all are of PS

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WPCRL no.36 of 2024

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Chhendipada, Dist. Angul, who well proved the presence of Babun Kumar Behera and Papun Kumar Behera in their village Kankurupal and in locality in different dates and times from 12.3.2024 to 17.3.2024. The said individuals also submitted their statements in the form of affidavits before the Executive Magistrate, Chhendipada, which proved the activities of Babun Kumar Behera and Papun Kumar Behera in the locality between 12.3.2024 to 17.3.2024, enclosed herewith for your kind perusal.”

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3. Mr. Baral, learned advocate appearing on behalf of petitioner relies on judgment of the Supreme Court in Paramvir Singh Saini v. Baljit Singh delivered on 2^nd December, 2020 by a larger Bench and reported in 2021 (I) OLR (SC) 211. Paragraph-16 is reproduced below.

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“16. The State and Union Territory Governments should ensure that CCTV cameras are installed in each and every Police Station functioning in the respective State and/or Union Territory. Further, in order to ensure that no part of a Police Station is left uncovered, it is imperative to ensure that CCTV cameras are installed at all every and exit points; main gate of the police station; all lock-ups; all corridors; lobby/the reception area; all verandas/outhouses, Inspector’s room; Sub-Inspector’s room; areas outside the lock-up room; station hall; in front of the police station

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WPCRL no.36 of 2024

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compound; outside (not inside) washrooms/toilets; Duty Officer’s room; back part of the police station etc.”

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He submits, the police are clearly covering up their illegal act of detaining the sons of his client on and from 12^th March, 2024 citing malfunctioning Close Circuit Television (CCTV) equipment installed in Chhendipada P.S. They allege five persons have sworn affidavits, who had seen sons of his client between 12^th and 16^th March, 2024. On leave obtained he files affidavit dated 13^th May, 2024 affirmed before the Commissioner of Oath of this Court, of one of the five persons saying, inter alia, in paragraph-3 as is reproduced below.

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“3. That the instruction dated 05.05.2024 submitted by the I.I.C. Chhendipada in this case is false one, though I.I.C. Chhendipada taken signature in some paper from me (being afraid of by police) while I was returning to my home, but I don’t known contents of that document.”

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He submits further, a car and five mobile phones were also seized on 12^th March, 2024.

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4. On query made Mr. Baral submits, seven others who were allegedly picked up along with sons of his client, were all granted bail by the roster Bench on order no.1 dated 9^th May, 2024 in BLAPL no.4437 of 2024 (Parichhana Sani and others vrs. State of

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WPCRL no.36 of 2024

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Odisha). He presses for issuance of habeas corpus, for producing sons of his client from jail custody as they were in illegal custody of the police and in continuation of their wrongful action and allegations, sent to jail custody purportedly on order dated 17^th March, 2024 made by the competent Court.

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5. Mr. Nanda disputes submissions made on behalf of petitioner. He submits, a mechanical malfunction cannot be proof of wrong doing, as alleged or at all. The persons who have sworn affidavits are not to be lightly disbelieved. The sons of petitioner, along with others, were all picked up by the Sub-Inspector of Police (SI) in the intervening night 16^th /17^th March, 2024 and within time prescribed produced before the competent Court. There was order made for jail custody. The writ petition is thus not maintainable. It be dismissed.

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6. The two sons of petitioner have not applied for bail. Obviously petitioner does not want they should submit to jurisdiction of the Judicial Magistrate First Class (JMFC), Chhendipada. Petitioner contends, his sons were wrongfully picked up on 12^th March, 2024 along with seizure of an old car and five cell phones. We find disclosed in the petition are letters written to the Superintendent of Police (SP) as well as Director

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WPCRL no.36 of 2024

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General of Police (DG), Odisha, both dispatched by post on 21^st March, 2024. We appreciate petitioner’s reaching out two high ranking police officers because his allegations were and are against police personnel on the ground.

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7. Reproduced below is paragraph-23 from Paramvir (supra).

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“23. The Supreme Court registry to send a copy of this Order to all Chief/Principal Secretaries of all the States and Union Territories, both by physical as well as electronic means, today itself.”

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The larger Bench made the direction, for implementation. As aforesaid, the judgment was made on 2^nd December, 2020. The direction stood complied with but contention of the police is that the equipment was down on malfunction. The primary evidence is not available.

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8. In exercising extra ordinary writ jurisdiction on roster assignment of, inter alia, habeas corpus, we are not inclined to direct production of sons of petitioner to effect their release from judicial custody. However, considering the seven others have obtained bail from this Court, petitioner/his sons have liberty to

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WPCRL no.36 of 2024

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produce our order before the roster Bench and, without prejudice to his/their contentions, seek bail.

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9. In the facts and circumstances it is our duty to record that at trial, prosecution must also prove the affidavit evidence regarding sons of petitioner having been seen by the deponents between 12^th and 16^th March, 2024, to obtain conviction. Our discharge of duty is necessitated because though CCTV equipment stands installed in Chhendipada P.S., to cover each and every corner of it, compliance of direction in Paramvir (supra) of the larger Bench in the Supreme Court appears to have been restricted to the installation. Also in view of said affidavit dated 13^th May, 2024.

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10. Mr. Baral presses for direction to initiate enquiry. We, exercising writ jurisdiction, are not inclined to embark on finding facts. We have already made our observations regarding requirement of proof to obtain conviction.

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11. The writ petition is disposed of.

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(Arindam Sinha) Judge

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Signature Not Verified

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Digitally Signed Signed by: RADHARANI JENA Reason: Authentication Location: ohc Jyostna/Radha Date: 17-May-2024 18:22:47

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(M.S. Sahoo) Judge

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