Art. 32 of Constitution of India -When Investigation by CBI be order?- Whether the case be transferred to CBI after filing a charge sheet - Apex court held that in view of the chargesheet filed and the departmental action taken against the erring officials, we do not feel the necessity of any further direction in the matter, at this stage. We are, therefore, inclined to take the view that the power of this Court to refer a matter to Central Bureau of Investigation for further investigation, after filing of the chargesheet by the State investigating agency, ought not to be invoked in the present case. Instead, the course of action that would be now mandated by law against the accused Netrananda Dandasena should be allowed to reach its logical conclusion at the earliest. At the same time the investigation that has been kept open against the unidentified accused should be completed without delay. We direct accordingly and cast the responsibility in this regard on the Superintendent of Police, Rayagada. However, we make it clear that the trial of accused Netrananda Dandasena shall not be held up on that count or on any other count and the same shall proceed forthwith and be concluded within the earliest possible time.=
A young law student of Bangalore, who belongs to the State of Odisha,
has filed the present application under Article 32 of the Constitution
highlighting what she has perceived to be a serious infringement of the
fundamental rights guaranteed by Article 21 consequent to a tragic incident
wherein one Itishree Pradhan was set ablaze on 27.10.2013 at a place called
Tikiri located in Rayagada District in the State of Odisha. The
unfortunate victim of the incident died on 01.11.2013.=
From the resume of facts stated above the following events leading to
and surrounding the death of Itishree Pradhan would be significant to be
taken note of.
(i) Prior to her death the deceased had submitted numerous complaints to
different authorities complaining of different instances of unlawful
conduct of the accused and expressing apprehensions of harm at the
hands of the accused.
(ii) Tikiri P.S. Case Nos. 60, 62 and 70 had been registered on the basis
of such complaints against the accused Netrananda Dandasena and his
family members and chargesheets have been submitted in the said cases.
(iii) The accused however remained at large; no protection was offered to
the deceased; neither was she posted out of Tikiri.
(iv) The deceased was set ablaze on 27.10.2013. Her dying declarations,
three in number, implicates accused, Netrananda Dandasena and one
unknown person as being the perpetrators of the crime leading to her
death.
(v) Tikiri P.S. Case No. 92 has been registered in connection with the
said incident. The accused, Netrananda Dandasena has been arrested on
30.10.2013. Chargesheet has been submitted on 22.2.2014 against
Netrananda Dandesena and the investigation has been kept open under
Section 173 (8) Cr.P.C. against the other unidentified accused.
(vi) Two police officials namely Sujit Kumar Say, Inspector-in-Charge and
Muralidhar Pradhan, Assistant Sub Inspector, Tikiri Police Station
have been dismissed from service by order dated 05.11.2013 of the Home
Department, Govt. of Odisha.
(vii) Two officials of the Education Department namely Dharanidhar Behera,
BEO Rayagada and IIC BEO Kashipur were dismissed from service by order
dated 05.11.2013 of the School & Mass Education Department, Govt. of
Odisha.
(viii) The promotion of accused Netrananda Dandasena was made
alongwith 23 other officials by an order dated 15.10.2013 on the
recommendations of the Departmental Promotion Committee dated
1.12.2012. He has since been dismissed from service by order dated
05.11.2013.
(ix) No material has been unearthed in the investigation of the case to
show that Shri Jayaram Pangi, M.P., Karaput Constituency had made any
phone calls to the deceased to withdraw the case lodged by her against
Netrananda Dandasena.
(x) No incriminating material has been found in the course of
investigation of the case nor any material has been laid before us to
show the involvement of any other person, wielding political or
bureaucratic power and influence, in connection with the incident that
had occurred.
(xi) A sum of Rs. 10 lakhs as ex-gratia payment has been paid to the
parents of the deceased which has been duly accepted.
2014 (March. Part)judis.nic.in/supremecourt/filename=41311 P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 957 OF 2013
SUDIPTA LENKA ... PETITIONER(S)
VERSUS
STATE OF ODISHA ORS. ... RESPONDENT (S)
J U D G M E N T
RANJAN GOGOI, J.
1. A young law student of Bangalore, who belongs to the State of Odisha,
has filed the present application under Article 32 of the Constitution
highlighting what she has perceived to be a serious infringement of the
fundamental rights guaranteed by Article 21 consequent to a tragic incident
wherein one Itishree Pradhan was set ablaze on 27.10.2013 at a place called
Tikiri located in Rayagada District in the State of Odisha. The
unfortunate victim of the incident died on 01.11.2013.
2. According to the petitioner, the aforesaid Itishree Pradhan
(hereinafter referred to as “the deceased”) joined as a Siksha Sahayika
(contractual government teacher) in the Tikiri Upper Primary School on
18.06.2011. As she was facing difficulty in finding accommodation, one
Netrananda Dandasena, (now an accused and hereinafter referred to as “the
accused”), who was then serving as Sub Inspector of Schools at Tikiri,
offered her accommodation in his own house. It appears that the deceased
was sexually harassed by the aforesaid accused which led to a complaint by
the deceased before the local police on 18.07.2013. The petitioner alleges
that no action on the said complaint was taken by the local police. On
30.07.2013 the deceased had approached the State Women Commission and
Odisha Human Rights Commission for intervention but the said bodies did
nothing more than to forward her petition to the Superintendent of Police,
Rayagada for necessary action. According to the petitioner, on 31.07.2013,
the deceased had approached the Director General of Police and on
05.08.2013 she had approached the Superintendent of Police, Rayagada; on
the same day she had sent a representation to the Chief Minister of the
State. It is also alleged that on the same date i.e. 05.08.2013 the
deceased had filed a complaint before the Collector, Rayagada District.
According to the petitioner all the aforesaid approaches made by the
deceased to different authorities did not yield any result. In the
meantime, emboldened by the lack of any action by any authority, some
family members of the accused threatened the deceased to withdraw her
complaint to the police. The deceased retaliated by lodging another
complaint with the police on 19.09.2013. (date is disputed by the State)
The petitioner has further claimed that from 05.08.2013 till 22.10.2013 no
steps were taken by the concerned authorities to provide the deceased with
any security; no action was taken against the accused and no steps were
taken to transfer the deceased from her place of posting i.e. Tikiri to
another location. The petitioner has further alleged that on 27.10.2013
the deceased was set ablaze and she was removed to the hospital with 90%
burn injuries; eventually, the deceased succumbed to the burn injuries
sustained by her in a hospital at Vishakhapatnam on 01.11.2013. Referring
to the several newspaper reports published with regard to the incident in
question the petitioner has alleged that perpetrators of the crime enjoyed
political patronage and the accused had close proximity to a Member of
Parliament and also a minister. The petitioner has stated that
notwithstanding the several criminal acts committed, the accused was moving
around freely; receiving his salary and had even been granted a promotion
in service. Consequently, the petitioner has sought a direction for the
transfer of the investigation of the case involving the death of Itishree
Pradhan from the State agency to the Central Bureau of Investigation and
the monitoring of such investigation by this Court.
3. The writ petition filed on 12.11.2013 has been responded to by the
State of Odisha by means of a counter affidavit dated 02.01.2014.
According to the State, on the basis of the complaint dated 18.7.2013 filed
by the deceased against Netrananda Dandasena, Tikiri P.S. Case No. 60 dated
18.07.2013 under Sections 354/409 of the Indian Penal Code was registered.
The State, in its counter affidavit, has set out in seriatim the action
taken on the basis of the complaints/representations submitted by the
deceased to different bodies and authorities of the State. It is also
submitted that the complaints lodged by the deceased against the family
members of the accused have been acted upon and Tikiri P.S. Case No. 62
dated 19.07.2013 and No. 70 dated 16.08.2013 have been registered against
the family members of the accused. In the counter filed, it has been
further stated that in respect of the incident involving the death of
Itishree Pradhan, Tikiri P.S. Case No. 92 dated 28.10.2013 has been
registered and Netrananda Dandasena was arrested in connection with the
said case on 30.10.2013. According to the State, the promotion of
Netrananda Dandasena was pursuant to the recommendations of the
Departmental Promotion Committee made some time in December, 2012. The
dismissal of the Inspector-in-Charge of Tikiri Police Station and an
Assistant Sub Inspector attached to the said police station from service;
the dismissal of two officials of the Education Department posted at
Rayagada and also the dismissal of accused Netrananda Dandasena from
service by invoking proviso (b) to Article 311 (2) of the Constitution has
also been highlighted as incidents of consequential action taken by the
State besides the payment of extra gratia of Rs. 10 lakhs to the parents of
the deceased.
4. Shri Suresh Chandra Tripathy, learned counsel for the petitioner has
vehemently urged that the present case demonstrates the lack of concern for
the rights of a young woman who was compelled by circumstances to accept
employment at a place far away from her home. She had bravely resisted the
attempts of the accused, Netrananda Dandasena, to sexually exploit her and
mustered up courage to formally complain against the accused. Such
complaints were lodged before the local police station and also made to the
district police officials i.e. Superintendent of Police, District Collector
as well as statutory bodies committed to protect human rights and her
individual rights (State Human Rights Commission and State Women
Commission). The deceased had even approached the Director General of
Police and finally she had approached the Chief Minister of the State. Her
repeated and frantic pleas failed to evoke requisite response from any of
the aforesaid authorities. Despite the several complaints lodged by her
the accused was roaming free. It is the inaction on the part of the
authorities that had emboldened the accused to commit the acts resulting in
her death. The sequence of events following the death of Itishree Pradhan
have been, according to the learned counsel, equally appalling. Apart
from some superficial and knee jerk actions like dismissing some lowly
placed employees from service the investigation of the criminal case has
not proceeded meaningfully. Though the accused, Netrananda Dandasena, had
been arrested on 30.10.2013 no explanation has been forthcoming as to why
he could not be apprehended earlier. The second person involved in the
incident leading to the death of Itishree Pradhan i.e. the person who had
poured kerosene on her is still at large and his identity is yet to be
ascertained. According to the learned counsel, all this is on account of
the fact that the accused enjoys political patronage; he is close to an
elected Member of Parliament. It is also submitted that in her final dying
declaration made in the hospital at Vishakhapatnam, which was recorded by a
local TV channel, and thereafter telecast, the deceased had named the Chief
Minister of the State as being involved/responsible for the incident
leading to her death. All such facts are stated in the report of the
Enquiry Committee of the National Commission of Women which is a part of
the record of the case. According to learned counsel, the present,
therefore, is a fit case where the investigation should be transferred to
the Central Bureau of Investigation and proceeded with under the close
supervision of this Court.
5. In reply, Shri L. Nageswara Rao, learned Additional Solicitor General
who has appeared for the State of Odisha, has, at the outset, submitted
that the deceased had made three dying declarations. The first dying
declaration was recorded at 10.45 p.m. on 27.10.2013 by the Medical Officer
of the Public Health Centre at Tikiri, the second was recorded at 1.05 a.m.
on 28.10.2013 in the District Headquarter Hospital at Rayagada and the
third on the same day before the Tehsildar, Rayagada. The aforesaid three
dying declarations are to the same effect, namely, that the deceased was
set ablaze by a person whom she did not recognize and before doing so the
person had asked her to withdraw the case against accused Netrananda
Dandasena, which she refused. It is submitted that the above dying
declarations make it clear that two persons are involved in the crime i.e.
Netrananda Dandasena and another unknown person who had actually set the
deceased ablaze. The learned counsel has submitted that on 22.02.2014
chargesheet had been submitted in Tikiri P.S. Case No. 92/2013 against
Netrananda Dandasena under Sections 449/450/302/120-B of the Indian Penal
Code and the investigation is being kept open to bring to book the other
person who is alleged to have set the deceased ablaze. Learned counsel has
further submitted that on a conspectus of the facts of the case, the
persons associated with the incident can be categorized in three groups –
the first being persons who are actually involved in the crime; the second
are the officials and bodies before whom complaints were filed by the
deceased and the third is the person(s) who had allegedly tried to protect
the accused. Insofar as the persons involved in the crime are concerned,
according to the learned counsel, Netrananda Dandasena has already been
chargesheeted and presently he is in custody. The investigation is being
kept open to bring to book the unidentified person who is stated to have
set the deceased ablaze. So far as the officials and functionaries of the
State, at different levels, who were approached by the deceased from time
to time and who had allegedly not taken proper and prompt action, it is
submitted by the learned counsel that the said aspect of the case not being
relatable to the actual commission of the crime, cannot, in any case, be a
subject matter of a reference to the Central Bureau of Investigation. At
best, the aforesaid issue could be a matter of administrative inquiry and
consequential action on that basis. Insofar as the issue of political or
other influential persons shielding and protecting the offender(s) is
concerned, Shri Rao has drawn the attention of the Court to the details of
the investigation with regard to the allegations of phone calls made by one
Shri Jayaram Pangi, M.P., Karaput Constituency to the deceased to withdraw
her case against the accused. The attention of the Court has been drawn to
the report of the CFSL, Hyderabad to which place the seized mobile of the
deceased alongwith the Sim card(s) were sent. The report, it is mentioned
in the chargesheet, is in the negative. Insofar as the alleged involvement
of the Chief Minister is concerned, Shri Rao has drawn the attention of the
Court to the facts found on investigation as recorded in the chargesheet
which show that the video recording of the statement of the deceased made
in the hospital and telecast on 05.11.2013 being in Odiya was been sent to
an Odiya Professor of Ravenshaw University, Cuttack and also to the State
Forensic Science Laboratory, Bhubaneswar for transcription of the exact
version of the said statement. On due examination and analysis, it was
found that the deceased in her statement had stated that “SI YE” (meaning
‘he’ in Odiya), amongst others, was responsible for the incident. It is
stated that the said expression has been understood to be a reference to
C.M. i.e. the Chief Minister. It is further submitted by Shri Rao that
there is no material, whatsoever, to even remotely connect the Chief
Minister to the incident except the fact that the deceased had submitted a
written representation dated 05.08.2013 to the Chief Minister also. Shri
Rao has contended that the chargesheet in the case having been filed and
the matter being before the Court and furthermore the investigation being
kept open under Section 173 (8) Cr.P.C. to bring to book the other culprit
there is no reason why the matter should be entrusted to the Central Bureau
of Investigation which would virtually amount to reopening of the
investigation. In this regard Shri Rao has relied on the judgment of this
Court in Disha vs. State of Gujarat and Others[1] (para 21).
6. From the resume of facts stated above the following events leading to
and surrounding the death of Itishree Pradhan would be significant to be
taken note of.
(i) Prior to her death the deceased had submitted numerous complaints to
different authorities complaining of different instances of unlawful
conduct of the accused and expressing apprehensions of harm at the
hands of the accused.
(ii) Tikiri P.S. Case Nos. 60, 62 and 70 had been registered on the basis
of such complaints against the accused Netrananda Dandasena and his
family members and chargesheets have been submitted in the said cases.
(iii) The accused however remained at large; no protection was offered to
the deceased; neither was she posted out of Tikiri.
(iv) The deceased was set ablaze on 27.10.2013. Her dying declarations,
three in number, implicates accused, Netrananda Dandasena and one
unknown person as being the perpetrators of the crime leading to her
death.
(v) Tikiri P.S. Case No. 92 has been registered in connection with the
said incident. The accused, Netrananda Dandasena has been arrested on
30.10.2013. Chargesheet has been submitted on 22.2.2014 against
Netrananda Dandesena and the investigation has been kept open under
Section 173 (8) Cr.P.C. against the other unidentified accused.
(vi) Two police officials namely Sujit Kumar Say, Inspector-in-Charge and
Muralidhar Pradhan, Assistant Sub Inspector, Tikiri Police Station
have been dismissed from service by order dated 05.11.2013 of the Home
Department, Govt. of Odisha.
(vii) Two officials of the Education Department namely Dharanidhar Behera,
BEO Rayagada and IIC BEO Kashipur were dismissed from service by order
dated 05.11.2013 of the School & Mass Education Department, Govt. of
Odisha.
(viii) The promotion of accused Netrananda Dandasena was made
alongwith 23 other officials by an order dated 15.10.2013 on the
recommendations of the Departmental Promotion Committee dated
1.12.2012. He has since been dismissed from service by order dated
05.11.2013.
(ix) No material has been unearthed in the investigation of the case to
show that Shri Jayaram Pangi, M.P., Karaput Constituency had made any
phone calls to the deceased to withdraw the case lodged by her against
Netrananda Dandasena.
(x) No incriminating material has been found in the course of
investigation of the case nor any material has been laid before us to
show the involvement of any other person, wielding political or
bureaucratic power and influence, in connection with the incident that
had occurred.
(xi) A sum of Rs. 10 lakhs as ex-gratia payment has been paid to the
parents of the deceased which has been duly accepted.
7. Two issues arise for our consideration. The first-whether after
filing of chargesheet under Section 302/120B IPC against the accused
Netrananda Dandasena and keeping open the investigation under Section 173
(8) Cr.P.C. there is any justification to entrust further investigation of
the case to the Central Bureau of Investigation. Irrespective of the
above, the second issue that will require consideration is whether any
direction for determination of the liability of any officer or authority of
the State who had the occasion to deal with the matter is called for?
8. On the question whether a criminal case in which a charge sheet has
been filed by the local/state investigating agency can/should be referred
to Central Bureau of Investigation for further investigation there is near
unanimity of judicial opinion. In Gudalure M.J. Cherian vs. Union of
India[2] and Punjab & Haryana High Court Bar Association vs. State of
Punjab[3], it has held that after the chargesheet is filed the power to
direct further investigation by Central Bureau of Investigation should not
be normally resorted to by the Constitutional Courts unless exceptional
circumstances exist either to doubt the fairness of the investigation or
there are compulsive reasons founded on high public interest to do so.
Vineet Narain vs. Union of India[4], Union of India vs. Sushil Kumar
Modi[5] and Rajiv Ranjan Singh ‘Lalan’ (8) vs. Union of India[6] are not
decisions on the same line as the issue in the said cases was with regard
to the exercise of jurisdiction by the Monitoring Court to order further
investigation of a case after chargesheet had been filed by the Central
Bureau of Investigation to which body the investigation already stood
entrusted. Rubabbuddin Sheikh vs. State of Gujarat[7], really, carries
forward the law laid down in Gudalure M.J. Cherian and Punjab & Haryana
High Court Bar Association (supra) which position finds reflection in para
60 of the report which is in the following terms :
“…….Therefore, it can safely be concluded that in an appropriate case
when the court feels that the investigation by the police authorities
is not in the proper direction and in order to do complete justice in
the case and as the high police officials are involved in the said
crime, it was always open to the court to hand over the investigation
to the independent agency like CBI. It cannot be said that after the
charge-sheet is submitted, the court is not empowered, in an
appropriate case, to hand over the investigation to an independent
agency like CBI.”
9. The position has also been succinctly summed up in Disha (supra) to
which one of us (the learned Chief Justice) was a party by holding that
transfer of the investigation to the Central Bureau of Investigation or
any other specialised agency, notwithstanding the filing of the
chargesheet, would be justified only when the Court is satisfied that on
account of the accused being powerful and influential the investigation has
not proceeded in a proper direction or it has been biased. Further
investigation of a criminal case after the chargesheet has been filed in a
competent court may affect the jurisdiction of the said Court under Section
173 (8) of the Code of Criminal Procedure. Hence it is imperative that the
said power, which, though, will always vest in a Constitutional Court,
should be exercised only in situations befitting, judged on the touchstone
of high public interest and the need to maintain the Rule of Law.
10. The events relevant to the present adjudication may be conveniently
divided into two compartments – one before the death of Itishree Pradhan
and the second subsequent thereto. In this regard we would like to say
that all human tragedies, man made or natural, may appear to be avoidable.
To understand such phenomenon as pre-ordained is an attitude of self-
defeat, if not self deception, and therefore must be avoided. At the same
time determination of human culpability in not successfully avoiding an
event of disaster must be made by the test of exercise of due care, caution
and reasonable foresight. This, according to us, is how the events
surrounding the case will have to be judged.
11. Insofar as the facts and circumstances following the death of
Itishree Pradhan is concerned, in view of the chargesheet filed and the
departmental action taken against the erring officials, we do not feel the
necessity of any further direction in the matter, at this stage. We are,
therefore, inclined to take the view that the power of this Court to refer
a matter to Central Bureau of Investigation for further investigation,
after filing of the chargesheet by the State investigating agency, ought
not to be invoked in the present case. Instead, the course of action that
would be now mandated by law against the accused Netrananda Dandasena
should be allowed to reach its logical conclusion at the earliest. At the
same time the investigation that has been kept open against the
unidentified accused should be completed without delay. We direct
accordingly and cast the responsibility in this regard on the
Superintendent of Police, Rayagada. However, we make it clear that the
trial of accused Netrananda Dandasena shall not be held up on that count or
on any other count and the same shall proceed forthwith and be concluded
within the earliest possible time.
12. The events preceding the incident of death, however, stand on a
slightly different footing. The same, prima facie, disclose some amount of
laxity and indifference. Therefore, even while noticing that disciplinary
action has been taken against certain officials of the State, we are of the
view that the State should hold a detailed administrative inquiry into the
matter to ascertain whether any other official or authority, at any level,
is responsible for not attending to the complaints, grievances and demands
raised by the deceased either in the matter of action against accused
Netrananda Dandasena or in providing security to her or in transferring her
from Tikiri, Rayagada District. On the basis of the findings and
conclusions as may be reached in such inquiry, we direct the State to take
necessary action in the matter. We also make it clear that we have not
expressed any opinion with regard to the liability or culpability of any
official or functionary of the State in this regard.
13. We accordingly dispose of the writ petition and place on record our
appreciation for the services rendered by the young law student in seeking
to vindicate the fundamental rights of the deceased and for the painstaking
efforts expended by her to uphold the Rule of Law.
…………………………CJI.
[P. SATHASIVAM]
......………………………J.
[RANJAN GOGOI]
.........……………………J.
[N.V. RAMANA]
NEW DELHI,
MARCH 12, 2014.
-----------------------
[1] (2011) 13 SCC 337
[2] (1992) 1 SCC 397
[3] (1994) 1 SCC 616
[4] (1996) 2 SCC 199
[5] (1998) 8 SCC 661
[6] (2006) 6 SCC 613
[7] (2010) 2 SCC 200
-----------------------
14
A young law student of Bangalore, who belongs to the State of Odisha,
has filed the present application under Article 32 of the Constitution
highlighting what she has perceived to be a serious infringement of the
fundamental rights guaranteed by Article 21 consequent to a tragic incident
wherein one Itishree Pradhan was set ablaze on 27.10.2013 at a place called
Tikiri located in Rayagada District in the State of Odisha. The
unfortunate victim of the incident died on 01.11.2013.=
From the resume of facts stated above the following events leading to
and surrounding the death of Itishree Pradhan would be significant to be
taken note of.
(i) Prior to her death the deceased had submitted numerous complaints to
different authorities complaining of different instances of unlawful
conduct of the accused and expressing apprehensions of harm at the
hands of the accused.
(ii) Tikiri P.S. Case Nos. 60, 62 and 70 had been registered on the basis
of such complaints against the accused Netrananda Dandasena and his
family members and chargesheets have been submitted in the said cases.
(iii) The accused however remained at large; no protection was offered to
the deceased; neither was she posted out of Tikiri.
(iv) The deceased was set ablaze on 27.10.2013. Her dying declarations,
three in number, implicates accused, Netrananda Dandasena and one
unknown person as being the perpetrators of the crime leading to her
death.
(v) Tikiri P.S. Case No. 92 has been registered in connection with the
said incident. The accused, Netrananda Dandasena has been arrested on
30.10.2013. Chargesheet has been submitted on 22.2.2014 against
Netrananda Dandesena and the investigation has been kept open under
Section 173 (8) Cr.P.C. against the other unidentified accused.
(vi) Two police officials namely Sujit Kumar Say, Inspector-in-Charge and
Muralidhar Pradhan, Assistant Sub Inspector, Tikiri Police Station
have been dismissed from service by order dated 05.11.2013 of the Home
Department, Govt. of Odisha.
(vii) Two officials of the Education Department namely Dharanidhar Behera,
BEO Rayagada and IIC BEO Kashipur were dismissed from service by order
dated 05.11.2013 of the School & Mass Education Department, Govt. of
Odisha.
(viii) The promotion of accused Netrananda Dandasena was made
alongwith 23 other officials by an order dated 15.10.2013 on the
recommendations of the Departmental Promotion Committee dated
1.12.2012. He has since been dismissed from service by order dated
05.11.2013.
(ix) No material has been unearthed in the investigation of the case to
show that Shri Jayaram Pangi, M.P., Karaput Constituency had made any
phone calls to the deceased to withdraw the case lodged by her against
Netrananda Dandasena.
(x) No incriminating material has been found in the course of
investigation of the case nor any material has been laid before us to
show the involvement of any other person, wielding political or
bureaucratic power and influence, in connection with the incident that
had occurred.
(xi) A sum of Rs. 10 lakhs as ex-gratia payment has been paid to the
parents of the deceased which has been duly accepted.
whether after
filing of chargesheet under Section 302/120B IPC against the accused
Netrananda Dandasena and keeping open the investigation under Section 173
(8) Cr.P.C. there is any justification to entrust further investigation of
the case to the Central Bureau of Investigation.
Rubabbuddin Sheikh vs. State of Gujarat[7], really, carries
forward the law laid down in Gudalure M.J. Cherian and Punjab & Haryana
High Court Bar Association (supra) which position finds reflection in para
60 of the report which is in the following terms :
“…….Therefore, it can safely be concluded that in an appropriate case
when the court feels that the investigation by the police authorities
is not in the proper direction and in order to do complete justice in
the case and as the high police officials are involved in the said
crime, it was always open to the court to hand over the investigation
to the independent agency like CBI. It cannot be said that after the
charge-sheet is submitted, the court is not empowered, in an
appropriate case, to hand over the investigation to an independent
agency like CBI.”
direction for determination of the liability of any officer or authority of
the State who had the occasion to deal with the matter is called for?
12. The events preceding the incident of death, however, stand on a
slightly different footing. The same, prima facie, disclose some amount of
laxity and indifference. Therefore, even while noticing that disciplinary
action has been taken against certain officials of the State, we are of the
view that the State should hold a detailed administrative inquiry into the
matter to ascertain whether any other official or authority, at any level,
is responsible for not attending to the complaints, grievances and demands
raised by the deceased either in the matter of action against accused
Netrananda Dandasena or in providing security to her or in transferring her
from Tikiri, Rayagada District. On the basis of the findings and
conclusions as may be reached in such inquiry, we direct the State to take
necessary action in the matter. We also make it clear that we have not
expressed any opinion with regard to the liability or culpability of any
official or functionary of the State in this regard.
13. We accordingly dispose of the writ petition and place on record our
appreciation for the services rendered by the young law student in seeking
to vindicate the fundamental rights of the deceased and for the painstaking
efforts expended by her to uphold the Rule of Law.
filing of chargesheet under Section 302/120B IPC against the accused
Netrananda Dandasena and keeping open the investigation under Section 173
(8) Cr.P.C. there is any justification to entrust further investigation of
the case to the Central Bureau of Investigation.
Rubabbuddin Sheikh vs. State of Gujarat[7], really, carries
forward the law laid down in Gudalure M.J. Cherian and Punjab & Haryana
High Court Bar Association (supra) which position finds reflection in para
60 of the report which is in the following terms :
“…….Therefore, it can safely be concluded that in an appropriate case
when the court feels that the investigation by the police authorities
is not in the proper direction and in order to do complete justice in
the case and as the high police officials are involved in the said
crime, it was always open to the court to hand over the investigation
to the independent agency like CBI. It cannot be said that after the
charge-sheet is submitted, the court is not empowered, in an
appropriate case, to hand over the investigation to an independent
agency like CBI.”
Insofar as the facts and circumstances following the death of
Itishree Pradhan is concerned, in view of the chargesheet filed and the
departmental action taken against the erring officials, we do not feel the
necessity of any further direction in the matter, at this stage. We are,
therefore, inclined to take the view that the power of this Court to refer
a matter to Central Bureau of Investigation for further investigation,
after filing of the chargesheet by the State investigating agency, ought
not to be invoked in the present case. Instead, the course of action that
would be now mandated by law against the accused Netrananda Dandasena
should be allowed to reach its logical conclusion at the earliest. At the
same time the investigation that has been kept open against the
unidentified accused should be completed without delay. We direct
accordingly and cast the responsibility in this regard on the
Superintendent of Police, Rayagada. However, we make it clear that the
trial of accused Netrananda Dandasena shall not be held up on that count or
on any other count and the same shall proceed forthwith and be concluded
within the earliest possible time.
whether anyItishree Pradhan is concerned, in view of the chargesheet filed and the
departmental action taken against the erring officials, we do not feel the
necessity of any further direction in the matter, at this stage. We are,
therefore, inclined to take the view that the power of this Court to refer
a matter to Central Bureau of Investigation for further investigation,
after filing of the chargesheet by the State investigating agency, ought
not to be invoked in the present case. Instead, the course of action that
would be now mandated by law against the accused Netrananda Dandasena
should be allowed to reach its logical conclusion at the earliest. At the
same time the investigation that has been kept open against the
unidentified accused should be completed without delay. We direct
accordingly and cast the responsibility in this regard on the
Superintendent of Police, Rayagada. However, we make it clear that the
trial of accused Netrananda Dandasena shall not be held up on that count or
on any other count and the same shall proceed forthwith and be concluded
within the earliest possible time.
direction for determination of the liability of any officer or authority of
the State who had the occasion to deal with the matter is called for?
12. The events preceding the incident of death, however, stand on a
slightly different footing. The same, prima facie, disclose some amount of
laxity and indifference. Therefore, even while noticing that disciplinary
action has been taken against certain officials of the State, we are of the
view that the State should hold a detailed administrative inquiry into the
matter to ascertain whether any other official or authority, at any level,
is responsible for not attending to the complaints, grievances and demands
raised by the deceased either in the matter of action against accused
Netrananda Dandasena or in providing security to her or in transferring her
from Tikiri, Rayagada District. On the basis of the findings and
conclusions as may be reached in such inquiry, we direct the State to take
necessary action in the matter. We also make it clear that we have not
expressed any opinion with regard to the liability or culpability of any
official or functionary of the State in this regard.
13. We accordingly dispose of the writ petition and place on record our
appreciation for the services rendered by the young law student in seeking
to vindicate the fundamental rights of the deceased and for the painstaking
efforts expended by her to uphold the Rule of Law.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 957 OF 2013
SUDIPTA LENKA ... PETITIONER(S)
VERSUS
STATE OF ODISHA ORS. ... RESPONDENT (S)
J U D G M E N T
RANJAN GOGOI, J.
1. A young law student of Bangalore, who belongs to the State of Odisha,
has filed the present application under Article 32 of the Constitution
highlighting what she has perceived to be a serious infringement of the
fundamental rights guaranteed by Article 21 consequent to a tragic incident
wherein one Itishree Pradhan was set ablaze on 27.10.2013 at a place called
Tikiri located in Rayagada District in the State of Odisha. The
unfortunate victim of the incident died on 01.11.2013.
2. According to the petitioner, the aforesaid Itishree Pradhan
(hereinafter referred to as “the deceased”) joined as a Siksha Sahayika
(contractual government teacher) in the Tikiri Upper Primary School on
18.06.2011. As she was facing difficulty in finding accommodation, one
Netrananda Dandasena, (now an accused and hereinafter referred to as “the
accused”), who was then serving as Sub Inspector of Schools at Tikiri,
offered her accommodation in his own house. It appears that the deceased
was sexually harassed by the aforesaid accused which led to a complaint by
the deceased before the local police on 18.07.2013. The petitioner alleges
that no action on the said complaint was taken by the local police. On
30.07.2013 the deceased had approached the State Women Commission and
Odisha Human Rights Commission for intervention but the said bodies did
nothing more than to forward her petition to the Superintendent of Police,
Rayagada for necessary action. According to the petitioner, on 31.07.2013,
the deceased had approached the Director General of Police and on
05.08.2013 she had approached the Superintendent of Police, Rayagada; on
the same day she had sent a representation to the Chief Minister of the
State. It is also alleged that on the same date i.e. 05.08.2013 the
deceased had filed a complaint before the Collector, Rayagada District.
According to the petitioner all the aforesaid approaches made by the
deceased to different authorities did not yield any result. In the
meantime, emboldened by the lack of any action by any authority, some
family members of the accused threatened the deceased to withdraw her
complaint to the police. The deceased retaliated by lodging another
complaint with the police on 19.09.2013. (date is disputed by the State)
The petitioner has further claimed that from 05.08.2013 till 22.10.2013 no
steps were taken by the concerned authorities to provide the deceased with
any security; no action was taken against the accused and no steps were
taken to transfer the deceased from her place of posting i.e. Tikiri to
another location. The petitioner has further alleged that on 27.10.2013
the deceased was set ablaze and she was removed to the hospital with 90%
burn injuries; eventually, the deceased succumbed to the burn injuries
sustained by her in a hospital at Vishakhapatnam on 01.11.2013. Referring
to the several newspaper reports published with regard to the incident in
question the petitioner has alleged that perpetrators of the crime enjoyed
political patronage and the accused had close proximity to a Member of
Parliament and also a minister. The petitioner has stated that
notwithstanding the several criminal acts committed, the accused was moving
around freely; receiving his salary and had even been granted a promotion
in service. Consequently, the petitioner has sought a direction for the
transfer of the investigation of the case involving the death of Itishree
Pradhan from the State agency to the Central Bureau of Investigation and
the monitoring of such investigation by this Court.
3. The writ petition filed on 12.11.2013 has been responded to by the
State of Odisha by means of a counter affidavit dated 02.01.2014.
According to the State, on the basis of the complaint dated 18.7.2013 filed
by the deceased against Netrananda Dandasena, Tikiri P.S. Case No. 60 dated
18.07.2013 under Sections 354/409 of the Indian Penal Code was registered.
The State, in its counter affidavit, has set out in seriatim the action
taken on the basis of the complaints/representations submitted by the
deceased to different bodies and authorities of the State. It is also
submitted that the complaints lodged by the deceased against the family
members of the accused have been acted upon and Tikiri P.S. Case No. 62
dated 19.07.2013 and No. 70 dated 16.08.2013 have been registered against
the family members of the accused. In the counter filed, it has been
further stated that in respect of the incident involving the death of
Itishree Pradhan, Tikiri P.S. Case No. 92 dated 28.10.2013 has been
registered and Netrananda Dandasena was arrested in connection with the
said case on 30.10.2013. According to the State, the promotion of
Netrananda Dandasena was pursuant to the recommendations of the
Departmental Promotion Committee made some time in December, 2012. The
dismissal of the Inspector-in-Charge of Tikiri Police Station and an
Assistant Sub Inspector attached to the said police station from service;
the dismissal of two officials of the Education Department posted at
Rayagada and also the dismissal of accused Netrananda Dandasena from
service by invoking proviso (b) to Article 311 (2) of the Constitution has
also been highlighted as incidents of consequential action taken by the
State besides the payment of extra gratia of Rs. 10 lakhs to the parents of
the deceased.
4. Shri Suresh Chandra Tripathy, learned counsel for the petitioner has
vehemently urged that the present case demonstrates the lack of concern for
the rights of a young woman who was compelled by circumstances to accept
employment at a place far away from her home. She had bravely resisted the
attempts of the accused, Netrananda Dandasena, to sexually exploit her and
mustered up courage to formally complain against the accused. Such
complaints were lodged before the local police station and also made to the
district police officials i.e. Superintendent of Police, District Collector
as well as statutory bodies committed to protect human rights and her
individual rights (State Human Rights Commission and State Women
Commission). The deceased had even approached the Director General of
Police and finally she had approached the Chief Minister of the State. Her
repeated and frantic pleas failed to evoke requisite response from any of
the aforesaid authorities. Despite the several complaints lodged by her
the accused was roaming free. It is the inaction on the part of the
authorities that had emboldened the accused to commit the acts resulting in
her death. The sequence of events following the death of Itishree Pradhan
have been, according to the learned counsel, equally appalling. Apart
from some superficial and knee jerk actions like dismissing some lowly
placed employees from service the investigation of the criminal case has
not proceeded meaningfully. Though the accused, Netrananda Dandasena, had
been arrested on 30.10.2013 no explanation has been forthcoming as to why
he could not be apprehended earlier. The second person involved in the
incident leading to the death of Itishree Pradhan i.e. the person who had
poured kerosene on her is still at large and his identity is yet to be
ascertained. According to the learned counsel, all this is on account of
the fact that the accused enjoys political patronage; he is close to an
elected Member of Parliament. It is also submitted that in her final dying
declaration made in the hospital at Vishakhapatnam, which was recorded by a
local TV channel, and thereafter telecast, the deceased had named the Chief
Minister of the State as being involved/responsible for the incident
leading to her death. All such facts are stated in the report of the
Enquiry Committee of the National Commission of Women which is a part of
the record of the case. According to learned counsel, the present,
therefore, is a fit case where the investigation should be transferred to
the Central Bureau of Investigation and proceeded with under the close
supervision of this Court.
5. In reply, Shri L. Nageswara Rao, learned Additional Solicitor General
who has appeared for the State of Odisha, has, at the outset, submitted
that the deceased had made three dying declarations. The first dying
declaration was recorded at 10.45 p.m. on 27.10.2013 by the Medical Officer
of the Public Health Centre at Tikiri, the second was recorded at 1.05 a.m.
on 28.10.2013 in the District Headquarter Hospital at Rayagada and the
third on the same day before the Tehsildar, Rayagada. The aforesaid three
dying declarations are to the same effect, namely, that the deceased was
set ablaze by a person whom she did not recognize and before doing so the
person had asked her to withdraw the case against accused Netrananda
Dandasena, which she refused. It is submitted that the above dying
declarations make it clear that two persons are involved in the crime i.e.
Netrananda Dandasena and another unknown person who had actually set the
deceased ablaze. The learned counsel has submitted that on 22.02.2014
chargesheet had been submitted in Tikiri P.S. Case No. 92/2013 against
Netrananda Dandasena under Sections 449/450/302/120-B of the Indian Penal
Code and the investigation is being kept open to bring to book the other
person who is alleged to have set the deceased ablaze. Learned counsel has
further submitted that on a conspectus of the facts of the case, the
persons associated with the incident can be categorized in three groups –
the first being persons who are actually involved in the crime; the second
are the officials and bodies before whom complaints were filed by the
deceased and the third is the person(s) who had allegedly tried to protect
the accused. Insofar as the persons involved in the crime are concerned,
according to the learned counsel, Netrananda Dandasena has already been
chargesheeted and presently he is in custody. The investigation is being
kept open to bring to book the unidentified person who is stated to have
set the deceased ablaze. So far as the officials and functionaries of the
State, at different levels, who were approached by the deceased from time
to time and who had allegedly not taken proper and prompt action, it is
submitted by the learned counsel that the said aspect of the case not being
relatable to the actual commission of the crime, cannot, in any case, be a
subject matter of a reference to the Central Bureau of Investigation. At
best, the aforesaid issue could be a matter of administrative inquiry and
consequential action on that basis. Insofar as the issue of political or
other influential persons shielding and protecting the offender(s) is
concerned, Shri Rao has drawn the attention of the Court to the details of
the investigation with regard to the allegations of phone calls made by one
Shri Jayaram Pangi, M.P., Karaput Constituency to the deceased to withdraw
her case against the accused. The attention of the Court has been drawn to
the report of the CFSL, Hyderabad to which place the seized mobile of the
deceased alongwith the Sim card(s) were sent. The report, it is mentioned
in the chargesheet, is in the negative. Insofar as the alleged involvement
of the Chief Minister is concerned, Shri Rao has drawn the attention of the
Court to the facts found on investigation as recorded in the chargesheet
which show that the video recording of the statement of the deceased made
in the hospital and telecast on 05.11.2013 being in Odiya was been sent to
an Odiya Professor of Ravenshaw University, Cuttack and also to the State
Forensic Science Laboratory, Bhubaneswar for transcription of the exact
version of the said statement. On due examination and analysis, it was
found that the deceased in her statement had stated that “SI YE” (meaning
‘he’ in Odiya), amongst others, was responsible for the incident. It is
stated that the said expression has been understood to be a reference to
C.M. i.e. the Chief Minister. It is further submitted by Shri Rao that
there is no material, whatsoever, to even remotely connect the Chief
Minister to the incident except the fact that the deceased had submitted a
written representation dated 05.08.2013 to the Chief Minister also. Shri
Rao has contended that the chargesheet in the case having been filed and
the matter being before the Court and furthermore the investigation being
kept open under Section 173 (8) Cr.P.C. to bring to book the other culprit
there is no reason why the matter should be entrusted to the Central Bureau
of Investigation which would virtually amount to reopening of the
investigation. In this regard Shri Rao has relied on the judgment of this
Court in Disha vs. State of Gujarat and Others[1] (para 21).
6. From the resume of facts stated above the following events leading to
and surrounding the death of Itishree Pradhan would be significant to be
taken note of.
(i) Prior to her death the deceased had submitted numerous complaints to
different authorities complaining of different instances of unlawful
conduct of the accused and expressing apprehensions of harm at the
hands of the accused.
(ii) Tikiri P.S. Case Nos. 60, 62 and 70 had been registered on the basis
of such complaints against the accused Netrananda Dandasena and his
family members and chargesheets have been submitted in the said cases.
(iii) The accused however remained at large; no protection was offered to
the deceased; neither was she posted out of Tikiri.
(iv) The deceased was set ablaze on 27.10.2013. Her dying declarations,
three in number, implicates accused, Netrananda Dandasena and one
unknown person as being the perpetrators of the crime leading to her
death.
(v) Tikiri P.S. Case No. 92 has been registered in connection with the
said incident. The accused, Netrananda Dandasena has been arrested on
30.10.2013. Chargesheet has been submitted on 22.2.2014 against
Netrananda Dandesena and the investigation has been kept open under
Section 173 (8) Cr.P.C. against the other unidentified accused.
(vi) Two police officials namely Sujit Kumar Say, Inspector-in-Charge and
Muralidhar Pradhan, Assistant Sub Inspector, Tikiri Police Station
have been dismissed from service by order dated 05.11.2013 of the Home
Department, Govt. of Odisha.
(vii) Two officials of the Education Department namely Dharanidhar Behera,
BEO Rayagada and IIC BEO Kashipur were dismissed from service by order
dated 05.11.2013 of the School & Mass Education Department, Govt. of
Odisha.
(viii) The promotion of accused Netrananda Dandasena was made
alongwith 23 other officials by an order dated 15.10.2013 on the
recommendations of the Departmental Promotion Committee dated
1.12.2012. He has since been dismissed from service by order dated
05.11.2013.
(ix) No material has been unearthed in the investigation of the case to
show that Shri Jayaram Pangi, M.P., Karaput Constituency had made any
phone calls to the deceased to withdraw the case lodged by her against
Netrananda Dandasena.
(x) No incriminating material has been found in the course of
investigation of the case nor any material has been laid before us to
show the involvement of any other person, wielding political or
bureaucratic power and influence, in connection with the incident that
had occurred.
(xi) A sum of Rs. 10 lakhs as ex-gratia payment has been paid to the
parents of the deceased which has been duly accepted.
7. Two issues arise for our consideration. The first-whether after
filing of chargesheet under Section 302/120B IPC against the accused
Netrananda Dandasena and keeping open the investigation under Section 173
(8) Cr.P.C. there is any justification to entrust further investigation of
the case to the Central Bureau of Investigation. Irrespective of the
above, the second issue that will require consideration is whether any
direction for determination of the liability of any officer or authority of
the State who had the occasion to deal with the matter is called for?
8. On the question whether a criminal case in which a charge sheet has
been filed by the local/state investigating agency can/should be referred
to Central Bureau of Investigation for further investigation there is near
unanimity of judicial opinion. In Gudalure M.J. Cherian vs. Union of
India[2] and Punjab & Haryana High Court Bar Association vs. State of
Punjab[3], it has held that after the chargesheet is filed the power to
direct further investigation by Central Bureau of Investigation should not
be normally resorted to by the Constitutional Courts unless exceptional
circumstances exist either to doubt the fairness of the investigation or
there are compulsive reasons founded on high public interest to do so.
Vineet Narain vs. Union of India[4], Union of India vs. Sushil Kumar
Modi[5] and Rajiv Ranjan Singh ‘Lalan’ (8) vs. Union of India[6] are not
decisions on the same line as the issue in the said cases was with regard
to the exercise of jurisdiction by the Monitoring Court to order further
investigation of a case after chargesheet had been filed by the Central
Bureau of Investigation to which body the investigation already stood
entrusted. Rubabbuddin Sheikh vs. State of Gujarat[7], really, carries
forward the law laid down in Gudalure M.J. Cherian and Punjab & Haryana
High Court Bar Association (supra) which position finds reflection in para
60 of the report which is in the following terms :
“…….Therefore, it can safely be concluded that in an appropriate case
when the court feels that the investigation by the police authorities
is not in the proper direction and in order to do complete justice in
the case and as the high police officials are involved in the said
crime, it was always open to the court to hand over the investigation
to the independent agency like CBI. It cannot be said that after the
charge-sheet is submitted, the court is not empowered, in an
appropriate case, to hand over the investigation to an independent
agency like CBI.”
9. The position has also been succinctly summed up in Disha (supra) to
which one of us (the learned Chief Justice) was a party by holding that
transfer of the investigation to the Central Bureau of Investigation or
any other specialised agency, notwithstanding the filing of the
chargesheet, would be justified only when the Court is satisfied that on
account of the accused being powerful and influential the investigation has
not proceeded in a proper direction or it has been biased. Further
investigation of a criminal case after the chargesheet has been filed in a
competent court may affect the jurisdiction of the said Court under Section
173 (8) of the Code of Criminal Procedure. Hence it is imperative that the
said power, which, though, will always vest in a Constitutional Court,
should be exercised only in situations befitting, judged on the touchstone
of high public interest and the need to maintain the Rule of Law.
10. The events relevant to the present adjudication may be conveniently
divided into two compartments – one before the death of Itishree Pradhan
and the second subsequent thereto. In this regard we would like to say
that all human tragedies, man made or natural, may appear to be avoidable.
To understand such phenomenon as pre-ordained is an attitude of self-
defeat, if not self deception, and therefore must be avoided. At the same
time determination of human culpability in not successfully avoiding an
event of disaster must be made by the test of exercise of due care, caution
and reasonable foresight. This, according to us, is how the events
surrounding the case will have to be judged.
11. Insofar as the facts and circumstances following the death of
Itishree Pradhan is concerned, in view of the chargesheet filed and the
departmental action taken against the erring officials, we do not feel the
necessity of any further direction in the matter, at this stage. We are,
therefore, inclined to take the view that the power of this Court to refer
a matter to Central Bureau of Investigation for further investigation,
after filing of the chargesheet by the State investigating agency, ought
not to be invoked in the present case. Instead, the course of action that
would be now mandated by law against the accused Netrananda Dandasena
should be allowed to reach its logical conclusion at the earliest. At the
same time the investigation that has been kept open against the
unidentified accused should be completed without delay. We direct
accordingly and cast the responsibility in this regard on the
Superintendent of Police, Rayagada. However, we make it clear that the
trial of accused Netrananda Dandasena shall not be held up on that count or
on any other count and the same shall proceed forthwith and be concluded
within the earliest possible time.
12. The events preceding the incident of death, however, stand on a
slightly different footing. The same, prima facie, disclose some amount of
laxity and indifference. Therefore, even while noticing that disciplinary
action has been taken against certain officials of the State, we are of the
view that the State should hold a detailed administrative inquiry into the
matter to ascertain whether any other official or authority, at any level,
is responsible for not attending to the complaints, grievances and demands
raised by the deceased either in the matter of action against accused
Netrananda Dandasena or in providing security to her or in transferring her
from Tikiri, Rayagada District. On the basis of the findings and
conclusions as may be reached in such inquiry, we direct the State to take
necessary action in the matter. We also make it clear that we have not
expressed any opinion with regard to the liability or culpability of any
official or functionary of the State in this regard.
13. We accordingly dispose of the writ petition and place on record our
appreciation for the services rendered by the young law student in seeking
to vindicate the fundamental rights of the deceased and for the painstaking
efforts expended by her to uphold the Rule of Law.
…………………………CJI.
[P. SATHASIVAM]
......………………………J.
[RANJAN GOGOI]
.........……………………J.
[N.V. RAMANA]
NEW DELHI,
MARCH 12, 2014.
-----------------------
[1] (2011) 13 SCC 337
[2] (1992) 1 SCC 397
[3] (1994) 1 SCC 616
[4] (1996) 2 SCC 199
[5] (1998) 8 SCC 661
[6] (2006) 6 SCC 613
[7] (2010) 2 SCC 200
-----------------------
14
