SUDIPTA LENKA Vs THE STATE OF ODISHA
Bench: P SATHASIVAM,RANJAN GOGOI,N.V. RAMANA
Case number: W.P.(C) No.-000957-000957 / 2013
Diary number: 35982 / 2013
Advocates: SIDDHARTHA CHOWDHURY Vs
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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.
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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 2
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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 3
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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
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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 5
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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.
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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 7
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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
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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 9
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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 10
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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 11
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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
Others1 (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.
1 (2011) 13 SCC 337 12
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(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. 13
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(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 14
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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 15
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India2 and Punjab & Haryana High Court Bar
Association vs. State of Punjab3, 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
India4, Union of India vs. Sushil Kumar Modi5 and Rajiv
Ranjan Singh ‘Lalan’ (8) vs. Union of India6 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 Gujarat7,
really, carries forward the law laid down in Gudalure M.J.
Cherian and Punjab & Haryana High Court Bar
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
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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 17
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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,
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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
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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.
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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.
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