HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.8608 of 2011 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------- Dayanidhi Lenka, Advocate, Orissa High Court, Cuttack … Petitioner -Versus- The Secretary, Home Department, Government of Orissa, Bhubaneswar … Opp. Parties For Petitioner : Mr.D.N.Lenka For Opp. Parties : Mr.Jayant Das, Sr. Advocate Mr. B.M.Pattanaik, Sr. Advocate N.Sarkar, A.N.Das, S.Pradhan, P.R.Patnaik, D.Kumar, R.K.Jena (for O.P. No.3) M/s B.R.Sarangi, S.N.Jena & M.Mohanty (for O.P. No.4) M/s B.Maharana & S.Mohanty (for O.Ps. 5 & 6) Mr.J.Pattnaik, Sr. Advocate M/s R.K.Mohanty, S.Mohanty, A.Mohanty, S.Mohanty, D.Varadwaj & S.N.Biswal (for O.P. No.7) ------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgement:20.12.2011 B.N. Mahapatra, J. A letter dated 04.04.2011 addressed by one of the learned members of the Bar, Mr.D.N.Lenka to the Hon’ble Chief Justice of this Court, has been treated as writ petition in the nature of Public Interest Litigation. Prayer has been made in that letter to initiate a suo motu proceedings in public interest and to issue notice to the State Government as well as Superintendent of Police, Rourkela for initiating actions against wrong doers. After hearing Mr. Lenka, the petitioner in person, notice was issued on 06.04.2011 to the State Government represented by the Secretary, Department of Home and Superintendent of Police, Rourkela. On 06.04.2011, one Prasant Kumar Muduli, Special Officer, Office of the Advocate General, Orissa appeared in person and filed a letter bearing No.354/Con. dated 05.04.2011 received from the Superintendent of Police, Rourkela along with copies of two F.I.Rs. marked as Annexures-A and B relating to Udit Nagar P.S. Case Nos.23 and 24 dated 03.04.2011 registered against the Inspector-in-charge, Udit Nagar Police Station and also against the J.M.F.C., Panposh. The same were taken on record. Further, it was stated in the aforesaid letter dated 05.04.2011 that the Deputy Superintendent of Police, Rourkela has been entrusted to conduct investigation in both the cases and the Additional Superintendent of Police, Rourkela was directed to supervise both the cases and conduct an inquiry on the spot. The Special Officer, Office of the Advocate General, Orissa was directed to file further status report in the matter by the next date. 2. On 08.04.2011, an additional affidavit on behalf of the writ petitioner has been filed serving a copy thereof on learned Government Advocate. Learned Government Advocate produced a letter bearing No.2520/SS dated 06.04.2011 of the Principal Secretary to the Government, Home Department addressed to the Advocate General, Orissa, Cuttack 2 annexing therein two F.I.Rs. bearing Udit Nagar P.S. Case Nos. 23 and 24 dated 03.04.2011 one against the concerned Judicial Officer and the other against Inspector in-charge, Uditnagar Police Station, who were involved in the alleged incident dated 2nd /3rd of April, 2011. 3. Mr.Jayant Das, Learned Senior Advocate on instruction from the Secretary, Orissa High Court Bar Association, wanted to come on record to assist this Court in this matter. He has stated that the alleged incident occurred in the intervening night of 2nd / 3rd of April, 2011 at Rourkela will have a very adverse impact on the independence of judiciary and majesty of the Court in relation to the Judicial Officer against whom the F.I.R. is filed. It is further submitted that the Orissa High Court Bar Association wanted to come on record to assist this Court to decide the issue involved in this case effectively and therefore he has requested this Court to permit the Association to be impleaded as a party to the proceedings. He further submitted that, having regard to the alleged incident, the disciplinary authority has kept the Inspector in-charge of Udit Nagar Police Station, Rourkela under suspension, but the demand made by the Orissa Police Officers’ Association in their press statement asking the State Government/ Disciplinary Authority for revocation of suspension order passed against the concerned I.I.C. is uncalled for, since the said I.I.C. is solely responsible for occurrence of the incident in question. This would amount to interference with the employer’s statutory power for placing its officer under suspension and further the matter is sub judice before this Court. Therefore, he submitted that the rule of law must prevail in the State and the demand 3 made by the Orissa Police Officers’ Association for revocation of the suspension order is wholly unjustified. 4. The Orissa High Court Bar Association, the All Orissa Judicial Officers’ Association, the Orissa Police Officers’ Association, and the Orissa Havildar, Constable and Sipoy Mahasangh, represented through their respective Secretaries being proper and necessary parties to the proceedings were impleaded as opposite parties to assist this Court in arriving at a just conclusion, because they have gone to the Press and made certain statements. 5. In course of argument on 08.04.2011, learned Advocate General invited our attention to the letter dated 05.04.2011 of the Superintendent of Police, Rourkela, letter dated 06.04.2011 of the Principal Secretary to Government in the Home Department and the F.I.Rs. in Uditnagar P.S. Case Nos. 23 and 24 dated 03.04.2011. It is stated in the letter of the S.P., Rourkela that Mr.Sada Nanda Pujahari, the I.I.C., Uditnagar Police Station has been placed under suspension by the D.G. and I.G. of Police, Orissa, Cuttack vide State Police Headquarters Office Order No.449/Exe. dated 04.04.2011. Considering the aforesaid factual matrix, submissions made by the learned Advocate General, learned Senior Advocate Mr.Das and the writ petitioner in person for an effective determination of the serious and sensitive issues involved in this case and that the lawyers fraternity was abstaining from attending the Courts in protest against the alleged incident for last five days which not only hampered the regular functioning of the 4 Courts but also affected the rights of the litigants at large, as an interim measure this Court directed the All Orissa Judicial Officers’ Association, the Orissa Police Havildar, Constable and Sipoy Mahasangh to maintain normalcy and not to make any statement before the Press and restrain themselves from going on strike and/or conducting any rally demanding revocation of the suspension order in question, etc. by taking the law into their own hands until further orders. 6. By order dated 18.04.2011, liberty was given to Odisha Police OSAP Havildar, Constable and Sepoy Confederation and Odisha Police Association to approach any lawyer of their choice to appear before this Court. On 05.05.2011, Mr. J.Pattnaik, learned Senior Advocate appearing on behalf of Rourkela Bar Association pointed out that though the notification issued for appointing a Commission of Enquiry into the alleged incident, but the term of reference has not been notified. Learned Government Advocate was directed to produce the notification as well as the term of reference if already issued. Further, direction was issued to take steps for issuance of the same if it was not issued. 7. By order dated 21.06.2011, this Court allowed the prayer of Rourkela Bar Association for impletion. 8. The grievance of the petitioner is to initiate suo motu proceedings on public interest to advance a remedy to citizens and for a direction to the State Government and Superintendent of Police, Rourkela to 5 initiate action against the wrongdoers. The other prayer is to issue guidelines for protection of judicial officers. 9. So far as the prayer for inquiry is concerned, it is felt necessary to extract here the relevant portion of letter dated 06.04.2011 addressed by the Principal Secretary to Government, Department of Home to the Advocate General of Orissa on the special instruction. “2. That from the aforesaid report of D.I.G. of Police Rourkela, it appears that a Criminal Case has been registered by Shri Sadananda Pujari, IIC, Uditnagar P.S., Dist: Rourkela on his own information against Shri Arun Kumar Pattnaik, JMFC, Panposh vide Uditnagar P.S. Case No.23 dated 3.4.2011 under section 294/290/510/353/506 IPC. On the same day i.e. on 03.04.2011. Uditnagar P.S. Case No.24 dated 03.04.2011 has been registered on the report of Shri Arun Pattnaik, JMFC, Panposh to the effect that on 02.04.2011 at about 11.20 P.M. while he was moving in front of his house, he has been abused in obscene language, slapped and threatened though he had identified himself as the JMFC, Rourkela. Photostat copies of FIR of Uditnagar P.S. Case No.23 and 24 are enclosed as Annexure-B. 3. That from the aforesaid report, it appears that Shri Sadananda Pujari, IIC, Uditnagar P.S. brought Shri Arun Pattnaik, JMFC, Panposh to Uditnagar P.S. Shri Sadananda Pujari, Inspector of Police, Uditnagar P.S. has been placed under suspension by DG & IG of Police, Orissa, Cuttack vide State Police Headquarters Office Order No.449/Exe dated 04.04.2011. 4. In this connection, Hon’ble C.M. of Orissa has announced on the floor of Orissa Legislative Assembly that a Judicial enquiry will be conducted into the aforesaid incident. The Commission of Enquiry will be appointed in consultation with the Hon’ble Orissa High Court.” 6 10. In the meantime, the State Government has appointed a Commission of Enquiry headed by Justice A.S.Naidu, a retired judge of this Court to look into different aspects of the case. 11. On 23.06.2011, an affidavit by Additional Secretary to Government of Orissa, Home Department was filed stating that the infrastructure facilities necessary for smooth and proper functioning of the Commission of Enquiry headed by Justice A.S.Naidu, a retired Judge of this Court have been provided. 12. In view of the above, it would not be proper on the part of this Court to express any opinion about various stands taken by the contesting parties. However, if the petitioner and opposite party Associations/Sangha have any grievance other than the terms of reference to the Judicial Commission, they may file representation(s) before the Secretary to Government in Home Department, Government of Orissa, Bhubaneswar ventilating their grievances. If such petition(s) is/are filed or already filed, the Secretary, Home Department is directed to look into the matter and take appropriate action with regard to their grievances in accordance with law. 13. So far as the prayer to issue of guidelines for protection of judicial officers is concerned, law is well settled on the point which has been elaborately dealt with by the Hon’ble Supreme Court in Delhi Judicial Service Association, Tis Hazari Court, Delhi Vs. State of Gujarat & Ors., 1991 (4) SCC 406, wherein the Hon’ble Supreme Court in paragraphs 55 and 56 held as follows:- 55. The facts of the instant case demonstrate that a presiding officer of a court may be arrested and 7 humiliated on flimsy and manufactured charges which could affect the administration of justice. In order to avoid any such situation in future, we consider it necessary to lay down guidelines which should be followed in the case of arrest and detention of a Judicial Officer. No person whatever his rank, or designation may be, is above law and he must face the penal consequences of infraction of criminal law. A Magistrate, Judge or any other Judicial Officer is liable to criminal prosecution for an offence like any other citizen but in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated, we think that the following guidelines should be followed: (A) If a Judicial Officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be. (B) If facts and circumstances necessitate the immediate arrest of a Judicial Officer of the subordinate judiciary, a technical or formal arrest may be effected. (C) The fact of such arrest should be immediately communicated to the District and Sessions Judge of the concerned District and the Chief Justice of the High Court. (D) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District and Sessions Judge of the concerned district, if available. (E) Immediate facilities shall be provided to the Judicial Officer for communication with his family members, legal advisers and Judicial Officers, including the District and Sessions Judge. (F) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical tests be conducted except in the presence of the Legal Adviser of the Judicial Officer concerned or another Judicial Officer of equal or higher rank, if available. (G) There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be overpowered and handcuffed. In such case, immediate report shall be made to the District and Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden would be on the police to establish the necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be 8 established that the physical arrest and handcuffing of the Judicial Officer was unjustified, the police officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily determined by the High Court. 56. The above guidelines are not exhaustive but these are minimum safeguards which must be observed in case of arrest of a Judicial Officer. These guidelines should be implemented by the State Government as well as by the High Courts. We, accordingly, direct that a copy of the guidelines shall be forwarded to the Chief Secretaries of all the State Governments and to all the High Courts with a direction that the same may be brought to the notice of the concerned officers for compliance.” 14. The Hon’ble Supreme Court in the aforesaid case further held that subordinate courts at district level cater to the need of the masses in administering justice at the base level. By and large the majority of the people get their disputes adjudicated in subordinate courts, it is, in the general interest of the community that the authority of subordinate courts is protected. If the CJM is led into trap by unscrupulous police officers and if he is assaulted, handcuffed and roped, the public is bound to lose faith in courts, which would be destructive of basic structure of an ordered society. If this is permitted Rule of Law shall be supplanted by Police Raj. Viewed in this perspective the incident is not a case of physical assault on an individual judicial officer instead it is an onslaught on the institution of the judiciary itself. The incident is a clear interference with the administration of justice, lowering its judicial authority. Its effect was not confined to one District or State, it had a tendency to effect the entire judiciary in the country. The incident highlights a dangerous trend that if the police is annoyed with the 9 orders of a presiding officer of a court, he would be arrested on flimsy manufactured charges, to humiliate him publicly as has been done in the instant case. The conduct of police officers in assaulting and humiliating the CJM brought the authority and administration of justice into disrespect, affecting the public confidence in the institution of justice. 15. At this juncture, it may be relevant to refer the judgment of the Hon’ble Supreme Court in Siddharama Satlingappa Mehetre Vs. State of Maharastra, 2011 (1) SCC 694, wherein the Hon’ble Supreme Court held in paragraph 36 that all human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of right to life and liberty. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. That is why liberty is called the very quintessence of a civilized existence. 16. In view of the guideline issued by the Hon’ble Supreme Court in Delhi Judicial Service Association’ case, (supra) extracted hereinabove at paragraph-13, no further guideline is necessary to be given by this Court. We hope and trust that the guidelines prescribed by the Hon’ble Supreme Court in Delhi Judicial Service Association’ case, (supra) should be implemented by the State Government by letter and spirit. 17. Before parting with case, we want to observe that in the instant case F.I.Rs. have been lodged in connection with the alleged incident in 10 question implicating certain personnel of the District Judiciary and the Police Officer, who belong to the Judiciary and Executive. Under the Constitution of India, democratic system of governance has three wings, namely, Legislature, Executive and Judiciary and their respective functions are defined under the Constitution. Separation of power is the basic features of the Constitution for good governance. Therefore, the aforesaid three limbs of the Constitution have to function within their respective fields without transgression with each other to render justice to the people keeping in view the laudable Constitutional mandate and philosophy. Needless to say that the greatest asset of democracy is the confidence of people in its three pillars. 18. This writ petition is accordingly disposed of. ………………………….. B.N. Mahapatra, J. V. Gopala Gowda, C.J. I agree. ……………………….. Chief Justice Orissa High Court, Cuttack The 20th December, 2011/skj/ss/ssd 11