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ORISSA HIGH COURT: CUTTACK
I. MAHANTY AND S.K. SAHOO, JJ.
Mrs. N. Ratnakumari - Petitioner
Versus
State of Odisha & others - Opp. Parties
W.P.(Crl.) No.266 of 2014
Decided on: 24.07.2014
The existence of power of arrest is one thing but the justification for such exercise is quite another. Arresting Officer must be able to justify the arrest apart from his power to do so. Arrest and detention of a person cannot be made in a casual or routine manner on the mere allegation of commission of offence and the law mandates that before arresting a person and after arrest, procedure laid down under Chapter-V of Cr.P.C. are to be strictly followed otherwise the arrest and the consequent detention would be illegal. That is why Section 60 of Cr.P.C. was inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (15 of 2009) which came into force with effect from 31.12.2009 along with other amendments in Chapter V of Cr.P.C. The police officer must be able to justify the necessity for such arrest apart from his power to do so. Arrest should be made as the last option restricted in exceptional cases where asserting the accused is imperative in the facts and circumstance of the case. No arrest should be made by the police officer in case of non-bailable and cognizable offence without a reasonable satisfaction as to genuineness of allegation made after conducting some investigation. Unless the principle laid down regarding arrest is kept in mind by the arresting officer, it would amount to denying a person of his liberty. (Paras - 9 and 10)
2. CONSTITUTION OF INDIA, 1950 - Arts. 21 and 14 - No person shall be deprived of his life or personal liberty except according to procedure established by law - Procedure must be fair and not formal and it should be reasonable, not vagarious, vague and arbitrary - When the police is exercising his statutory power, it should be done in a fair manner - If the exercise is arbitrary in nature, then it violates fundamental rights guaranteed under Art. 14 of the Constitution of India. (Para - 11)
3. CRIMINAL PROCEDURE CODE, 1973 - Sec. 41(1)(b) - Arrest of an person by police without an order from a Magistrate - Satisfaction of the Police Officer regarding necessity of the arrest of the person - Reasons has to be recorded in writing by the Police Officer while making the arrest of a person who is alleged to have committed cognizable offence punishable with less than 7 years or with 7 years with or without fine - Detail stated. (Paras - 14 to 19)
4. TRANSPLANTATION OF HUMAN ORGANS ACT, 1994 - Sec. 9(4)(b) - Kidney transplantation operation carried out in Visakhapatnam - Donor and recipient both belong to State of Orissa - Approval/No Objection Certificate of the Authorisation Committee of Orissa State has not been taken which is mandatory - TOHO Act will be applicable. (Para- 26)
5. CRIMINAL PROCEDURE CODE, 1973 - Sec. 178(C) - A continuing offence means that if an act or omission on the part of the accused constitutes an offence and if that act or omission continues from day to day, then a fresh offence is committed every day on which the act or omission continues. (Para - 27)
6. TRANSPLANTATION OF HUMAN ORGANS ACT, 1994 - Secs. 9 and 10 - Not only in cases of persons who are not relatives but also in case of near relatives, a joint application has to be made by the donor and the recipient before the Authorization Committee of the State to which they belong to - After approval is accorded, the removal and transplantation of human organ may take place in the Authorised Transplantation Centre, either in the State to which both the donor and the recipient belong to or in. any other state. (Para - 32)
7. CRIMINAL PROCEDURE CODE, 1973 - Sec. 4 -If an offence is committed under a Special Law, then the provisions of that law would govern the investigation - A police officer is not empowered either to submit charge sheet or otherwise proceed under Chapter XII of Cr.P.C.
The powers under the Cr.P.C. are thus subject to any special provisions that might be made with regard to the exercise or regulation of those powers by any Special Act. In view of Section 4 Cr.P.C., if the Special Act does not indicate the specific provision for Cr.P.C. would be applicable. Thus when a Special Law prescribes for a special form or procedure, the procedure enumerated under the Cr.P.C. is not to be followed. Only when a special law or local law does not provide the procedure or dealing with offence under the said special or local Act, the procedure contained in the Cr.P.C. is to be followed. (Para - 36)
8. CRIMINAL PROCEDURE CODE, 1973 - Sec. 41 (A) - Issuance of notice is mandatory in cases where the Police Officer feels that the arrest of a person is not required and the case is one which punishment upto 7 years or less with or without fine. (Para - 42)
9. ARREST - Grounds of arrest must indicate at least in brief the reasons and necessity of arrest - If the arrest is made without compliance of the statutory provisions then it becomes arbitrary and unconstitutional and it cannot be sustained in the eye of law. (Para - 44)
10. CRIMINAL PROCEDURE CODE, 1973 - Sec. 57 - 24 hours prescribed under the section is the outermost limit beyond which arrested person cannot be detained in police custody - Detail stated.
Section 57 Cr.P.C. provides for the period to which an accused person arrested can be detained in custody by the police. The first limit is that it should be reasonable period which may be even less than 24 hours and it shall, in no case, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. If a police officer detains a person in custody after arresting him without warrant considering that investigation cannot be completed within 24 hours then he must produce the accused before the Magistrate forthwith and cannot wait even for 24 hours. After producing the accused, the police can always pray for remand of the accused either to his custody or to judicial custody. (Para - 45)
Judgment
S.K.Sahoo, J.
“Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me, give me liberty, or give me death.”
– Patrick Henry
In this petition for a writ of habeas corpus, the petitioner Mrs. N. Ratnakumari has challenged the illegal arrest and unlawful detention of her husband Dr. N. Pravakar Babu (hereinafter ‘the detenue’) and has prayed for his release from the unlawful and illegal detention with a further prayer to quash the same.
2. It appears from the facts of the case that one Umakanta Nayak, S/o-Late Damodar Nayak of Naik Sahi, Buxi Bazar, P.S-Mangalabag, District-Cuttack lodged a First Information Report before the Inspector-in-Charge, Mangalabag Police Station alleging therein that his wife Namita Nayak and one Sharmista Nayak were closely known to each other and residing in the same Sahi. On 12.3.2014, Smt. Sharmista Nayak alleged to have taken the wife of the informant on the pretext of visiting Sai Baba Ashram and since his wife did not return back home for about 15/16 days, the informant contacted his wife over telephone and came to know from her that Smt. Sharmista Nayak did not take her to Sai Baba Ashram on 12.3.2014 as promised rather took her to Visakhapatnam and kept her in a lodge and that she was told by Sharmista that one her relative’s kidney was damaged and he was in dire need of a kidney and requested her to donate her kidney. On receiving such information from his wife, the informant proceeded to Visakhapatnam as per the address given by his wife and by that time his wife was already admitted in Seven Hills Hospital, Visakhapatnam. The informant told his wife at Visakhapatnam not to give her kidney but Sharmista Nayak and one Niranjan assured the informant that his family will be taken care of by them. In view of the persuasion made by Sharmista and Niranjan, the wife of the informant agreed to donate her kidney to save a life and accordingly Namita’s kidney was transplanted to one Mohan Chandra Lenka of Palasuni of Bhubaneswar in the said hospital. It is further alleged that subsequently the informant came to know that Mohan Chandra Lenka is no way related to Sharmista and that Sharmista duped his wife and changed his wife’s identity proof as one Banita Lenka and projected her as the wife of said Mohan Chandra Lenka and collected Rs.7,00,000/- in the name of the wife of the informant and misappropriated the same. It is alleged that the signature of the wife of the informant was taken on several written papers and blank papers against her will and she was not aware about the contents and meaning of those papers. The operation of Namita, the wife of the informant was carried out on 3.4.2014 and after her recovery, the informant lodged the F.I.R. on 31.5.2014 at Mangalabag Police Station.
3. On the basis of such F.I.R, Mangalabag P.S. Case No.98 of 2014 was registered on 31.5.2014 for commission of offences under sections 120(B), 468, 471, 342 read with section 34 I.P.C. and Section 19 of Transplantation of Human Organ and Tissues Act, 1994 (hereinafter “1994 TOHO Act”) which corresponds to G.R. Case no. 950 of 2014 pending in the Court of S.D.J.M., Sadar, Cuttack and the investigation was taken up.
4. According to the petitioner, even though there is no allegation against her husband (i.e., the detenue) who is the Director, Administration of Seven Hills Hospital in the F.I.R. or against the authorities of the said hospital in any manner and the case appears to be a dispute between the informant and his wife of one hand and Sharmista and Mohan Chandra Lenka on the other and when basing on the voter identity card, residential certificate produced before the authorities of the hospital, kidney transplantation operation was carried out in accordance with Andhra Pradesh Transplantation of Human Organs Act, 1995 (hereinafter “1995 A.P. TOHO Act”) without any ill intention rather to save the
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