Orissa High Court Grants Bail To Lawyer-Friend Of Army Major Allegedly Assaulted By Police, Criticizes Lower Court's "Format Order"

The Orissa High Court granted bail to the female friend of an Army Major on Wednesday, who was allegedly subjected to custodial torture and was arrested subsequent to a broil with police personnel of Bharatpur police station in Bhubaneswar.

After taking up the matter urgently for hearing, the Single Bench of Justice Aditya Kumar Mohapatra came down heavily upon the police personnel for assault on the duo. The Bench further censured the police for illegally detaining both of them against violating the sacrosanct procedures and observed:

“…the arresting officer has failed to follow the procedure laid down in section 35 of BNSS (corresponding to 41/41-A Cr.P.C.) which is contrary to the guidelines framed by the Hon'ble Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation & anr (supra). The higher authorities of the state as well as Police administration shall take action as suggested in the above noted judgment of the Hon'ble Supreme Court of India.”

Facts & Contentions

The matter pertains to illegal detention and alleged custodial torture meted out to an Army personnel from 22 Sikh Regiment and to his female friend, a practising lawyer. The incident happened in between 02:00 AM to 07:00 AM on 15.09.2024.

The Court was apprised that the couple had come to the police station to lodge a complaint against some culprits involved in a road rage case which occurred while they were on their way back to home on the same night. However, instead of registering the complaint, the police personnel started misbehaving and assaulting both the persons.

Later on, an FIR was lodged against them for commission of offences under Sections 126(2), 115(2), 296, 324(2), 118(1), 74, 132, 351(3) and 3(5) of the Bharatiya Nyaya Sanhita (BNS). The lady approached the lower Court for bail but the same was denied by a "cryptic, short order" by the JMFC-V, Bhubaneswar.

Being aggrieved, she approached High Court seeking to invoke its jurisdiction under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). Though the matter was not originally listed for hearing, after an urgent mentioning by Senior Counsel Yasobant Das, the Court took up the case for hearing through a special notice.

The case was earlier mentioned before a Single Bench of Justice Sibo Sankar Mishra yesterday, who had ordered for shifting of the petitioner to AIIMS, Bhubaneswar for better treatment.

After the commencement of hearing, Advocate General Pitambar Acharya apprised the Court that strict actions have been taken against the erring police officials, some of whom had been transferred and some other have been put under suspension pending the inquiry. He assured the Court that fair and impartial inquiry shall be conducted in the matter.

The Senior Advocate for the petitioner submitted that the police illegally detained the duo and meted out severe torture against them for which the petitioner is under treatment in the AIIMS, Bhubaneswar and her condition was stated to be critical.

He further argued that the police severely erred in not releasing both of them under Section 35(3)(4) of BNSS by following the guidelines laid down by the Apex Court in Arnesh Kumar v. State of Bihar and Satender Kumar Antil v. CBI & Anr.

Court's Observations

The Court first addressed the jurisdictional issue. It held that though Section 483 of the BNSS [pari materia to Section 439 of the CrPC] confers concurrent jurisdictions upon the Sessions Court and the High Court with regard to power for grant of bail, but it has been a settled practice that aggrieved persons first approach the Sessions Court before knocking the portals of the High Court.

However, the Court did not deem it proper to ask the petitioner to approach the Sessions Court, taking into account the peculiar facts of the case as well as the gravity of allegations levelled against the police officials.

Justice Mohapatra held that the custodial detention of the petitioner infringes upon her fundamental right guaranteed under Article 21 of the Constitution and accordingly observed:

“The allegation made by the accused-Petitioner in the present case is an anathema to the very concept of a democratic and orderly society. Therefore by taking a departure from the well established practice of considering the bail application only after the same is rejected by the District & Sessions Judge, this Court deems it proper to take up the bail application of the Petitioner on its own merit.”

The Court also flagged that the arresting officer did not follow the procedure prescribed under Section 35 of the BNSS (akin to Sections 41/41-A of the CrPC) and in that way, violated the binding guidelines issued by the top Court in Satender Kumar Antil (supra).

Mechanical Bail Order Of Magistrate

Justice Mohapatra expressed his dismay over the mechanical order passed by the lower Court in rejecting the bail of the petitioner.

“Before parting, this Court would like to observe that the learned magistrate has used rejection slip under Annexure-2 to the bail application as a rejection order dated 16.09.2024. On careful examination of the rejection slip, it appears that the learned magistrate has failed to apply his/her judicial mind and has acted in a mechanical manner,” he said.

Referring to the judgment of the Supreme Court in Ms. Y v. State of Rajasthan & Anr., the Court deprecated the practice of passing 'format order' in bail applications. In the aforesaid case, the highest Court had discouraged the growing trend in the judicial fraternity to pass generic and unreasoned orders in granting or rejecting bails.

“In absence of any reason the order would become a void order. Learned District & Sessions Judge, Khurda at Bhubaneswar is requested to communicate the same to all the magistrates not to follow such type of printed format order while considering the bail application of the accused persons,” the Single Judge directed.

Considering the aforesaid infirmities, the Court granted bail to the petitioner on such terms and conditions as shall be fixed by the Court below. It also directed the State to bear all the expenses to be incurred for her medical treatment.

Case Title: Ankita Pradhan v. State of Odisha

Case No: BLAPL No. 9430 of 2024

Date of Order: September 18, 2024

Counsel for the Petitioner: Mr. Yasobant Das, Sr. Advocate

Counsel for the State: Mr. B.K. Ragada, Addl. Govt. Advocate

Citation: 2024 LiveLaw (Ori) 76

Click Here To Read/Download Order