Subhas Chandra Pattanayak

The Code of Criminal Procedure is the one instrument that the Law enforcement authorities cannot discard or disobey. It gives the authority required by the authorities to act against criminals.

At Section 39 (1), it makes mandatory for every citizen to inform the “nearest Magistrate or Police Officer” of occurrence of certain offenses. Let us see what it says.

It says, “Every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code (IPC) (as categorized under Clauses from i to xii) shall, in the absence of any personal excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or Police Officer of such commission or intention”.

Before going to the relevant Clause, it would be better to appreciate the emphasis given on this section. The word shall here is absolutely mandatory. It makes it compulsory for every individual to forthwith give information to the nearest Magistrate or Police Officer the moment he or she is aware of commission of a crime or any other person’s intention to commit a crime.

The crime comprising the mischief of this section is of various types indicated in the clauses from i to xii like offenses against the State coming under Clause (i); offenses against public tranquility as shown under Clause (ii) etc. The offenses affecting life are covered under Clause (v).

An offense affecting the life of Class IV public servant Ramesh Sethi has been committed under the residential privacy of IAS Officer Ardhendu Sarangi. Either Ardhendu himself or any of his family members who share residential privacy with him has committed the crime. This is so suspected, because he has not informed the authorities of any other person even though the crime is committed within the secured privacy of his residence.

It is he who took Sethi under coma from his residence to the Capital Hospital, Bhubaneswar and from there to the S.C.B. Medical College Hospital, Cuttack.

Had he no ulterior motive, he should have kept the records straight and facilitated operation of criminal justice system by informing forthwith the nearest Magistrate or the nearest Police Officer.

There is no Magistrate so far on records to have pressed the police to action in this case on Sarangi’s information. This means, Sarangi, though aware of the crime commissioned, has not forthwith informed the nearest Magistrate. On the other hand, the nearest police officer i.e. officer-in-charge of Capital Police Station is on records to have said that the only information received by police in the matter is from a man who does not reside in the residence of Sarangis.

Now when Police knows that Ardhendu was aware of the commission of the crime from the moment it occurred, specifically as it was he who took the victim in coma condition to the Hospital(s), why have they not initiated penal actions against him for having willfully concealed the fact from the lawful authorities?

Taking plea of personal excuse is also not permissible to Ardhendu.

The law is very clear and specific. It has stipulated that “the burden of proving” the justification of the “excuse” that prevented from forthwith informing the nearest Magistrate or the nearest Police Officer, “shall lie upon the person so aware”. When the word “shall” is mandatory, unavoidability of the “excuse” must have to be “proved” by the person concerned to escape punishment for having not informed the nearest Magistrate / Police officer “forthwith”.

And, where the justification of the “excuse” may be “proved”? Only in a court of Law competent under the Evidence Act.

So until the justification of an “excuse” is “proved” in a competent Court of Law, Police must continue to prosecute the person who despite being aware of commission of a crime has not informed the nearest Magistrate / Police officer.

In view of this legal stipulation, the Police is duty bound to prosecute Ardhendu Sarangi and all the members of his family individually and collectively for having stayed away from informing the nearest Magistrate or the nearest Police Officer of commissioning of the crime, in due deference to the spirit of Section 39 of the Cr.P.C.

On the other hand, the so called FIR from a persona nongrata that the Police has haphazardly entertained in this case, informs that he saw a man known as Pradip Nayak who works also in Ardhendu’s residence along with Sethi, was walking away from Ardhendu’s compound after assaulting the victim with a spade.

Now, if an iota to credence could be given to this information, Ardhendu would attract prosecution under section 201 of IPC as his action, in such circumstances would tantamount to “causing disappearance of evidence of offense” specifically as the body of class IV employees has stoutly denied working of any such man of their rank in Sarangi residence and further as that man has disappeared.

On another thread of Law, if Pradip was really a man, legally or extra-legally pressed on domestic duty by the Sarangis in their official residence, and he has perpetrated the murderous assault on Sethi, then giving credence to the aforesaid informant, Sarangi and his family individually and collectively attract prosecution under section 119 and section 120 of IPC.

Nobody commits a crime thus grave without any criminal intent.

If Pradip has committed the crime, according to the so-called eyewitness informant, he did it without exchanging any word with the victim and walked away from the compound without any obstruction. That means he had a concealed design to murder Sethi. By not informing the nearest Magistrate or the nearest Police Officer of commencement of the crime, Ardhendu has concealed the culprit, which by extension means, he has facilitated execution of concealed design of Pradip to murder Sethi. Therefore he is prosecutable under section 120 of IPC that says if the offense is committed, the facilitator “shall be punished with imprisonment of the description provided for the offense and with such fine as is provided for”.

The IPC under section 119 has provided specific punishment for “whosoever being a public servant intending to facilitate knowing it to be likely that he will thereby facilitate the commission of an offense which it is his duty bas such public servant to prevent, voluntarily conceals by any act or illegal omission, the existence of a design to commit such offense ………..shall, if the offense be committed, be punished with imprisonment of any description provided for the offense for a term which may extend to one-half of the longest term of such imprisonment, or with such fine as is provided for that offense, or with both”.

Instead of playing hoodwinking tricks, Chief Minister Navin Patnaik should ask the Police to Act according to Acts in force, a few threads of which are discussed above.

And, instead of showing us stars on the day sky, Police should assure us that it understands the spirit of the Code of Criminal Procedure and has the aptitude to act according to the Code even if thereby it is to act against powerful IAS officers.

Hoodlumism of IAS officers has shown its ugly face many a times in Orissa even to the extent of posing open affront to authority of the Assembly. This time the aggrieved persons are neither the MLAs nor self-centric persons who benefit by hobnobbing with those people in power. This time it is a very poor man who having served the State as an employee in the lowest cadre for more than 15 years has not been regularized in service but on the other hand, pressed to do duties in the residence of couple in IAS has been used in menial works and lastly been brutally assaulted to the extent of hospitalization under coma that necessitated a brain-repair through neurosurgery without his knowledge and without knowing what dreaded damage that would throw him into. In a remarkable solidarity show, the Class IV employees of the State at Bhubaneswar have warned the Chief Minister that they will not tolerate any attempt to hush up the offense.

Therefore it is better for the Chief Minister to ensure that the Police under his control acts according to the Code of Criminal Procedure and refrain from killing the spirit of Section 39 thereof by prosecuting Sarangi under the sections discussed supra if not under 307 of IPC.

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