Subhas Chandra Pattanayak
Orissa High Court has done the best by quashing the cognizance in Mili Panda matter. But yet, essential need is elimination of judicial blunder.
She is the wife of revolutionary Sabyasachi Panda whom police is eager to hound, but has not succeeded in catching; which is, many fear, the reason of its vindictiveness, the impact whereof she is being forced to bear with.
She is a mirror in which the Government can see the reflection of how ugly it looks with the cosmetics of law and order when police is pressed to victimize earmarked individuals for their support to revolution against exploitation.
In her, we find, how a citizen suffers when the Government becomes a conspirator, specifically as she continues to suffer incarceration notwithstanding the State’s High Court having quashed the wrongful proceedings against her in criminal misc case No.3080 of 2010.
CRLMC No. 3080 of 2010
In preferring this case before the High Court of Orissa against wrong prosecution, Ms. Mili Panda (Subhashree Das) and two others (Kishore Kumar Jena and Sangram Bhol @ Sangram Bhola) prayed that the cognizance taken in G.R. Case No.16 of 2010 by the Judicial Magistrate (First Class) (JMFC) of Banpur and Sessions Trial commenced on commitment vide S.T. No.12/116 of 2010 in the Court of the Ad hoc Addl. Sessions Judge (F.T.C.), Khurda, arising out of Balugaon P.S. Case No.8 of 2010 corresponding to CID (CB) P.S. Case No.1 of 2010 under the Unlawful Activities (Prevention) Act (hereinafter called the Act), be quashed on the grounds shown in their petition.
Orissa High Court earmarked the question of cognizance as the crux of the issue; heard the parties and quashed the cognizance taken by the JMFC and the resultant proceedings in the sessions case by allowing the CRLMC on 19 October 2011; because to it, the cognizance taken was an act against the Act.
Prosecution acts against the Act
From the High Court judgement it transpires that Ms. Panda and the two others were arbitrarily subjected to prosecution under the Act, which is an extremely stringent law, by the police that sloughed over the core condition laid down under the Act as “a very salutary safegurad” against arbitrariness and despite that the JMFC had taken cognizance.
Let us focus on this.
The police was certainly under pressure – probably to demoralize Sabyasachi Panda – to arrest and incarcerate Mili Panda, without bothering, if thereby the Act was to be contravened.
Sans pressure, the police could not have acted against the Act the way it has in Mili Panda case.
In this case, we see, the core provision of the Act, which, in fact, is the prerequisite for Courts to take cognizance under the Act, was completely ignored, so rash was the police in its steps to torture Ms.Panda and her two compatriots (hereinafter Ms. Panda for the sake of convenience in expression).
And, perhaps the court was under pressure. The pressure was, perhaps, very overwhelming. So overwhelming that, the JMFC was not able to refuse to take cognizance, even though the core provision of the Act does not allow such cognizance to be taken by any court without fulfillment of the conditionality laid down therein.
The core condition of administration of the Act is laid down under Section 45 that prohibits Courts to take cognizance unless prerequisites are fulfilled.
(1) No Court shall take cognizance of any offense –
(i) Under Chapter III without the previous sanction of the Central Government or any officer authorized by the Central Government in this behalf;
(ii) Under Chapters IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and where such offense is committed against the Government of a foreign country without the previous sanction of the Central Government.
(2) Sanction for prosecution under sub-section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation within such time as may be prescribed to the Central Government or, as the case may be, the State Government.”
This core condition is conspicuous by its absence than implementation in the instant case.
Legislation against arbitrariness
The Act being a very stringent Act, shrewdly designed to suppress the voices raised on behalf of the oppressed but silent majority, though in appearance made to control the rogues, from the beginning of its implementation, its misuse against innocent people by unprincipled, unscrupulous and exploitive apparatus of the State was alarmingly rampant.
Therefore, whenever any opportunity was available to speak on administration of this Act, as many members of Parliament as were allowed to speak, were castigating the Government for misuse of this Act.
This had necessitated an amendment in the Act to insert a safeguard against its misuse.
In fact, when the Amendment Bill was taken up by the Rajya Sabha, the Home Minister, while answering the debates, had to admit that it was not possible on his part to reject the allegations of misuse of the Act.
He said that the executive government registering cases under the Act “through a police officer”, misuse of the Act is possible as and when the executive government becomes “vindictive”. Hence, the amendment was conceived as “a very salutary safeguard” against arbitrariness in prosecution under the Act, he had said.
“Finally, Sir”, he had told the Rajya Sabha, “we have incorporated a very salutary provision. To the best of our knowledge – I don’t know, I may be corrected by the Law Minister or the Law Secretary later – it is the first time we are introducing this.
“In a prosecution under the UAPA, now, it is the executive Government which registers the case through a police officer. It is the executive Government which investigates the case through an investigating agency, namely, the police department. It is the executive Government which sanctions U/s.45. Therefore, there is a fear that a vindictive or a wrong executive Government could register a case, investigate and sanction prosecution. There is a fear.
“May be, it is not a fear that is entirely justified but you cannot say that it is entirely unjustified.
“So what are we doing?
“The executive Government can register the case because no one else can register a case. The executive Government, through its agency, can investigate the case. But , before sanction is granted under 45(1) we are interposing an independent authority which will review the entire evidence, gathered in the investigation, and then make a recommendation whether this is a fit case of prosecution. So, here, we are bringing a filter , a buffer , an independent authority who has to review the entire evidence that is gathered and, then , make a recommendation to the State Government or the Central Government as the case may be, a fit case for sanction.
I think, this is a very salutary safeguard . All sections of the House should welcome it. This is a biggest buffer against arbitrariness which many Members spoke about. Sir, these are the features in the Bill.”
By adopting the Bill, the Parliament approved the legislative intention thus spelt out by the Home Minister.
Hence, for the police to register any case under the Act and for any Court to take cognizance thereof, the prerequisite is fulfillment of the core condition i.e “sanction” of the concerned Government given within a “prescribed time” for institution of the case on the basis of “recommendation” made “within such time as may be prescribed” in favor of the case by “an independent executive” created as “authority” for the purpose, after “making an independent review” of “the evidence gathered in the course of investigation”.
In the case of Ms. Panda, this prerequisite was totally ignored. Yet, the Banpur JMFC could take cognizance!
Attempts to hoodwink the High Court
The Government was so intrinsically involved with the arbitrary prosecution of Ms. Panda, that, when the order of cognizance was challenged, the prosecution tried to mislead the High Court by projecting one A.M.Prasad, claimed to be “Special/Additional Secretary of Home Department” as the authority who had reviewed the evidence as required under Sub-Section (2) of Section 45 of the Act and had “recommended approval of the prosecution”.
Records of the High Court show that the State had produced a letter dated 24.2.2011, containing an extract taken from File No.PIC/1 (Pro) 93/2011 which contains the “review notes” of Prasad, the Special Secretary/Additional Secretary of Home Department.
The number of the file indicates that it was created in 2011. How then the so called review notes of Prasad could pave the way for government sanction in 2010? And how is it that the Government could not specify as to whether Prasad was the Special or the Additional Secretary, because the two posts are distinctly different in the level of rank; the Special Secretary being higher in rank than the Additional Secretary and one officer cannot be of two ranks at the same time under the same department.
So, obviously, the authenticity of the so called review notes communicated to the High Court was stage-managed to hoodwink the Court.
But, it seems, the court refused to be hoodwinked.
From its judgement delivered on 19 October 2011, it transpires that on query, the Court found that Prasad was not the “authority” to “review” the evidence. He was not appointed to review the evidence and to make the recommendation for prosecution against Ms. Panda under the Act.
The Court “asked” the Additional Government Advocate (AGA), representing the State of Orissa “to produce any document/order of appointment” of Sri Prasad “issued by the appropriate authority, appointing him as the ‘review authority’ under Section 45(2) of the Act”. And, the Court notes, “To this query, learned AGA fairly responded that, no such formal appointment order appointing the Special Secretary for the purpose of reviewing cases under Section 45 of the Act is available on records. To a further query of the Court as to whether the State have prescribed any time limit for the purpose of producing such report by the reviewing authority, learned AGA for the State also responded in the negative”.
It was clear to the Court, from the answers to its queries by the AGA, that, the State had not “appointed” any appropriate person “as the authority for the purpose of carrying out an independent review as required under Section 45(2) of the Act” requiring him to furnish his review report and recommendation within a “prescribed” “time limit”. The “very salutary safeguard” the Parliament had created for saving the citizens from concocted cases contrived by “vindictive” executive Government and, in the words of the Home Minister in spelling out the legislative intention behind this provision, “the biggest buffer against arbitrariness” in prosecution under the stringent Act, was thus absent when the Banpur JMFC had taken cognizance of the case filed against Ms. Panda.
This makes it absolutely clear that the prerequisite for taking cognizance of the case was absent and the cognizance taken in the Banpur Court was ultra vires.
On this ground and on decisions in various cases relied upon, Justice Indrajit Mohanty quashed the cognizance taken by the lower court, “forbidden” as it was by the Act from taking cognizance in absence of valid “sanction order” based on valid “review of evidences gathered in course of investigations” by a validly “appointed” “authority”.
He quashed the cognizance on the ground of non-adherence to the mandatory prerequisite. To quote the judgement,
“In view of the conclusions/finding reached hereinabove, this Court is of the considered view that, no cognizance could have been taken against the petitioners in the absence of any valid sanction of the prosecution and in this regard, although sanction for prosecution had been obtained, yet the same was not based upon a review by a validly appointed authority to carry out “independent review of evidence” obtained in course of investigation. Therefore, the very foundation for obtaining such sanction being not in consonance with law, the order of cognizance dated 16.7.2010 passed by the learned J.M.F.C., Banpur in G.R. Case No.16 of 2010 ought to be quashed and this Court directs accordingly.
Insofar as the other contentions as noted hereinabove are concerned, this Court is of the view that the same need not be dealt with in the present case, since the order of cognizance has been quashed”.
Cognizance quashed, the case stands quashed in the Court of the the Ad hoc Additional Sessions Judge (FTC) Kurda also, as it is a case commenced on commitment on the basis only of cognizance taken.
Hence the case against Ms. Panda does not exist since 19 October 2011. But anarchy does not end.
Quashing of cognizance not enough
When the case does not exist after quashing of the cognizance, it is surprising that the crime branch of police has filed a supplementary charge-sheet against Ms. Panda under claims of fresh evidence stumbled upon.
“At the time of submission of the charge-sheet earlier, we had informed the court that the case was open for filing of supplementary charge-sheet under section 173 (8) of Cr.PC,” claims the prosecution. But, how does a Court entertains this claim when the case has no life after quashing of the cognizance?
Had the JMFC of Banpur not taken cognizance, the case created against Ms. Panda in the Police Station could never have had a judicial life. So, on extermination of the said cognizance by the High Court, the life of the case has already been extinguished.
It is now nothing but a dead case.
It is a case that no more exists for judicial purpose.
How then does a Court entertains the so-called supplementary charge sheet and how does a government dares to play on the corpse of the case by pumping into its file post extermination sanction orders?
Shenanigans point out how anarchic is the government’s game with the law.
Marking their own defects in course of hearing in the High Court, they had tried to build up a sound cognizance of the same case at Banpur by presenting a supplementary charge sheet with a second sanction order. Yet it not being fault free, they superseded the 2nd sanction order and produced a 3rd sanction order with which a second supplementary charge sheet was filed before District Judge, Kurda at BBSR.
Why is it being entertained is a conundrum.
The Judiciary ought to have tried to find out as to why the government is so motivated against Ms. Panda? Why the government is not behaving as a impartial government in ensuring rule of Law? Why it tried to hoodwink the High Court with a stage-managed sanction order and why it, thereafter, tried to vitiate administration of the Act with a second sanction order on projection of a supplementary charge sheet and when that failed to click, why have they been allowed to “supersede” the second sanction order and to file a third sanction order supporting a second supplementary charge sheet? Does the Act equip the police or the Government with any carte blanche to manufacture such sanction orders and supersede one by another to suit its nefarious design? Is it not killing of the spirit of 45(2) inserted into the Act as “the biggest buffer against arbitrariness”?
Contempt against rule of Law
The government conduct is so vitiated with contempt against rule of Law that quashing of the cognizance notwithstanding, prison bars continue to debar freedom to Ms. Panda. And, to keep the bars further tightened, unfounded allegations are being shut in a Court at Gunupur aimed at transforming Ms. Mili Panda to a mysterious Sima, claimed to have played a role in Naxal-Police encounter in 2003, despite the fact that the said encounter case was so very concocted that all the six accused that had been subjected to humiliations of under-trial life, have been acquitted on hearing.
In attempt to victimize Ms. Mili Panda in the Gunupur case, formalities falling within the frame of 173 (8) of Cr.PC were not observed. To hound her, steps also are taken to entangle her in a case of 2008 armory loot in Nayagarh.
We see in her prosecution the reflection of sinister motive of the British trade based Government in prosecution of freedom fighters of India.
And, there is no doubt, that more and more numbers of Indian patriots will be prosecuted like this as the country is now under the grip of traders with democracy shrewdly transformed into plutocracy.
Both the political and executive governments being in nexus with traders and exploiters in a plutocracy, patriots who would act against the nexus, will certainly be subjected to false cases in increasing numbers.
Judiciary need be more responsible
So, Judiciary shall be looked at as the only refuge for seekers of peaceful life for self and society. In such circumstances, Judiciary need be more responsible than how it acted in taking cognizance against Ms. Panda.
The false and concocted cases may ultimately end in rejection due to the wisdom of Judiciary in higher to highest level. But by then, unless the “buffers against arbitrariness” as created under the Act are strictly adhered to in lower judicial level, people like Ms. Panda will be suffering the ignominy of imprisonment on wrongful cognizance of the cases. So, essential need is, not the quashing of wrongful cognizances alone, but also elimination of judicial blunder in taking cognizance, by way of punishment if necessary.
Judiciary in every level will have to be more responsible if rule of Law is to prevail.