The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK WPCRL No.14 of 2023 In the matter of an application under Articles-226 & 227 of the Constitution of India ; ----------- Sri Sandeep Kumar Haldar, S/o. Ashim Kumar Haldar, Plot No.104, Satya Enclave, Satya Vihara, Palasuni, P.S.- Rasulgarh, Bhubaneswar District- Khurda ……. -Versus- Petitioner State of Orissa & others ……. Opp. Parties ___________________________________________________________ For the Petitioner : Mr. Soumendra Pattanaik, Advocate For the Opp. Parties: Mr. D. Nayak, Addl. Govt. Advocate ___________________________________________________________ CORAM: THE HONOURABLE SHRI JUSTICE S. TALAPATRA THE HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 6th July, 2023 S. Talapatra, J. By means of this writ petition, the petitioner has challenged the order No.13 dated 17.11.2022 passed by the S.D.J.M., Malkangiri in Malkangiri P.S. Case No.0432 of 2022 based on the forwarding report of the IIC, Malkangiri, the opposite party No.3 and the Police report dated 15.01.2023, Annexure-6 to the writ petition. On 2 culmination of investigation, the charge sheet No.09, dated 14.01.2023 under Sections 419/ 420/ 460/ 471/120(B) IPC read with Section-19(a) of the Transplantation of Human Organs and Tissue Act has been filed against Subal Majhi and under Sections-498(A)/ 494/ 506/ 420/ 468/ 471/120(B) IPC read with Section-4 of the Dowry Prohibition Act and under Section-19(1)(a) of the Transplantation of Human Organs and Tissue Act against Prasant Kundu and under Sections- 498(A)/494/506/109 IPC against Kajal Haldar has been filed keeping the investigation open under Section-173(8) Cr. P.C. 2. The petitioner namely Sandeep Kumar Haldar is the nephew of Subal Majhi, the charge-sheeted accused person and the opposite party No.5 in this proceeding. 3. This petition has been filed fundamentally seeking quashing of the prosecution against the proforma-opposite party No.5 under Sections-419/420/468/471/120(B) IPC read with Section-19(a) of the Transplantation of Human Organs and Tissues Act (TOHOT Act in short). 4. According to the petitioner, the police did not have any jurisdiction to investigate the offence allegedly committed under the TOHOT Act. Any inquiry under the TOHOT Act has to be initiated by filing a complaint before the Judicial Magistrate. But the S.D.J.M., Page 2 of 26 3
Facts
Malkangiri according to the petitioner, did not confirm to that procedure. Despite that procedural illegality, the S.D.J.M. remanded the opposite party No.5, hereinafter be referred to as the accused, to judicial custody. Thus, the order of remand Annexure-4 on accusation of committing the offence under the TOHOT Act is unsustainable, as there has been no valid complaint within the meaning of Section-2(d) Cr.P.C. read with Section-22 of the TOHOT Act. Thus, the said order of remand is unsustainable and the detention, therefore, is wholly illegal and that order offends the provisions of Article-21 of the Constitution of India. 5. Section-2(d), Cr.P.C. defines complaint as follows: “Complaint (d) Necessary allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person, whether known or unknown has committed an offence but does not include a police report. 6. Section-22 of the TOHOT Act has imposed restrictions on taking cognizance of any offence punishable under the TOHOT Act. For the purpose of our reference, Section-22 is also reproduced below: “Cognizance of offences.- (1) No Court shall take cognizance of an offence under this Act except on a complaint made by – (a) the Appropriate Authority concerned, or any officer authorized in his behalf by the Central Government or the State Government or, as the case may be, the Appropriate Authority; or; Page 3 of 26 4 (b) a person who has given notice of not less than sixty days, in such manner as may be prescribed, to the Appropriate Authority concerned, or of the alleged offence and of his intention to make a complaint to the court. (2) No Court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under this Act. (3) Where a complaint has been made under clause (b) of sub-section(1), the court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person.” 7. According to the petitioner, initially, a case was registered under Sections- 498(A)/494/506 IPC read with Section-4 of the D.P. Act on the basis of the F.I.R. The opposite party No.5 (the accused) was granted anticipatory bail by this High Court in ABLAPL No.14177 of 2020. Soon after the accused got protection from this Court, by the order dated 09.11.2020 passed in the said ABLAPL, the investigating agency with mala fide intention added the offences punishable under Sections-419/420/468/471/120(B) read with Section-19(a) of the TOHOT Act. The accused was forwarded to the court of the S.D.J.M., Malkangiri, even though the police was aware that for any offence punishable under the TOHOT Act, the police cannot directly investigate such offence. The procedure laid down in Section-22 of the TOHOT Act has to be followed in as much as the said Act is a complete Code and enacted for prevention of commercial dealing of human organ and tissues. It also deals with the process of transplantation of human Page 4 of 26 5 organs. For any contravention, the punishment has been prescribed under Section-19(a) of the TOHOT Act. 8. Chapter-VI of the TOHOT Act deals with the offences and penalties for removal of the human organs without authority and for commercial dealing of human organs. 9. It has been contended for the petitioner that the police has embarked upon to investigate the offence allegedly committed under the TOHOT Act, notwithstanding that Section-22 of the TOHOT Act clearly stipulates that cognizance cannot be taken on the basis of a police report. There has to be a valid complaint within the meaning of Sectin-2(d) Cr. P.C. for the purpose of taking cognizance. 10. Section-22 as reproduced above clearly lays down who can file the complaint [see Section-22 (a) & (b)]. Except the appropriate authority (see Section-2(b) of the TOHOT Act) designated by the Central Government or the State Government, any person who has given notice of not less than sixty days in such a manner as may be prescribed to the authority making his intention clear that he intends to make a complaint to the Court. No Court other than the Metropolitan Magistrate or the Judicial Magistrate of the First Class can try the offence punishable under the TOHOT Act. Page 5 of 26 6 11. It has been expressly provided under sub-section(1) of Section-22 of the TOHOT Act that no Court shall take cognizance of an offence under the said Act except on a complaint by those two entities. 12. The case of the petitioner in short is that even though in the F.I.R., it has been alleged of contravention of Section-19(a) of the TOHOT Act, but without following the procedure as laid down in Section-22 of the TOHOT Act, the Police initially registered the case only under Sections-498(A)/494/506 & 34 IPC read with Section 4 of the Dowry Prohibition Act. But later on, the Police registered the case also under Section- 19(a) of the TOHOT Act. Consequently, despite the pre-arrest bail granted to the petitioner, the Judicial Magistrate remanded the opposite party No.5 (the accused) to the judicial custody. 13. For the purpose of reference, the relevant part of the said order dated 17.11.2022 is extracted hereunder: “Accused person Subal Majhi(48), S/o late Suren Majhi of Village- M.V.-70 (Kutnampali), PS- Kalimela, Dist- Malkangiri is produced today before me and taken to my custody being arrested and forwarded by the I.O. of the above noted case, along with forwarding report-02 sheet, Arrest Court Surrender Memo-01 sheet, Memo Arrest-01 sheet, Medical Exam-01 sheet, Covid Test-01 sheet (T) Escort party C/414 N. Khosla and HG/33 J.P. Gouda. The accused person is identified by the escort party on being asked complains of no ill-treatment by the police personnel while he was in their custody and was explained about his involvement in this case and grounds of arrest. Perused the F.I.R., forwarding report and other connected documents submitted by the I.O. The accused person has been forwarded showing his prima facie involvement in the above mentioned alleged offence U/Ss. 419/420/468/471/120-B of IPC R/W Sec-19(a) of Transplantation of Human Organs and Tissue Act. The Page 6 of 26 7 I.O. has prayed to remand the accused person to interim jail custody for a period of 14 days within which F.F. is to be submitted and not to release him on bail, stating the grounds therein. On being asked accused person denied being represented by any legal aid counsel as he has sufficient means to engage lawyer on his own cost. Bail is not moved. Hence the accused is remanded to the jail custody till dt. 28.11.2022 awaiting Final Form.” 14. It is a clear case of the petitioner that when the anticipatory bail was granted, the charging provision under Section-19(a) of the TOHOT Act was not added by the Police. But when the said charging section was added for investigation, the petitioner was remanded to the jail custody by the impugned order dated 17.11.2022. 15. The petitioner has contended that the Authorisation Committee had granted the permission for transplantation of human organ in
Legal Reasoning
pre-arrest bail vide the order dated 09.11.2022 passed by this Court in ABLAPL No.14177 of 2022. Subsequently, the Investigating Officer arrested the opposite party No.5 after adding the charging sections viz. Sections-468/471/120-B of the IPC and Section-19(a) of the TOHOT Act. 20. On the basis of the forwarding report, the Judicial Magistrate concerned remanded the opposite party No.5 to the judicial custody on allegation of committing offences under Sections-420/468/471/120-B IPC read with Section-19(a) of the TOHOT Act. 21. It is evident from the charge sheet that the charge sheet has been submitted both against Susanta Kundu and Kajal Haldar (the opposite party No.5). 22. In para-10 of the petition, it has been asserted as follows: “10. That however the IO, in just making a copy of the earlier charge sheet dated 28.10.2022 i.e. Annexure-5, submitted another charge sheet on 14.01.2023 in just adding the name of the detainee who was arrested on dated 17.11.2022, in order to fulfill the time limit prescribed for default bail in terms of Section-167(2) of Cr.P.C. Page 9 of 26 10 is nothing but excessive exercise of which contemplated under the law.” jurisdiction not 23. It has been stated that before transplantation, due permission from the Authorization Committee was obtained. Both the donor and the donee made their respective appearances before the Authorization Committee and after due deliberation, the Authorization Committee had granted the permission for transplantation of the human organ. The petitioner, therefore, strongly contended that the allegation of either forgery or cheating not attracted in the present case. 24. Having referred to Section-13(2)(iv) of the TOHOT Act, it has been contended that for any contravention or commission of/under the TOHOT Act, the prosecution of the opposite party No.5 is only illegitimate and the detention therefore is illegal. 25. It has been further asserted that although the F.I.R. discloses the contravention of the provisions of the TOHOT Act, no complaint by the Authorized Officer was filed. The charge sheet filed by the Police Officer discloses the offence under the TOHOT Act. The Police Officer who registered the case under Section-19(a) of the TOHOT Act or investigated the case has acted illegally and completely in defiance of the provisions of Section-22 of the TOHOT Act. Page 10 of 26 11 26. Sub-section-(3), Clause-4 of Section-13 of the TOHOT Act has been relied by the petitioner. The said clause provides that the appropriate authority can investigate any complaint of breach of any provision of the TOHOT Act or the Rules made thereunder for taking appropriate action. It is obvious that the said investigation is meant for the purpose of filing the complaint, if any is warranted in respect of the offence as provided under Chapter-6 of the TOHOT Act. But the Police Officer has not been authorized to carry out such investigation. The authorized authority or the person who has informed of his intention of his filing complaint within the meaning of sub-section-(1)(b) of Section- 22 of the TOHOT Act, may file the complaint. 27. It is admitted position that no such complaint has been filed by the appropriate authority or any person after giving notice of not less than sixty days to the appropriate authority. By Section-13(b) of the TOHOT Act, the power of the appropriate authority has been prescribed. The appropriate authority has all the powers of the civil court trying a suit under the Code of Civil Procedure, 1908 and in particular, it has the powers for the following purposes: (a) Summoning of any person who is in possession of any information of violation of the provisions of the Act or the Rules made thereunder; Page 11 of 26 12 (b) Discovery or production of any document, material object; (c) Issuing search warrant of any place suspected to be indulging in unauthorising removal procurement or transplantation of human organs Tissues or both ; and (d) Any other matter which may be prescribed. 28. The petitioner has seriously contended that the Police Officer investigating the case has illegally started the investigation and hence, the detention of the proforma-opposite party No.5 to be held illegal, as it was done without sanction of law. 29. It is warranted that the remand order dated 17.11.2022,
Arguments
respect of the recipient (Asim Kumar Haldar) and the donor Ms. Ranjita Mohanty as would be evident from the Certificate by the State Level Authorization Committee, Odisha, Annexure-7 to the writ petition. In the said Form-18, the State Level Authorization Committee, Odisha as constituted under the TOHOT Act, granted permission for transplantation of human organ. The observation, as regards the permission, reads as follows: “Permission is granted, as to the best of knowledge of the members of the committee, donation is out of love and affection and there is no financial transaction between recipient and donor and there is no pressure no/coercion of the donor.” Page 7 of 26 8 16. But in this case, the petitioner has highlighted the violation of Section-22 of the TOHOT Act and contended that existence of the family relation is not under question. 17. Be that as it may, restriction on taking cognizance cannot be waived. When the law prescribes that an act has to be done in a particular manner, no person can be allowed to do that in a different manner. In this case, the police had taken up the investigation on them without any notice to the appropriate authority as prescribed by Section- 22(i)(b) of the TOTOT Act. Hence, the investigation or filing of the charge sheet is wholly illegal as a result of which the charge sheet, as referred above, is liable to be quashed against the opposite party No.5. 18. The genesis of the prosecution case is the written information which was lodged by one Ranjita Kundu, wife of Prasanta Kundu disclosing that after one year of her marriage, she has been subjected to torture by her husband and the sister-in-law on demand of dowry. It has been further alleged that she had been abused in filthy language. She had to sell one of her Kidneys on being pressurized by her husband and the sale price of the Kidney was not paid to her. The entire amount was misappropriated by her husband and sister-in-law. 19. It has been alleged that her husband, namely Prasanta Kundu stopped living with her after returning from Andhra Pradesh. It has been Page 8 of 26 9 alleged that he has been living with another girl with whom he had entered into an agreement for marrying her. On the basis of the said report as stated earlier, Malkangiri P.S. Case No.438 of 2022 was registered under Sections-498(A)/494/506/34 of IPC read with Section- 4 of the D.P. Act. In apprehension of arrest, the petitioner obtained the
Decision
Annexure-4 to the writ petition, be quashed. Simultaneously, the charge sheet dated 15.01.2023 as regards the proforma-opposite party No.5 also be quashed. Further, appropriate action should be taken against the Investigating Officer and compensation be paid for damage for illegal detention. 30. Mr. Soumendra Patnaik, learned counsel appearing for the petitioner has contended that this is a flagrant violation of the procedure for purpose of investigation, cognizance and trial so far the offence under Section-19(a) of the TOHOT Act involving the opposite party No.5 is concerned. Page 12 of 26 13 31. The State did not file any reply, but on instruction, it has been submitted that as Section-120-B has been lawfully added, clubbing of the offence punishable under Section-19(a) of the TOHOT Act cannot be held illegal. 32. That apart the newly added charging Sections, such as, Sections- 420/468/471/120-B IPC are added in the course of investigation, as the materials relating to the criminal conspiracy, forgery of documents for purpose of cheating and premeditated deception for cheating had surfaced and there is no irregularity in adding those sections. 33. Mr. Patnaik, learned counsel appearing for the petitioner has relied on a decision of the apex court in Pradeep Ram vs. State of Jharkhand & another: (2019) 17 SCC 326. In that decision, the apex court has dwelled upon the circumstances where after grant of bail to an accused, further cognizable and non-bailable offences were added. The apex court has summarized the law in this regard. It has been enunciated as under: “(i) The accused can surrender and apply for bail for the newly added cognizable and non-bailable offences. In the event of refusal of bail, the accused can certainly be arrested. (ii) The investigating agency can seek order from the court under Section- 437(5) or Section-439(2) Cr.P.C. for arrest of the accused and his custody. (iii) The Court, in exercise of the power under Section-437(5) or Section 439(2) Cr. P.C., can direct for taking into custody the Page 13 of 26 14 accused who has already been granted bail after cancellation of his bail. The Court in exercise of the power under Section-437(5) as well as Section 439(2) Cr.P.C. can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-bailable offences which may not be necessary always with order of cancelling of earlier bail. (iv) In case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences, it needs to obtain an order to arrest the accused from the Court which had granted the bail.” 34. In this regard, we would reproduce another relevant passage for better elucidation: “19. This Court in Hamida v. Rashid: (2008) 1 SCC 474 held that an accused after addition of serious non-bailable offence is required to surrender and apply for bail for newly added offences. It is, thus, clear that the bail granted to an accused earlier to addition of new non-bailable offence shall not enure to the benefit of the accused insofar as newly added offences are concerned and he is required to surrender and obtain a bail with regard to newly added offences to save him from arrest.” 35. It may be apposite to note that Mr. Nayak, learned Addl. Government Advocate who has appeared for the State has also relied the part of the decision of Pradeep Ram (supra) where it has been observed that where, after the accused has been granted the bail, new and serious offences have been added in the case, a person against whom, serious offences have been made and who is already on bail, can very well be directed to be arrested and taken to the custody by the Court in exercise of the power under Sections-437(5) and 439(2) of the Cr.P.C. on cancelling the bail granted to the accused and directing him Page 14 of 26 15 to be arrested and taken into custody. That can be one course of action, while exercising the power under Sections-437(5) and 439(2) of the Cr.P.C. But there may be cases where without cancelling the bail granted to the accused on relevant consideration, the Court can direct the accused to be arrested and taken to the custody. 36. Mr. Patnaik, learned counsel has highlighted para-26 where the apex court has held that the accused who has been granted bail and not in custody, could not be taken into custody ordinarily unless the bail was not cancelled. 37. Having referred to Mithabhai Pashabhai Patel & others vs. State of Gujarat: (2009) 6 SCC 332, it has been contended that who has been granted bail and not in the custody, could not be taken in custody ordinarily unless the bail is not cancelled. Then, the apex court framed a consequential question that can it be held that unless the bail earlier granted is cancelled, the Court has no power to direct the accused to be taken into custody. The answer as given by the apex court is that, in exercise of the power provided under Section-437(5), the Court if considers it necessary to do so, direct that such person be arrested and taken into the custody. 38. In Pradeep Ram (supra), it has been also held that the Investigating Agency can seek order from the Court under Section- Page 15 of 26 16 437(5) or Section-439(2) Cr. P.C. for arrest of the accused and his custody in exercise of power under Section 437(5) or under Section 439(2) of the Cr.P.C. 39. Mr. Patnaik, learned counsel has submitted that neither the Court passed any order to arrest the opposite party No.5 and produce him before the Court after the new charging Sections were added for purpose of investigation, nor the accused person (the opposite party No.5) had surrendered before the Court. Even there was no prayer before this Court, as would be evident from the impugned order under Section 437(5) of Cr. P.C. 40. Mr. Patnaik, learned counsel has further raised a question regarding which is the competent court to grant the police authority to arrest the person who is already on bail, i.e. (the opposite party No.5). According to Mr. Patnaik, learned counsel it has to be the High Court of Orissa which granted the pre-arrest bail in favour of the petitioner not the S.D.J.M. who has taken the accused person to the custody after addition of the comparatively graver charges. 41. Mr. Patnaik, learned counsel has further contended that the opposite party No.5 is neither the donor nor the donee of Kidney. The informant was the donor and one Asim Haldar was the donee and such transplantation was carried out after due permission from the competent Page 16 of 26 17 authority. He has reiterated that the Police does not have any power. He has also reiterated that the there is no valid complaint for taking cognizance of the offence punishable under Section-19(1) of the TOHOT Act. 42. In this respect, Mr. Patnaik, learned counsel has placed his reliance on Mrs. N. Ratna Kumari vs. State of Odisha & others: (2015) 1 Crimes 31 (Ori.) where this Court had occasion to observe as follows: “38. In view of Section-22 of 1994 TOHO Act, complaint before competent Court can be made by the concerned “Appropriate Authority” as appointed under Section 13 or by any officer authorized by the (i) Central Government or (ii) State Government or (iii) Appropriate Authority. In State of Orissa as per the notification dated 4.5.2001 of Health and Family Welfare Department of Government of Orissa, DMET is the Appropriate Authority. As per Section 2(d) of Cr.P.C. “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. The learned Advocate General has stated that neither the State Government nor the DMET has authorized anybody else to investigate any complaint of breach of any of the provisions of TOHO Act or any of the rules made thereunder and take appropriate action. In view of such discussions, we are of the following opinion:- (i) FIR cannot be entertained for breach of any of the provisions of the 1994 TOHO Act, (ii) Mangalabag Police officials are not authorized to investigate a case relating to the breach of any provisions of 1994 TOHO Act; (iii) Only a complaint petition is maintainable and the complaint petition is to be made by the Appropriate Authority or any officers authorized in that behalf either by the Central Government or the State Government or by the Appropriate Authority ; (iv) When such a complaint petition is filed before the competent Court, the complaint case procedure as laid down under Chapter-XV and other Page 17 of 26 18 provisions of Cr.P.C. dealing complaint case procedure are to be followed at the time of taking cognizance and issuance of process as well as by the trial Court during trial of the said complaint case.” 43. However, it has been mentioned that even if the investigation carried out by the Police officer in violation of the provisions of the TOHOT Act is not maintainable, but the investigation relating to the other charging provisions are maintainable. Though in N. Ratna Kumari (supra) this Court quashed the investigation for the offence punishable under the TOHOT Act, but it has been simultaneously observed that the Appropriate Authority appointed by the State of Odisha i.e. the DMET can investigate into any complaint under the TOHOT Act. By the notice, that person must indicate that he has intention to file the complaint before the competent Magistrate after expiry of sixty days of the notice period. The case of N. Ratna Kumari (supra) to a certain extent is similar and as such, an observation in N. Ratna Kumari (supra) is reproduced below: “41. If 1994 TOHO Act is excluded, so far as the other offences under which the case has been registered i.e., Sections 120(8), 468, 471, 342 read with Section 34 of IPC are concerned, none of the offences carries punishment more than 7 years and as such Section-41 Cr.P.C. has to be complied with. In other words, the Mangalabag police officials first of all should have reason to believe that on the basis of the information received, the detenue has committed the offence and further should have recorded, while making the arrest of the detenue, the reasons in writing as to why the arrest was necessary. The reasons should have been one as enumerated under (a), (b), (c), (d) and (e) of Section-41 (1) (b)(ii) Cr.P.C. Since in the present case no such reason has been recorded and it is simply mentioned in the arrest memo vide Annexure-4 under Sl. No.4 “as found involved in Page 18 of 26 19 the above noted case”, we are of the view that it does not satisfy the reasons which is required to be recorded in writing in view of the provisions under Section 41 (1)(b) (ii) Cr.P.C. Since, the arresting officer in the present case has not recorded the reasons for the arrest of the detenue, it is a violation not only of the provisions under Section-41 Cr.P.C. but also a violation of fundamental right guaranteed under Article-21 of the Constitution of India. 42. Section 41 (A) Cr.P.C. is alleged to have been violated by the arresting officer in the case in hand. This section provides that where the police officer thinks that arrest of a person is not required under the provisions of sub-section (1) of Section 41, he has to issue notice against the person to appear before him or at such other place as may be specified in the notice. On the basis of a reasonable information/ reasonable suspicion regarding complaint/credible commission of cognizable offence where the punishment prescribed is 7 years or less with or without fine, the police officer has not only to record the reason in writing for not making the arrest but also to issue notice for the appearance of the person concerned before him or at such other place as may be specified in the notice. Thus in view of Section-41-A Cr.P.C., issuance of the 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 carries punishment upto 7 years or less with or without fine.” 44. The said principle is relevant for the present context as well. In Hema Mishra vs. State of Uttar Pradesh & others: (2014) 4 SCC 453, the apex court has clearly held that in view of the provisions made under Section-41(A) Cr.P.C., it is compulsory for the police to issue a notice in all such cases where arrest is not required to be made under Clause(b) of sub-section(1) of the amended Section 41. But unwillingness of a person who has not been arrested to identify himself and to whom a notice has been issued under Section 41-A, could be the ground for his arrest. Legislation has laid down various parameters, Page 19 of 26 20 warranting arrest of a person, which itself is a check on arbitrary or unwarranted arrest. Personal liberty, guaranteed under Article 21 of the Constitution of India, is thus protected from unreasonable arrests. 45. In this case also, we did not find any document that the police had issued notice under Section 41 A of the Cr.P.C. to the opposite party No.5. Even, there is no order of the competent Magistrate. Thus, the said arrest/detention according to the petitioner violates Article-22(1) of the Constitution of India. 46. On the question of issuance of writ of Habeas Corpus for release of the opposite party No.5 from the custody. Mr. D. Nayak, learned Addl. Government Advocate has stated that this petition is perhaps not maintainable, as the detention order has been issued by the S.D.J.M. and has contended that in Madhu Limaye vs. State of Maharashtra: (1977) 4 SCC 551, it has been held as follows: “The two requirements of clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the minds of the arresting authority and, also, to know exactly what the accusation against him is so that he can exercise to know exactly what the accusation against him is so that he can exercise the second right, namely, of consulting a legal practitioner of his choice and to be defended by him. Clause (2) of Article 22 provides the next and most material safeguard that the arrested person must be produced before a Magistrate within 24 hours of such arrest so that an independent authority exercising judicial powers may without delay apply its mind to his case.” 47. In N. Ratna Kumari (supra), the order of remand was quashed in the premises as noted above. Page 20 of 26 21 48. Mr. Patnaik, learned counsel has, in response, made reference to Arnesh Kumar vs. State of Bihar and another: (2014) 8 SCC 273, where the apex court while dwelling upon the purport and ambit of Section-41(A) of the Cr.P.C. had observed that when an accused is produced before the Magistrate, the Police Officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and his conclusions for arrest and the Magistrate, in turn, is to record that the conditions precedent for arrest under Section 41-A Cr.P.C. has been satisfied and it is only thereafter he will authorize the detention of the accused. The Magistrate before authorizing detention will record his own satisfaction, may be in brief, but the said satisfaction must reflect in his order. It shall never be based upon ipse dixit of the police officer. For example, in a case the police officer considers that the arrest is necessary to prevent such person from committing further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or to prevent such person from making any inducement threat or promise to witnesses etc. The police officer shall furnish the necessary details, the reasons and the materials on the basis of which the police officer has reached his conclusions. Those shall be perused by the Judicial Magistrate while authorizing the detention and only after recording his satisfaction in writing, the Magistrate will Page 21 of 26 22 authorize the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Judicial Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, whether prima facie those reasons are adequate to justify arrest. To a limited extent, the Judicial Magistrate will make the judicial scrutiny. 49. Mr. Patnaik, learned counsel has submitted that from the impugned order itself, by which the opposite party No.5 was remanded to the judicial custody, it would be evident that no such exercise was taken. He was quite emphatically contended that even for the purpose of new charging provisions those requirements as provided by Section-41- A of the Cr.P.C. are to be satisfied. 50. In a series of cases namely Dr. Sudhir Kumar Brahma vs. State of Odisha: CRLMC No.4249 of 2009 & others, a learned Single Judge of this Court has in the perspective facts held in those cases that so far the offence under the PC & PNDT Act, 1994 is concerned, the complaints were not filed by the Appropriate Authority as declared under Section-17(2) of the PC & PNDT Act, 1994, the order of cognizance of the offence as well as the criminal proceeding as a whole, were quashed by the judgment dated 19.09.2022. Page 22 of 26 23 51. Mr. Patnaik, learned counsel, in order to buttress his contention that if a statute confers powers and lays down a procedure for exercise of power in a particular manner, it has to be exercised in that manner only, as prescribed, as referred in Dhananjaya Reddy vs. State of Karnataka: AIR 2001 SC 1512. It has been held in Dhananjaya Reddy (supra) as follows: “25. Relying upon Nazir Ahmad’s case: (AIR 1936 PC 253 (2) : 1936 (37) Cri LJ 897) and applying the principles laid down in Taylor vs. Taylor, (1875) 1 Ch D 426 this Court in Singhara Singh’s case (AIR 1964 SC 358 : (1964) 1 Cri LJ 263 (2): Para 8 (supra) held: “The rule adopted in Taylor vs. Taylor (1875) 1 Ch D 426 is well recognized and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted.” [Emphasis added] 52. As the arrest has been made without cancellation of the bail and without exercise of the power expressly provided under Section- 437(5) of the Cr.P.C. and also without observing the procedure of Section-41 read with Section 41(A) of the Cr.P.C., the arrest or the remand of the opposite party No.5 is grossly illegal. Hence, the detention turns out to be illegal and consequently, the writ of habeas corpus, contrary to what Mr. Nayak, learned Addl. Government Advocate has contended, can be issued in the case in hand. Page 23 of 26 24 53. Having appreciated the records available in the petition as well as the submission advanced by the counsel for the parties, we are of the view that the police did not have any jurisdiction to investigate any offence punishable under Section-19(a) of the TOHOT Act, as solely on the basis of the police report, cognizance for the offence punishable under Section-19(a) of the TOHOT Act has been taken by the Judicial Magistrate. The Police have completely violated the laid down procedure and hence, their action cannot be approved. Therefore, the charge sheet as filed under Section-173(2) for commission of offence punishable under Section 19(a) of the TOHOT Act is untenable. Accordingly, the said charge sheet stands quashed to the extent of Section-19(a) of the TOHOT Act. 54. So far as the remand order dated 17.11.2022 is concerned, we have no hesitation to hold that as the opposite party No.5 was granted pre-arrest bail in ABLAPL No.14177 of 2022, without leave of the Court as provided under Sections-437(5) & 439(2) of the Cr.P.C., the opposite party No.5 would not have been arrested and forwarded before the Court. The S.D.J.M., while remanding the petitioner, has not noticed that aspect of the matter. That apart, the S.D.J.M. has not scrutinized whether the requirement of Section-41(A) of the Cr.P.C. has been satisfied or not, as the newly added charging provision prescribes the Page 24 of 26 25 sentence up to seven years. As such, without any notice under Section 41(A) of Cr.P.C., the police ought not have arrested the opposite party No.5. That apart, the police was restricted by the pre-arrest bail. 55. It is an admitted position of fact that at no point of time, the pre- arrest bail order was recalled or cancelled nor had the police obtained an order from the Judicial Magistrate under Section-437(5) Cr.P.C. which provides that any Court which has released a person on bail under sub- section (1) or sub-section (2) may if it considers it necessary so to do, direct such person be arrested and committed him to custody. Cumulative impact of such violations renders the impugned order dated 17.11.2022 passed by the S.D.J.M., Malkangiri is untenable and hence, it is set-aside. If the opposite party No.5 is still in custody, he shall be released forthwith. However, the charge sheet filed under Sections- 419/420/468/471/120(B) of the IPC shall not be affected by this order. The police can continue the investigation and file the charge sheet in respect of other offence, except the offence punishable under Section- 19(a) of the TOHOT Act. The court has power to direct the accused (the opposite party No.5) to surrender before the Court for facing the trial. In the event of non-compliance of such order, the competent Court shall be at liberty to issue non-bailable warrant for the arrest of the accused. The Court may consider in such event, whether the opposite party No.5 shall Page 25 of 26 26 be enlarged on bail or not. True it is that the petitioner has suffered the detention, but it is not a case where this Court would settle some damage, in as much, the order of remand has been passed by the S.D.J.M. who is protected by immunity against any wrong decision. If, in the meanwhile, cognizance has been taken under Section- 19(a) of the TOHOT Act on the basis of the said police report dated 14.01.2023, the Court shall recall the order of cognizance, by virtue of this order, as the Court is not authorized to take cognizance on the basis of the police report. 56. For the role played by the Investigating Officer, as noted before, we warn the said officer to refrain himself from such activities. If in future, similar aberration or illegal action is brought to the knowledge of this Court, stern action will be taken against him. 57. In terms of the above, this petition stands allowed to the extent as indicated above. 58. There shall be no order as to cost. Savitri Ratho, J. I agree Orissa High Court, Cuttack. The 6thJuly, 2023/Subhasis Mohanty, P.A. Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. I/C Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 21-Sep-2023 11:04:35 (S. Talapatra) Judge (Savitri Ratho) Judge Page 26 of 26