Sabyasachi Panda: crime under colonial definition is no crime per se

Subhas Chandra Pattanayak

Reacting on my posting of July 24, captioned ‘Mili Panda hopes situation shall not be created for creation of many Sabyasachis’, a very dear and close relation of mine, Sriman Hari Prasad Patnaik has postedhis views in social media Face Book. I quote the relevant portion: “………….every criminal’s kith and kin will always vouch for the criminal’s innocence and his/her pious and oh so clean way of life. That is a natural reaction. So I doubt whether we should take Mili Panda’s statement to be the gospel truth”.

Even as I appreciate these words, which, to me, are born out of Hari Prasad’s aversion to violence, I would like to say, revolutionaries like Sabyasachi Panda cannot be termed as criminals. There are many discussions going on, specifically by the elites, in the media, wherein Sabyasachi is being projected as a criminal. Certain activities attributed to him by the police connotes to crime as defined in the IPC that the British had promulgated to suppress Indian voices against exploitation. But there is reason to differ with what the IPC has defined as crime.

Be it appreciated that every crime is an outcome of a crime that generates a cause for the crime. As criminology holds it, no activity that looks like a crime is a crime, if criminal intention is not present.

So, every crime is not to be treated as one.

There is vast difference between crime that gives birth to consequential crime and crime that takes place consequent upon a crime.

Difference between crime and crime

Thus crime is not similar on all occasions. This dissimilarity makes crime viewed differently. And this difference is based on two different basic patterns: Generating Crime that gives birth to a consequential crime and Generated Crime, which is the product of a crime that generates situation for its perpetration. Therefore, crimes are of two distinctly different patterns.

Crime with criminal intention belongs to the first pattern and consequential crime belongs to the second pattern.

For example, when a trader hoards essential commodities, he does it with criminal intention to fetch more profit in the black market. So, hoarding is a crime of the first pattern.

Watching the plight of consumers, a conscious person intervenes and asks the hoarder to release the commodities, which is not heeded to by the hoarder, who continues increasing his personal wealth with massive profit from the black market with the state machinery in his pocket. Time comes, when the protester deems it proper to get the society rid of the hoarder in a way matching the armed protection given to him by his Patron State. Here his action, in terms of IPC, may be defined as a crime; but in reality, there is no criminal intention behind this crime. This crime is of the second pattern.

Violent action of a person affected by black market, against the hoarder may look like a crime under the colonial definition of crime,  but in reality, it is consequential to the crime perpetrated by the hoarder under protection of the State, which fellows of his like control.  Thus,  hoarding is the Generating Crime and consequential protests against hoarding, even if that causes bloodshed, are Generated Crime.

Sabyasachi Panda’s crime, if any, is Generated Crime, not Generating Crime. So, he is not a criminal.

Moreover his action, even if violent, is no crime with criminal intention against the society.

Had there been no State-terror, had the State not stood with the exploiters, I believe, highly gifted persons like Sabysachi Panda, entirely dedicated to the cause of the toiling masses, would never have chosen the violent path.

Kalinga Nagar Massacre

To understand the difference between Generating Crime and Generated Crime in a better way, conduct of Tata industry in Kalinga Nagar and revolt of tribal people of the locality vis-à-vis the bloody role the State played in support of Tata on January 2, 2006 may be of guiding help.

Look at any industry, the same scenario will speak aloud about how protesters against exploitation and destruction of their living environment are being branded as criminals by the police state, even though their actions are mere reactions to Generating Crime that the wealthy class perpetrates.

Shikara of Bhagabati Panigrahi

Crux of this phenomenon was most ably dealt with in the epoch making story ‘Shikara’ of Bhagabati Panigrahi , father of progressive literature in Orissa. I would like to transform an excerpt from this story to first person narration while roughly translating the same into English.

The hero of the story is Ghinua, an innocent forest dweller, who, tortured by a wealthy man namely Gobind Sardar, had beheaded him sans any qualms. He had narrated the reason of his action in his deposition in the court. And, the court had given him death sentence for the crime of murder. Till execution of the death sentence, he had not known the meaning of murder.

Please mark, what he had told the court, which, as I have already said, I am converting here into first person dialogue from Bhagabati’s narration for better understanding.

He had said to the Court, “I had to overcome a lot of difficulties in cutting off Gobind Sardar’s head. Many more persons were trying to kill him, but none of them had succeeded, as Gobind Sardar was always moving in a motor vehicle. He had accumulated wealth by looting everybody. He was personification of a great Satan. One cannot describe how many persons he had killed, how many persons he had ruined, how many women he had raped. He had taken away my landed properties in similar sinister manner. That evening he had even attempted to rape my wife. How dared he! He was fleeing in the motor vehicle on seeing me. He was trying to escape. I immobilized his vehicle by shooting my arrow to its tire. Then I chopped off his head and sped up to the Deputy Commissioner’s bungalow covering 30 miles through the dense forest in the night (with the full confidence that I will be rewarded sumptuously for having killed a man more dreaded than a tiger)”.

Photo copy of the paragraph from the printed story ‘Shikara’ is given below.

when Ghinua was held a criminal
Every reader of this epoch making story knows that, Ghinua had rushed to the Deputy Commissioner in hope of larger amount of reward than what he had received on previous occasions on killing Mahabala Bagha (Orissa’s tiger of massive strength) as to him, Gobinda Sardar was more savage than the tigers he had earlier killed. Instead of rewarding him for killing a man more sinister and menacing than a Mahabala Bagha, the British law had found him guilty of homicide and had given him death sentence for the crime.

Is there anybody in the world who really holds Ghinua a criminal? No, never.

He was totally innocent. His action was not a crime, but just a reaction to the unbearable crimes perpetrated by wealth accumulator and debauch – the real criminal, whom administration had never prosecuted – Gobinda Sardar.

Therefore, he is, and will remain forever the trendsetter of active action against exploitation and foul play of the criminals in power.

To sane minds, Ghinua is not a criminal, because what the law of the tyrant State defines as his crime, was nothing but a reaction to the heinous crimes the wealthy man Gobinda Sardar was in habit of perpetrating with the administrative machinery in his pocket.

Sabyasachi Panda and suchlike users of weapons against Gobinda Sardars of today are nothing but Ghinuas in modern forms, whose commitment to the cause of the helpless poor and voiceless toiling human beings has landed them in the labyrinth of the colonial law where the elite class is branding them as criminals.

Beyond the limits of this colonial Law and in the realm of romance of sacrifice and suffering for the poor, helpless, and voiceless brethren, they are the beacon lights that shall never fade.

So, what Ms. Mili Panda has told of her husband, cannot be in limine rejected. The colonial definition of crime needs be amended, as most of what gets projected as crime is no crime per se.

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Mili Panda hopes situation shall not be created for creation of many Sabyasachis

It is wrong to say, with arrest of Sabyasachi Panda Maoism gets extinguished in Orissa, said Ms. Mili Panda, wife of the co-founder of Communist Party of India (Marxist-Leninist-Maoist) Sabysachi Panda, presently facing police interrogation, having been remanded to police custody after his arrest on July 18.

Participating in a local TV channel interview, she said this evening that, her husband’s revolutionary sacrifices will not be allowed to be tarnished by cooked up allegations. His path is a radical political path adopted out of love and concern for the people, who are imperiled by misgovernance and governmental apathy. As far as she knows him, she has reason to believe that he is being implicated for offenses he has not committed, she said.

Refusing to be sidetracked over alleged recovery of gold from his possession, Ms. Panda termed the allegation irresponsible. It is sad that a man who lives only with a pair of dresses, and has knowingly endangered his own life in pursuing a dream for emancipation of the poor toiling masses, is being subjected to concocted innuendos. “Gold possession and Sabyasachi Panda are poles apart and as his wife, I vouch for that”, she said.

Ms. Panda is known for her eagerness to see her husband in mainstream politics. She expressed happiness over her husband’s arrest, because therewith prospects for him shunning acrimonious radicalism and joining the mainstream may open up.

His radicalism being born out of total compassion for the voiceless poor, the State should treat him with sympathy and regard a revolutionary deserves, as otherwise, the situation shall give birth to many Sabyasachis, she warned.

Do Maoists Obstruct Development? No, say Participants in Kanak TV Debate

Do the Maoists obstruct development? Kanak TV raised this question on its open discussion board in the IDCOL Auditorium at Bhubaneswar on May 8.

The debate was coordinated by its founder, Sri Soumya Ranjan Patnaik.

“No” was the answer by deduction, as those who denigrated the Maoists also confessed that lack of development is the root cause of Maoist evolvement.

The ‘Yes’ side comprised Orissa’s finance minister Prafulla Ghadai, Opposition Chief Whip in Orissa Assembly Prasad Harichandan and former Director General of Police in the State, Gopal Nanda.

The ‘No’ side comprised CPI leader Prof. Abani Baral, Human Rights Activist, Advocate Biswapriya Kanungo and wife of Maoist leader Sabyasachi Panda, Smt. Mili Panda.

Smt. Panda, who is recently released from illegal incarceration, rejected the suggestion sic passim in the subject of the debate itself that development in undeveloped areas is being hindered by the Maoists. The Maoists are the active voices of the people that are victims of government apathy and negligence. Maoists oppose misappropriation of development funds and hijacking of lands and natural resources by private companies. They are emancipation activists who have been making immeasurable sacrifices to serve the cause of the wretchedly poor, said Smt. Panda. How can those, who for the rights of the voiceless majority, have left the comforts of their homes and company of their families and roam over dangerous terrains daring false encounters, cooked up prosecution and rich media’s negative publicity, go against development of the people?she asked. She presented many instances of how people perish in villages sans health care, education facilities, home to live in, food to eat and water to drink. Those, who measure democracy in the yardstick of constituencies captured, cannot measure how pathetically people live, as plans and funds meant for their development get looted in transit by politico-bureaucratic-capitalist nexus. Those that oppose this looting are being branded as Maoists, she said.

Biswapriya Kanungo pointed out that the government has banned six socio-political forums in 2006 branding them as Maoist outfits. Why are they not coming forward with details of benefits they have achieved by the ban? he asked. If the government fails to give a benevolent rule, people will certainly go against the government. If, instead of correcting the wrongs it commits, the government unleashes state terror on people for going against the government that fails to give a benevolent rule, people will retaliate. Such retaliation should not be termed as obstruction to development, he said.

Prof. Baral observed that if the money the government is spending on hounding out Maoists by the police, could have been spent on real development of the people, Maoist activities could have been fizzled out in areas like Malkangiri. People have lost their entity in the priority list of the government, which has become a prisoner of mania for mining based industries. It is wrong to assume that with spread of mining based industries poverty shall be eradicated. The areas from where these industries are acquiring their fodders are getting economically ruined day by day, he said.

Finance Minister Gadai, who, could never have gone against the government’s policy and hence could not have said anything but “yes” in answer to the question under discussion, said that the Maoists are opposing the industries though industries mean development. Value addition to raw materials should help the State fetch more funds which would facilitate more investment in development programs, which the Maoists do not understand, he said.

The former police chief was expected to say “yes” to the question under debate; because anything than “yes” could have virtually been the same as disapproval of his own action against the Maoists during his regime as DGP. So, he painted the Maoists as cancer for eradication of which surgery, medicine and care at the same time are required. Yet, he confessed that the government’s wrong economic policies are responsible for evolvement of Maoist movement, particularly in tribal areas where industries are eating away the forests and depriving the tribals of their living environment. With shrinkage of forest areas and spread of mining in hills, their natural sources of livelihood have been severely tampered with and, for sustenance, they are being forced to mortgage whatever little lands have they and in the debt traps laid by moneylenders, they are losing their lands and thus in ruins without any remedy, they are in utter frustration. Maoists are exploiting the situation, he said.

The Opposition Chief Whip, belongs as he to the Congress, which has a Prime Minister to whom Maoists are left viruses, was supposed to say “yes, the Maoists are obstructing development.” And he said this. But, he also said, since 1960, the Maoists have been gaining ground because of the unending financial straits the majority of people are thrown into. Unbearable poverty on the one side vis-a-vis accumulation of plenty in few hands in the other side has given birth to Maoists movement, which can be controlled if priority of administration is addressed in right earnest to people’s development, said Sri Harichandan.

So, by deduction, the ‘yes’ side also said that the Maoists are not the obstruction to development, when all of the debaters except the finance minister were sure that the government’s wrong economic policies and lackadaisical approach to development has caused Maoist evolvement.

The Hostage Tangle: Orissa Offers A Case Study

Subhas Chandra Pattanayak

“The existence of an armed struggle is indicative that the people are determined to put their faith only in violent methods. The very same people who had it constantly drummed into them that the only language they understand was that of force, now decide to express themselves with force. In fact the colonist has always shown them the path they should follow to liberation. The argument chosen by the colonized was conveyed to them by the colonist, and by an iron twist of fate it is now the colonized who state that it is the colonizer who only understands the language of force”.

Thus has said Frantz Fanon in ‘The Wretched of the Earth’ in its chapter: ON VIOLENCE.

On this matrix, Orissa, known before the 1980s as the most peaceful province of India, offers scopes for a case study.In the 80s, J. B. Pattanaik used his position as Chief Minister to initiate official priority on industries that has acquired a monstrous shape in the regime of Naveen Patnaik and has given birth to an era of hostage, which, earlier was beyond imagination.

Marginal farmers, agricultural workers, self-employed social forces, socially exploited people condemned as untouchables, forest dwelling tribes as simple-natured as flowers but as fearless as lions were the children of Orissa that had made their supreme sacrifices for the freedom of the country and, had given almost the entire integer of martyrs from the soil of Orissa, including the nation’s youngest martyr Baji Raut, to India in equipping the motherland with all the strength she was in dire need of to succeed in obtaining her independence.

But their dreams of independence are shattered by the rulers of the State after independence.

Industries and corporate companies have taken over the land and emerged as new colonizers.

The very same segment of people that brought us our freedom are being displaced for handing over their lands and living environment to foreign firm POSCO and its likes in Orissa by a chief minister who has no sacrifice for the State.

The very same segment of people from which proud patriots in so many numbers had jumped into martyrdom to make our struggle for freedom succeed – the tribals – are being brutally killed by the State government to help industries spread their empires, as witnessed in Kalinga Nagar for the benefit of Tata.

Tribes in Niyamagiri, tribes in Deomali, tribals everywhere in Orissa who depend on their living environment, everywhere the Oriyas who depend on their lands for living as self-employed people, are now threatened by industries, by land grabbers, by water grabbers, by mines mongers, by education traders, by builders, by illegal wealth accumulators, by the neo-rich, by the new colonizers.

Whosoever amongst the tribals, amongst the poor people, amongst the marginal farmers, amongst the self-employed social forces is not willing to be colonized, is being subjected to state-terror, to illegal arrests, to cooked up cases, to sedition charges, to fake encounters,to abductions by the State.

This, as Frantz Fanon in his quoted canonical words has said, has forced the innocent and tortured people to become violent. Their violence is a counter violence to violence by the State.

Branding their violence as Maoist terrorism is as misleading as contrary to reality. In reality, the tribals and illiterate people that are prosecuted under charges of being Maoists do not know abc of Maoism.

They are being tortured by the state, because they oppose in their own way the loot of funds meant for their welfare by persons in power, transfer of their land / living environment to industry owners and transnational traders and reduction of their independent status to colonized condition.

Rise of violence at par with corporate influence upon administration, with rise of state support to private industries, with rise of incarceration of small / marginal farmers, workers, tribals, self-employed social forces and economically weak but politically conscious persons in the State strongly suggests that the people have started violently replying the violence being perpetrated on them by the State. They have started violently reacting against being colonized. They are violent, because the State is addressing them in violent way.

The instant hostage tangle has its roots in this phenomenon. Mili Panda, wife of Naxal leader Sabyasachi Panda whom police is not yet able to arrest, was arrested and prosecuted and the climate of official highhandedness is so maddening that a court had taken cognizance of the case in blatant disrespect to prohibition laid down in law against that type of cases. The Orissa High Court ruled that it was wrong on part of the lower court to have taken cognizance of the case and ordered for her release. She was yet under detention despite the High Court order; because the State having no hesitation in misusing its power, had kept her behind the bars under guise of a case at Gunupur. Even in the court at Gunupur, the Gudari-Kutinguda firing in encounter case lodged against her has collapsed as unproved. In other words, the State government had made her a hostage. Similarly many poor people, despite failure of prosecution in courts and despite finding that the cases against them were false and baseless, are perishing in jails in order to keep people intimidated. Keeping any one in illegal detention after court’s release order is nothing but keeping him hostage. They are, thus, hostages that the State government has made them. And, it transpires from the you-release-we-release materials of negotiation revealed to public by the State that keeping an Italian and a ruling party MLA as hostages is linked directly with the hostages the government has made of people opposed to colonization.

So, the Orissa hostage tangle is not a matter of mere crime to silently watch, but a matter of political economy to seriously study.

Case Against Mili Panda Rejected As Unproved

Shubhasree @ Mili Panda, wife of revolutionary Sabyasachi Panda, whom, despite nullification of cognizance against her in a court at Banpur by the High Court of Orissa, the State administration had denied fresh air and kept hostage under the guise of a cooked up case in Gunupur, has been release on Tuesday as the prosecution could not produce any evidence in support of its accusation.

Coming out of the jail, Ms. Panda has exposed the inhuman condition prevailing in the prisons. The government is not keeping them useable for human beings. If any funds for repair or maintenance might have ever come, it must have been misappropriated, she has remarked.

Proud wife of a revolutionary, she has no grief over her husband’s underground condition. “He is a very good man, addressed to well-being of people and protection of their interest from the clutches of the corporates and exploiters and has willingly adopted the path of suffering for the silent majority. I am proud of him”, she has said.

She informed that despite the court oder, she does not feel safe as the administration has obtained yet another warrant of arrest from another court to continue its repression, in order to force her husband surrender.

The Supreme Court of India, in an order on 23 March 2012, has served a notice on the State government seeking answer within eight weeks as to why should it not be asked to compensate her for illegal detention.

Mili Panda Matter: Essential Need is Elimination of Judicial Blunder

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.

Mili Panda by name is known to every conscious citizen of Orissa, because she stands synonymous with withstanding the tortures that a vindictive Government inflicts.

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.

Core Condition

The core condition of administration of the Act is laid down under Section 45 that prohibits Courts to take cognizance unless prerequisites are fulfilled.

It stipulates:

(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”.

Cognizance quashed

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?

Shenanigans

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.

Clamant questions

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.

Sinister motive

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.