ANUP KUMAR NATH SHARMA Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN this writ application, the petitioners, who are all doctors in Government service have sought to challenge the order dated 20.04.2013 passed by the Justice P.K. Mohanty Commission of Inquiry into the Kalinga Nagar Police Firing, by which order a petition filed by the present petitioners with a prayer seeking permission to cross-examine Dr. Rajendra Kumar Pattnaik, the then Additional District Medical Officer, District Headquarters Hospital, Jajpur and Sri Abhimanyu Das, the then I.I.C., Jajpur Police Station first and thereafter, to be permitted to file their show cause to the notice under Section 8-B of the Commissions of Inquiry Act, 1952 came to be rejected.

(2.) MR . B.N. Mohanty, learned counsel appearing for the petitioners submits that the Commission of Inquiry had issued notices to the present petitioners dated 25.06.2012 under Section 5(2) of the Commissions of Inquiry Act, 1952 read with Rule-8 of the Orissa Commissions of Inquiry Rules, 1979. Pursuant to the aforesaid notices, the petitioners filed their affidavits before the Commission of Inquiry on 17.07.2012, whereafter, the petitioners were examined-in- chief and cross-examined both by the counsel of the State as well as the Commission on 22.09.2012 and 29.09.2012. Thereafter, it appears that the Commission has issued notices to the petitioners dated 22.03.2013 under Section 8-B of the Commissions of Inquiry Act, 1952. On receipt of such notices under Section 8-B, the petitioners had filed a joint petition with a prayer to cross-examine two witnesses (named hereinabove) before submission of their statements of defence and such petition upon being rejected by the impugned order dated 20.04.2013, the present writ application has come to be filed.

(3.) INSOFAR as the case of Kiran Bedi (supra) is concerned, the Hon'ble Supreme Court was considering a situation where the Commission of Inquiry without issuing notices to the petitioners therein under Section 8-B of the Act was compelling them to enter the witness box "at the initial stage of inquiry" which was held to be discriminatory in the fact situation of the said case. In the present case at hand, the petitioner has participated in the initial inquiry by filing their affidavits pursuant to notices issued under Section 5(2) of the 1952 Act read with Rule-8 of the 1979 Rules and also appeared before the Commission for being examined and cross-examined. The Hon'ble Supreme Court in the aforesaid case came to hold that in the said case the Inquiry Committee was under misapprehension that the petitioners therein were not covered by Section 8-B, merely because no notices under that section had been issued to them and, therefore, held that the failure to issue the formal notices under Section 8-B to the petitioners therein would constitute no justification for not treating such a person to be covered by that Section, if otherwise, the ingredients of the said Section are made out. Therefore, in the present circumstance, since the petitioners have never challenged the notices under Section 5(2) issued to them and have instead submitted their affidavits in response to such notices and have further been examined and cross-examined before the Commission, the same is no longer available for questioning in the present case. But more significantly, the Hon'ble Supreme Court in paragraph-17 of the aforesaid judgment has come to state as follows: