Monday, March 25, 2019

Fact-finding Report on “Arrest and Custodial torture of Tapan Padhi, RTI Activist


Report of  Fact-finding Team on “Arrest and Custodial torture of  Tapan Padhi, Social Activist  in Panikoili Police station under Jajpur district

Introduction:
Perturbed having heard   the news  from media  and fellow friends  on 19th March, 2019 about arrest  of  Tapan Padhi, Human Rights  Defender of the state  by Panikoili police   for his alleged  Facebook posting against some police officials, a  six-member fact-finding team of Civil Society  Group  had visited  Panikoili police station  and Jajpur Jail on 21st March 2019  to ascertain  the fact  along with   the following objectives.

Objectives :
a.    To find out reason behind the arrest of  Mr. Tapan Padhi.
b.    To collect information furnished in FIR and other documents from the police.
c.     To gather  information  from Sri Tapan Padhi  about  his arrest, behaviour  of the police , treatment  of jail officials.    
d.    To examine  whether police have followed the guidelines set by various Court and Commission while arresting a person for any reason.

Date of Fact-finding Team : 21st March 2019

Members of Fact-finding Team :
1.    Pradip Pradhan, State Convener, Odisha Soochana Adhikar Abhijan, Odisha
2.    Sri Suryamani Mishra, Journalist
3.    Bhjaman Biswal,  National Human Rights  Defender
4.    Sri Akhand, Human Rights Activist
5.    Mahe Nikhat, Women rights Activist
6.    Dillip Samantaray, RTI activist
7.    Local volunteers accompanied the team

Whom the team met and discuss:
a. Ajay Kumar Jena, IIC, Panikoili Police Station  
b. Akshay Kumar Das, Aditional SP, Jajpur
c. Ravi Satapathy, DSP, Jajpur
d. Govind Sur, Jailor, Jajpur Road,  Sub Jail, Ragadi
e. Tapan Padhi, victim
f. Telephonic talk with local Advocate

Details about Tapan Padhi, Human Rights Defender
Tapan Padhi alias Mohapatra, a permanent resident of Tihidi, Bhardak District, Odisha and is presently residing at OTM Colony of Chaudwar, Cuttack District to look after aging parents. He is a RTI activist and a human rights defender. He is founding President of Mission Justice, a rights-based organisation working in the state. He is trainer in various social fields. He  has  been associated  with various visits of fact-finding team in the matter of human rights violation cases in the state. He specifically works on Police atrocities, Civil and political rights and  rights of farmers. He has drafted a farmers rights bill and put  pressure on Government for passage of the bill in the assembly.  It was scheduled   to celebrate   annual program  of Mission Justice on 23rd March, 2019. Before that he has been arrested on 17th March, 2019.
Details of Cases :
Two FIRs have been lodged  against  unknown persons  in Panikoili Police Station. In first case (No/ 41/2019), the Complainant is One Subash Dhal, who claimed himself  a reporter of a vernacular news paper for Panikoili area. In his complaint he alleged that some people were  posting derogatory and defamatory remarks against Journalists in Japur. He referred to the  face book account ‘Kranti Jajpur’. He has not mentioned any name in the FIR.” This case is registered under section 292,294, 506,507,34 IPC and 66(A), 66(C),67 and 67(A) of Information Technology Act,2000.

Second FIR is filled by Police itself. One Kailsah Chandra Bhoi(55), the S.I. of Police, Panikoili Police station is the Complainant and a case(No/ 42/2019) is registered against unknown persons. He alleged that in the name of facebook account ‘Kranti Jajpur’, ‘Kranti Sukinda’ and ‘Kranti Korei’, some persons are posting obscene, vulgar and sexually explicit comments against Charan Singh Meena, Superintendent of Police, Jajpur and other police officials of the district. It hampers the reputation of Odisha Police. This case is registered under same sections i.e. 292,294,506,507,34 IPC and 66(A), 66(C),67 and 67(A) of Information Technology Act,2000.

Discussion with IIC, Panikoili PS:
We met Ajay Kumar Jena, Inspector In-charge in Panikoili Police station. During interaction, Sri Jena appraised the  team   that  mainly three persons were  involved in this crime. They are Rabindra Das, Pratap Jena, Tapan Padhi and others. Two have  arrested and Rabindra is absconding. We have arrested Rabindra earlier in case no. 172/2018. Tapan Padhi was involved in opening of fake facebook Ids and designing different posts. As per direction of SP, we registered a case and arrested  him.  Looking  at   hard copies  of various  postings   shown by Ajaya Jena, IIC claimed  to be posted  by Sri tapan padhi , the  team members  questioned  how  Tapan  Padhi was involved , when  there  is no name  of  Tapan Padhi  in posting of  Kranti  Jajpur  and Kranti Sukinda. Sri Jena responded  that “  We  enquired through IT experts  and found his involvement in posting. We  have arrested  him legally  and  you  could approach court against us, if you foresee any illegality in this case.”  

The IIC  also said that in the case of arrest of Rabindra Das, Tapan Padhi had  come to the police station claiming himself to be  human rights activist and asked about that case and also questioned about the cleanness of the Police station. The  IIC  had responded  him properly. He  also  said  that  Sri Padhi  is highly arrogant  and made many posting with filthy languages against  Biju Patnaik, Prime Minister , so and so . What we have done  in this case, we have done  at  the direction  of SP, Jajpur.

Collection of FIR :

We have collected two FIR from ICC, Panikoili PS.

Discussion with Additional SP and DSP, Jajpur:
 We met Akshay Kumar Das, Additional SP and Rabi Satapathy, DSP, Jajpur in SP office. They  expressed  their ignorance  about the case which is not  a fact.   We requested  them to look into the matter. ASP wrote down the case number and assured us to see the matter. We  also  requested  them  not  to  arrest   the Activists  in these  cases  rather  issue  warning them  not  to write with  filthy  language. If you  continue  to  arrest  the people  writing  in  social media  using  filthy language,   you  will  not  find  space  in jail  to keep  them.



Discussion with Govind Chandra Sur, Jailor, Japur Road Sub Jail :

We met jailor and said about whether you have made arrangement for health check-up when Tapan Padhi entered into  the Jail. He said, there is system of health pass. But there is no doctor, only one pharmacist. On that day, when Padhi came to jail, other 20 inmates also came to Jail. So, health check-up for all inmates was not possible on that day. Phase wise health check up are being done.

Discussion with Tapan Padhi, Victim

1.    He was unaware of any complaint filed against him in Panikoili Police station. No information or notice was given to him.
2.    On 17th March, 2019 at about 11 PM, when he was preparing to take rest, the police captured him in front of his house at OTM colony, Chowadar and dragged him to his house and scolded him heavily.
3.    They have no search warrant. But they searched everywhere in the room including almirah, trunk, bags and they seized two mobiles and one laptop and hard disk.
4.    They are six to seven police men and all are in dress. They dragged him to the police van and started abusing him in the van.
5.    When he requested the police to  give scope for informing his relatives, lawyers   and friends about his arrest, they scolded him and said, “first go to the Police station, we will treat you and then you will inform anybody you want.”
6.    He thought police may take him to the Choudwar Police station. But they took long drive and took him to Panikoili police station in Jajpur.
7.    In the night they grilled him and treated him as a dreaded criminal in the police station.
8.    On 18th March, 2019, they dragged into the IIC chamber to torture him as there are no CCTV there. Four police men including IIC Ajay Kumar Jena tortured him severely. They used plastic pipes to hit him in the back and hips. He was beaten mercilessly and brutally by the police. Tapan padhi show these spot. Both of the hips are reddish black. The torture is serious. They also lay down in the ground and hit to the hills.
9.    After physical assault they tried to hurt him mentally also. Ajaya Jena said that if you continue your work against police, after you release , we would book you in Arms Act and   kill you   in encounter. Your family members will be kidnapped, raped and killed.
10.Police will write a letter in official letter head to the appointing authority of your daughter. Police letter is most powerful. She will lose  her job.

Medical Examination :

Police took him to local hospital. A nurse asked about the health condition. Two escorting constables was trying to avoid torture. They say no need of showing hips and other parts where torture signs are clear.  But Tapan insisted to show the affected parts and in a private room, He showed these parts and he hopes it would be recorded by the hospital staff.

Court Forwarding :

On 19th March, 2109, police forwarded to him to the Local Magistrate. But there is no scope to reveal about the torture. The magistrate asked him about his name and his father’s name. That’s all.  As Tapan is in trauma, so he even could not say to his lawyer about the torture  he faced in the police station.

Treatment in Judicial Custody :

 Tapan came to jail on 19th March, 2019. But till 21st March, 2019, there was no health check up in the jail due to lack of staff. Only one pharmacist  was there to do the health check up of new inmates phase wise and issue health pass. But health pass is mandatory before entering into judicial custody. Food quality is very bad and Mr. Padhi have already inform to the jailor. Jailer assured the fact finding team to look into the matter.

Findings :

1.    Police registered the case under Section 292, 294, 506, 507, 34 of IPC and 66A, 66C, 67, 67A of Information Technology Act, 2000 in the Panikoili P.S.Case No. 41 and 42 of 2019 and the maximum punishment can be awarded is below Seven years in all the above sections of IPC and IT Act, 2000 mentioned above. Hence Odisha Police is supposed to send notice Under Section 41-A of CrPC before taking any further legal step. In this case police has not served any notice on the said accused person before arresting him  in the midnight of 17th March 2019.

2.    Section 80(1) of Information Technology Act, 2000 says that: “ 80. Power of police officer and other officers to enter, search, etc.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any police officer, not below the rank of a Deputy Superintendent of Police, or any other officer of the Central Government or a State Government authorised by the Central Government in this behalf may enter any public place and search and arrest without warrant any person found therein who is reasonably suspected of having committed or of committing or of being about to commit any offence under this Act. Explanation.-For the purposes of this sub-section, the expression "public place" includes any public conveyance, any hotel, any shop or any other place intended for use by, or accessible to the public. But in this case Police arrested Tapan Padhi at 11 PM from his residence. Residence of a citizen is not a Public Place hence police has violated the law for entering the house of the accused like a trespasser and for searching/ seizing any item/ arrest the accused without any court warrant.

3.       Odisha Police has booked him under 66A of Information Technology Act, 2000. The 66A of this act was being Struck down by Honourable Supreme Court of India mentioning it as unconstitutional as it violates the Article 19(1)(a) and not saved under Article 19(2) of Indian Constitution (WPC No. 167 of 2012 and M.A. No. 3220 of 2013).  The Supreme Court in 2015 struck down Section 66(A) of the Information Technology Act, calling it "vague" and "unconstitutional". The Honourable Judges said "We are going to take strict action," the Supreme Court said, and warned that the officials who ordered the arrests under Section 66(A) will be "sent to jail". The top court bench of Justices Rohinton Nariman and Vineet Saran said it is "shocking if true" that people were arrested under Section 66(A) that was declared "unconstitutional". But in this case it is violated by Panikoili Police.

4.       He is not involved in these face book ids as said by the police. Some people have shared his post in that groups. But police alleged that he have done these fake ids. Which is not a fact.

5.       He was beaten mercilessly in police custody. It is illegal for the police to slap, beat, threaten, intimidate or torture any person who is being held in custody. It is responsibility of the police for the wellbeing and safety of an arrested person. But here police did third degree treatment accused. This is a gross violation of Article 14, 19(1)(a), 21 of the Constitution of India and Article 03 of the Universal Declaration of Human Rights.

Demands :
1.       High level inquiry must be done by Human Rights Protection Cell of Odisha police and stringent action should be taken again erring police officials.
2.       Tapan Padhi must be referred to other hospitals for better treatment outside  jail , as there is no doctor  in jail.
3.       Odisha Human Rights Commission may send a team to Jail to inquiry into the matter and take necessary actions.
4.       His family members must be provided with security as ICC threatened the accused to finish his family members.
5.       Police should quash allegation against him as he is not involved in these crime.

Report prepared  by
Sri Akhand
Human Rights  Activist
M-7008816891
Date-22.3.19

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