IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMP No. 365 of 2026 Shaila Pradhan ….. Petitioner Mr. Sujit Kumar Pattnaik, Advocate -versus- 1. State of Odisha 2. Superintendent of Police, Berhampur, District-Ganjam 3. Inspector-in-charge, Nimakhandi Police Station, District-Ganjam ….. Opposite Parties Mr. S.J. Mohanty, ASC CORAM: HON’BLE MISS JUSTICE SAVITRI RATHO ORDER 31.03.2026 Order No. 02. (Through hybrid mode) 1. This CRLMP has been filed for a direction to the IIC, Nimakhandi P.S. to arrest the F.I.R. named persons in the Nimakhandi P.S. Case No.32 of 2026. Nimakhandi P.S. Case No.32 of 2026 has been registered under Sections 126(2), 296, 115(2), 118(1), 109(1), 351(2) and 3(5) of the BNS, 2023 against one Bikash Pradhan @ Nilu, Panda Pradhan, Tuna Sasamal and Chitra Nahak. 2. Perusal of the case diary reveals that accused Panda Pradhan was arrested by the Police. But thereafter co-accused Bikash Pradhan @ Nilu, Tuna Sasamal and Chitra Nahak were issued notice under Section 35 (3) of the BNS. 3. Mr. S.J. Mohanty, learned Additional Standing Counsel referring to the statement of Tuna Pradhan who has examined on 07.02.2026 submits that he has implicated only Panda Pradhan to have assaulted the injured Brundaban Pradhan with ‘Khanda’ with an intention to kill him and that co-accused Bikash Pradhan, Chitra Nahak and Tuna Sasmal were present. The said Khanda has been recovered. 4. Perused the case diary. From a reading of the statement of Tuna Pradhan recorded under Section 180 of the BNSS, it is apparent that Tuna Pradhan is not an eye witness to the occurrence. He has stated that he learnt about the assault. The injured has made same allegation of assault against all the accused persons and stated that he sustained serious injuries. 5. From this, it prima facie appears that there was no reason for the I.O. to issue notice under Section 35 (3) of the BNSS on these three accused persons when he had arrested accused Panda Pradhan against whom the injured had made the same allegation. 6. Mr. S.J. Mohanty, learned Additional Standing Counsel submits that in view of the specific prayer in the CRLMP for a direction to the IIC, Nimakhandi P.S.-Opposite Party No.3 to arrest the FIR named persons in Nimakhandi P.S. Case No. 32 of 2026, this Court cannot direct for changing the I.O. in this case. He further submits that it is discretion of the I.O. depending on the investigation conducted in the case whether he should arrest the accused or not and if prima facie materials are available to make out a case for arresting the accused. 7. In the case of Satender Kumar Antil vrs. CBI : 2026 INSC 115, the Supreme Court has held as follows: “33. On the basis of the interpretation given by us, we conclude as follows: a. An arrest by a police officer is a mere statutory discretion which facilitates him to conduct proper investigation, in the form of collection of evidence and, therefore, shall not be termed as mandatory. b. Consequently, the police officer shall ask himself the question as to whether an arrest is a necessity or not, before undertaking the said exercise. c. For effecting an arrest, qua an offence punishable with imprisonment up to 7 years, the mandate of Section 35(1)(b)(i) of the BNSS, 2023 along with any one of the conditions mentioned in Section 35(1)(b)(ii) of the BNSS, 2023 must be in existence. d. A notice under Section 35(3) of the BNSS, 2023 to an accused or any individual concerned, qua offences punishable with imprisonment up to 7 years, is the rule.” 8. In the present case, I find that although on the basis of materials on record, the IIC has arrested accused Panda Pradhan but puspa without any materials in the case diary to make out a different case against the co-accused or without recording that their arrest is not necessary for proper investigation, has served notice under Section 35 (3) of the BNSS on them instead of arresting them. 9. From this, it is apparent that the investigation in Nimakhandi P.S. Case No. 32 of 2026 has not been done in an impartial manner. Hence, the Superintendent of Police, Berhampur is directed to change the I.O. in this case who is the IIC, Nimakhandi P.S., within ten days and direct for investigation of the case by the SDPO, Berhampur or any other Senior Officer. 10. Registry is directed to communicate the order of this Court to the Opposite Party No.2-Superintendent of Police, Berhampur, District-Ganjam and Opposite Party No.3-IIC, Nimakhandi Police Station, District-Ganjam forthwith. 11. With the above direction, the CRLMP is disposed of. 12. Urgent certified copy of this order be granted on proper application. (Savitri Ratho) Judge