Kedar Narayan Parida & Ors. Vs. State of Orissa & Anr.
EmailAppeal: Special Leave Petition (C) No. 19947 of 2008
[From the Judgement and Order dated 24.04.2008 of the High Court of Orissa at Cuttack in WP(C) No. 12626 of 2007]
[From the Judgement and Order dated 24.04.2008 of the High Court of Orissa at Cuttack in WP(C) No. 12626 of 2007]
Petitioner: Kedar Narayan Parida & Ors.
Respondent: State of Orissa & Anr.
Apeal: Special Leave Petition (C) No. 19947 of 2008
[From the Judgement and Order dated 24.04.2008 of the High Court of Orissa at Cuttack in WP(C) No. 12626 of 2007]
[From the Judgement and Order dated 24.04.2008 of the High Court of Orissa at Cuttack in WP(C) No. 12626 of 2007]
Judges: Altamas Kabir & Cyriac Joseph, JJ.
Date of Judgment: Sep 16, 2009
Appearances:
Appearances
Mr. Amit Sharma, Mr. Suchit Mohanty and Mr. Anupam Lal Das, Advocates for the Petitioner(s).
Mr. Altaf Ahmad, Senior Advocate, Mr. Janaranjan Das, Mr. Shwetaketu Mishra, Mr. P.P. Nayak, Mr. Sibo Sankar Mishra and Mr. Raj Kumar Prashar, Advocates for the Respondent(s).
Mr. Amit Sharma, Mr. Suchit Mohanty and Mr. Anupam Lal Das, Advocates for the Petitioner(s).
Mr. Altaf Ahmad, Senior Advocate, Mr. Janaranjan Das, Mr. Shwetaketu Mishra, Mr. P.P. Nayak, Mr. Sibo Sankar Mishra and Mr. Raj Kumar Prashar, Advocates for the Respondent(s).
Head Note:
CONSTITUTION/PRACTICE & PROCEDURE
Constitution of India, 1950
Article 226 – Criminal Procedure Code, 1973, Sections 169, 170, 173 – Interference by High Court – When called for – Complaint to High Court that about 19 persons were involved in murder, but police filed charge-sheet against only 4 and after arresting only 3 – Treated as writ – Record called for – Revelation that there was interference by Director General of Police and local MLA – Attempts made to create alibis – Initial supervisory note by Addl. S.P. – That case was made out against all 19 persons – Despite it, DGP asking to submit a fresh ‘Test Note’ – Such directions after intervention of MLA. Directions by High Court to take action against all the accused, held, was fully justified. Hence, no interference is required. Appeal dismissed.
Constitution of India, 1950
Article 226 – Criminal Procedure Code, 1973, Sections 169, 170, 173 – Interference by High Court – When called for – Complaint to High Court that about 19 persons were involved in murder, but police filed charge-sheet against only 4 and after arresting only 3 – Treated as writ – Record called for – Revelation that there was interference by Director General of Police and local MLA – Attempts made to create alibis – Initial supervisory note by Addl. S.P. – That case was made out against all 19 persons – Despite it, DGP asking to submit a fresh ‘Test Note’ – Such directions after intervention of MLA. Directions by High Court to take action against all the accused, held, was fully justified. Hence, no interference is required. Appeal dismissed.
Held:
When any illegality and/or mala fide action on the part of the Investigating Authorities, either on its own or at the behest of an interested party, is brought to the notice of the High Courts, the High Courts in exercise of their inherent and plenary powers are entitled to intervene to set right the illegality and/or mala fide action on the part of the Investigating Authorities. The decision in H.S. Bains’s case (supra) clearly reiterates such proposition. (Para 25)
Abhinandan Jha’s case (supra) and the other cases cited indicate that the courts should not intervene in matters of investigation, which, under the scheme of the Code of Criminal Procedure, has been vested in the Police Authorities, an exception has also been made that in certain circumstances the court could intervene in order to do justice to the parties. The courts, and in particular the High Courts, are the guardians of the life and liberty of the citizens and if there is any flavour of deliberate misuse of the authority vested in the Investigating Authority, the High Court or this Court may certainly step in to correct such injustice or failure of justice. Such a view was indicated in the case of Comptroller and Auditor-General of India’s case (supra) as far back in 1986. (Para 28)
In the instant case, although, the Supervisory Report submitted by the Additional SP, Jajpur, had been duly accepted not only by the Inspector General of Police, Central Range, Cuttack, but also by the Director General of Police, which was sufficient for the Magistrate to frame a charge against all the accused persons, a fresh direction was given to the Inspector General of police, Central Range, Cuttack, to submit a Test Note. Such a direction given after the intervention of Dr. Parameswar Sethi, who has gone to the extent of providing an alibi for two of the accused, Jyoti Parida and Shakti Parida, claiming that they were present in his house when the incident had occurred, not only exudes an unpleasant flavour, but raises doubts about the bonafides of the police authorities at the highest level. (Para 26)
Cases Reffered:
1. Dinesh Dalmia v. C.B.I. [JT 2007 (11) SC 164] (Para 13)
2. Union of India v. Prakash P. Hinduja & Anr. [JT 2003 (5) SC 300] (Para 17)
3. M.C. Abraham & Anr. v. State of Maharashtra & Ors. [JT 2002 (10) SC 482] (Para 18)
4. State of Karnataka v. M. Devendrappa & Anr. [JT 2002 (1) SC 213] (Para 16)
5. M/s India Carat Pvt. Ltd. v. State of Karnataka [JT 1989 (1) SC 308] (Para 23)
6. Comptroller and Auditor-General of India v. K.S. Jagannathan [1986 (2) SCC 679] (Para 20)
7. H.S. Bains v. The State (Union Territory of Chandigarh) [AIR 1980 SC 1883] (Para 21)
8. Abhinandan Jha & Ors. v. Dinesh Mishra [1967 (3) SCR 668] (Para 15)
9. King Emperor v. Khwaja Nazir Ahmad [AIR 1945 PC 18] (Para 17)
2. Union of India v. Prakash P. Hinduja & Anr. [JT 2003 (5) SC 300] (Para 17)
3. M.C. Abraham & Anr. v. State of Maharashtra & Ors. [JT 2002 (10) SC 482] (Para 18)
4. State of Karnataka v. M. Devendrappa & Anr. [JT 2002 (1) SC 213] (Para 16)
5. M/s India Carat Pvt. Ltd. v. State of Karnataka [JT 1989 (1) SC 308] (Para 23)
6. Comptroller and Auditor-General of India v. K.S. Jagannathan [1986 (2) SCC 679] (Para 20)
7. H.S. Bains v. The State (Union Territory of Chandigarh) [AIR 1980 SC 1883] (Para 21)
8. Abhinandan Jha & Ors. v. Dinesh Mishra [1967 (3) SCR 668] (Para 15)
9. King Emperor v. Khwaja Nazir Ahmad [AIR 1945 PC 18] (Para 17)
JUDGEMENT:
ALTAMAS KABIR, J.
1. One Kabita Das, wife of late Bhaguni Das @ Bhagirathi Das of Village Izapur, District Jajpur in the State of Orissa, addressed a letter to the Orissa High Court stating that one Kedar Narayan Parida and 19 others, including his sons, attacked her husband and killed him in the night of 28.3.2007 at about 10.30 p.m. On the basis of a First Information Report, lodged with the Mangalpur Police Station, Mangalpur P.S. Case No.28 of 2007 was registered and on the basis of the said police case, G.R.Case No.468 of 2007 was registered in the Court of the Sub-Divisional Judicial Magistrate, Jajpur. In her said letter, Kabita Das, who has been made the Respondent No.2 in these proceedings, complained of the fact that though Kedar Narayan Parida was the main accused in the case, only 3 persons out of the 19 named accused persons, had been arrested and that the main accused and his sons were moving freely in the nearby areas and no steps were being taken by the police to apprehend them or to complete the investigation. In fact, in her said letter, Kabita Das prayed for a direction to the police authorities to arrest Kedar Narayan Parida and his sons and to take appropriate steps against them in accordance with law.
2. The letter written by Kabita Das was registered as Writ Petition (C) No.12626 of 2007 and on 4th October, 2007, the High Court, after recording the facts contained in the complaint, also took on record the detailed instructions which had been received by the Learned Additional Government Advocate from the Superintendent of Police, Jajpur. In the order it was also recorded that the case was under the supervision of one Shri Niranjan Swain, OPS(I), Additional Superintendent of Police, Jajpur, who, after examining the witnesses named in the FIR, had come to the conclusion that a case had been made out against all the 19 accused persons. Even then the Investigating Officer arrested only 3 of the 19 accused persons, despite the fact that the polygraph tests performed on the witnesses confirmed the presence of all the 19 accused persons who had participated in the assault with different types of weapons. It was also recorded that out of the 19 accused persons, only 4, namely, Ajaya Kumar Ray @ Kunja, Jugal Kishore Ray, Nityananda Sahu and Kartika @ Jyotiranjan Sahoo, were charge-sheeted. Charge-sheet had not been filed against the remaining 15 persons, though directions had been given by the Inspector General of Police, Central Range, Cuttack, to file charge-sheet against three more persons, namely, Sudhanidhi Sahoo @ Mangua, Ashish Kumar Ray and Pranaya Kumar Ray.
3. It appears that despite the conclusion arrived at by the Additional Superintendent of Police, Jajpur, the Inspector General of Police, Central Range, Cuttack, intervened in the investigation and came to the conclusion that the case could be made out only against 7 persons and that the alleged involvement of the other 12 accused persons named in the FIR needed to be thoroughly investigated. Accordingly, at the intervention of the said officer, filing of charge-sheet against the other 12 accused persons was deferred. The matter was directed to appear on 8.10.2007, on which date the Inspector General of Police, CR, Cuttack, was directed to appear before the Court to furnish an explanation as to why he had intervened in the matter and virtually directed the charge-sheet to be filed only against 7 persons and not against the remaining 12 accused persons.
4. The Inspector General of Police, Central Range, Cuttack, Shri Santosh Kumar Upadhay, filed a Counter Affidavit stating that the case had been supervised by Shri Niranjan Swain, OPS-1, Additional Superintendent of Police, Jajpur, who had found that the allegations against all the accused persons appeared to be true, and in his supervision note to the Investigating Officer instructed that after the absconding accused persons had been traced he would verify the different pleas and alibis taken by them. In his said affidavit, the Inspector General of Police, Central Range, Cuttack, further indicated that one Dr. Parameswar Sethi, Member of the Legislative Assembly (M.L.A.), Jajpur, had made a request for transfer of investigation of the case to the Crime Branch alleging that persons who were innocent had been roped in. It was also indicated that in that regard Dr. Sethi had met higher officials which prompted him to direct Shri Santosh Kumar Upadhay to personally look into the case and to issue a ‘Test Note’ immediately. In the impugned judgment it has been recorded that the Inspector General of Police, Central Range, personally visited the spot on 4.7.2007 along with the Superintendent of Police, Jajpur, and examined the progress of investigation as also the supervision done by Shri Niranjan Swain. In his Test Note, the said officer was of the view that out of the 19 persons named in the FIR direct evidence existed only against Ajaya Kumar Ray, Jugal Kishore Ray, Nityananda Sahu, Pranab Kishore Ray, Sudhanidhi Sahu @ Mangua, Kartika Sahu and Ashish Ray. The said officer was also of the view that the involvement of the other 12 accused persons required thorough investigation.
5. From the aforesaid affidavit of the Inspector General of Police, Central Range, Cuttack, it
also stands revealed that he had relied upon a letter dated 23rd June, 2007, addressed to him by the Inspector General of Police, CID, CB, Orissa, directing him to look into the matter personally and to issue a Test Note immediately. Accordingly, by an order dated 3rd January, 2008, the Inspector General of Police, CID, CB, Orissa, was called upon to file an affidavit to explain under what provision of law he had made the request for transfer of investigation on the request of Dr. Parameswar Sethi and as to how the handwritten note of alibi of the said MLA was passed on to the Investigating Agency for consideration. In response to the said direction, the said officer filed a counter affidavit stating that on 6th June, 2006, Dr. Parameswar Sethi had made a written request for transferring the investigation of the case to the Crime Branch. The very next day, the Director General of Police, Orissa, by a written order asked the Inspector General of Police, CID, CB, Orissa, to take over the investigation of the case immediately. The said officer, however, inquired into the matter and turned down the request of the MLA seeking transfer of investigation to the Crime Branch. In fact, in his affidavit, the said officer indicated that the view of the Additional S.P., Jajpur, who had supervised the investigation, was correct as far as all the 19 accused were concerned and that sufficient evidence existed against all the accused persons of having committed the offence. It was also mentioned that only 3 persons could be arrested out of the 19 accused persons and that since the remaining 16 were absconding, the investigation of the case could not be completed.
6. From the impugned judgment it appears that the Division Bench of the High Court called for the files relating to the investigation and it was revealed therefrom that the concerned MLA had met the Director General of Police on 22nd June, 2007, and had handed over a note on his printed pad and in his own handwriting to the said Officer creating alibis for some of the accused persons in the case and that the said handwritten note was placed in the file by the Director General of Police. It also appears that two draft letters were prepared by the Inspector General of Police, CID, CB, pursuant to the directions of the Director General of Police, with a direction to enclose a copy of the handwritten note of the MLA, which were, thereafter, sent to the Inspector General of Police, Central Range, for verification.
7. On the basis of the aforesaid facts revealed in the affidavit affirmed by the Inspector General of Police, CID, CB, a notice was issued to the MLA, Dr. Parameswar Sethi, asking him to show cause as to under what authority he was present during the investigation and had suggested the alibi of the accused persons. In his affidavit, Dr. Parameswar Sethi, tried to justify his conduct on the ground that he did not want innocent persons to suffer and that he was also not present at the time of investigation conducted by the Inspector General of Police, Central Range, and that only on one occasion on being asked by the said officer, he had gone to his office and had informed him that Jyoti Parida and Shakti Parida were present at Bhubaneswar in his quarters at the time of the incident. By a further affidavit directed to be filed, Dr. Parameswar Sethi indicated that in order to explain the entire matter properly, he had jotted down the names of the persons who are alleged to have been involved in the murder case for his own personal reference and that the same was not meant to be used for the purpose of the investigation.
8. The submissions of the learned Amicus Curiae before the High Court, Shri Debasis Panda, who had appeared for the writ petitioner, Kabita Das, were recorded by the High Court in its judgment and it appears that on 15th May, 2007, a prayer had been made to the Sub-Divisional Judicial Magistrate, (S.D.J.M.), Jajpur, to record the statements of Jaladhar Parida and Pramod Mahalik, who were said to have witnessed the incident, under Section 164 CrPC. On 18th May, 2007, a similar prayer was made to the S.D.J.M. for recording the statements of Krushna Chandra Sahu under Section 164 CrPC. On 1st June, 2007, a similar prayer was made for recording the statements of two other eye-witnesses, Prahlad Mahalik and Bholanath Behera. It was only at this stage that on 6th June, 2007, Dr. Parameswar Sethi, MLA, Jajpur, wrote to the Director General of Police, to transfer the investigation of the case to the Crime Branch, as indicated hereinbefore. By his order dated 7th June, 2007, the Inspector General of Police, CID, CB, turned down the request of the MLA for transfer of the investigation to the Crime Branch and on 18th June, 2007, the Investigating Officer requested the Criminal Court to issue non-bailable warrants and proclamation under Section 82 CrPC against Kedar Parida and his sons. As soon as such prayer was made, Dr. Parameswar Sethi met the Director General of Police, followed by an order issued to the Inspector General of Police, Central Range, directing him to issue his ‘Test Note’. It appears that as pointed out by learned counsel appearing for the Respondent No.2, polygraph tests were conducted by the Inspector General of Police, Central Range, on all the witnesses from whose response nothing deceptive could be found and there was, therefore, no reason for the said officer to doubt their statements.
9. In his Test Note the Inspector General of Police, Central Range, categorically indicated that in the course of his discussions with Dr. Parameswar Sethi, he was informed by the MLA that Shakti Parida, who was alleged to have been present at the time of the incident, was, in fact, in Bhubaneswar the whole day.
10. The Division Bench noted Mr. Parida’s submission that the statements made in the affidavits filed by the Inspector General of Police, Central Range, clearly established the fact that Dr. Parameswar Sethi was directly involved in the investigation process right from 28th March, 2007. The learned Judges also referred to the affidavit filed by Dr. Parameswar Sethi, wherein he had asserted that Jyoti Parida and Shakti Parida were present in his quarters at the time of the incident, although, before the Inspector General of Police, Central Range, Cuttack, he had stated that Shakti Parida had telephonically informed him of the events in Bhubaneswar and that he and Jyoti Parida were present around Bhubaneswar on that date. The Division Bench also took note of Mr. Panda’s submissions that the second Test Note was without sanction of law and that it had materialized on account of Dr. Parameswar Sethi’s interference.
11. The Division Bench also considered the submissions made by Mr. Kanungo, learned counsel appearing for Dr. Parameswar Sethi, that being a public representative, the MLA had written a letter on his own pad on 22.6.2007 to the Director General of Police, indicating therein that innocent persons should not be made to suffer and that the investigation should be entrusted to the Crime Branch. The Division Bench also took note of the other submission made by Mr. Kanungo that Dr. Parameswar Sethi had visited the office of the Inspector General of Police, Central Range, Cuttack, only once, on being asked to verify certain facts and in response thereto he had stated that two of the accused persons, Jyoti Parida and Shakti Parida were present in his quarters at the time of the incident and that the hand- written note given by him on his own pad was not for the purpose of creation of an alibi, but was simply a note for his personal reference.
12. Upon examination of the materials before it, the Division Bench of the High Court ultimately framed the following questions for the purpose of deciding the writ petition:
(a) Whether there is any scope for a second ‘Supervision Test Report’, even after the original supervision of the Addl. S.P., Jajpur had been affirmed by all the superior officers, i.e. up to the rank of D.G. of Police?
(b) Veracity of the Test Report issued by the I.G. of Police, Central Range based upon views and facts that emanate out of apparent interference by Dr. Parameswar Sethi, MLA, Jajpur.
13. While answering the said questions, the Division Bench after considering the provisions of Section 173 CrPC came to the conclusion that the filing of charge-sheet against only seven of the accused persons on the basis of the second Test Report of the Inspector General of Police, Central Range, could not be supported since the said Test Report had no legal basis. According to the Division Bench of the High Court, the earlier Supervision Note of the Additional S.P., Jajpur, which was in consonance with Rule 47A of the Orissa Police Manual and affirmed by the Inspector General of Police, C.I.D., C.B., as well as the Director General of Police, was sufficient for the purpose of filing a charge-sheet and there was no justification for the issuance of a further direction to the Inspector General of Police, Central Range, to issue a fresh ‘Test Report’ and such direction was without any lawful authority. In fact, the Division Bench went on further to observe that it was apparent that even in the face of clear prima facie evidence, as stated by witnesses, 12 accused persons were taken out of the purview of the charge-sheet, at the behest of the MLA, who allegedly provided alibis for them. It was also observed that the fact that 12 accused persons had not been examined, went to prove the clever twist given in the investigation of the case by the Inspector General of Police, Central Range, to exclude them from the charge-sheet. The Division Bench, therefore, allowed the writ petition with a direction to the appropriate authorities to take action against all the accused persons, according to law, based upon the Supervision Note issued by the Additional S.P., Jajpur. Consequently, all actions taken on the basis of the Test Report of the Inspector General of Police, Central Range, were quashed. Further directions were given to the Investigating Authority to act in accordance with the decision of this Court in the case of Dinesh Dalmia v. C.B.I. [JT 2007 (11) SC 164 : AIR 2008 SC 78] regarding filing of charge-sheet even if the accused persons had not been arrested. The role played by Dr. Parameswar Sethi in trying to deflect the course of investigation was strongly disapproved by the Division Bench which held that the same amounted to interference with the course of justice.
14. Appearing in support of the Special Leave Petition, learned counsel, Mr. Amit Sharma, submitted that this Court could be required to consider as to whether the Investigating Authorities in a case could be compelled by the Court to investigate an offence in a particular manner as indicated by the Court and also whether the Court could go into the merits of the case even before the trial had begun at a stage when investigation was yet to be concluded. Mr. Sharma also questioned the correctness of the filing of an additional charge-sheet at the behest of the Court.
15. In this regard, Mr. Sharma referred to the decision of this Court in the case of Abhinandan Jha & Ors. v. Dinesh Mishra [1967 (3) SCR 668], wherein the provisions of Sections 169, 170, 173 and 190(1) of the Code of Criminal Procedure, 1898, were under consideration and it was held that once the Investigating Authorities had submitted report of the action taken under Section 169 CrPC that there is no case made out for sending up the accused for trial, there is no power conferred on a Magistrate, either expressly or by implication to direct the police to submit a charge-sheet. Incidentally, the aforesaid provisions of the old Code are the same as those contained in the Code of Criminal Procedure, 1973. This Court made a distinction between the power of the Magistrate to direct the filing of a charge-sheet on the facts disclosed in a report under Section 169 and the power of the Magistrate to disagree with such report and to conduct an investigation on his own. It was held that in case of disagreement with the Police Report under Section 169, the Magistrate was within his jurisdiction to direct the police to conduct a further investigation under Section 156(3) CrPC. However, the Magistrate could not direct the police to submit a charge-sheet because the submission of the report depended entirely upon the opinion formed by the police and not on the opinion of the Magistrate. Mr. Sharma submitted that the direction given by the learned Magistrate to file an additional charge-sheet was contrary to the provisions of law and could not, therefore, be sustained.
16. Mr. Sharma also referred to a three Judge Bench decision of this Court in State of Karnataka v. M. Devendrappa & Anr. [JT 2002 (1) SC 213 : 2002 (3) SCC 89], wherein, it was observed that while exercising powers under Section 482 CrPC, the court does not function as a court of appeal or revision. Such power is to be exercised sparingly and ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. It was further observed that the authority of the court exists for the advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. Mr. Sharma urged that the same was the situation in the instant case where, although, on the basis of the second Test Note it was found by the Inspector General of Police, Central Range, Cuttack, that a case had been made out only against seven accused, the High Court observed that the materials contained in the earlier supervision note of the Additional S.P., Jajpur, which was in consonance with Rule 42A of the Orissa Police Manual and affirmed by the Inspector General of Police, CID, CB, as well as the Director General of Police, was sufficient for the purpose of filing a charge-sheet against all the accused persons. Mr. Sharma urged that there was no bar on receipt of fresh materials for the Investigating Authorities to hold a further inquiry into the allegations made in the First Information Report.
17. Mr. Sharma lastly referred to another decision of this Court in Union of India v. Prakash P.
Hinduja & Anr. [JT 2003 (5) SC 300 : 2003 (6) SCC 195], wherein, while considering amongst other issues the manner and scope of the expression ‘investigation’ defined in Section 2(h) CrPC, this Court held that the Magistrate could not interfere with the investigation and by virtue of Chapter XII of the Code, the manner and method of conducting investigation has been left entirely to the Police Authorities. It was also held that formation of opinion whether there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case to the Magistrate or not as contemplated by Sections 169 and 170 CrPC is to be that of the officer in charge of the police station and a Magistrate has absolutely no role to play at this stage. In the said case reference was made to the decision in Abhinandan Jha’s case (supra), wherein, after examining the scheme of the Code and the decision of the Privy Council in King Emperor v. Khwaja Nazir Ahmad [AIR 1945 PC 18] and other decisions of this Court, it was, inter alia, held that the investigation under the Code takes in several aspects and several stages ultimately resulting in the formation of opinion by the police and such formation of opinion was the final step in the investigation which could only be taken by the police and by no other authority.
18. Mr. Sharma contended that the second Test Note filed by the Inspector General of Police, Central Range, Cuttack, was prepared after the charge-sheet had been filed and not during the investigation on the basis of orders passed on a writ petition. In support of his submission, Mr. Sharma then referred to the decision of this Court in M.C. Abraham & Anr. v. State of Maharashtra & Ors. [JT 2002 (10) SC 482 : 2003 (2) SCC 649], which were criminal appeals heard along with other criminal appeals involving the same question as to the extent to which there could be judicial interference with the discretionary power of the investigating agency. Mr. Sharma pointed out that this Court held that judicial interference with the discretion of the Investigating Authority to arrest or not to arrest an accused should not be exercised mechanically but with caution and when the Investigating Officer, having regard to the facts, considered arrest of certain persons in a case unnecessary, the High Court under Article 226 had no jurisdiction to direct the State to arrest those persons even though the case was still at the stage of investigation, as that would amount to unjustified interference with the investigation.
19. Appearing for Kabita Das, the writ petitioner (Respondent No.2 herein), Mr. Altaf Ahmad, learned senior counsel, opposed the submissions made on behalf of the petitioner and reiterated the stand taken before the High Court that an attempt had been made by the investigating authorities to derail the investigation at the instance of Dr. Parameswar Sethi, the local M.L.A. Mr. Ahmad reiterated that when the previous note of the Additional S.P., Jajpur, had been affirmed by the Inspector General of Police, C.I.D., C.B., as also the Director General of Police, there was absolutely no reason for a further Test Report to be prepared and that too at the instance of the local M.L.A., who had not only tried to influence the investigation, but had also prevailed upon the Inspector General of Police, Central Range, Cuttack, to file a fresh Test Report giving a clean chit to those accused for whom Dr. Parameswar Sethi had provided an alibi.
20. Countering Mr. Amit Sharma’s submissions that the Courts do not ordinarily interfere with the police investigation which is in the domain of the police authorities, Mr. Altaf Ahmad submitted that the High Courts exercising powers under Article 226 of the Constitution can direct a non-functioning public authority to perform its functions in a particular manner. In support of his submissions, Mr. Altaf Ahmad referred to and relied upon the oft-repeated decision of this Court in Comptroller and Auditor-General of India v. K.S. Jagannathan [1986 (2) SCC 679], wherein it was held in unambiguous terms that the High Courts have the power to issue a writ of Mandamus or a writ in the nature of Mandamus or to pass orders and give necessary directions where the Government or the public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. Their Lordships went on to observe that in all such cases and in any other fit and proper case a High Court can compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.
21. Mr. Altaf Ahmad also submitted that a Magistrate, while considering a police report made under Section 173(2) CrPC, was not bound to accept the same and could himself take cognizance and issue process. Mr. Ahmad submitted that the Magistrate was not bound to accept the Test Report submitted by the Inspector General of Police, Central Range, Cuttack, and was entitled to take cognizance of the offences on the basis of the earlier report, according to his discretion. Mr. Ahmad referred to the decision of this Court in H.S. Bains v. The State (Union Territory of Chandigarh) [AIR 1980 SC 1883], in support of his said submission which was rendered on the basis of a report submitted pursuant to an investigation ordered under Section 156(3) CrPC, indicating that no case had been made out. Despite the above, this Court held that the Magistrate could still take cognizance and issue process if he was satisfied from the materials on record, including the inquiry report, that a prima facie case existed against the accused persons.
22. Mr. Altaf Ahmad submitted that there was absolutely no ground for interference with the order of the High Court, particularly in the facts of the instant case.
23. Mr. Sibo Sankar Mishra, learned counsel for the State of Orissa, submitted that the investigating authorities had conducted the investigation with due diligence and although cognizance had initially been taken against only 4 of the 19 accused persons, subsequently, cognizance was also taken against the remaining 15 accused on 2nd July, 2008. Mr. Mishra also submitted that during the course of investigation, the statements of the eye-witnesses had been duly recorded under Section 164 CrPC and on 9th July, 2007, polygraph tests were also conducted in respect of the three witnesses whose statements had been recorded under Section 164 CrPC in order to test their veracity. Learned counsel urged that it was not as if the investigating authorities had remained inactive but had pursued the matter with due diligence ultimately resulting in process being issued against all the 19 accused. Mr. Mishra also referred to a three-Judge Bench decision of this Court in M/s India Carat Pvt. Ltd. v. State of Karnataka [JT 1989 (1) SC 308 : AIR 1989 SC 885], which was also on the same lines.
24. We have carefully considered the submissions made on behalf of the respective parties and we are satisfied that no interference is called for with the order of the High Court impugned in this Special Leave Petition.
25. We are unable to accept Mr. Sharma’s submissions that the High Court could not have interfered with the directions given by the Director General of Police to the Inspector General of Police, Central Range, Cuttack, to submit a fresh Test Note despite the supervisory report which had been submitted by the Additional S.P., Jajpur, indicating that a case had been made out to go to trial as against all the 19 accused. When any illegality and/or mala fide action on the part of the Investigating Authorities, either on its own or at the behest of an interested party, is brought to the notice of the High Courts, the High Courts in exercise of their inherent and plenary powers are entitled to intervene to set right the illegality and/or mala fide action on the part of the Investigating Authorities. The decision in H.S. Bains’s case (supra) clearly reiterates such proposition.
26. In the instant case, although, the Supervisory Report submitted by the Additional SP, Jajpur, had been duly accepted not only by the Inspector General of Police, Central Range, Cuttack, but also by the Director General of Police, which was sufficient for the Magistrate to frame a charge against all the accused persons, a fresh direction was given to the Inspector General of police, Central Range, Cuttack, to submit a Test Note. Such a direction given after the intervention of Dr. Parameswar Sethi, who has gone to the extent of providing an alibi for two of the accused, Jyoti Parida and Shakti Parida, claiming that they were present in his house when the incident had occurred, not only exudes an unpleasant flavour, but raises doubts about the bonafides of the police authorities at the highest level.
27. In fact, it is on account of such intervention that initially charge was filed only against 4
of the accused and, thereafter, 3 more. No steps were taken as far as the remaining 12 accused were concerned and it is only when the action of Dr. Parameswar Sethi was questioned before the High Court, that charge was also filed against the remaining 12 accused persons.
28. We have considered the judgment of this Court in Abhinandan Jha’s case (supra) and the other cases cited by Mr. Sharma. While indicating that the courts should not intervene in matters of investigation, which, under the scheme of the Code of Criminal Procedure, has been vested in the Police Authorities, an exception has also been made that in certain circumstances the court could intervene in order to do justice to the parties. As we have observed in other cases, the courts, and in particular the High Courts, are the guardians of the life and liberty of the citizens and if there is any flavour of deliberate misuse of the authority vested in the Investigating Authority, the High Court or this Court may certainly step in to correct such injustice or failure of justice. Such a view was indicated in the case of Comptroller and Auditor-General of India’s case (supra) as far back in 1986 when on the failure of the administrative machinery a Mandamus had to be issued by this Court to grant relief to the petitioner to which he was entitled from the said authorities, and also in H.S. Bains’s case referred to hereinbefore.
29. We are inclined to agree with Mr. Altaf Ahmad that in the peculiar facts and circumstances of
this case, it was necessary for such a direction to be given by the High Court in order to prevent an injustice from being done on account of the intervention of influential persons, which not only had the effect of negating the Supervisory Report of the Additional SP, Jajpur, but also resulted in an attempt to shield some of the accused persons.
30. The judgment of the High Court, in our view, does not warrant any interference and the Special
Leave Petition is, accordingly, dismissed.
31. There shall be no order as to costs.
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1. One Kabita Das, wife of late Bhaguni Das @ Bhagirathi Das of Village Izapur, District Jajpur in the State of Orissa, addressed a letter to the Orissa High Court stating that one Kedar Narayan Parida and 19 others, including his sons, attacked her husband and killed him in the night of 28.3.2007 at about 10.30 p.m. On the basis of a First Information Report, lodged with the Mangalpur Police Station, Mangalpur P.S. Case No.28 of 2007 was registered and on the basis of the said police case, G.R.Case No.468 of 2007 was registered in the Court of the Sub-Divisional Judicial Magistrate, Jajpur. In her said letter, Kabita Das, who has been made the Respondent No.2 in these proceedings, complained of the fact that though Kedar Narayan Parida was the main accused in the case, only 3 persons out of the 19 named accused persons, had been arrested and that the main accused and his sons were moving freely in the nearby areas and no steps were being taken by the police to apprehend them or to complete the investigation. In fact, in her said letter, Kabita Das prayed for a direction to the police authorities to arrest Kedar Narayan Parida and his sons and to take appropriate steps against them in accordance with law.
2. The letter written by Kabita Das was registered as Writ Petition (C) No.12626 of 2007 and on 4th October, 2007, the High Court, after recording the facts contained in the complaint, also took on record the detailed instructions which had been received by the Learned Additional Government Advocate from the Superintendent of Police, Jajpur. In the order it was also recorded that the case was under the supervision of one Shri Niranjan Swain, OPS(I), Additional Superintendent of Police, Jajpur, who, after examining the witnesses named in the FIR, had come to the conclusion that a case had been made out against all the 19 accused persons. Even then the Investigating Officer arrested only 3 of the 19 accused persons, despite the fact that the polygraph tests performed on the witnesses confirmed the presence of all the 19 accused persons who had participated in the assault with different types of weapons. It was also recorded that out of the 19 accused persons, only 4, namely, Ajaya Kumar Ray @ Kunja, Jugal Kishore Ray, Nityananda Sahu and Kartika @ Jyotiranjan Sahoo, were charge-sheeted. Charge-sheet had not been filed against the remaining 15 persons, though directions had been given by the Inspector General of Police, Central Range, Cuttack, to file charge-sheet against three more persons, namely, Sudhanidhi Sahoo @ Mangua, Ashish Kumar Ray and Pranaya Kumar Ray.
3. It appears that despite the conclusion arrived at by the Additional Superintendent of Police, Jajpur, the Inspector General of Police, Central Range, Cuttack, intervened in the investigation and came to the conclusion that the case could be made out only against 7 persons and that the alleged involvement of the other 12 accused persons named in the FIR needed to be thoroughly investigated. Accordingly, at the intervention of the said officer, filing of charge-sheet against the other 12 accused persons was deferred. The matter was directed to appear on 8.10.2007, on which date the Inspector General of Police, CR, Cuttack, was directed to appear before the Court to furnish an explanation as to why he had intervened in the matter and virtually directed the charge-sheet to be filed only against 7 persons and not against the remaining 12 accused persons.
4. The Inspector General of Police, Central Range, Cuttack, Shri Santosh Kumar Upadhay, filed a Counter Affidavit stating that the case had been supervised by Shri Niranjan Swain, OPS-1, Additional Superintendent of Police, Jajpur, who had found that the allegations against all the accused persons appeared to be true, and in his supervision note to the Investigating Officer instructed that after the absconding accused persons had been traced he would verify the different pleas and alibis taken by them. In his said affidavit, the Inspector General of Police, Central Range, Cuttack, further indicated that one Dr. Parameswar Sethi, Member of the Legislative Assembly (M.L.A.), Jajpur, had made a request for transfer of investigation of the case to the Crime Branch alleging that persons who were innocent had been roped in. It was also indicated that in that regard Dr. Sethi had met higher officials which prompted him to direct Shri Santosh Kumar Upadhay to personally look into the case and to issue a ‘Test Note’ immediately. In the impugned judgment it has been recorded that the Inspector General of Police, Central Range, personally visited the spot on 4.7.2007 along with the Superintendent of Police, Jajpur, and examined the progress of investigation as also the supervision done by Shri Niranjan Swain. In his Test Note, the said officer was of the view that out of the 19 persons named in the FIR direct evidence existed only against Ajaya Kumar Ray, Jugal Kishore Ray, Nityananda Sahu, Pranab Kishore Ray, Sudhanidhi Sahu @ Mangua, Kartika Sahu and Ashish Ray. The said officer was also of the view that the involvement of the other 12 accused persons required thorough investigation.
5. From the aforesaid affidavit of the Inspector General of Police, Central Range, Cuttack, it
also stands revealed that he had relied upon a letter dated 23rd June, 2007, addressed to him by the Inspector General of Police, CID, CB, Orissa, directing him to look into the matter personally and to issue a Test Note immediately. Accordingly, by an order dated 3rd January, 2008, the Inspector General of Police, CID, CB, Orissa, was called upon to file an affidavit to explain under what provision of law he had made the request for transfer of investigation on the request of Dr. Parameswar Sethi and as to how the handwritten note of alibi of the said MLA was passed on to the Investigating Agency for consideration. In response to the said direction, the said officer filed a counter affidavit stating that on 6th June, 2006, Dr. Parameswar Sethi had made a written request for transferring the investigation of the case to the Crime Branch. The very next day, the Director General of Police, Orissa, by a written order asked the Inspector General of Police, CID, CB, Orissa, to take over the investigation of the case immediately. The said officer, however, inquired into the matter and turned down the request of the MLA seeking transfer of investigation to the Crime Branch. In fact, in his affidavit, the said officer indicated that the view of the Additional S.P., Jajpur, who had supervised the investigation, was correct as far as all the 19 accused were concerned and that sufficient evidence existed against all the accused persons of having committed the offence. It was also mentioned that only 3 persons could be arrested out of the 19 accused persons and that since the remaining 16 were absconding, the investigation of the case could not be completed.
6. From the impugned judgment it appears that the Division Bench of the High Court called for the files relating to the investigation and it was revealed therefrom that the concerned MLA had met the Director General of Police on 22nd June, 2007, and had handed over a note on his printed pad and in his own handwriting to the said Officer creating alibis for some of the accused persons in the case and that the said handwritten note was placed in the file by the Director General of Police. It also appears that two draft letters were prepared by the Inspector General of Police, CID, CB, pursuant to the directions of the Director General of Police, with a direction to enclose a copy of the handwritten note of the MLA, which were, thereafter, sent to the Inspector General of Police, Central Range, for verification.
7. On the basis of the aforesaid facts revealed in the affidavit affirmed by the Inspector General of Police, CID, CB, a notice was issued to the MLA, Dr. Parameswar Sethi, asking him to show cause as to under what authority he was present during the investigation and had suggested the alibi of the accused persons. In his affidavit, Dr. Parameswar Sethi, tried to justify his conduct on the ground that he did not want innocent persons to suffer and that he was also not present at the time of investigation conducted by the Inspector General of Police, Central Range, and that only on one occasion on being asked by the said officer, he had gone to his office and had informed him that Jyoti Parida and Shakti Parida were present at Bhubaneswar in his quarters at the time of the incident. By a further affidavit directed to be filed, Dr. Parameswar Sethi indicated that in order to explain the entire matter properly, he had jotted down the names of the persons who are alleged to have been involved in the murder case for his own personal reference and that the same was not meant to be used for the purpose of the investigation.
8. The submissions of the learned Amicus Curiae before the High Court, Shri Debasis Panda, who had appeared for the writ petitioner, Kabita Das, were recorded by the High Court in its judgment and it appears that on 15th May, 2007, a prayer had been made to the Sub-Divisional Judicial Magistrate, (S.D.J.M.), Jajpur, to record the statements of Jaladhar Parida and Pramod Mahalik, who were said to have witnessed the incident, under Section 164 CrPC. On 18th May, 2007, a similar prayer was made to the S.D.J.M. for recording the statements of Krushna Chandra Sahu under Section 164 CrPC. On 1st June, 2007, a similar prayer was made for recording the statements of two other eye-witnesses, Prahlad Mahalik and Bholanath Behera. It was only at this stage that on 6th June, 2007, Dr. Parameswar Sethi, MLA, Jajpur, wrote to the Director General of Police, to transfer the investigation of the case to the Crime Branch, as indicated hereinbefore. By his order dated 7th June, 2007, the Inspector General of Police, CID, CB, turned down the request of the MLA for transfer of the investigation to the Crime Branch and on 18th June, 2007, the Investigating Officer requested the Criminal Court to issue non-bailable warrants and proclamation under Section 82 CrPC against Kedar Parida and his sons. As soon as such prayer was made, Dr. Parameswar Sethi met the Director General of Police, followed by an order issued to the Inspector General of Police, Central Range, directing him to issue his ‘Test Note’. It appears that as pointed out by learned counsel appearing for the Respondent No.2, polygraph tests were conducted by the Inspector General of Police, Central Range, on all the witnesses from whose response nothing deceptive could be found and there was, therefore, no reason for the said officer to doubt their statements.
9. In his Test Note the Inspector General of Police, Central Range, categorically indicated that in the course of his discussions with Dr. Parameswar Sethi, he was informed by the MLA that Shakti Parida, who was alleged to have been present at the time of the incident, was, in fact, in Bhubaneswar the whole day.
10. The Division Bench noted Mr. Parida’s submission that the statements made in the affidavits filed by the Inspector General of Police, Central Range, clearly established the fact that Dr. Parameswar Sethi was directly involved in the investigation process right from 28th March, 2007. The learned Judges also referred to the affidavit filed by Dr. Parameswar Sethi, wherein he had asserted that Jyoti Parida and Shakti Parida were present in his quarters at the time of the incident, although, before the Inspector General of Police, Central Range, Cuttack, he had stated that Shakti Parida had telephonically informed him of the events in Bhubaneswar and that he and Jyoti Parida were present around Bhubaneswar on that date. The Division Bench also took note of Mr. Panda’s submissions that the second Test Note was without sanction of law and that it had materialized on account of Dr. Parameswar Sethi’s interference.
11. The Division Bench also considered the submissions made by Mr. Kanungo, learned counsel appearing for Dr. Parameswar Sethi, that being a public representative, the MLA had written a letter on his own pad on 22.6.2007 to the Director General of Police, indicating therein that innocent persons should not be made to suffer and that the investigation should be entrusted to the Crime Branch. The Division Bench also took note of the other submission made by Mr. Kanungo that Dr. Parameswar Sethi had visited the office of the Inspector General of Police, Central Range, Cuttack, only once, on being asked to verify certain facts and in response thereto he had stated that two of the accused persons, Jyoti Parida and Shakti Parida were present in his quarters at the time of the incident and that the hand- written note given by him on his own pad was not for the purpose of creation of an alibi, but was simply a note for his personal reference.
12. Upon examination of the materials before it, the Division Bench of the High Court ultimately framed the following questions for the purpose of deciding the writ petition:
(a) Whether there is any scope for a second ‘Supervision Test Report’, even after the original supervision of the Addl. S.P., Jajpur had been affirmed by all the superior officers, i.e. up to the rank of D.G. of Police?
(b) Veracity of the Test Report issued by the I.G. of Police, Central Range based upon views and facts that emanate out of apparent interference by Dr. Parameswar Sethi, MLA, Jajpur.
13. While answering the said questions, the Division Bench after considering the provisions of Section 173 CrPC came to the conclusion that the filing of charge-sheet against only seven of the accused persons on the basis of the second Test Report of the Inspector General of Police, Central Range, could not be supported since the said Test Report had no legal basis. According to the Division Bench of the High Court, the earlier Supervision Note of the Additional S.P., Jajpur, which was in consonance with Rule 47A of the Orissa Police Manual and affirmed by the Inspector General of Police, C.I.D., C.B., as well as the Director General of Police, was sufficient for the purpose of filing a charge-sheet and there was no justification for the issuance of a further direction to the Inspector General of Police, Central Range, to issue a fresh ‘Test Report’ and such direction was without any lawful authority. In fact, the Division Bench went on further to observe that it was apparent that even in the face of clear prima facie evidence, as stated by witnesses, 12 accused persons were taken out of the purview of the charge-sheet, at the behest of the MLA, who allegedly provided alibis for them. It was also observed that the fact that 12 accused persons had not been examined, went to prove the clever twist given in the investigation of the case by the Inspector General of Police, Central Range, to exclude them from the charge-sheet. The Division Bench, therefore, allowed the writ petition with a direction to the appropriate authorities to take action against all the accused persons, according to law, based upon the Supervision Note issued by the Additional S.P., Jajpur. Consequently, all actions taken on the basis of the Test Report of the Inspector General of Police, Central Range, were quashed. Further directions were given to the Investigating Authority to act in accordance with the decision of this Court in the case of Dinesh Dalmia v. C.B.I. [JT 2007 (11) SC 164 : AIR 2008 SC 78] regarding filing of charge-sheet even if the accused persons had not been arrested. The role played by Dr. Parameswar Sethi in trying to deflect the course of investigation was strongly disapproved by the Division Bench which held that the same amounted to interference with the course of justice.
14. Appearing in support of the Special Leave Petition, learned counsel, Mr. Amit Sharma, submitted that this Court could be required to consider as to whether the Investigating Authorities in a case could be compelled by the Court to investigate an offence in a particular manner as indicated by the Court and also whether the Court could go into the merits of the case even before the trial had begun at a stage when investigation was yet to be concluded. Mr. Sharma also questioned the correctness of the filing of an additional charge-sheet at the behest of the Court.
15. In this regard, Mr. Sharma referred to the decision of this Court in the case of Abhinandan Jha & Ors. v. Dinesh Mishra [1967 (3) SCR 668], wherein the provisions of Sections 169, 170, 173 and 190(1) of the Code of Criminal Procedure, 1898, were under consideration and it was held that once the Investigating Authorities had submitted report of the action taken under Section 169 CrPC that there is no case made out for sending up the accused for trial, there is no power conferred on a Magistrate, either expressly or by implication to direct the police to submit a charge-sheet. Incidentally, the aforesaid provisions of the old Code are the same as those contained in the Code of Criminal Procedure, 1973. This Court made a distinction between the power of the Magistrate to direct the filing of a charge-sheet on the facts disclosed in a report under Section 169 and the power of the Magistrate to disagree with such report and to conduct an investigation on his own. It was held that in case of disagreement with the Police Report under Section 169, the Magistrate was within his jurisdiction to direct the police to conduct a further investigation under Section 156(3) CrPC. However, the Magistrate could not direct the police to submit a charge-sheet because the submission of the report depended entirely upon the opinion formed by the police and not on the opinion of the Magistrate. Mr. Sharma submitted that the direction given by the learned Magistrate to file an additional charge-sheet was contrary to the provisions of law and could not, therefore, be sustained.
16. Mr. Sharma also referred to a three Judge Bench decision of this Court in State of Karnataka v. M. Devendrappa & Anr. [JT 2002 (1) SC 213 : 2002 (3) SCC 89], wherein, it was observed that while exercising powers under Section 482 CrPC, the court does not function as a court of appeal or revision. Such power is to be exercised sparingly and ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. It was further observed that the authority of the court exists for the advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. Mr. Sharma urged that the same was the situation in the instant case where, although, on the basis of the second Test Note it was found by the Inspector General of Police, Central Range, Cuttack, that a case had been made out only against seven accused, the High Court observed that the materials contained in the earlier supervision note of the Additional S.P., Jajpur, which was in consonance with Rule 42A of the Orissa Police Manual and affirmed by the Inspector General of Police, CID, CB, as well as the Director General of Police, was sufficient for the purpose of filing a charge-sheet against all the accused persons. Mr. Sharma urged that there was no bar on receipt of fresh materials for the Investigating Authorities to hold a further inquiry into the allegations made in the First Information Report.
17. Mr. Sharma lastly referred to another decision of this Court in Union of India v. Prakash P.
Hinduja & Anr. [JT 2003 (5) SC 300 : 2003 (6) SCC 195], wherein, while considering amongst other issues the manner and scope of the expression ‘investigation’ defined in Section 2(h) CrPC, this Court held that the Magistrate could not interfere with the investigation and by virtue of Chapter XII of the Code, the manner and method of conducting investigation has been left entirely to the Police Authorities. It was also held that formation of opinion whether there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case to the Magistrate or not as contemplated by Sections 169 and 170 CrPC is to be that of the officer in charge of the police station and a Magistrate has absolutely no role to play at this stage. In the said case reference was made to the decision in Abhinandan Jha’s case (supra), wherein, after examining the scheme of the Code and the decision of the Privy Council in King Emperor v. Khwaja Nazir Ahmad [AIR 1945 PC 18] and other decisions of this Court, it was, inter alia, held that the investigation under the Code takes in several aspects and several stages ultimately resulting in the formation of opinion by the police and such formation of opinion was the final step in the investigation which could only be taken by the police and by no other authority.
18. Mr. Sharma contended that the second Test Note filed by the Inspector General of Police, Central Range, Cuttack, was prepared after the charge-sheet had been filed and not during the investigation on the basis of orders passed on a writ petition. In support of his submission, Mr. Sharma then referred to the decision of this Court in M.C. Abraham & Anr. v. State of Maharashtra & Ors. [JT 2002 (10) SC 482 : 2003 (2) SCC 649], which were criminal appeals heard along with other criminal appeals involving the same question as to the extent to which there could be judicial interference with the discretionary power of the investigating agency. Mr. Sharma pointed out that this Court held that judicial interference with the discretion of the Investigating Authority to arrest or not to arrest an accused should not be exercised mechanically but with caution and when the Investigating Officer, having regard to the facts, considered arrest of certain persons in a case unnecessary, the High Court under Article 226 had no jurisdiction to direct the State to arrest those persons even though the case was still at the stage of investigation, as that would amount to unjustified interference with the investigation.
19. Appearing for Kabita Das, the writ petitioner (Respondent No.2 herein), Mr. Altaf Ahmad, learned senior counsel, opposed the submissions made on behalf of the petitioner and reiterated the stand taken before the High Court that an attempt had been made by the investigating authorities to derail the investigation at the instance of Dr. Parameswar Sethi, the local M.L.A. Mr. Ahmad reiterated that when the previous note of the Additional S.P., Jajpur, had been affirmed by the Inspector General of Police, C.I.D., C.B., as also the Director General of Police, there was absolutely no reason for a further Test Report to be prepared and that too at the instance of the local M.L.A., who had not only tried to influence the investigation, but had also prevailed upon the Inspector General of Police, Central Range, Cuttack, to file a fresh Test Report giving a clean chit to those accused for whom Dr. Parameswar Sethi had provided an alibi.
20. Countering Mr. Amit Sharma’s submissions that the Courts do not ordinarily interfere with the police investigation which is in the domain of the police authorities, Mr. Altaf Ahmad submitted that the High Courts exercising powers under Article 226 of the Constitution can direct a non-functioning public authority to perform its functions in a particular manner. In support of his submissions, Mr. Altaf Ahmad referred to and relied upon the oft-repeated decision of this Court in Comptroller and Auditor-General of India v. K.S. Jagannathan [1986 (2) SCC 679], wherein it was held in unambiguous terms that the High Courts have the power to issue a writ of Mandamus or a writ in the nature of Mandamus or to pass orders and give necessary directions where the Government or the public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. Their Lordships went on to observe that in all such cases and in any other fit and proper case a High Court can compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.
21. Mr. Altaf Ahmad also submitted that a Magistrate, while considering a police report made under Section 173(2) CrPC, was not bound to accept the same and could himself take cognizance and issue process. Mr. Ahmad submitted that the Magistrate was not bound to accept the Test Report submitted by the Inspector General of Police, Central Range, Cuttack, and was entitled to take cognizance of the offences on the basis of the earlier report, according to his discretion. Mr. Ahmad referred to the decision of this Court in H.S. Bains v. The State (Union Territory of Chandigarh) [AIR 1980 SC 1883], in support of his said submission which was rendered on the basis of a report submitted pursuant to an investigation ordered under Section 156(3) CrPC, indicating that no case had been made out. Despite the above, this Court held that the Magistrate could still take cognizance and issue process if he was satisfied from the materials on record, including the inquiry report, that a prima facie case existed against the accused persons.
22. Mr. Altaf Ahmad submitted that there was absolutely no ground for interference with the order of the High Court, particularly in the facts of the instant case.
23. Mr. Sibo Sankar Mishra, learned counsel for the State of Orissa, submitted that the investigating authorities had conducted the investigation with due diligence and although cognizance had initially been taken against only 4 of the 19 accused persons, subsequently, cognizance was also taken against the remaining 15 accused on 2nd July, 2008. Mr. Mishra also submitted that during the course of investigation, the statements of the eye-witnesses had been duly recorded under Section 164 CrPC and on 9th July, 2007, polygraph tests were also conducted in respect of the three witnesses whose statements had been recorded under Section 164 CrPC in order to test their veracity. Learned counsel urged that it was not as if the investigating authorities had remained inactive but had pursued the matter with due diligence ultimately resulting in process being issued against all the 19 accused. Mr. Mishra also referred to a three-Judge Bench decision of this Court in M/s India Carat Pvt. Ltd. v. State of Karnataka [JT 1989 (1) SC 308 : AIR 1989 SC 885], which was also on the same lines.
24. We have carefully considered the submissions made on behalf of the respective parties and we are satisfied that no interference is called for with the order of the High Court impugned in this Special Leave Petition.
25. We are unable to accept Mr. Sharma’s submissions that the High Court could not have interfered with the directions given by the Director General of Police to the Inspector General of Police, Central Range, Cuttack, to submit a fresh Test Note despite the supervisory report which had been submitted by the Additional S.P., Jajpur, indicating that a case had been made out to go to trial as against all the 19 accused. When any illegality and/or mala fide action on the part of the Investigating Authorities, either on its own or at the behest of an interested party, is brought to the notice of the High Courts, the High Courts in exercise of their inherent and plenary powers are entitled to intervene to set right the illegality and/or mala fide action on the part of the Investigating Authorities. The decision in H.S. Bains’s case (supra) clearly reiterates such proposition.
26. In the instant case, although, the Supervisory Report submitted by the Additional SP, Jajpur, had been duly accepted not only by the Inspector General of Police, Central Range, Cuttack, but also by the Director General of Police, which was sufficient for the Magistrate to frame a charge against all the accused persons, a fresh direction was given to the Inspector General of police, Central Range, Cuttack, to submit a Test Note. Such a direction given after the intervention of Dr. Parameswar Sethi, who has gone to the extent of providing an alibi for two of the accused, Jyoti Parida and Shakti Parida, claiming that they were present in his house when the incident had occurred, not only exudes an unpleasant flavour, but raises doubts about the bonafides of the police authorities at the highest level.
27. In fact, it is on account of such intervention that initially charge was filed only against 4
of the accused and, thereafter, 3 more. No steps were taken as far as the remaining 12 accused were concerned and it is only when the action of Dr. Parameswar Sethi was questioned before the High Court, that charge was also filed against the remaining 12 accused persons.
28. We have considered the judgment of this Court in Abhinandan Jha’s case (supra) and the other cases cited by Mr. Sharma. While indicating that the courts should not intervene in matters of investigation, which, under the scheme of the Code of Criminal Procedure, has been vested in the Police Authorities, an exception has also been made that in certain circumstances the court could intervene in order to do justice to the parties. As we have observed in other cases, the courts, and in particular the High Courts, are the guardians of the life and liberty of the citizens and if there is any flavour of deliberate misuse of the authority vested in the Investigating Authority, the High Court or this Court may certainly step in to correct such injustice or failure of justice. Such a view was indicated in the case of Comptroller and Auditor-General of India’s case (supra) as far back in 1986 when on the failure of the administrative machinery a Mandamus had to be issued by this Court to grant relief to the petitioner to which he was entitled from the said authorities, and also in H.S. Bains’s case referred to hereinbefore.
29. We are inclined to agree with Mr. Altaf Ahmad that in the peculiar facts and circumstances of
this case, it was necessary for such a direction to be given by the High Court in order to prevent an injustice from being done on account of the intervention of influential persons, which not only had the effect of negating the Supervisory Report of the Additional SP, Jajpur, but also resulted in an attempt to shield some of the accused persons.
30. The judgment of the High Court, in our view, does not warrant any interference and the Special
Leave Petition is, accordingly, dismissed.
31. There shall be no order as to costs.
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