KEDAR NARAYAN PARIDA AND ORS. v. STATE OF ORISSA AND ANR

Citation: [2009] 14 S.C.R. 575

Court: Supreme Court of India

Bench: ALTAMAS KABIR, CYRIAC JOSEPH

Case summary

KEDAR NARAYAN PARIDA AND ORS. v. STATE OF ORISSA AND ANR.pdf

Judgment text

[2009] 14 (ADDL. ) S. C. R. 575 ~ KEDAR NARAYAN PARIDA AND ORS. v. STATE OF ORISSA AND ANR. (Special Leave Petition (c) No. 19947 of 2008) SEPTEMBER 16, 2009 B' [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ. ] 1 Investigation/Inquiry - Intervention by Court - Scope - Held: When any illegality and/or ma/a fide action on part of lnve~tigating Authorities, either on its own or at the behest of i an interested party, is brought to the notice of High Courts, the High Courts in exercise of their inherent and plenary powers are entitled to intervene to set right the illegality and! _or malafide action on the part of Investigating Authorities - ~ Code of Criminal Procedure, 1973 - s. 173 - Constitution of India, 1950 - Article 226. The Petitioners allegedly attacked the husband of respondent no. 2 with various weapons and killed him. 12 out of the 19 accused were taken out of the purview of the charge-sheet, allegedly at the behest of an MLA. Respondent no.

2 filed writ petition, on which the High Court held that the filing of chargesheet against only 7 accused on the basis of the second test report of the IGP had no legal basis and allowed the writ petition with direction to the appropriate authorities to take action against all the accused, according to law. According to the High Court, the earlier Supervision Note of the Additional S. P. , which was in consonance with Rule 47- A of the Orissa Police Manual and affirmed by the .. Inspector General of Police, C. 1. 0. , 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 Polite, Central Range, to issue a fresh "Test Report" and such di~ection was without any lawful authority. Dismissing the Special Leave Petition, the Court HELD: 1. 1.

One is unable to accept the submission 8 that the High Court could not have interfered with the directions given by the Director General of Police to ·the Inspector General of Police to submit a fresh Test/Note despite the supervisory report which had been submitted by the Additional S. P. indicating that a case had been made out to go to trial as against all the 19 accused. When any illegality and/or ma/a 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 . J the High Courts, the High Courts in exercise of their 0 inherent and plenary powers are entitled to intervene to +set right the illegality and/or ma/a fide action on the part of the Investigating Authorities. [Para 25] [592-A-C] 1. 2.

In the instant case, although, the Supervisory Report submitted by the Additional SP, had been duly accepted not only by the Inspector General of Police but also by the Director General of Police, which was~ "\:> sufficient for the Magistrate to frame a charge against allJ\ ~the accused persons, a fresh direction was given to the Inspector General of police to submit a Test Note. Such a direction given after the intervention of a MLA, who went to the extent of providing an alibi for two of the· accused, claiming that they were present in his house1' when the incident had occurred, not only exudes an3 :· unpleasant flavour, but raises doubts about the~' bonafides of the police authorities at the highest level. 3)\ ) --enclose a copy of the handwritten note of the MLA, which were, thereafter, sent to the i11spector General of Police, Central Range, forverification: 7.

On the basis of the aforesaid facts revealed in the affidavit affirmed by the Inspector General of Police, CID, CB, I ) 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 1 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 Cr. P. C. On 18th May, 2007, similar prayer was made to the S. D. J. M. for recording the statements of Krushna Chandra Sahu under Section 164 1 Cr. P. C.

On 1st June, 2007, a similar prayer was made for recording the statements of two other eye-witnesses, Prahllad 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 , 1 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 Cr. P. C. against Kedar Parida and his sons. As soon as such 1 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 hini 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 Paridai were present in his quarters at the time ofj_Qe 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 Pol. ice, 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 I .. "Supervision Test Report", even after the original supervision of the Addi. 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 l. G. of -. Police, Central Range based upon views and facts t that emanate out of apparent interference by Dr. . j Parameswar Sethi, MLA, Jajpur. l .. 13. While answering the said questions, ·the Division Bench after considering the provisions of Section 173 Cr. P. C. 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. , Jaipur, which "' was in consonance with Rule 47-A of the Orissa Police Manual ( and affirmed by the Inspector General of Police, C. l. 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 Reportn 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, bas~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 vs. C. B. I. [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 L 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 chargesheet at the behest of the Court. 15. In this regard, Mr. Sharma referred tq-the decision of this Court in the case of Abhinandan Jha & brs. vs. Dinesh Mishra, [1967 (3) SCR 668], wherein the provisions of . , Sections 169, 170, 173 and 190(1) of the Code of Criminal Pro"cedure, 1898, were under consideration and it was held that once the Investigating Authorities had submitted report of the action taken under Section 169 Cr. P. C.

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. a, 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) Cr. P. C.

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 vs. M. Devendrappa & Anr. [(2002) 3 SCC 89], wherein, it was observed that while exercising powers under Section 482 Cr. P. C. , 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 i 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. (/4 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 Dir~ctor 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 ys. Praka$h P. Hinduja & Anr. [(2003) 6 sec 195], wherein, while considering amongst other issues the manner and scope of the expression "investigation" defined in Section 2(h) Cr. P. C:; 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 Cr. P. C.

is to be that of the officer in 1 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), k wherein, after examining the scheme of the Code and the. decision of the Privy Council in King Emperor vs. 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 opiniori r was the final step in the jnvestigation 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. vs. State of Maharashtra & Ors. [(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 investigcltion. · 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. l. 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 i 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. f 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 Cons~itution 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 vs. K,S.

Jagannathan [(1986) 2 sec 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 j 0 discretion mala fide or on irrelevant considerations or by . ~ 4 ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion 1. , 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 te>, . ~ the concerned parties, the court may itself pass an order or gh! ~rh:-i directions which the Government or the put;>lic authority should . r 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) Cr. P. <;:. a:: 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 vs. 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) Cr. P. C. , 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. I 23. Mr. Sibo Sankar Mishra, learned counsel for the State --: l 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 Cr. P. C. and on . 9th July, 2007, polygraph tests were also conducted in respect of the three witnesses whose statements had been recorded under Section 164 Cr. P. C. 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 Mis India Carat Pvt. Ltd. vs. State of Kamataka i [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 tha~ 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. Shanna's submissions that the High Court could not have interfered with the directions ~ given by the Directot 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, rndicating that a case had been made out to go to trial as against all the 19 accused. When any illegality and/or ma/a 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 . c intervene to set right the illegality and/or ma/a 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 subrflitted by the Additional SP, Jajpur, had been duly accepted i. :--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, ·! n claiming that they were present in his house when the incident lo had occurred, not only exudes an unpleasant flavour, but raises ,J doubts about the bonafides of the police authorities at the ... highest level. 27. In fact, it is on account of such intervention that initially r-.. :· charge was filed only against 4 of the accused and, thereafter, :;,s 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 Gourt 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 ~nse 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. B. B. B.

Special Leave Petition dismissed.