KEDAR NARAYAN PARIDA Vs STATE OF ORISSA
Case number: SLP(C) No.-019947-019947 / 2008
Diary number: 19385 / 2008
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO.19947 OF 2008
Kedar Narayan Parida & Ors. …Petitioners Vs. State of Orissa & Anr. … Respondents
J U D G M E N T
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 Cr.P.C. 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 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 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 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
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., Jajpur, which was in consonance with Rule 47-A
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 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 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. Vs. 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 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
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 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 vs. Prakash P. Hinduja &
Anr. [(2003) 6 SCC 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 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 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 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. 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 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 vs. 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) Cr.P.C., 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.
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 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 M/s
India Carat Pvt. Ltd. vs. State of Karnataka [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.
…………………………………………J. (ALTAMAS KABIR)
……………………………………………J.
(CYRIAC JOSEPH) New Delhi Dated : 16.09.2009.