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.