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Pradeep Kumar Medini Roy Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberW.P. (Crl.) No. 144 of 2003
Judge
Reported in2004CriLJ3655
ActsCode of Criminal Procedure (CrPC) , 1974 - Sections 173(8) and 482; Constitution of India - Articles 226 and 227
AppellantPradeep Kumar Medini Roy
RespondentState of Orissa and ors.
Appellant AdvocateM.S. Panda and ;G.C. Swain, Advs.
Respondent AdvocateA.N. Routray, Addl. Govt. Adv. for Opposite Parties 1 to 3 and ;S.K. Padhi and ;Goutam Mishra for Opposite Party No. 4
DispositionWrit petition dismissed
Cases ReferredParry and Co. Ltd. v. P.C. Pal
Excerpt:
criminal - quashing of charge sheet - re-investigation - petitioner alleged with committing rape and murder of victim - investigation done by police in the matter - after completion of investigation, report submitted and charge-sheet filed against petitioner - hence present writ petition filed by petitioner to quash charge-sheet filed in court by police and to direct c. b. i. to re-investigate into case - held, decision of apex court in ramesh v. ramdeo and other cases relied on - as per established facts, investigation was completed and charge-sheet filed by state police long back against petitioner - petitioner, in its case, nowhere stated that fir and charge-sheet with all materials collected during investigation do not make out any offence against petitioner - therefore, charge-sheet.....a.k. patnaik, j.1. the question to be decided in this writ petition is whether the high court in exercise of its powers under articles 226 and 227 of the constitution of india should quash the charge-sheet filed in court after completion of investigation by the police and direct the c. b. i. to re-investigate into the case in the facts and circumstances of this case.2. an f. i. r. was lodged by one padma lochan sahu in nilgiri p.s. alleging that kumari anitarani sahu, the daughter of his brother late purna chandra sahu, who was a minor aged about 13 years, had been raped and murdered between 10 a.m. and 11 a.m. on 17-6-1995. it was alleged in the f. i. r. that kumari anitarani sahu had gone to take bath in nua pokhari with his brother jogeswar sahu. she kept her dresses and soap on the.....
Judgment:

A.K. Patnaik, J.

1. The question to be decided in this writ petition is whether the High Court in exercise of its powers under Articles 226 and 227 of the Constitution of India should quash the charge-sheet filed in Court after completion of investigation by the police and direct the C. B. I. to re-investigate into the case in the facts and circumstances of this case.

2. An F. I. R. was lodged by one Padma Lochan Sahu in Nilgiri P.S. alleging that Kumari Anitarani Sahu, the daughter of his brother late Purna Chandra Sahu, who was a minor aged about 13 years, had been raped and murdered between 10 a.m. and 11 a.m. on 17-6-1995. It was alleged in the F. I. R. that Kumari Anitarani Sahu had gone to take bath in Nua Pokhari with his brother Jogeswar Sahu. She kept her dresses and soap on the tank embankment and went to Rajabagicha to attend to the call of the nature. When she did not return for more than half an hour, Jogeswar returned home and informed his mother and thereafter her mother searched Anita but could not find her. At about 5.30 p.m., however, Anita was found lying dead in a 'KIA' bush. She was lying naked facing the ground and there was heavy bleeding from her vagina, anus, chest, mouth and nose. The F. I. R. was registered as Nilgiri P. S. Case No. 63 of 1995 dated 17-6-1995 under Section 376/302 of the Indian Penal Code (for short 'I. P. C.'). The petitioner Pradeep Kumar Medini Roy was apprehended by the police on 20-6-1995 and forwarded to judicial custody on 21-6-1995. Besides the petitioner, two other co-accused persons Sanatan Behara and Umesh Chandra Rana were also apprehended and forwarded to judicial custody. The accused persons were granted bail. Investigation was completed and charge-sheet was filed in Court against all the three accused persons under Sections 376(2)(g), 377, 302, 201 read with 34 IPC

3. The petitioner Pradeep Kumar Medini Roy and Umesh Chandra Rana jumped bail and their attendance could not be procured within a reasonable time and only Sania alias Sanatan Behera was in custody. Hence, S. T. Case No. 192 of 1995 was split up and Sanatan Behera only was tried first for charges under Sections 376(2)(g), 377 and 302 read with 34 IPC. In the trial, the only eye-witness Abhimanyu Nayak stated that while the petitioner Pradeep Kumar Medini Roy was committing sexual intercourse on Anitarani, Umesh Chandra Rana alias Babu had caught hold of Anitarani and Sanatan Behara was found at a distance of 4 to 5 feet from the place of occurrence. The said eye-witness Abhimanyu Nayak further stated in the trial that when he went to the spot second time, he found accused Sanatan Behera going towards his house carrying a spade and that Sanatan Behara had been cultivating the land near the tank. On the aforesaid evidence, the learned Sessions Judge, Balasore, Bhadrak held that there was no participation of the accused Sanatan Behera in any overt act in order to make him vicariously liable under Section 34 IPC for the offences under Sections 376(2)(g), 377 and 302 IPC and acquitted him of the charges by judgment dated 28th May, 1998.

4. Thereafter accused Umesh Chandra alias Babu was arrested and produced before the Court, but as the petitioner Pradeep Kumar Medini Roy could not be apprehended, Umesh Chandra alias Babu was tried in S. T. No. 192 (A) of 1995 and on the basis of the evidence adduced in the first trial was convicted for the offences under Sections 302, 377 read with Section 34 and Section 376(2)(g) of the IPC and was sentenced to undergo imprisonment for life for the offences under Sections 302/34 IPC, rigorous imprisonment for 10 years for the offence under Section 376(2)(g) IPC and rigorous imprisonment for 5 years for the offence under Sections 377/34 IPC by judgment dated 3-10-2002 of the learned Ses-sions Judge, Balasore, Bhadrak.

5. The petitioner Pradeep Kumar Medini Roy has not yet been apprehended and tried and his case in the writ petition is that the investigation has been carried on in a wrong direction and the eye-witness and the circumstantial witnesses have been procured and planted to make out an absolutely false case against him at the instance of local politicians who are inimical to him. The petitioner has filed this writ petition under Articles 226 and 227 of the Constitution for quashing the charge-sheet against him and for directing the CBI to re-investigate into Nilgiri P. S. Case No. 63 of 1995 so as to unearth the hidden, buried and suppressed truth in the interest of criminal justice delivery system, equity and fair trial and for protection of fundamental rights and human rights.

6. The case as made out by the petitioner in the writ petition is as follows :

(a) The petitioner was a student activist and a great supporter of the Janata Dal Party and due to his organizing efficiency, capability and leadership, became the Secretary of Chhatra Janata of Balasore District in 1994 and continued as such till 17-6-1995 when the alleged rape and murder of Anitarani took place in Nilgiri. From March 1990 to March, 1995 Shri Chittaranjan Sarangi, a dummy candidate for the Congress Paty was elected as an M. L. A. from Nilgiri constituency as an independent candidate. Hence, the activities of the petitioner for the Janata Dal were very much against the interest of Shri Chittaranjan Sarangi and Shri Sarangi was inimical to the petitioner. The O. I. C. of Nilgiri P. S. then was Shri Ashok Kar, the cousin of Shri Chittaranjan Sarangi, and being influenced by Shri Sarangi, Shri Kar did not himself conduct the investigation but entrusted the investigation to the A. S. I. Shri T. Murmu and through pressure manipulated the investigation by procuring and planting the eyewitness Abhimanyu Nayak and the circumstantial witnesses and when the petitioner was arrested in connection with the aforesaid case, there was hue and cry in the public for which shri Kar was suspended. Subsequently, the investigation was taken up by the Crime Branch Police who also succumbed to political pressure and submitted a biased charge-sheet against the petitioner and the other two co-accused persons.

(b) By 2 p.m. of 20-6-1995 the procured/ planted eye-witness Abhimanyu Nayak or the circumstantial witnesses had not involved or linked the petitioner in the alleged crime and yet the petitioner was arrested on 20-6-1995 at 2 p.m. and brought to the Nilgiri police station where he found the Ex-M. L. A. Shri Chittaranjan Sarangi and the then M. L. A. Akshay Acharya sitting and distributing sweets and cold-drinks to the police station staff for their victory in arresting the petitioner.

(c) The medical examination reports dated 21-6-1995 of all the three accused persons reveal that there were no injury marks on the penis of the accused persons including the petitioner. There are however some minor injuries on the person of the petitioner which had been caused in a scooter accident just one or two days before the alleged occurrence, but the I.O. did not investigate into the scooter accident. The medical examination reports reveal that there were semi-digested rice in the stomach of the deceased Anitarani which prove that Anitarani expired within six hours of eating the rice. Hence the case of the prosecution that the occurrence took place at 10 a.m. on 17-6-1995 when she had gone to attend the call of nature after which she was to take bath and take her morning tiffin is totally false. The death of Anitarani must have taken place after mid-night of 16-6-1995 and not at 10 a.m. of 17-6-1995.

(d) The medical reports reveal that there was a large tear on the anus of Anitarani with bleeding injury measuring 1 1/2 x 1 1/2' with exposed muscles of the deceased and such large tear could not have been caused due to forced penetration of penis but may have been caused by penetration of some hard and blunt weapon into the anus. Thus, the case of unnatural offence made out by the prosecution is totally false.

(e) The large tear in the post-vaginal wall and hymen of Anitarani with blood clot measuring 1 1/2 x 1 1/2' x 3/4' also was not possible by forced sexual intercourse or penetration of penis and it can only be caused by forced penetration of a hard and blunt weapon.

(f) From the existence of rigor-mortis in the upper limbs, the time of death till post mortem has been estimated by the doctors to be within 24 hours. No other parameters on medical examination reports are available for determination of the time-lapse between the death of the victim and the post mortem examination. Therefore the opinion of the doctors that the death took place within 24 hours of the post mortem examination is not conclusive and as such is not acceptable.

(g) Injuries on the vagina and anus of Anitarani as mentioned in the post mortem report and the opinion of the doctor in Court could have been associated with fatal haemorrhagic shock. Injuries on the shoulder and breasts are small in nature and are not sufficient to cause death in ordinary course of nature. Vaginal and anal injuries caused by penetration of some blunt weapon could have been on account of neurogenic shock leading to almost instant death. Hence, the cause of the death of the victim is due to penetration of a blunt weapon into the vagina and anus causing neurogenic shock leading to instant death.

(h) There is no proof of semen. Medical examination of accused persons does not reveal any proof of forced sexual contact in the form of injury in the penetrating organ, i.e. penis. There is also no presence of any tress material transferred from the accused to the victim or vice versa. Hence, there is no physical evidence in support of rape though there is physical evidence in support of murder.

(i) the police submitted a biased charge-sheet against the accused persons after conducting a perfunctory investigation and after procuring and planting the eye-witness Abhimanyu Nayak and other circumstantial witnesses under the influence of the political opponents of the petitioner. Abhimanyu Nayak is a Kabuliwala who procures and collects tins and other waste materials and is a hardened and notorious criminal of the locality. The mother of Anitarani who was a circumstantial witness is a young widow of 32 years and her husband who used to have regular quarrel with her expired mysteriously three years before the alleged incident. Padma Lochan Sahu, the informant, was the younger brother of Purna Chandra Sahu, and his wife also used to quarrel with him and ultimately left him and is residing with her father. The alleged incident took place in this background.

7. The petitioner has also relied on some news items published in the weekly magazine 'BALANGA BARTA' dated 2-9-1996, 9-9-1996 and 16-9-1996 which have been annexed to the writ petition as Annexures-8, 9 and 10 in which it is alleged that while the eye-witness and other circumstantial witnesses have been procured and planted to implicate the petitioner, the real culprits have been allowed to go scot free. It is further alleged in the said news items that since Anitarani was an eye-witness to the sexual relation of her mother with her uncle Padma Lochan Sahu, she had been eliminated by her uncle with the help of the notorious criminal Abhimanu Nayak in order to seal the evidence. The petitioner has further stated that the father of the petitioner was threatened by a letter not to pursue for C.B.I, investigation and a copy of the said letter has been annexed to the writ petition as Annexure-11.

8. Mr. M.S. Panda, learned counsel for the petitioner submitted that there are infirmities and pitfalls in the investigation carried out by the police which raise doubts about the genuineness and fairness of the investigation. He submitted that the investigation was faulty, perfunctory, unfair and not impartial and the role of the investigating agency is tainted, biased and unfair. As a consequence of such faulty and unfair investigation, the trial itself would be perfunctory and marred as happened in the case of the other accused person Umesh Chandra Rana. He submitted that no useful purpose will be served in the petitioner undergoing trial in this case as he is bound to be convicted for the offences in view of the faulty, tainted, biased and unfair investigation made by the police and for this reason, this Court in exercise of its. powers under Articles 226 and 227 of the Constitution should quash the charge-sheet against the petitioner and direct, the C.B.I, to re-investigate into the case in the interest of criminal justice delivery system and for protecting the fundamental rights of the petitioner. He further submitted that a proper and fair investigation by the C.B.I, is also necessary to unearth the hidden, buried and suppressed truth and found out the actual culprits behind the heinous crime committed on a minor girl aged 13 years.

9. Mr. Panda cited the decision of the Supreme Court in M/s. Pepsi Foods Limited v. Special Judicial Magistrate, AIR 1998 SC 128 : (1998 Cri LJ 1) in support of his submission that the High Court has vast powers under Articles 226 and 227 of the Constitution and under Section 482 of the Code of Criminal Procedure, 1973 (for short, 'Cr. P. C.') to prevent the abuse of process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure. He also relied on the decisions in Union Public Service Commission v. S. Papaiah, (1997) 7 SCC 614 : (1997 Cri LJ 4636), Aravindakshan v. State of Kerala, 1985 Cri LJ 1389, and Mahendra P. Desai v. State of Gujarat, (1985) 2 GLR 1056, for the proposition that the Magistrate has powers under Section 173(8) Cr. P.C. to direct further investigation in appropriate cases. Mr. Panda also relied on the decision of the Supreme Court in M/s. Parry and Co. Ltd. v. P. C. Pal, Judge of the Second Industrial Tribunal, Calcutta, AIR 1970 SC 1334, wherein it has been held that the High Court in exercise of its powers under Article 226 of the Constitution can interfere in the order passed by a Court or a Tribunal if there is an error apparent on the face of the record. He referred to the recent decision of the Supreme Court, Zahira Habibulla H. Sheikh v. State of Gujarat, 2004 AIR SCW 2325 : (2004 Cri LJ 2050) (referred to as the Best Bakery Case) in which the Supreme Court after considering the provisions of Section 311 of the Cr. P.C. and Section 165 of the Evidence Act has dealt at length the role of the Presiding Judge in the Administration of Justice vis-a-vis fair trial and has held that the Presiding Judge should not be a spectator and a mere recording machine but should play an active role in the evidence collecting process and elicit all relevant materials necessary for reaching the correct conclusion and to find out the truth.

10. Mr. A. Routray, learned Additional Government Advocate for the State of Orissa, submitted that the petitioner was arrested and released on bail, but the petitioner has jumped bail and continues to abscond and the High Court should not entertain this writ petition at his instance. He further submitted that the charge-sheet against the petitioner has been filed several years back and the two co-accused persons have already been tried by the Sessions Judge, but the petitioner could not be tried as his attendance before the Court could not be procured and after a delay of eight years the petitioner has approached this Court for quashing the charge-sheet and directing re-investigation. The writ petition should be dismissed on the ground of laches on the part of the petitioner. Mr. Routray cited the two decisions of the Supreme Court in Union of India v. Sushil Kumar Modi, AIR 1997 SC 314 : (1997 Cri LJ 358) and Union of India v. Sushil Kumar Modi, AIR 1997 SC 1672 (1997 Cri LJ 1168) in which it has been observed that care must be taken by the High Court to avoid making any observations which may be construed as the expression of its opinion on merits relating to the accusation against any individual as such observations may influence the decision on merits at the trial. He further submitted that since the petitioner has not been able to point out any infraction of law in the conduct of the investigation, this is not a fit case in which the High Court should quash the charge-sheet against the petitioner and direct re-investigation into the case.

11. The law is fairly well settled by the Supreme Court that the High Court will not either under Article 226/227 of the Constitution or under Section 482 of the Cr. P.C. quash a charge-sheet against an accused person unless the charge-sheet and the materials filed along with the charge-sheet do not disclose commission of an offence by the accused. In State of Bihar v. Shri P.P. Sharma, AIR 1991 SC 1260 : (1991 Cri LJ 1438) P. P. Sharma, an IAS officer was the Managing Director of the Bihar State Cooperative Marketing Union Limited and Tapeswar Singh was the Chairman of the Bihar State Co-operative Marketting Union Limited. A First Information Report was lodged with the police alleging that P. P. Sharma and Tapeswar Singh had entered into a criminal conspiracy with the Directors of Rajasthan Multi Fertilizer Private Limited in cheating the Bihar State Co-operative Marketing Union Limited to the tune of Rs. 53,97,277.32. P. P. Sharma filed writ petition in the Patna High Court praying for quashing the First Information Report and the police report and the High Court admitted the writ petition and stayed the further proceedings in the Court below. The High Court thereafter allowed the writ petition and quashed the FIR and the criminal proceedings against the accused petitioner. The State of Bihar filed a Special Leave Petition before the Supreme Court and after leave was granted the Supreme Court held in the Criminal Appeal that when the police report under Section 173 of the Cr. P. C. has been forwarded to the Magistrate after completion of the investigation, the High Court will not quash the First Information Report or the charge-sheet in exercise of its powers under Article 226 or 227 of the Constitution or under Section 482 of the Cr. P.C. except in a case when no offence has been made Out in the First Information Report and the charge-sheet. Two separate judgments were delivered by Kuldip Singh, J. and K. Ramaswamy, J., but in both the said judgments the aforesaid limitations on the powers of the High Court under Articles 226 and 227 of the Constitution and Section 482 of the Cr. P. C. have been clearly stated. Kuldip Singh, J. held:

'Finally, we are at a loss to understand as to why and on what reasoning the High Court assumed extraordinary jurisdiction under Article 226/227 of the Constitution of India at a stage when the Special Judge was seized of the matter. He had heard the arguments on the question of cognizance and had reserved the orders. The High Court did not even permit the Special Judge to pronounce the orders.We are of the considered view that at a stage when the police report under Section 173 Cr. P.C. has been forwarded to the Magistrate after completion of the investigation and the material collected by the Investigating Officer is under the gaze of judicial scrutiny, the High Court would do well to discipline itself not to undertake quashing proceedings at that stage in exercise of its inherent jurisdiction'.

K. Ramaswamy, J. further observed : '

My view is that entertaining the writ petitions against charge-sheet and considering the matter on merit in the guise of prima facie evidence to stand an accused for trial amounts to pre-trial of a criminal trial under Article 226 or 227 even before the competent Magistrate or the Sessions Court takes cognizance of the offence. ............ The commission of offence cannot be decided on affidavit evidence. The High Court has taken short course 'in annihilating the still born prosecution' by going into the merits on the plea of proof of prima facie case and adverted to those facts and gave findings on merits. Grossest error of law has been committed by the High Court in making pre-trial of a criminal case in exercising its extraordinary jurisdiction under Article 226. After the charge-sheet was filed, the F.I.R. no longer remains sheet-anchor. The charge-sheet and the evidence placed in support thereof form the base to take or refuse to take cognizance by the competent Court. It is not the case that no offence has been made out in the charge-sheets and the first Information Report. It is, therefore, not necessary to consider all the decisions dealing with the scope of the power of the High Court either under Section 482 Cr. P.C. or Article 226 of the Constitution to quash the First Information Report.'

12. The Supreme Court has also made it clear that Section 173(8) Cr. P.C. does not provide for 'fresh investigation' or 're-investigation' by another agency but 'further investigation' by the same agency which conducted the original investigation. In K. Chandrasekhar v. State of Kerala, (1998) 5 SCC 223 : (1998 Cri LJ 2897) the original investigation into an espionage case was conducted by the CBI with the consent of the State Government under Section 6 of the Delhi Special Police Establishment Act, 1946 and the CBI after completion of its investigation submitted a report under Section 173(2) of the Cr. P.C. The State Government then sought to withdraw its said consent to enable the State Police to further investigate the case, but the Supreme Court held that it cannot be done as Sub-section (8) of Section 173 of the Cr. P.C. does not provide for 'fresh investigation' or 're-investigation' by an investigating agency other than the original investigating agency. Para 24 at page 237 of the said judgment of the Supreme Court as reported in the SCC which contain the relevant discussion is extracted below : at page 2905; of Cri LJ.

'From a plain reading of the above section it is evident that even after submission of police report under Sub-section (2) on completion of investigation, the police has a right of 'further' investigation under Sub-section (8) but not 'fresh investigation' or 're-investigation'. That the Government of Kerala was also conscious of this position is evident from the fact that though initially it stated in the Explanatory Note of their notification dated 27-6-1966 (quoted earlier) that the consent was being withdrawn in public interest to order a 're-investigation' of the case by a special team of State police officers, in the amendatory notification (quoted earlier) it made it clear that they wanted a 'further investigation of the case' instead of 're-investigation of the case. The dictionary meaning of 'further' (when used as an adjective) is 'additional; more; supplemental'. 'Further' investigation therefore is the continuation of the earlier investigation and not a fresh investigation or re-investigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that Sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a 'further' report or reports and not fresh report or reports regarding the 'further' evidence obtained during such investigation. Once it is accepted -- and it has got to be accepted in view of the judgment in Kazi Lhendup Dorji -- that an investigation undertaken by CBI pursuant to a consent granted under Section 6 of the Act is to be completed, notwithstanding withdrawal of the consent, and that 'further investigation' is a continuation of such investigation which culminates in a further police report under sub-Section (8) of Section 173, it necessarily means that withdrawal of consent in the instant case would not entitle the State Police, to further investigate into the case. To put it differently, if any further investigation is to be made it is the CBI alone which can do so, for it was entrusted to investigate into the case by the State Government, Resultantly, the notification issued withdrawing the consent to enable the State Police to further Investigate into the case is patently invalid and unsustainable in law. In view of this finding of ours we need not go into the questions, whether Section 21 of the General Clauses Act applies to the consent given under Section 6 of the Act and whether consent given for investigating into Crime No. 246 of 1994 was redundant in view of the general consent earlier given by the State of Kerala.'

13. In a very recent case of the Supreme Court in Rajesh and v. Ramdeo, (2001) 10 SCC 759 : (2001 AIR SCW 2358), the High Court of Bombay (Nagpur Bench) in a criminal writ petition directed a fresh and further investigation by an agency other than the local police though on the basis of the FIR the local police did investigate into the matter and also filed charge-sheets against the accused persons. The Supreme Court held that the High Court had overstepped its jurisdiction in issuing the direction for further investigation into the case. In the language of the Supreme Court: at Page 2358 of AIR

'............. While the investigation was on, the complainant approached the High Court by filing a writ petition. The High Court has taken an unusual step of forming a panel and directing them to examine the matter, and on the basis of the said panel report, the High Court has directed a further investigation by an agency other than the local police to be headed by the Superintendent of Police. Since the investigating agency has already filed the charge-sheet on the basis of which the accused persons are being proceeded against, if any further materials are available, the Court may alter the charge framed. In the circumstances, we have no hesitation to come to the conclusion that the High Court has overstepped its jurisdiction in issuing the impugned direction calling upon further investigation into the matter, which in our considered opinion, would be an abuse of the process of the Court........'

14. Reverting to the facts of the present case, the investigation was completed and charge-sheet filed by the State Police long back against the three accused persons, Pradeep Kumar Medini Roy (the present petitioner), Umesh Chandra Rana and Sanatan Behera, under Sections 376(2)(g), 377, 302, 201 read with Section 34 IPC. Thereafter, Sanatan Behera has been tried in S. T. Case No. 192 of 1995 and acquitted of the charges and Umesh Chandra Rana has also been tried but convicted for the offences under Sections 302 and 377 read with Section 34 and Section 376(2)(g) of the IPC. It is not the case of the petitioner Pradeep Kumar Medini Roy that the FIR and the charge-sheet with all materials collected during investigation do not make out any offence against the petitioner. We cannot therefore quash the charge-sheet and direct re-investigation into the case by the CBI in view of the law laid down by the Supreme Court in the aforesaid cases.

15. In M/s. Pepsi Foods Limited v. Special Judicial Magistrate (supra) cited by Mr. Panda, the allegation in the complaint filed against M/s. Pepsi Foods Limited under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 was that a bottle of beverage under the brand 'Leher Pepsi' which was adulterated was sold to the complainant. M/s. Pepsi Foods Limited challenged the criminal proceedings instituted against them on the basis of the complaint before the High Court under Articles 226 and 227 of the Constitution. The High Court dismissed the writ petition holding that sufficient remedy was available under the Cr. P.C. The High Court was also of the view that at that stage the allegations in the complaint were not so absurd or inherently improbable on the basis of which no prudent man could reach a just conclusion that there existed no sufficient ground for proceeding against the accused. The Supreme Court found that the allegations in the complaint merely show that M/s. Pepsi Foods Limited have given their brand name (Leher Pepsi) for bottling the beverage and the complaint or the preliminary evidence did not show that M/s. Pepsi Foods Limited had any role to play in the manufacture of the beverage which was alleged to be adulterated. The Supreme Court thus held that the complaint and preliminary evidence recorded did not make out a case against the appellant accused and that it is one of those cases where there is an abuse of the process of law and the High Court should not have shied away in exercising its jurisdiction under Articles 226 and 227 of the Constitution or Section 482 of the Cr. P.C. which are devised to advance justice and not to frustrate it. The aforesaid decision does not apply to the facts of the present case in which the charge-sheet and the materials filed along with the charge-sheet disclose commission of an offence by the petitioner Pradeep Kumar Medini Roy.

16. In Zahira Habibulla H. Sheikh v. State pf Gujarat (the Best Bakery Case) (supra), the prosecution case was that between 8.30 p.m. of 1-3-2002 and 11 a.m. of 2-3-2002, a business concern known as 'Best Bakery' at Vadodara was burnt down by an unruly mob of people and in this ghastly incident 14 persons died. The attacks were alleged to be part of a retaliatory action to avenge the killing of 56 persons at Godra travelling in the Sabaramati Express. Zahira, who lost her family members in the incident, was the main eye-witness. Many other persons were also eye-witnesses. During the trial, the prosecution witnesses resiled from their statements made during investigation and the trial Court acquitted the accused persons. An appeal was filed by the State before the Gujarat High Court against the Judgment of the trial Court acquitting the accused persons. The State also filed an application under Sections 391 and 311 of the IPC for permission to adduce additional evidence and examination of certain persons as witnesses. The State also filed an application to bring on record some document to be treated as corroborative piece of evidence. A criminal revision was also filed before the High Court by one Sahera Banu, a sister of Zahira, questioning the legality of the judgment of the trial Court acquitting the accused persons. The High Court dismissed the appeal, revision and applications. The judgment of the High Court was challenged before the Supreme Court. Zahira had also challenged the judgment of acquittal of the trial Court in a Special Leave Petition. In a lengthy judgment, the Supreme Court after referring to the facts of the case held that in a case like this the Courts are to play a participatory role in the trial and they are not expected to be tape-recorders to record whatever has been stated by the witnesses. The Supreme Court held that Section 311 of the Cr. P.C. and Section 165 of the Evidence Act confer vast and wide powers on the Presiding Officer of the trial Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record and even if the prosecutor is remiss in some way, it can control the proceedings effectively so that truth is arrived at and this becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Supreme Court further held that Section 391 of the Cr. P.C. is another salutary provision empowering the appellate Court to call for further evidence and where the trial Court through some carelessness or ignorance has omitted to record circumstances essential to elicitation of truth, the exercise of power under Section 391 is desirable. The Supreme Court referred to its earlier decisions in Karnel Singh v. State of M. P. (1995) 5 SCC 518 : (1995 Cri LJ 4173) Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517 : (1998 Cri LJ 2515), Paras Yadav v. State of Bihar, (1999) 2 SCC 126 : (1999 Cri LJ 1122), and Amar Singh v. Balwinder Singh, (2003) 2 SCC 518 : (2003 Cri LJ 1282) wherein this role of the Court to adopt an active role in getting at the truth has been emphasized where there are serious lapses or omissions or negligence committed by the investigating agency. After discussing the aforesaid law on the subject, the Supreme Court held :

'In the background of principles underlying Section 311 and Section 391 of the Code and Section 165 of the Evidence Act it has to be seen as to whether the High Court's approach is correct and whether it had acted justly, reasonably and fairly in placing premiums on the serious lapses of grave magnitude by the prosecuting agencies and the trial Court, as well. There are several infirmities which are tell-tale even to the naked eye of even an ordinary common man. The High Court has come to a definite conclusion that the investigation carried out by the police was dishonest and faulty. That was and should have been per se sufficient justification to direct a re-trial of the case........'

Thus, in this decision the Supreme Court was of the view that once the Court comes to the conclusion that the investigation carried out by the police was dishonest and faulty and that the prosecuting agency and the trial Court had not acted justly, reasonably and fairly, the High Court can direct re-trial of the case. In the said decision, the Supreme Court also held that the High Court should not have rejected the application for additional evidence on the basis of the affidavit filed by Zahira, the main eye-witness, that she was forced to depose falsely and turn hostile during the trial on account of threats and coercion from powerful persons not to depose against the accused persons. In the said decision, the Supreme Court did not direct re-investigation but directed retrial by a Court under the jurisdiction of the Bombay High Court. Regarding further investigation under Sub-section (8) of Section 173 of the Cr. P.C., however, the Supreme Court observed:

'Since we have directed re-trial it would be desirable to the investigating agency or those supervising the investigation, to act in terms of Section 173(8) of the Code, as the circumstances seem to or may so warrant. The Director General of Police, Gujarat is directed to monitor re-investigation, if any, to be taken up with the urgency and utmost sincerity, as the circumstances warrant.Sub-section (8) of Section 173 of the Code permits further investigation, and even de-hors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted.'

This decision in the Best Bakery Case therefore is not an authority in support of the prayer of the petitioner in the present case for quashing the charge-sheet against him and for directing re-investigation by the CBI.

17. In Union Public Service Commission v. S. Papaiah (supra), the Union Public Service Commission (for short, 'U.P.S.C.') conducted Indian Forest Service Examination for 1992 and S. Papaiah appeared in the said examination as a candidate. On receiving a pseudonymous letter which disclosed that S. Papaiah acting in excess with the Super-visor-in-charge of the Examination Hall has resorted to unfair means, the U. P. S. C. requested the CBI to investigate the case on priority basis and intimate the results of the investigation to it. On receipt of such complaint from the U. P. S. C. the CBI registered a case against S. Papaiah and the other respondents for offences under Sections 120-B, 420, 381, 468 and 478, IPC but filed a final report under Section 173 of the Cr. P.C. in the Court of the concerned Metropolitan Magistrate at Hyderabad seeking closure of the case but did not inform about the filing of the final report to the U. P. S. C. The Court of the Metropolitan Magistrate accepted the final report and closed the case. The U. P. S. C. filed a petition in the Court of the Metropolitan Magistrate, Hyderabad detailing the facts and stating that the investigation carried out by the CBI had been sketchy and many vital points mentioned in the complaint and highlighted in its letter dated 23-1-1995 addressed to the CBI had not been investigated properly and that the UPSC had no notice from the Metropolitan Magistrate before the order accepting the final report was passed. The Court of the Metropolitan Magistrate took the view that since the order accepting the final report was a judicial order and not an administrative order, it had no power to review such an order passed by it 'rightly or wrongly' and that the U. P. S. C. could have filed a revision petition against the order accepting the final report before the revisional Court. Thereafter the U. P. S. C. filed a revision petition before the First Additional Metropolitan Sessions Judge, Hyderabad but the revision petition was dismissed. On these facts the Supreme Court held that the Magistrate in exercise of powers under Section 173(8) Cr. P.C. could direct the CBI to further investigate and collect further evidence keeping in view the objections raised by the U. P. S. C. in the investigation and that the Magistrate failed to exercise jurisdiction vested in him by law. The Supreme Court set aside the order of the Metropolitan Magistrate closing the case and dismissed the petition of the U. P. S. C. for further investigation and directed the Metropolitan Magistrate to issue directions under Section 173(8) of the Cr.P.C. to the CBI to further investigate into the case and collect further evidence keeping in view the points raised by the U. P. S. C. in its communication dated 23-1-1995 to the Director, CBI. Thus, this is a case where a prayer was made before the concerned Magistrate before whom a final report had been filed by the police pointing out clearly the defects and lapses in the investigation carried out by the police and the Magistrate had failed to exercise powers vested in him under Section 173(8) of the Cr. P.C. In the present case, on the other hand, the case of the petitioner is not that he had pointed out before the Magistrate the lapses and defects in the investigation conducted by the police and had made a prayer before the Magistrate for directing further investigation and the Magistrate has failed to exercise his powers directing such further investigation under Section 173(8) of the Cr. P.C. This decision therefore is also not an authority in support of the prayer made in this writ petition for quashing the charge-sheet against the petitioner and directing re-investigation by the CBI.

18. The other decisions in Aravindakshan v. State of Kerala (supra) and Mahendra P. Desai v. State of Gujarat (supra) cited by Mr. Panda also deal with the power of the Magistrate to direct further investigation and do not support the prayer made in this writ petition under Articles 226 and 227 of the Constitution for quashing the charge-sheet against the petitioner and directing re-investigation by the CBI. The decision of the Supreme Court in M/s. Parry and Co. Ltd. v. P.C. Pal, Judge of the Second Industrial Tribunal, Calcutta (supra) is a case wherein the Supreme Court held that the order of the Industrial Tribunal apparent on the face of the record can be challenged before the High Court in a writ petition under Article 226 of the Constitution if it contains an error apparent on the face of the record and does not in any way support the present case of the petitioner for quashing the charge-sheet against him and directing re-investigation by the CBI.

19. For the aforesaid reasons, we are not inclined to admit this writ petition, but we make it clear that we have not expressed any opinion on the merits of the case of the petitioner in this writ petition that the investigation made by the police in this case is defective, negligent, unfair and biased and it is open for the petitioner to raise this contention before the trial Court and if such a contention is raised, the trial Court shall consider the same on its merits without being influenced either by this judgment or by the decisions of the trial Court in S. T. Case No. 192 of 1995 and S. T. Case No. 192(A) of 1995 in the cases of the two other accused persons Sanatan Behera and Umesh Chandra Rana.

Subject to the aforesaid observations, the writ petition is dismissed.

M.M. Das, J.

20. I agree.


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