Holding

The High Court’s intervention to direct filing of charge‑sheets against all accused was proper, as courts may step in to rectify illegality or malafide conduct by investigating authorities.

Summary

The petitioners were accused of murdering a woman’s husband; although the FIR named 19 persons, only a few were initially charge‑sheeted, allegedly due to the influence of a local MLA who provided alibis. The High Court, invoking its inherent powers under Article 226, directed the police to file charge‑sheets against all accused, rejecting a later ‘Test Note’ issued by the Inspector General of Police that limited charges to seven persons. The Supreme Court examined whether a court can intervene in police investigations and direct filing of charge‑sheets when there is alleged illegality or malafide action by investigating authorities. Relying on Section 173 of the CrPC and earlier precedents, the Court held that High Courts may intervene to correct such misuse of power and upheld the High Court’s order. Consequently, the Special Leave Petition was dismissed, leaving the High Court’s direction intact.

Issues considered

Whether a High Court can direct the police to file a charge‑sheet against all accused despite an earlier supervisory report.
Whether the court may order a fresh ‘Test Note’ or investigation when the investigating authority’s actions are alleged to be malafide.
Scope of Section 173 CrPC and the inherent powers of courts under Article 226 in supervising investigations.
Whether interference by a legislator (MLA) amounts to mala‑fide action warranting judicial intervention.

Legislation cited

Code of Criminal Procedure, 1973s. 156(3), s. 164, s. 169, s. 170, s. 173, s. 190(1)
Constitution of Indias. Article 226

Subjects

investigationpolicecharge‑sheethigh court jurisdictionArticle 226malafide interferenceMLA influenceCriminal Procedure CodeSpecial Leave Petition

Judgment

[2009] 14 (ADDL.) S.C.R. 575

~ KEDAR NARAYAN PARIDA AND ORS. A
v.
~
STATE OF ORISSA AND ANR.
(Special Leave Petition (c) No. 19947 of 2008)

SEPTEMBER 16, 2009
B'
[ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

1 Investigation/Inquiry - Intervention by Court - Scope -
Held: When any illegality and/or ma/a fide action on part of
lnve~tigating Authorities, either on its own or at the behest of c i

an interested party, is brought to the notice of High Courts,
the High Courts in exercise of their inherent and plenary
powers are entitled to intervene to set right the illegality and!
_or malafide action on the part of Investigating Authorities -
~ Code of Criminal Procedure, 1973 - s.173 - Constitution of D
India, 1950 - Article 226.

The Petitioners allegedly attacked the husband of
respondent no.2 with various weapons and killed him. 12
out of the 19 accused were taken out of the purview of
the charge-sheet, allegedly at the behest of an MLA. E
Respondent no.2 filed writ petition, on which the High
Court held that the filing of chargesheet against only 7
accused on the basis of the second test report of the IGP
had no legal basis and allowed the writ petition with
direction to the appropriate authorities to take action F
against all the accused, according to law. According to
the High Court, the earlier Supervision Note of the
Additional S.P., which was in consonance with Rule 47-
A of the Orissa Police Manual and affirmed by the
.. Inspector General of Police, C.1.0., as well as the Director G
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

575 H
576 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A of Polite, Central Range, to issue a fresh "Test Report"
and such di~ection was without any lawful authority.

Dismissing the Special Leave Petition, the Court

HELD: 1.1. One is unable to accept the submission
8 that the High Court could not have interfered with the
directions given by the Director General of Police to ·the
Inspector General of Police to submit a fresh Test/Note
despite the supervisory report which had been submitted
by the Additional S.P. indicating that a case had been
c made out to go to trial as against all the 19 accused. When
any illegality and/or ma/a fide action on the part of the
Investigating Authorities, either on its own or at the
. behest of an .interested party, is brought to the notice of .J
the High Courts, the High Courts in exercise of their
0 inherent and plenary powers are entitled to intervene to
set right the illegality and/or ma/a fide action on the part +-
of the Investigating Authorities. [Para 25] [592-A-C]
1.2. In the instant case, although, the Supervisory
Report submitted by the Additional SP, had been duly
E
accepted not only by the Inspector General of Police but
also by the Director General of Police, which was~"\:>
sufficient for the Magistrate to frame a charge against allJ\ ~-

the accused persons, a fresh direction was given to the
Inspector General of police to submit a Test Note. Such
F a direction given after the intervention of a MLA, who
went to the extent of providing an alibi for two of the·
accused, claiming that they were present in his house1'
when the incident had occurred, not only exudes an3 :·
unpleasant flavour, but raises doubts about the~'
G bonafides of the police authorities at the highest level.3)\
[Para 26] (592-C-F] )<

1.3. In fact, it is on account of such intervention that
initially charge was filed only agair)st 4 of the accused
H
KEDAR NARAYAN PARIDA AND ORS. v. STATE OF 577
ORISSA AND ANR.

• and, thereafter, 3 more. No steps were taken as far as the
remaining 12 accused were concerned and it is only
A

when the· action of the said JVILA was questioned before
the High Court, that charge was also filed against the
~
remaining 12 accused persons. [Para 27] [592-F-H]
' B
1.4. 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 w
this Court may certainly step in to correct such injustice
or failure· of justice. [Para 28] [593-B-C] c
1.5.- 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

..
~
-1 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, but also resulted
in an attempt to shield some of the accused persons.
D

[Para 29] [593-D-F]
E
Comptroller and Auditor-General of India v. K. S.
Jagannathan (1986) 2 SCC 679 and H.S. Bains v. The State
(Union Territory of Chandigarh) AIR 1980 SC 1883, relied on.

· Dinesh Dalmia v. C.B.I. AIR 2008 SC 78; Abhinandan
Jha & Ors. v. Dinesh Mishra, 1967 (3) SCR 668; State of F
--( Karnataka v. M. Devendrappa & Anr. (2002) 3 SCC 89;
Union of India vs. Prakash P. Hinduja & Anr. (2003) 6 SCC
195; M. C. Abraham & Anr. v. State of Maharashtra & Ors.
(2003) 2 SCC 649; Mis India Carat Pvt. Ltd. vs. State of
Kamataka AIR 1989 SC 885, referred to. .G
..
King Emperor vs. Khwaja Nazir Ahmad AIR 1945 PC 18,
referred to.

H
578 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

-A Case Law Reference:
•
AIR 2008 SC. 78 referred to Para 13
j

1967 (3) SCR 668 referred to Para 15

(2002) 3 sec 89 referred to Para 16
8 •'

c2003) 6 sec 195 referred to ParaH17
t;.
AIR 1945 PC 18 referred to Para i!7
;.
(2003) 2 sec 649 referred to Para 18
c )

(1986) 2 sec 679 relied on Para 20
AIR 1980 SC 1883 relied on Para 21
AIR 198~ SC 885 referred to Para 23
D CIVIL APPELLATE JURISDICTION : SLP (Civil) No.
19947 of 2008.
..,
From the Judgment & Order dated 24.4.2008 of the High
Court of Orissa at Cuttack in WP(C) No. 12626 of 2007.
E·
Amit Sharma, Suchit Mohanty and Anupam Lal Das for the
Petitioners.

Altaf Ahm~d, Janaranjan Das, Shwetaketu Mishra, P.P.
Nayak, Sibo Sankar Mishra, Raj Kumar Prashar for the
F Respondents.

The Judgment of the Court was delivered by

ALTAMAS KABIR, J. 1. One Kabita Das, wife of late
G Bhaguni-Das@ Bhagirathi Das of Village lzapur, 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
lnformat1on Report, lodged with the Mangalpur Police Station,
H
KEDAR NARAYAN PARIDA AND ORS. v.. STATE OF 579
ORISSA AND ANR. [ALTAMAS KABIR, J.]
• Mangalpur P.S. Case No.28 of 2007 was registered and on A
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 · B
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 c
" 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 D
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.
E
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 contlusion that
a case had been made out against all the 19 accused persons. F
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 G
... 19 accused persons, only 4, name1y, 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 0erieral of Police, Central
1;-1
580 SUPREME COURT REPORTS (2009] 14 (ADDL.) S.C.R.

A Range, Cuttack, to file charge-sheet against three more · •
persons, namely, Sudhanidhi Sahoo @ Mangua, Ashish Kumar
Ray and Pranaya Kl:fmar Ray. ., . · ·

3. It appears that despite the conclusion arrived atby the
Additional Superintendent of Police, Jajpur, the Inspector.
8
General of Police, Central Range, Cuttack, intervened in the;:.
investigation and came to the conclusion that the case couldJ,
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
C 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
D in the matter and vi11ually directed the charge-sheet to be filed
only against 7 persons and not against the iemaining 12
accused persons.

4. The Inspector General of Police, Central Range, Cuttack, .
E Shri Santosh Kumar Upadhay, filed a Counter Aftidavit stating ·
that the cl:lse 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
F 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 6f
G 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
H personally look into the case and to issue a "Test Not~"

...
KEDAR NARAYAN PARIDA AND ORS. v. STATE OF 581
ORISSA AND ANR. [ALTAMAS KABIR, J.]

immediately. In the impugned judgment it has been recorded A
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 18
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
J.
Ashish Ray. The said officer was also of the view that the
involvement of the other 12 accused persons required thorough c
investigation.

5. From the aforesaid affidavit of the lr'!spector 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 th~ Inspector General of Police, CID, CB, Orissa, D
-I
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 ,E
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 F
had made a written request for transferring the investigation of
the case to the Crime Branch. The very next day, the Director
General of Potice, 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, G
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 E!~ ':ll! the 19 accused were H
582 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C-.R..

(
A 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_,
c 22nd June, 2007, and had handed over a note on his printeq
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
D by the Inspector General of Police, CID, CB, pursuant to the j..

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 i11spector General of Police, Central
Range, forverification:
E
7. On the basis of the aforesaid facts revealed in the
affidavit affirmed by the Inspector General of Police, CID, CB, I )

a notice was issued to the MLA, Dr. Parameswar Sethi, asking
him to show cause as to under what authority he was present
F 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
G
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
H
KEDAR NARAYAN PARIDA AND ORS. v. STATE OF 583
ORISSA AND ANR. [ALTAMAS KABIR, J.]

had jotted down the names of the persons who are alleged to A
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 B
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 prayer1

had been made to the Sub-Divisional Judicial Magistrate,
(S.D.J.M.), Jajpur, to record the statements of Jaladhar-Parida C
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 1

Cr.P.C. On 1st June, 2007, a similar prayer was made for
recording the statements of two other eye-witnesses, Prahllad D
Mahalik and Bholanath Behera. It was only at this stage that
.. on 6th June, 2007, Dr. Parameswar Sethi, MLA, Jajpur, wrote
to the Director General of Police, to transfer the investigation
of the case to the Crime Branch, as indicated hereinbefore. By ,
1

his order dated 7th June, 2007, the Inspector General of Police, E
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 F
prayer was made, Dr. Parameswar Sethi met the Director 1

General of Police, followed by an order issued to the Inspector
General of Police, Central Range, directing hini to issue his
'" "Test Note". It appears that as pointed out by learned counsel
appearing for the Respondent No.2, polygraph tests were G
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.
H
..

584 SUPREME COURT REPORTS {2009] 14 (ADDL.) S.C.R.

A 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
B 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
c investigation process right from 28th March, 2007. The learned
Judges also referred to the affidavit filed by Dr. Parameswar
Sethi, wherein he had asserted that Jyoti Parida and Shakti
Paridai were present in his quarters at the time ofj_Qe incident;
although, before the Inspector General of Police, Central Range,
D 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
('
E 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.
F 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
G
Dr. Parameswar Sethi had visited the office of the Inspector
General of Pol.ice, Central Range, Cuttack, only once, on being
asked to verify certain facts and in response thereto he had
stated that two of the accused persons, Jyoti Parida and Shakti
Parida were present in his quarters at the time of the incident
H
KEDAR NARAYAN PARIDA AND ORS. v. STATE OF 585 ·
ORISSA AND ANR. [ALTAMAS KABIR, J.]

and that the hand-written note given by him on his own pad was A
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
B
questions for the purpose of deciding the writ petition :.:'

(a) Whether there is any scope for a second
I
.. "Supervision Test Report", even after the original
supervision of the Addi. S.P., Jajpur had been
affirmed by all the superior officers, i.e. up to the c
rank of D.G. of Police?
..
-.
(b) Veracity of the Test Report issued by the l.G. of
Police, Central Range based upon views and facts
-t
.j
that emanate out of apparent interference by Dr. D
Parameswar Sethi, MLA, Jajpur.

...
l
13. While answering the said questions, ·the Division
Bench after considering the provisions of Section 173 Cr.P.C.
came to the conclusion that the filing of charge-sheet against
E
'

only seven of the accused persons on the basis of the second
Test Report of the Inspector General of Police, Central Range,
_. could not be supported since the said Test Report had no legal
basis. According to the Division Bench of the High Court, the
earlier Supervision Note of the Additional S.P., Jaipur, which
"'( was in consonance with Rule 47-A of the Orissa Police Manual F
and affirmed by the Inspector General of Police, C.l.D., C.B.:,
as well as the Director General of Police, was sufficient for the
purpose of filing a charge-sheet and there was no justification
; for the issuance of a further direction to the Inspector General
(
of Police, Central Range, to issue a fresh "Test Reportn and G
" 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 H
586 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A 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
B the writ petition with a direction to the appropriate authorities
to take action against all the accused persons, according to
law, bas~upon the Supervision Note issued by the Additional
S.P., Jajpur. Consequently, all actions taken on the basis of the .
Test Report of the Inspector General of Police, Central Range,
c 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
...
D Sethi in trying to deflect the course of investigation was strongly
disapproved by the Division Bench which held that the same L
amounted to interference with the course of justice.
,
14. Appearing in support of the Special Leave Petition,
learned counsel, Mr. Amit Sharma, submitted that this Court
E 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
F 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 tq-the decision of
this Court in the case of Abhinandan Jha & brs. vs. Dinesh
G
Mishra, [1967 (3) SCR 668], wherein the provisions of .,
Sections 169, 170, 173 and 190(1) of the Code of Criminal
Pro"cedure, 1898, were under consideration and it was held
that once the Investigating Authorities had submitted report of
the action taken under Section 169 Cr.P.C. that there is no
H
KEDAR NARAYAN PARIDA AND ORS. v. STATE OF 587
ORISSA AND ANR. [ALTAMAS KABIR, J.]

case made out for sending up the accused for trial, there is no A
power conferred on a Magistrate, either expressly or by
implication to direct the police to submit a charge-sheet.
Incidentally, the aforesaid provisions of the old Code are the .
same as those contained in the Code of Criminal Procedure,
1973. This Court made a distinction between the power of the. a,
Magistrate to direct the filing of a charge-sheet on the facts
disclosed in a report under Section 169 and the power of the
Magistrate to disagree with such report and to conduct an
investigation on his own. It was held that in case of
disagreement with the Police Report under Section 169, the C
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 D
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 E
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 F
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 G
i
be an abuse of process of the court to allow any action which
would result in injustice and prevent promotion of justice. Mr.
Sharma urged that the same was the situation in the instant
case where, although, on the basis of the second Test Note it
was found by the Inspector General of Police, Central Range, H
588 SUPREME COURT REPORTS [2009] 14 (ADDt .) S.C.R.

A Cuttack, that a case had been made out only against seven
accused, the High Court observed that the materials contained. .
(/4
in the earlier supervision note of the Additional S.P., Jajpur,
which was in consonance with Rule 42A of the Orissa Police.
Manual and affirmed by the Inspector General of Police, CID,·
B ·CB, as well as the Dir~ctor General of Police, was sufficient
for the purpose of filing a charge-sheet against all the accused
persons. Mr.. Sharma urged that there was no bar on receipt
of fresh materials for the Investigating Authorities to hold a
further inquiry into the allegations made in the First Information •
c Report.
17. Mr. Sharma lastly referred to another decision .of this
Court in Union of India ys. Praka$h P. Hinduja & Anr. [(2003)
6 sec 195], wherein, while considering amongst other issues
the manner and scope of the expression "investigation" defined
D 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
E evidence or reasonable ground of suspicion to justify the
forwarding of the case to the Magistrate or not as contemplated
by Sections 169 and 170 Cr.P.C. is to be that of the officer in 1
charge of the police station and a Magistrate has absolutely
no role to play at this stage. In the said case reference was
F made to the decision in Abhinandan Jha's case (supra), k
wherein, after examining the scheme of the Code and the.
decision of the Privy Council in King Emperor vs. Khwaja Nazir
Ahmad [AIR 1945 PC 18] and other decisions of this Court, it
was, inter alia, held that the investigation under the Code takes
G in several aspects and several stages ultimately resulting in the
formation of opinion by the police and such formation of opiniori r
was the final step in the jnvestigation which could only be taken
by the police and by no other authority.

18. Mr. Sharma contended that the second Test Note filed
H
KEDAR NARAYAN PARIDA AND ORS. v. STATE OF 589
ORISSA AND ANR. [ALTAMAS KABIR, J.]

by the Inspector General of Police, Central Range, Cuttack, was A
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 B
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 C
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 D
those persons even though the case was still at the stage of
investigation, as _that would amount to unjustified interference
with the investigcltion. ·

19. Appearing for Kabita Das, the writ petitioner
(Respondent No.2 herein), Mr. Altaf Ahmad, learned senior E
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 F
previous note of the Additional S.P., Jajpur, had been affirmed
by the Inspector General of Police, C.l.D., C.B., as also the
. Director General of Police, there was absolutely no reason for
::.a further Test Report to be prepared and that too at the instance
i of the local M.L.A., who had not only tried to influence the G
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.
H
590 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
f

A 20. Countering Mr. Amit Sharma's submissions that the
Courts do not ordinarily interfere with the police investigation
which is in the domain of the police authorities, Mr. Altaf Ahmad
submitted that the High Courts exercising powers under Article
226 of the Cons~itution can direct a non-functioning public . · '
a authority to perform its functions in a particular manner. In
support of his submissions, Mr. Altaf Ahmad referred to and
relied upon the oft-repeated decision of this Court in
Comptroller and Auditor-General of India vs. K,S.
Jagannathan [(1986) 2 sec 679], wherein it was held in ~
c unambiguous terms that the High Courts have the power to· '
issue a writ of Mandamus or a writ in the nature of Mandamus
or to pass orders and give necessary directions where the
Government or the public authority has failed to exercise or has -
wrongly exercised the discretion conferred upon it by a statute
or a policy decision of the Government or has exercised such j
0
discretion mala fide or on irrelevant considerations or by . ~ 4
ignoring the relevant considerations and materials or in such a
manner as to frustrate the object of conferring such discretion 1 . ,
or the policy for implementing which such discretion has been
E conferred. Their Lordships went on to observe that in all such
cases and in any other fit and proper case a High Court can
compel the performance in a proper and lawful manner of the
discretion conferred upon the Government or a public authority,
and in a proper case, in order to prevent injustice resulting te>, . ~
the concerned parties, the court may itself pass an order or gh!~rh:-i
F directions which the Government or the put;>lic authority should . r

have passed or given had it properly and lawfully exercised its ,
discretion.
.
21. Mr. Altaf Ahmad also submitted that a Magistrate, while· .
G considering a police report made under Section 173(2) Cr.P.<;:.a::
was not bound to accept the same and could himself take
cognizance and issue process. Mr. Ahmad submitted that the
Magistrate was not bound to accept the Test Report submitted
by the Inspector General of Police, Central Range, Cuttack, and
H was entitled to take cognizance of the offences on the basis of
KEDAR NARAYAN PARIDA AND ORS. v. STATE OF 591
ORISSA AND ANR. [ALTAMAS KABIR, J.]
)
the earlier report, according to his discretion. Mr. Ahmad A
~
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 B
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 c
no ground for interference with the order of the High Court,
particularly in the facts of the instant case.

I 23. Mr. Sibo Sankar Mishra, learned counsel for the State
--: of Orissa, submitted that the investigating authorities had
\
l D
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, E
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
F
that it was not as if the investigating authorities had remained
inactive but had pursued the matter with due diligence ultimately
resulting in process being issued against all the 19 accused.
Mr. Mishra also referred to ,a three-Judge Bench decision of
this_ Court in Mis India Carat Pvt. Ltd. vs. State of Kamataka
i G
[AIR 1989 SC 885], which was also on the same lines.

24. We have carefully considered the submissions made
on behalf of the respective parties and we are satisfied tha~ no
interference is called for with the order of the High Court
impugned in this Special Leave Petition. H
592 SUPREME COURT REPORTS [2009] 14 {ADDL.) S.C.R.

A 25. We are unable to accept Mr. Shanna's submissions
that the High Court could not have interfered with the directions
~
given by the Directot General of Police to the Inspector General
of Police, Central Range, Cuttack, to submit a fresh Test Note
despite the supervisory report which had been submitted by the-
B Additional S.P., Jajpur, rndicating that a case had been made
out to go to trial as against all the 19 accused. When any
illegality and/or ma/a fide action on the part of the Investigating
Authorities, either on its own or at the behest of an interested
party, is brought to the notice of the High Courts, the High Courts
.c exercise of their inherent and plenary powers are entitled ·to
in
intervene to set right the illegality and/or ma/a fide action on the
part of the Investigating Authorities. The decision in H.S. Bains's
case (supra) clearly reiterates such proposition.

26. In the instant case, although, the Supervisory Report
d subrflitted by the Additional SP, Jajpur, had been duly accepted i. :---
not only by the Inspector General of Police, Central. Range,
Cuttack, but also by the Director General of Police, which was
sufficient for the Magistrate to frame a charge against all the
"
accused persons, a fresh direction was given to" the Inspector
E General of police, Central Range, Cuttack, to submit a Test_
Note. Such a direction given after the intervention of Dr. ~
Parameswar Sethi, who has gone to the extent of providing an _ ,
<
alibi for two of the accused, Jyoti Parida and Shakti Parida, ·!n
claiming that they were present in his house when the incident lo
F had occurred, not only exudes an unpleasant flavour, but raises ,J
doubts about the bonafides of the police authorities at the ...
highest level.

27. In fact, it is on account of such intervention that initially r-.. :·
charge was filed only against 4 of the accused and, thereafter, :;,s
G 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.
H
KEDAR NARAYAN PARIDA AND ORS. v. STATE OF 593
ORISSA AND ANR. [ALTAMAS KABIR, J.]

28. We have considered the judgment of this Gourt in A
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 B
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 C
High Court or this Court may certainly step in to correct such
injustice or failure of justice. Such a view was indicated in the
~nse of Comptroller and Auditor-General of India's case
(supra) as far back in 1986 when on the failure of the
administrative machinery a Mandamus had to be issued by this
Court to grant relief to the petitioner to which he was entitled D
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 E
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 F
persons.

30. The judgment of the High Court, in our view, does not
warrant any interference and the Special Leave Petition is,
accordingly, dismissed.
G
31. There shall be no order as to costs.

B.B.B. Special Leave Petition dismissed.