The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMP No.781 of 2022 (An application under Article 227 of the Constitution of India) Madanmohan Swain and others … Petitioners -versus- Superintendent of Police, Central Bureau of Investigation & others … Opposite Parties For Petitioners : Mr. S.Dash, Advocate For Opposite Parties : Mr. S.S.Pradhan, AGA CORAM: HON’BLE MR. JUSTICE G. SATAPATHY DATE OF JUDGMENT:07.08.2024 G. Satapathy, J. 1. The petitioners by way of this Criminal Misc. Petition has invoked the jurisdiction of this Court under Article 227 of the Constitution of India praying to direct OP No.1 to register the written complaint of the petitioners as an FIR or in the alternative to direct other agencies to conduct due and proper investigation under monitoring of this Court or to transfer the investigation CRLMP No.781 of 2022 Page 1 of 14
Facts
of the registered FIR to OP No.1-cum-Central Bureau of Investigation or Economic Offence Wings of Odisha or to any other appropriate independent agency. 2. The short facts involved in this case are on 27.08.2020 the petitioner No.1 who is aged about 64 years had been to the State Bank of India, Industrial Estate Branch, Palasuni for redemption of his SBI Mutual Fund for a sum of Rs.20,00,000/-, but soon after receipt of his application by the Branch Manager, he received a call from Phone No. 7978379071 suggesting him to hold the Mutual Fund by not redeeming the bond till March, 2021. However, on 04.04.2021, the petitioner called in the number and requested for redemption, but on being asked, on 05.04.2021 he met the Branch Manager who introduced to one Subrat Kumar Mohanty to help him for redemption as well as management of the funds. Accordingly, said Subrat Kumar Mohanty installed a App MyCAMS in the mobile of petitioner No.1 and thereafter, the petitioner No.1 applied for redemption of CRLMP No.781 of 2022 Page 2 of 14 bond. On being advised to deposit the redemption amount in an account, the petitioner No.1 provided a cheque to Subrat Kumar Mohanty and the Branch Manager with endorsement “pay to yourself” for investment in SBI Electoral Bond for an amount of Rs.7,00,000/- and in the process said Subrat Kumar Mohanty(OP No.8) transferred a sum of Rs.29,00,000/- on five occasions for the purpose of investment in SBI Electoral Bond and IPO shares and later on, the petitioner No.1 found the bonds/certificates to be forged/manufactures by OP No.8- Subrat Kumar Mohanty and tried to get back his amount of Rs.29,00,000/- from said Subrat Kumar Mohanty, but in vain. Finding no way out, the petitioner and two others who are also being defrauded in same manner lodged an FIR before the IIC, Mancheswar P.S. which came to be registered as PS Case No. 57 of 2022 and the case was investigated into and accordingly, a preliminary charge sheet was filed with arrest of OP No.8, but final charge sheet is still awaited. On the CRLMP No.781 of 2022 Page 3 of 14 aforesaid backdrop, the petitioners have approached this Court for the relief indicated supra. 3.
Legal Reasoning
investigation is prima facie found to be tainted/biased. 7. In State of West Bengal Vrs. Committee for Protection of Democratic Rights;(2010) 3 SCC 571 a constitutional Bench of five Judges of Apex Court while accepting the view taken in Secretary, Minor Irrigation and Rural Engineering Services, U.P. and others vrs. Sahngoo Ram Arya and another; (2002) 5 SCC 521 has held as under:- “In so far as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has leveled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI CRLMP No.781 of 2022 Page 10 of 14 would be flooded with a large number of cases and with limited resources, may find in difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.” 8. It is no doubt true that the petitioners are aggrieved by the slow progress of investigation, but in Sakiri Vasu v. State of Uttar Pradesh and others; (2008) 2 SCC 409, the Apex Court at paragraph-27 has held as under:- “27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 CrPC simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC.” CRLMP No.781 of 2022 Page 11 of 14 9. Further, in Sudhir Bhaskar Rao Tambe Vrs. Hemant Yashwant Dhage and others; (2016) 6 SCC 277, the Apex Court while reiterating the decision in Sakiri Vasu(supra) has observed as under:- change can of learned Magistrate for also “A recommend the Investigating Officer if the investigation is not marched in proper prospective to discover the truth. Hence, adequate alternative remedy is available to the learned petitioners to approach the Jurisdictional Magistrate to monitor the investigation so as to ensure fair and proper investigation. Hence, the present petition is not maintainable before this Hon’ble Court.” 10. In Divine Retreat Centre Vs. State of Kerala and Others reported in (2008) 3 SCC 542, the Apex Court at paragraph-41 has held as under:- “41. It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of power that the CRLMP No.781 of 2022 Page 12 of 14 abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted the but can always observance of process as provided for in the Code.” insist for 11. In this case, although the petitioners are not satisfied with the progress of investigation, much less the slow progress, but they have not been able to produce any material to indicate any biasness or malafides of the investigating agency. In the circumstance, no direction can be issued either to handover the investigation to any independent agency or to entrust the investigation to other official, merely because the petitioners are aggrieved with the slow progress of investigation. In view of the aforesaid discussions of fact and law vis-(cid:224)-vis the grievance of the petitioners, this Court hardly sees any reason to handover the investigation to any other agency, but the CRLMP No.781 of 2022 Page 13 of 14 petitioners can always avail the remedy to get the investigation monitored by appropriate provision of law. 12. Resultantly, the CRLMP being devoid of merit stands dismissed. The Investigating Agency is, however, directed to proceed further in the matter for early completion of the investigation, which has been kept open U/S. 173(8) of CrPC. It is, however, observed that the petitioners are at liberty to approach appropriate forum in accordance with law, if they are dissatisfied with the result of the final outcome in the investigation of Mancheswar P.S. Case No.57 of 2022. (G. SATAPATHY) JUDGE Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 08-Aug-2024 18:48:02 Orissa High Court, Cuttack, Dated the 7th day of August, 2024/Kishore CRLMP No.781 of 2022 Page 14 of 14
Arguments
Mr.Suryakanta Dash, learned counsel for the petitioners without disputing about submission of preliminary charge sheet, however strongly argues by submitting that although the legitimate grievance of the petitioners appears to have investigated into, but in fact, there is no progress in the investigation, however, the Investigating Officer is only sitting ideal by submitting preliminary charge sheet after arresting OP No.8 and keeping the investigation open. He further submits that the investigating agency has virtually not done anything after submitting preliminary charge sheet on 26.02.2022, but the hardened money not only of a senior citizen, but also of different persons is involved in a larger conspiracy of financial fraud and none of the staff of the bank have even been examined by the police whose conduct by itself speaks in volume. Mr.Dash by taking this Court through the decision in Pooja Pal vrs. Union of India;(2016) 3 SCC 135 CRLMP No.781 of 2022 Page 4 of 14 submits that the petitioners cannot become the victim of faulty investigation to reduce the justice a casualty and mere submission of charge sheet would not ipso facto be a prohibitive impediment for directing further investigation/reinvestigation or handing over the investigation to any independent agency. Accordingly, Mr.Dash has prayed to pass necessary direction to hand over the investigation of the case to any impartial agency like CBI or EOW of Orissa. 4. On the other hand, Mr.S.S.Pradhan, learned AGA by producing the written instruction received from Superintendent of Police, EOW, Bhubaneswar submits that the limit for financial fraud to entrust investigation to EOW being fixed at Rs. 1 crore and the defalcation amount involved in this case being much less than that amount at Rs.29,00,000/-, EOW cannot be directed to conduct investigation. It is further submitted by learned AGA that the matter was once referred to EOW, Bhubaneswar, but EOW has referred the matter again to the concerned IO for CRLMP No.781 of 2022 Page 5 of 14 proper investigation and in this case, investigation having done in a proper way with arrest of the accused Subrat Kumar Mohanty who already being released on bail, the Investigating Officer cannot be considered as negligent since he has already filed preliminary charge sheet by keeping the investigation open. Mr.Pradhan further submits that the petitioners cannot insist for handing over the investigation to any other investigating agency in a routine manner and since the investigation being in progress in a right direction, the Criminal Misc. Petition is unmerited and liable to be dismissed. Mr.Pradhan has accordingly prayed to dismiss the CRLMP. 5. Admittedly, the FIR of the petitioners has been registered by Mancheswar Police vide PS Case No. 57 of 2022 which was investigated into, but the IO has only filed preliminary charge sheet by praying to keep the investigation open U/S. 173(8) of CrPC. It is also not disputed that one accused Subrat Kumar Mohanty was arrested and released on bail. The allegations as CRLMP No.781 of 2022 Page 6 of 14 contained in the FIR of the petitioners reveal financial fraud of Rs.29,00,000/- and accordingly, preliminary charge sheet has been submitted against the accused Subrat Kumar Mohanty for commission of offence U/S. 420/467/468/34 of IPC. The involvement of other persons is, however, claimed by the petitioners, but no materials have been produced by them, however, the investigation is still kept opened U/S. 173(8) of CrPC. It is also submitted by learned counsel for the petitioners that the petitioners have also filed a petition U/S. 156(3) of CrPC before the jurisdictional Magistrate to monitor the investigation of the case, but it hardly yield any result. On the contrary, the prayer of the petitioners for investigation by EOW received a jolt when it is undisputedly found that the threshold limit for conducting investigation by EOW for matters relating to defalcation of money is one crore, but in this case, the defalcation amount as alleged by the petitioners is Rs.29,00,000/-. CRLMP No.781 of 2022 Page 7 of 14 6. Addressing the relief sought for by the petitioners to handover the investigation to impartial investigating agency, this Court is of the considered that an order directing handing over investigation to any other agency other than police should not be passed in favour of the party applying for it as a matter of right or in a routine manner merely because the party is not satisfied with the progress of investigation. Nonetheless, such extra ordinary power must be exercised sparingly, cautiously and in exceptional situation, where it becomes necessary to provide credibility and instill confidence in the investigation or where the incident may have national or international ramification, otherwise the independent agency like CBI or Crime Branch would be flooded with large number of cases and the very purpose of creating such agency would be defeated. Moreover, the petitioners in this case is only dissatisfied with the progress of investigation because the IO has not submitted final charge sheet, rather he has filed preliminary charge CRLMP No.781 of 2022 Page 8 of 14 sheet with arrest of one accused, but the petitioners have not able to provide any concrete materials for involvement of others. In CBI and another Vrs. Rajesh Gandhi and another;(1996) 11 SCC 253 the Apex Court has held that no one can insist that an offence be investigated by a particular agency, but an aggrieved person can only claim that the offence he alleges be investigated properly, however, he has no right to claim that it be investigated by any particular agency of his choice. Further, in K.V.Rajendra vrs. Supdt. of Police; (2013) 12 SCC 480, the Apex Court observed that the Court could exercise its constitutional powers for transferring any investigation from the State Investigating Agency to any other independent investigating agency like CBI only in rare and exceptional cases. Such as where high officials of State Authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to CRLMP No.781 of 2022 Page 9 of 14 instill confidence in the investigation or where the