Orissa High Court

Bandhna Toppo vs State Of Orissa on 5 July, 2023

      IN THE HIGH COURT OF ORISSA AT CUTTACK

                  CRLMC NO.1462 OF 2023

(Application under Section 482 of the Code of Criminal
Procedure for fresh investigation or re-investigation by any
independent agency)


      Bandhna Toppo
                                                ...       Petitioner

                                  -versus-

      State of Orissa
      and others                              ...        Opposite Parties



  Advocates appeared in the case through hybrid mode:

         For Petitioner: Mr.Shivsankar Mohanty,
                         Advocate

                                             -versus-

        For Opp.Parties: Mr.S.N. Das,
                         Addl. Standing Counsel

  ---------------------------------------------------------------------------
         CORAM:

                        JUSTICE SASHIKANTA MISHRA

                                      JUDGMENT

05.7.2023.

Sashikanta Mishra,J. The present application filed under Section

482 of Cr.P.C. is for grant of the following prayer;

"It is therefore prayed that this Hon'ble Court may graciously be pleased to admit the application, call for records and be pleased to direct for fresh investigation or reinvestigation by any independent agency of the State Government or other agency including a Central Agency, which has acquired specialization in such matters by appointing a Superior Rank Officer than the accused in Infocity P.S. Case No.336 dated 24.11.2022 registered under Section 302 and 34 I.P.C. to secure the ends of justice."

2. The facts of the case, briefly stated, are that on

28th February, 2022 at about 12 noon, the Petitioner

received a call from one Birendra Lakra on his mobile

phone that his son Anand Toppo (deceased) was un-

conscious and shifted to Capital Hospital,

Bhubaneswar in an Ambulance by one Manjeet Tete.

The doctor however, declared him brought dead.

Suspecting foul play, the Petitioner attempted to lodge

a complaint before the I.I.C. of Infocity P.S. but the

same was not accepted on the ground that an F.I.R.

had already been lodged being Infocity P.S. U.D. Case

No.14/2022 as a case of suicide. The Petitioner

submitted a written complaint on 1st April, 2022 before

the I.I.C. of Infocity P.S. by hand with request to

murder case. The I.I.C. received the same but did not

give any acknowledgment. On repeated query by the

Petitioner, it was given out that investigation is in

progress. Being aggrieved by such inaction of the I.I.C,

the Petitioner sent the substance of information along

with his previous complaint in writing to the D.C.P. of

Police, Bhubaneswar-Cuttack by registered post

requesting to register the case under Section 302 of

I.P.C. and to conduct proper investigation. No action

being taken thereon the Petitioner sent another

complaint on 17th May, 2022 by registered post to the

Commissioner of Police, Bhubaneswar-Cuttack for

redressal of his grievance. Since no action was taken

despite such steps, the petitioner approached this

Court in CRLMP Nos.2153 and 2154 of 2022.

3. During pendency of the aforementioned case, the

Infocity Police acknowledged the written complaint of

the Petitioner and registered the same as P.S. Case No.

3636 dated 24th November, 2022. Taking note of such

facts, a coordinate Bench of this Court disposed of

CRLMP No.2153/2022, inter alia, with the following

observations;

"xxx xxx xxx xxx xxx xxx

"7. The inaction shown by the police is deplored. If there is even a shred of truth in the allegations made herein, such infamy by the police deserves strong condemnation. The core mission of the police is to protect citizens from the undesirable elements of society. But if its actions were to leave the community more vulnerable to criminal victimization, it would undermine the popular confidence in law enforcement. Looking at the recent surge of cases pertaining to delay in registration of F.I.Rs, it seems institutional lethargy has crept into the system, which is unfortunate.

8. Ergo, the Commissioner of Police, Bhubaneswar is directed not to assign the concerned policeman to any field posting for one year. Also, appropriate steps shall be taken at the end of the Police Commissioner, Bhubaneswar to send the said officer for sensitization training at the Biju Pattanaik Police

Academy, Bhubaneswar for one month. The Deputy Commissioner of Police is directed to personally monitor the investigation of the concerned case while keeping all influences at bay and submit the Final Report within three months from today."

xxx xxx xxx".

4. On 15th December, 2022, the I.O. received

viscera chemical report of the deceased, which revealed

the presence of ethyl alcohol and drugs. The I.O.

obtained opinion of a doctor of AIIMS, Bhubaneswar,

who was of the view that the injury found on the neck

of the deceased was ante mortem in nature. Ultimately

on 7th February, 2023, final report was submitted

stating that so far no prima facie evidence is made out

to be a true case under Section 302 I.P.C. against the

alleged accused persons beyond all reasonable doubts

and accordingly, the report was submitted as mistake

of fact.

Feeling aggrieved, the informant-Petitioner has

filed the present application.

5. Heard Mr. S. Mohanty, learned counsel for the

Petitioner and Mr. S.N.Das, learned Addl. Standing

counsel for the State.

6. Mr. Mohanty argues that one of the accused

persons namely, Birendra Lakra is a high ranking

Police Officer being a DSP and therefore, despite clear

evidence of foul play involved in the death of the

deceased, final report was submitted as mistake of fact

deliberately portraying the death as a case of suicide.

According to Mr. Mohanty, there is ample evidence on

record to suggest that the Petitioner was administered

poison along with alcohol which caused his death and

the accused persons attempted to cover up such fact

by showing it as a case of suicidal hanging. Moreover,

the I.I.C. of Infocity Police Station, Samita Mishra,

against whom this Court had passed certain remarks

touching upon her impartiality, deliberately tried to

protect accused Birendra Lakra in connivance with the

I.O. of the case Arpita Priyadarsini. Summing up his

arguments Mr. Mohanty submits that a proper and fair

investigation being essential requirement of criminal

justice system, this is a fit case where fresh

investigation should be conducted by any specialized

agency of the State or Central Governments.

7. Opposing the contentions of Mr. Mohanty as

above, Mr. S.N.Das, learned Addl. Standing Counsel

for the State would submit that the post mortem report

clearly reveals the case to be one of suicidal hanging.

The ligature mark present on the neck of the deceased

is adequate proof of such fact. The chemical

examination of the viscera revealed presence of alcohol

and barbiturates, which is consistent with the version

of the witnesses that the deceased had consumed

alcohol prior to his death. The opinion of the doctor is

also very clear that the injuries (ligature mark) could

be suicidal in nature. Under such circumstances no

foul play whatsoever can be said to have been involved.

Mr. Das further argues that even otherwise if the

Petitioner is aggrieved by submission of final report by

the I.O., it is open to him to move the court below by

filing protest petition, which can be considered in

accordance with law, but under the facts, a case for

further investigation/reinvestigation is not made out at

all.

8. Before proceeding to examine the merits of the

rival submissions noted above, it would be apposite to

keep in mind the settled position of law as regards the

power of the High Court to direct further

investigation/reinvestigation and/or investigation by a

specialized agency. The case of Devendra Nath Singh

v. State of Bihar; reported in (2022) 15 SCR 692:

(2023) 1 SCC 48: (2023) 1 SCC (Cri) 270 can be

referred to this in this regard. In the said case, under

paragraph 12.1, reference was made to an earlier

decision of the Apex Court i.e., the case of Vinay

Tyagi v. Irshad Ali, (2013) 5 SCC 762; wherein it was

observed as follows;

"43. At this stage, we may also state another well-settled canon of criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct

"further investigation", "fresh" or "de novo" and even "reinvestigation". "Fresh", "de novo" and "reinvestigation" are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection.

44. We have deliberated at some length on the issue that the powers of the High Court under Section 482 of the Code do not control or limit, directly or impliedly, the width of the power of the Magistrate under Section 228 of the Code. Wherever a charge-sheet has been submitted to the court, even this Court ordinarily would not reopen the investigation, especially by entrusting the same to a specialised agency. It can safely be stated and concluded that in an appropriate case, when the Court feels that the investigation by the police authorities is not in the proper direction and that in order to do complete justice and where the facts of the case demand, it is always open to the Court to hand over the investigation to a specialised agency. These principles have been reiterated with approval in the judgments of this Court in Disha v. State of Gujarat [Disha v. State of Gujarat, (2011) 13 SCC 337 : (2012) 2 SCC (Cri) 628] , Vineet Narain v. Union of India [Vineet Narain v. Union of India, (1998) 1 SCC 226 :

       1998      SCC     (Cri)  307]     , Union   of
       India v. Sushil    Kumar     Modi [Union    of

India v. Sushil Kumar Modi, (1996) 6 SCC 500] and Rubabbuddin Sheikh v. State of

Gujarat [Rubabbuddin Sheikh v. State of Gujarat, (2010) 2 SCC 200 : (2010) 2 SCC (Cri) 1006] .

45. The power to order/direct "reinvestigation" or "de novo" investigation falls in the domain of higher courts, that too in exceptional cases. If one examines the provisions of the Code, there is no specific provision for cancellation of the reports, except that the investigating agency can file a closure report (where according to the investigating agency, no offence is made out). Even such a report is subject to acceptance by the learned Magistrate who, in his wisdom, may or may not accept such a report. For valid reasons, the court may, by declining to accept such a report, direct "further investigation", or even on the basis of the record of the case and the documents annexed thereto, summon the accused.

xxx xxx xxx."

Again reference was made in Paragraph 12.2 to

State of Punjab v. C.B.I. State of Punjab v. CBI,

(2011) 9 SCC 182: (2011) 3 SCC (Cri) 666, wherein it

was observed as follows;

"22. Section 482CrPC, however, states that nothing in Cr.P.C shall be deemed to limit or affect the inherent powers of the High Court to make such orders as is necessary to give effect to any order under CrPC or to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Thus, the provisions of CrPC do not limit or affect the inherent powers of the High Court to make such orders as may be

necessary to give effect to any order of the court or to prevent the abuse of any process of the court or otherwise to secure the ends of justice. The language of sub- section (8) of Section 173CrPC, therefore, cannot limit or affect the inherent powers of the High Court to pass an order under Section 482CrPC for fresh investigation or reinvestigation if the High Court is satisfied that such fresh investigation or reinvestigation is necessary to secure the ends of justice.

23. We find support for this conclusion in the following observations of this Court in Mithabhai Pashabhai Patel v. State of Gujarat [Mithabhai Pashabhai Patel v. State of Gujarat, (2009) 6 SCC 332 : (2009) 2 SCC (Cri) 1047] cited by Mr Dhavan : (SCC p. 337, paras 13 & 15) '13. It is, however, beyond any cavil that "further investigation" and "reinvestigation" stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a "State" to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction.

Pasayat, J. in Ramachandran v. R. Udhayakumar [Ramachandran v. R. Udhayakumar, (2008) 5 SCC 413 : (2008) 2 SCC (Cri) 631] opined as under : (SCC p. 415, para 7)

"7. At this juncture it would be necessary to take note of Section 173 of

the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub- section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation."

A distinction, therefore, exists between a reinvestigation and further investigation.

***

15. The investigating agency and/or a court exercise their jurisdiction conferred on them only in terms of the provisions of the Code. The courts subordinate to the High Court even do not have any inherent power under Section 482 of the Code of Criminal Procedure or otherwise. The pre- cognizance jurisdiction to remand vested in the subordinate courts, therefore, must be exercised within the four corners of the Code.'

24. It is clear from the aforesaid observations of this Court that the investigating agency or the court subordinate to the High Court exercising powers under CrPC have to exercise the powers within the four corners of CrPC and this would mean that the investigating agency may undertake further investigation and the subordinate court may direct further investigation into the case where charge-sheet has been filed under sub-section (2) of Section 173CrPC and such further investigation will not mean fresh investigation or reinvestigation. But these limitations in sub-section (8) of Section 173CrPC in a case where charge-sheet has been filed will not apply to the exercise of inherent

powers of the High Court under Section 482CrPC for securing the ends of justice."

[Emphasis supplied]

After referring to several other decisions on the

point, the following principles were culled out under

Paragraph-13:

"(a) The scheme of the Code of Criminal Procedure, 1973 is to ensure a fair trial and that would commence only after a fair and just investigation. The ultimate aim of every investigation and inquiry, whether by the police or by the Magistrate, is to ensure that the actual perpetrators of the crime are correctly booked and the innocents are not arraigned to stand trial.

(b) The powers of the Magistrate to ensure proper investigation in terms of Section 156CrPC have been recognised, which, in turn, include the power to order further investigation in terms of Section 173(8) CrPC after receiving the report of investigation. Whether further investigation should or should not be ordered is within the discretion of the Magistrate, which is to be exercised on the facts of each case and in accordance with law.

(c) Even when the basic power to direct further investigation in a case where a charge-sheet has been filed is with the Magistrate, and is to be exercised subject to the limitations of Section 173(8) CrPC, in an appropriate case, where the High

Court feels that the investigation is not in the proper direction and to do complete justice where the facts of the case so demand, the inherent powers under Section 482 CrPC could be exercised to direct further investigation or even reinvestigation. The provisions of Section 173(8)CrPC do not limit or affect such powers of the High Court to pass an order under Section 482 CrPC for further investigation or reinvestigation, if the High Court is satisfied that such a course is necessary to secure the ends of justice.

(d) Even when the wide powers of the High Court in terms of Section 482CrPC are recognised for ordering further investigation or reinvestigation, such powers are to be exercised sparingly, with circumspection, and in exceptional cases.

xxx xxx xxx xxx xxx."

[Emphasis supplied]

The law being as referred to in the preceding

paragraphs, the contentions urged by the parties shall

now be considered.

9. From the case diary containing the statements of

several persons including Birendra Lakra and Manjeet

Tete, it appears that the deceased used to stay with

Manjeet Tete in a Flat under Infocity Police Station,

Bhubaneswar and Birendra Lakra used to visit them at

times. The Petitioner appears to have had a

relationship with said Manjeet Tete, which he wanted

to continue even after his marriage to another girl in

Jharsuguda. The deceased appears to have arrived in

Bhubaneswar in the morning of 28th February, 2022 at

about 7.30.A.M. According to the statement of Manjeet

Tete recorded under Section 164 of Cr.P.C., the

deceased requested her to continue with the

relationship despite his marriage to which she refused.

He is also said to have forcibly pulled the hand of

Manjeet and started drinking alcohol and kept on

reiterating his request for continuance of the

relationship. Manjeet was however, not agreeable and

packed her suitcase with intent of leaving the flat. She

went to the bathroom taking her ear phones with her

but before that the deceased asked her for the saree

that he had gifted her earlier. Manjeet is said to have

asked him to search for the saree in the house. When

Manjeet returned from the bathroom 10 to 15 minutes

later, she found the deceased hanging from the ceiling

fan by means of the gifted blue colour saree with his

knees being 2" to 3" above the floor. Manjeet brought

the deceased down and opened the knot of the saree

and checked his pulse. There being no response she

attempted mouth to mouth respiration which did not

yield any result. She then called Birendra Lakra, who

was in the other room. Birendra Lakra also checked

the deceased and thereafter both of them called the

Ambulance and Manjeet took the deceased to Capital

Hospital where he was declared brought dead.

10. Birendra Lakra, in his statement recorded under

Section 161 of Cr.P.C. more or less stated the same

thing and specifically stated that he was playing a

game on his mobile phone being connected with ear

phones. He however, states that Manjeet had taken the

deceased to Capital Hospital on an ambulance and he

reached there later by which time the deceased had

already been declared dead. He also claims to have

paid Rs.60,000/- to the father of the deceased (present

Petitioner) to defray the expenses of carrying the dead

body. Several other witnesses have been examined, but

all of them are post occurrence witnesses and have no

direct knowledge about the incident. If the statements

of Manjeet and Birendra Lakra are read objectively, it

would show certain palpable incongruities and

significant aspects that which have not been

considered by the I.O. namely;

(i) The deceased was found hanging from the ceiling fan with his knees 2" to 3" above the floor which is strange since nothing has been said as to what was the position of his feet. This would obviously imply that the lower part of his leg (below the knees) must have been folded backwards with his feet touching the ground.

(ii) In such background, the statement of Manjeet that having seen the deceased hanging from the ceiling fan she herself brought him down and opened the noose of the saree seems difficult to believe.

(iii) The statement of Manjeet that she attempted mouth to mouth respiration and thereafter called Birendra Lakra militates against the natural reaction

expected of a young girl on witnessing such a sight. In ordinary course, she should have shouted for help or called Birendra Lakra, who was in the adjacent room.

(iv) The statements of both Manjeet and Birendra Lakra that they had used ear phones at the relevant time appear to have been made out of context.

Moreover, while Birendra Lakra himself stated that he was playing a game on his mobile phone, the I.O. mentioned in the charge sheet that he was listening to music on his IPod.

(v) Birendra Lakra admits that due to family disturbances, he had stayed in the said Flat for 20 days with permission of Anand Toppo (deceased) and also used to visit the Flat even in the absence of Anand. Implication of such admission has not been considered.

(vi) The post mortem report clearly shows the presence of a ligature mark on the neck of the deceased. The chemical examination report of the viscera shows

the presence of alcohol and barbiturate. Implication of all these have not been properly considered.

          (vii)   The        Additional       Professor,
          Department         of   Forensic       Medicine
          Toxicology,        AIIMS,       Bhubaneswar
          specifically opined as follows;

"Both alcohol and barbiturate are habit forming drugs. Very often these drugs are used for recreational liabilities.

Combination of both is likely fatal to cause depression and death. Basing on the chemical analysis report, considering the post mortem findings and the subsequent answer to the queries, the cause of death was ante mortem hanging. I am of the opinion that the deceased had consumed intentionally both the compound prior to death".

It is surprising as to how the doctor could positively opine that the deceased had intentionally consumed both the compounds.

Nevertheless, in his final opinion the doctor

states as follows;

"After perusing all the documents mentioned above, I am of the considered opinion that the cause of death was ante mortem hanging and its complication. However, the victim consumed alcohol and barbiturate before his death."

It is thus seen that the doctor has not given a

conclusive opinion, rather his opinion suggests that

the death could be either due to ante mortem

hanging or the result of consumption of alcohol with

barbiturate.

11. I have perused the case diary carefully. I do not

find anything therein to even remotely suggest that

investigation was directed to the aforementioned

aspects. Of course, I would hasten to add that it is not

the intention of this Court to impute any culpability to

any person but only to highlight that investigation

should have been directed towards the aspects referred

above. It must be kept in mind that death of a human

being has occurred. There is an allegation of foul play.

The matter should therefore, have been investigated

thoroughly touching all possible angles keeping in

view the allegations. In fact, even the evidence collected

by the I.O. is not such as would completely rule out

foul play. There are glaring gaps in the investigation as

discussed hereinabove, for which, it cannot be so

easily concluded that the death of the deceased was

certainly due to suicidal hanging and nothing else.

12. Proper and fair investigation is sine qua non of

criminal jurisprudence. The very purpose of

investigation is to find out the truth. But if relevant

aspects have been ignored/over looked by the

investigating agency, it cannot be said that there was

fair and proper investigation. As observed by the Apex

Court in Vinay Tyagi (supra) is as follows;

"what ultimately is the aim or significance of the expression "fair and proper investigation" in criminal jurisprudence? It has a twin purpose: Firstly, the investigation must be unbiased, honest, just and in accordance with law; secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair investigation are

satisfied, there will be the least requirement for the court of law to interfere with the investigation, much less quash the same, or transfer it to another agency. Bringing out the truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair, tainted investigation or cases of false implication. Thus, it is inevitable for a court of law to pass a specific order as to the fate of the investigation, which in its opinion is unfair, tainted and in violation of the settled principles of investigative canons."

From the apparent gaps and incongruities as

has been narrated earlier, this Court is left with little

doubt that investigation in the present case cannot be

said to have been conducted properly and that several

areas still remain to be investigated.

13. Now whether direction should be for further

investigation or fresh/reinvestigation is the question.

As has already been referred to hereinbefore, this

Court has power to direct both. In the instant case, the

entire investigation has proceeded on the premise of

suicide. All efforts of the investigating officer appear to

have been made in this background. Under such

circumstances, further investigation would be an

exercise to only take forward what has already been

investigated. It would obviously not meet the

requirement of justice that the case demands. On the

contrary, if the matter is reinvestigated in all aspects,

including those that have hitherto not been looked at

can also be taken into consideration. Since the case

involves death of a human being with the allegation of

foul play, which this Court, prima facie finds

acceptable, it is a fit case to direct reinvestigation.

14. The question that now arises is, by which agency

should the reinvestigation be conducted. It is the

settled position of law that the High Court in exercise

of its power under Section 482 of Cr.P.C. can direct

investigation to be conducted by an

independent/specialized agency in appropriate cases.

In the present case, there is allegation that the I.I.C. of

Infocity P.S. collaborated with the I.O. to ensure

submission of final report as mistake of fact. This

Court would not like to comment on the above aspect

except for noting the fact that the concerned I.I.C. has

already been hauled up by a coordinate bench of this

Court for her gross inaction in acting upon the

complaint submitted by the Petitioner for a long time.

It is also borne out from the case record that Birendra

Lakra is a high ranking Police Officer belonging to the

grade of Deputy Superintendent (DSP). The Petitioner's

allegation that the investigation was biased or in any

case not impartial appears to be reasonable in the

facts and circumstances of the case. Therefore,

directing the same agency to reinvestigate would not be

proper. Rather for the ends of justice, it would be

proper for an independent agency like the C.I.D. (Crime

Branch) to do so.

15. For the foregoing reasons therefore, the CRLMC

is allowed. This Court directs that the case shall be

reinvestigated by the C.I.D. (Crime Branch). Having

regard to the fact that one of the accused persons is

himself a Senior Police Officer in the rank of Deputy

Superintendent of Police, it would be proper if the

investigation is conducted by an Officer of the higher

grade. This Court therefore, directs the Addl. Director

General (Crime Branch) to entrust the investigation to

a Senior Officer not below the rank of Deputy Inspector

General of Police who shall reinvestigate the matter

from all angles and submit report to the concerned

Court accordingly. The previous I.O. is directed to

transmit the entire case diary and all other

records/documents collected during investigation to

the C.I.D. (Crime Branch) forthwith.

.................................. (Sashikanta Mishra) Judge

Ashok Kumar Behera

Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.R.-CUM-SR.SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Jul-2023 11:06:52