Orissa High Court
Madanmohan Swain And vs Superintendent Of Police on 7 August, 2024
Author: G. Satapathy
Bench: G. Satapathy
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 ... Petitioners
others
-versus-
Superintendent of Police, ... Opposite Parties
Central Bureau of
Investigation & others
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
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
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
aforesaid backdrop, the petitioners have approached
this Court for the relief indicated supra.
3. 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
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
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
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/-.
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
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
instill confidence in the investigation or where the
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
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."
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:-
"A learned Magistrate can also
recommend for change of the
Investigating Officer if the investigation
is not marched in proper prospective to
discover the truth. Hence, adequate
alternative remedy is available to the
petitioners to approach the learned
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 that the power 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
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
but can always insist for the
observance of process as provided
for in the Code."
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-à-vis the grievance of
the petitioners, this Court hardly sees any reason to
handover the investigation to any other agency, but the
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
Orissa
Signed by: KISHORE HighSAHOO
KUMAR Court, Cuttack,
Dated the 7th day of August, 2024/Kishore
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa
Date: 08-Aug-2024 18:48:02
