Wasim Akram vs The State Of Odisha .... Opposite ...
2025 Latest Caselaw 4632 Ori

Orissa High Court

Wasim Akram vs The State Of Odisha .... Opposite ... on 5 March, 2025

Author: V. Narasingh

Bench: V. Narasingh

  IN THE HIGH COURT OF ORISSA AT CUTTACK
           CRLMP No. 1601 of 2024

1.   Wasim Akram         ....         Petitioners
2.   Mohammad Halim

                       Mr. M.M. Ansari, Advocate

                    -versus-

1. The State of Odisha  .... Opposite Parties
2. The Director General
   of Police,
   Government of
   Odisha, Cuttack
3. The Inspector
   General of Police,
   Western Range,
   Rourkela
4. The Superintendent
   of Police,
   Sundergarh
5. Inspector-In-Charge
   (IIC), Kutra Police
   Station
6. Union of India
7. Central Bureau of
   Investigation,
   Bhubaneswar
8. Munawar Raza
9. Md. Mobin Raza
10. Alima Khatoon
11. Md. Mudasir Raza
12. Musaleya Khatoon
   @ Malka
13. Md. Muzassham
   Raza
                          Mr. S. Panigrahi, ASC




                                              Page 1 of 9
                         CORAM: JUSTICE V. NARASINGH
                                      ORDER

05.03.2025 I.A. No.276 of 2024 Order No.

03. 1. Present IA No. 276 of 2024 has been preferred by the Petitioners praying for recalling of the order dated 30.11.2024 disposing of the CRLMP No.1601/2024 and giving liberty to the Petitioners to invoke the jurisdiction of the learned Magistrate under the BNSS in case they have any grievance, on the ground that the Petitioners were denied of opportunity of hearing and his contentions and the judgments cited in the CRLMP was not considered.

2. Heard learned Counsel for the Petitioners and the learned Counsel appearing for the State.

3. The Opposite Party/State has strongly objected to the said prayer, stating that the prayer of the Petitioners is not maintainable. Their further submission is that once a final order has been passed after hearing the parties, said order cannot be recalled save and except to correct a clerical or arithmetical error, as such the application for recall of order is circumscribed by Section 362 of Cr.P.C and the judgment relied upon by the Petitioners are not applicable to the facts and circumstances in the present case.

4. Learned counsel for the State relied on the judgment of the Apex Court in the case of Prof. K.V. Rajendran vs. Superintendent of Police, CBCID South Zone, Chennai & others, 2013 CRI. L. J. 4464 to fortify

his stand that on the basis of the charge sheet, which has been filed, the case at hand is not a fit case for transfer of investigation to the CBI, taking into account the charge sheet which has been filed against Manawar Raja, the husband of the deceased.

5. The Petitioners have filed the CRLMP seeking a direction to transfer the investigation in Kutra PS Case No.144 dated 29.08.2024 to Opposite Party No.7-CBI and to ensure proper and impartial investigation thereof by the said Opposite Party No.7-CBI, inter alia, alleging inaction on the part of the Investigating Agency and improper and unfair investigation.

And, after hearing the learned Counsel for the Petitioners and State, on scrutiny of materials on record as well as taking into account progress in the investigation as well as filing of charge sheet against the accused person, this Court disposed of the CRLMP giving liberty to the Petitioners to invoke the jurisdiction of the learned Magistrate under the BNSS in case they have any grievance.

6. It is trite that the learned Trial Court is statutorily empowered not only to deal with improper and unfair investigation, if any, also can direct further investigation, enquiry etc. Law is no more res integra that a person cannot seek for changing the Investigating Agency or to do investigation in a particular manner only to address his apprehensions. Such a person can approach the Magistrate under the BNSS, and if the Magistrate is satisfied, he can

order a even de novo investigation and take other suitable steps and pass such order as he thinks necessary for ensuring a proper investigation.

In cases where the learned Magistrate finds that the police has not done the investigation in a proper manner, direction can be issued to the Investigating Agency to do the needful and consequential steps can be monitored. Even, the Magistrate can order re-opening of the investigation even after the police submits the final report.

7. Keeping in view the same, this Court by order dated 30.11.2024 disposed of the CRLMP giving liberty to the Petitioners to approach the learned Trial Court at the appropriate stage since otherwise it would have been amounted to usurping the powers of the jurisdictional Magistrate who is statutorily empowered to do so.

Since detailed discussion of the materials on record would prejudice the Petitioners or influence the exercise of the powers of the learned Court in seisin or the learned Trial Court, this Court in the interest of justice felt proper not to delve into the details. This Court is of the considered view that in this scenario no detailed discussion would be required when the Petitioners were given to liberty to approach the learned Trial Court.

8. However, the Petitioners being dissatisfied with the said order has filed the present IA for recall and has relied upon the following Judgments:-

i. Vishal Ashwin Patel Vs. Assistant Commissioner of Income Tax Circle 25(3) & Ors; Civil Appeal No. 2200/2022.

ii. Central Board of Trustees Vs. Indore Composite Private Limited, (2018) 8 SCC 443.

iii. Union Public Service Commission Vs. Bibhu Prasad Sarangi and Ors, (2021) 4 SCC 516.

iv. State of Uttarakhand & Anr. Vs. Mayan Pal Singh Verma; Civil Appeal No. 2905 of 2022, decided on 19/04/2022.

v. Vishnu Agarwal Vs. State of U.P. & Anr.; (2011) 14 SCC 813.

vi. State of Punjab vs. Davinder Pal Singh Bhullar & Ors., (2011) 14 SCC 770

9. At the outset, the judgments cited by the Petitioners have been relied upon bereft of its context in as much as in all the four cases the respective Hon'ble High Courts without giving a reasoned order interfered in the matter in exercise of their power under Article 226 of the Constitution whereas in the case at hand this Court did not exercise its plenary power and granted liberty to the Petitioners to avail statutory forum/remedy. 9-A. In Vishal Ashwin Patel Vs. Assistant Commissioner of Income Tax Circle (Supra), the Apex Court noticed that Hon'ble High Court dismissed the writ petitions by cryptic, nonspeaking and non-reasoned orders and held that the Hon'ble High Court in exercise of powers under Article 226 of the Constitution of India was required

to have independently considered whether the question of reopening of the assessment could be raised in a writ petition and if so, whether it was justified or not. In that case the High Court exercised its power under Article 226 to confirm the impugned order which is not so in the case at hand.

9-B. In Central Board of Trustees Vs. Indore Composite Private Limited (Supra), Division Bench of the Hon'ble High Court in exercise of appellate power dismissed the writ petition filed by the Appellant (Petitioner) cursorily without dealing with any of the issues arising in the case as also the arguments urged by the parties in support of their case. The said dictum is clearly distinguishable on facts thus inapplicable.

9-C. In Union Public Service Commission Vs. Bibhu Prasad Sarangi (supra), an order of the Central Administrative Tribunal, Cuttack Bench dated 13th March 2019, directing the Appellant to reconsider the case of the first Respondent for promotion to the IAS in accordance with the vacancies for 2015 by reconvening a meeting of the 1 "Tribunal" Selection Committee and thereafter, to reconsider the first respondent similarly for 2016 and 2017 if the first respondent was found unsuitable for promotion in the year 2015 and consequential benefits were directed to be released in the event that the Review Selection Committee found the first respondent suitable, was under

challenge before the High Court and the High Court

without giving a reasoned order held that the Tribunal has not committed any jurisdictional error and no interference is warranted.

It is tell-tale that the High Court while confirming the order of Tribunal exercised its supervisory jurisdiction however without any reasons, compelling the Apex Court to restore the file to the docket of the Hon'ble High Court. Thus, the said decision is ex-facie factually distinguishable. 9-D. In State of Uttarakhand & Anr. Vs. Mayan Pal Singh Verma (supra), since the High Court has disposed of the said writ petition without deciding the writ petition on merits and has directed the Department to comply with the order passed by the Tribunal which was under

challenge before it, the Apex Court remanded the matter for fresh hearing. In the said order the High Court instead of examining the legality of the order passed by the Tribunal directing the Department to ignore the un communicated "Uttam" entries in the ACRs while considering the case of the original Applicant - private Respondent for promotion to the post of the Chief Engineer Level2 by the reviewed ACP, directed that the Department may hold the reviewed ACP within three months from the date representation of the certified copy of this order.

However, in the case at hand there is no direction or order in the nature of mandamus, on the contrary CRLMP is deposed keeping in view the statutory remedies open, thus the judgment cited has no application to the case at hand.

9-E. Regarding the case at paragraph 8 (v) Vishnu Agarwal (supra), recalling a judgment in a Criminal Revision at the instance of the revisionist since he could not be represented on the date the judgment was pronounced, was assailed before the Apex Court. 9-F. In the case of Davinder Pal Singh Bhullar (Supra), the point for consideration was;

"85. ............ as to whether applications under Section 482 Cr.P.C. could be entertained in a disposed of appeal or could be heard by the Bench to which the roster has not been assigned by the Hon'ble the Chief Justice.

xxx xxx xxx"

A bare reading of the aforesaid two judgments, it can be seen that they are relied upon bereft of context and without application of mind.

10. In placing reliance on the aforesaid six judgments bereft of its factual matrix, the learned counsel for the Petitioner failed to take note of the cardinal principle of citing judgments [Ref: Haryana Financial Corporation and another V. Jagdamba Oil Mills and another reported in (2002) 3 SCC 496].

11. Final order having been passed disposing of the CRLMP after hearing parties and on perusal of records, cannot be recalled on the sole ground that the order could not meet the expectation of the parties or counsels appearing for them. If such prayer is allowed it will open floodgates of litigation and it would frustrate judicial discipline and finality of judicial pronouncements.

12. This Court does not find any substance in the recitals in the I.A. as well as the submission made by the learned counsel for the Petitioners that due opportunity was not given.

In fact the tenor of the language in the I.A. and the submission to drive home the same, is contumacious. In the background of misconceived belief that the relief sought for has been wrongly denied without hearing, such submission was evidently made sans the realization of the import thereof. As such, this Court adopting a liberal approach does not take cognizance of such indiscretion and condones the same.

13. The I.A. being devoid of merit is dismissed.

(V. NARASINGH) Judge

Santoshi

Designation: Senior Stenographer

Location: High Court of Orissa, Cuttack Date: 07-Mar-2025 16:26:19