INTRODUCTION

Separation of the powers of the Executive and Judiciary has been seen as a pre requisite to
ensure justice. This is the reason why several provisions of The Code of Criminal Procedure
Codde, 1973 judicial decisions exist which says that investigation procedure which comes
under the police authorities should not be interfered with by the Courts.
However, what if the case was such that this non interference of the Courts would mean that
injustice would be done. This was the reason why Courts have been given certain inherent
powers which will ensure that such injustices will not happen. However, these inherent
powers of the Court can be used only in certain exceptional or rare circumstances.
Here, we will be discussing one such exceptional situation where the High Court interfered in
the investigation procedure and directed the authorities to file a charge sheet when they saw
that otherwise gross injustice would be done. We will be perusing Sections of the Code of
Criminal procedure, judicial decisions and treatises to analyse the same.

FACTS

Kabita Das, a resident of District Jajpur , Orissa addressed a letter to the Orissa High Court
stating that one Kedar Narayan Parida and 19 others attacked and killed her husband,
Bhaguni Das on the night of 28.3.2007. An FIR had been lodged on the basis of which a case
had been filed earlier. Her complaint was to the fact that though Kedar Narayan Parida and
his somns were the main accuse, only 3 out of the 19 people named had been arrested. She
prayed for a direction to the police authorities to arrest said accused and take necessary steps

in accordance with the law. This letter was registered as a writ petition and it was seen that
even though the Additional Superintendent of Police, Jajpur had arrived at the conclusion that
case had been made against all 19 accused, it was the intervention of the Inspector General of
Police, Central Range, Cuttack which resulted in the conclusion that a case was made against
only 7 people an the other 12 s alleged involvement needed to be looked into. This was due
to the involvement of an MLA Dr. Parameswar Sethi who had vouched for the innocence of
the other 12 and had in fact met the higher officials and directed the I.G. to personally look
into the case and issue a Test Note following which a second Test Note was issued.
The questions the High Court had to consider was:
(a) Whether there is any scope for a second "Supervision Test Report", even after the original
supervision of the Addl. S.P., Jajpur had been affirmed by all the superior officers, i.e. up to
the rank of D.G. of Police?
(b) The veracity of the Test Report issued by the I.G. of Police, Central Range based upon
views and facts that emanate out of apparent interference by. Dr. Parameswar Sethi, MLA,
Jajpur.
High Court Judgement
The Court concluded that the filing of charge-sheet against only seven of the accused persons
on the basis of the second Test Report could not be supported since the said Test Report had
no legal basis. Directions were given to the Investigating Authority to act in accordance with
the decision of this Court in the case of Dinesh Dalmia v. C.B.I 1 regarding filing of chargesheet even if the accused persons had not been arrested. The role played by the MLA was said
to amount to interference with the course of justice.

1 AIR 2008 SC 78.

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It was on this decision that the appellants filed a Special Leave Petition. The questions the
Supreme Court had to consider was:
(1) 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?
(2) Whether the Court could go into the merits of the case even before the trial had begun
at a stage when investigation was yet to be concluded?
(3) The correctness of the filing of an additional charge-sheet at the behest of the Court.

ANALYSIS
Let us first analyse Sections 169 of the Code of Criminal Procedure, 1973 which talks about
what to do when evidence is insufficient and Section 170 which talks about cases to be sent to
Magistrate when evidence is sufficient.
If upon investigation by the officer in charge of the police station it appears that there is
nothing to justify the sending up of the accused for trial, he shall release him after taking a
bond for appearance and report the fact to the magistrate. 2 The bond is for the contingency
that a Magistrate may not agree with the police report and may consider the evidence
sufficient to put the person on trial. The release is provisional for if the Magistrate holds that
there is a prima facie case of a non bailable offence, the accused should be rearrested and
brought before him for orders.3 This provision is obviously to meet a contingency of the
Magistrate, when he considers the report of the investigating officer, and judicially takes a
view different from the police. The hands of the Magistrate are not tied down by the police.

2 Section 169 of The Code of Criminal Procedure, 1973.

3 Sarkar on The Law of Criminal Procedure, S.C. Sarkar, Edn. 8 Reprint, 2004, p. 553.
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He can come to a different conclusion.4 However, there is no power on the Magistrate to call
upon the police to submit a charge sheet when they have sent a report under S. 169.5
Until the final or completed police report under S. 173(2) is forwarded by the officer in
charge of the police station to the Magistrate , the stage of his taking cognizance of offence
under S 190(1) (b) on judicial consideration does not arise.6
Section 173(2)(i) provides that on completion of the investigation the police officer
investigating into a cognizable offence shall submit a report in the form prescribed by the
State Government and stating therein (a) the names of the parties; (b) the nature of the
information; (c) the names of the persons who appear to be acquainted with the
circumstances of the case; (d) whether any offence appears to have been committed and, if
so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on
his bond and, if so, whether with or without sureties; and (g) whether he has been forwarded
in custody under Section 170. Sub-section (5) of Section 173 makes it obligatory upon the
police officer to forward along with the report all documents or relevant extracts thereof on
which the prosecution proposes to rely and the statements recorded under Section 161 of all
the persons whom the prosecution proposes to examine as witnesses at the trial.7
In some cases, on account of improper appreciation of evidence or inability to see the real
point involved or from oblique motive the police officer may, without submitting a charge
4 Param Hans Singh Case, 1988 CrLJ NOC 16(All).

5 Abhinandan Jha & Ors. v. Dinesh Mishra, AIR 1968 SC 117

6 Supra Note 3,p. 554.

7 Satya Narain Musadi and Ors. v. State of Bihar, 1980 CrLJ 227.
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sheet or challan, against the accused, recommend that no action need be taken. The
Magistrate should in all cases scrutinize the facts given in the final report carefully and read
the police diary etc and if it appears to him that there is a scope for further investigation he
may decline to accept the final report and direct the police to make further investigation
under S 156(3), but he cannot impinge upon the jurisdiction of the police by compelling them
to change their opinion and to submit a charge sheet so as to accord with his opinion. 8
The question as to whether a Magistrate can direct the police to submit a charge- sheet, when
the police, after the investigation into a cognizable offence, has submitted the final report,
under S. 173 of the Code of Criminal Procedure was examined by the Supreme Court in the
case of Abhinandan Jha & Ors. v. Dinesh Mishra 9. There was a conflict of opinion, on this
point between the various High Courts in India. The High Courts of Madras, Calcutta,
Madhya Pradesh, Assam and Gujarat have taken the view that the Magistrate has no such
powers and they had rested their decision on two principles :10
(a) that there is no express provision in the Code empowering a Magistrate to pass such an
order; and
(b) such a power, in view of the scheme of Chapter XIV, cannot be inferred
whereas the Patna and other High Courts have held a contrary view that:11
8 State of West Bengal v. S N Basak AIR 1963 SC 447.

9 AIR 1968 SC 117

10 Venkata Subha v. Anjanayulu ,AIR 1932 Mad 673; Amar Premanand v. State ,AIR 1960
MP 12.

11 State v. Murlidhar Goverdhan, AIR 1960 Bom. 240; Ram Nandan v. State. AIR 1966 Pat 438.

(a) when a report is submitted by the police, after investigation, the Magistrate has to deal
with it judicially, which will mean that when the report is not accepted, the Magistrate can
give suitable directions to the police; and
(b) the Magistrate is given supervision over the conduct of investigation by the police, and
therefore, such a power can be recognised in the Magistrate.
The judges of the Supreme Court held that there is certainly no obligation, on the Magistrate,
to accept the report, if he does not agree with the opinion formed by the police. . If the
Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or
incomplete, or that there is scope for further investigation, it will be open to the Magistrate to
decline to accept the final report and direct the police to make further investigation, under s.
156(3). The police, after such further investigation, may submit a charge-sheet, or, again
submit a final report, depending upon the further investigation made by them. If ultimately,
the Magistrate forms the opinion that the facts, set out in the final report, constitute an
offence, he can take cognizance of the offence under s. 190(1) (c), notwithstanding the
contrary opinion of the police, expressed in the final report. But he cannot direct the police to
submit a charge-sheet, because, the submission of the report depends upon the opinion
formed by the police, and not on the opinion of the Magistrate. The Magistrate cannot compel
the police to form a particular opinion, on the investigation, and to submit a report, according
to such opinion. That will be really encroaching on the sphere of the police and compelling
the police to form an opinion so as to accord with the decision of the Magistrate and send a
report, either under s. 169, or under s. 170, depending upon the nature of the decision. Such a
function has been left to the police, under the Code. The formation of the said opinion, by the

police, as pointed out earlier, is the final step in the investigation, and that final step is to be
taken only by the police and by no other authority.
The provisions in Chapter XII of the Code show that elaborate provisions have been made for
securing that an investigation takes place regarding an offence of which information has been
given and the same is done in accordance with the provisions of the Code. The manner and
the method of conducting the investigation are left entirely to the officer in charge of the
police station or a subordinate officer deputed by him. A Magistrate has no power to interfere
with the same. The formation of the opinion whether there is sufficient evidence or
reasonable ground of suspicion to justify the forwarding of the case to a Magistrate or not as
contemplated by Sections 169 and 170 is to be that of the officer in charge of the police
station and a Magistrate has absolutely no role to play at this stage. Similarly, after
completion of the investigation while making a report to the Magistrate under Section 173,
the requisite details have to be submitted by the officer in charge of the police station without
any kind of interference or direction of a Magistrate.
Prior to this in a Privy Council judgement it was said: "In India, as has been shown, there is a
statutory right on the part of the police to investigate the circumstances of an alleged
cognizable crime without requiring any authority from the judicial authorities and it would,
as their Lordships think, be an unfortunate result if it should be held possible to interfere with
those statutory rights by an exercise of the inherent jurisdiction of the court. The functions of
the judiciary and the police are complementary, not overlapping, and the combination of
individual liberty with a due observance of law and order is only to be obtained by leaving
each to exercise its own function, always, of course, subject to the right of the Court to
intervene in an appropriate case when moved under Section 491 of the Criminal Procedure
Code to give directions in the nature of habeas corpus. In such a case as the present,

however, the Court's functions being when a charge is preferred before it, and not until
then".12
From this it becomes clear that till then the judicial position to the answers to questions 1 and
3 brought up in relation 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 was no
and that the Court should not interfere in this sphere of exercise of Executive power as
investigation solely rests on the police authorities. And as to the question of correctness of the
filing of an additional charge-sheet at the behest of the Court would still mean interference of
the Judiciary and would not be allowed according to the judicial decisions and this was
exactly what the counsel for the Appellants had argued too.
However, another aspect of the powers of the judiciary needs to be taken into consideration
here. Section 482 of the Code of Criminal Procedure, 1973 says that:
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High
Court to make such orders as may be necessary to give effect to any order under this Code,
or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
To secure the ends of justice
What are the ends of justice? To the particular result in any particular case, justice is different.
It is justice by the ascertainment of truth as to the facts on a balance of evidence on each side.
13

12 King Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18.

13 Supra Note 3, p. 1559.

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The authority of the Court exists for the advancement of justice and if any attempt is made to
abuse that authority, the Court must have power to prevent it. 14Under the section, the High
Court can entertain application not contemplated by the Code, if it is satisfied that an order is
necessary to secure the ends of justice.15
In a case before the Supreme Court, it was said that: 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 or this
Court may certainly step in to correct such injustice or failure of justice. 16 It was also said in
the same case that the High Courts have the power 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 discretion mala fide or on irrelevant considerations or by ignoring the
relevant considerations and materials or in such a manner as to frustrate the object of
conferring such discretion or the policy for implementing which such discretion has been
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 to the concerned parties, the court may itself pass an order or
give directions which the Government or the public authority should have passed or given
had it properly and lawfully exercised its discretion.
14 Emperor v. Sukhdev, AIR 1930 Lahore 465.

15 The State of Bombay v. Nilkanth Shripad Bhave and Anr., AIR 1954 Bom 65.

16 Comptroller and Auditor-general of India, Gian Prakash, New Delhi and Anr. v. K.S. Jagannathan and Anr.,
AIR 1987 SC 537.

In another land mark judgement before the same Court, it was held that any illegality and/or
mala 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 in exercise
of their inherent and plenary powers are entitled to intervene to set right the illegality and/or
mala fide action on the part of the Investigating Authorities.17
Treatises on The Code of Criminal Procedure says thus about Section 482: 18 The High Court
in exercising its extraordinary powers under S 482 can direct the executive where cognizable
offences are committed or where there is threat to property and person to take appropriate
action to secure the ends of justice, though this power will be used sparingly in deserving
cases after taking into consideration the gravity of the injustice brought to its notice and nonavailability of an effective remedy otherwise.
The High Court, in its inherent power under S 482 can even direct the police to do his duty
when he has failed to do. In one case case where, striking workmen remaining in factory
premises after working hours committed the offences of criminal trespass and formed
themselves into an unlawful assembly under S 441 PC, the High Court directed the
Commissioner of Police to disperse and remove such of the persons who remained in the
premises after working hours, if necessary with the assistance of the subordinates and take
such appropriate action as might be thought fit in the circumstances of the case.

19

Thus applying Section 482 o the Code, our answers to questions 1 and 3 npow changes and

17 H. S. Bains v. State, AIR 1980 SC 1883.

18 Supra Note 3 p. 1557, 1558.

19 Chelpark Co. Ltd. v. Commissioner of Police & Ors., (1968) 1 MLJ 458.
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we arrive at the answer that in order to secure the ends of justice, in exceptional
circumstances, The Court can intervene.
This was the same reasoning by the Supreme court in this case. They said that although, the
Supervisory Report submitted by the Additional SP, Jajpur, had been duly accepted 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 General of police, Central Range,
Cuttack, to submit a Test Note. Such direction which was 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, claiming that they were present in his house when the incident
had occurred, not only exudes an unpleasant flavour, but raises doubts about the bonafides of
the police authorities at the highest level. They held that in the peculiar facts and
circumstances of this case, it was necessary for such a direction to be given by the High
Court. To prevent the injustice that was being done on account of influential persons- The
MLA, Dr. Parameshwar Sethi which not only negated the Supervisory Report of the
Additional SP, Jaipur but also attempted to shield some of the accused persons (by providing
them with fake alibis), the order of the High court was necessary.

CONCLUSION
From an analysis of this judgement and previous judgements relating to the same, we can
come to the conclusion that separation of the executive and judiciary is very integral for
ensuring that justice is done. And this is why there are a multitude of decisions which say that
the Courts should not interfere in the investigation procedure which rests on an organ of the
Executive that is the police force. And if such an interference were to happen, justice
wouldnt be done. Which is why here the Courts had previously held that the Magistrate
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should not prescribe as to how the investigation procedure should be done according to him
and also as to how the Magistrate cannot direct the police authorities to file a charge sheet.
However, there exists inherent powers of the Courts which cannot be tampered with and we
have Section 482 which says that the High Court in the exercise of its inherent powers can
pass orders which under this Code it is not normally entitled to do. This is indeed a necessary
provision because if the situation is such that the police authority is found to be abusing the
power conferred on it or they are misinterpreting their duties, the courts cannot stand and
watch while injustice is being done to innocents. In such cases, the Court will need to take
necessary steps to secure the ends of justice. And this interference is required in our legal
system to ensure that the legal system does not fall short of its duty to mete out justice.
Hence, the decision of the Supreme Court in this case can be said to be just and fair.

BIBLIOGRAPHY
Cases
Abhinandan Jha & Ors. v. Dinesh Mishra5,6
Amar Premanand v. State...........................................................................................................6
Chelpark Co. Ltd. v. Commissioner of Police & ors................................................................11
Comptroller and Auditor-general of India, Gian Prakash, New Delhi and Anr. v. K.S.
Jagannathan and Anr..............................................................................................................9
Dinesh Dalmia v. C.B.I..............................................................................................................3
Emperor v. Sukhdev...................................................................................................................9
H. S. Bains v. State...................................................................................................................10
King Emperor v. Khwaja Nazir Ahmad.....................................................................................8
12

Param Hans Singh Case.............................................................................................................5

Ram Nandan v. State..................................................................................................................6
Satya Narain Musadi and Ors. v. State of Bihar,........................................................................5
State of West Bengal v. S N Basak.............................................................................................6
State v. Murlidhar Goverdhan....................................................................................................6
The State of Bombay v. Nilkanth Shripad Bhave and Anr.........................................................9
Venkata Subha v. Anjanayulu.....................................................................................................6
Treatises
Sarkar on The Law of Criminal Procedure, S.C. Sarkar,................................................4,5,9,10

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