COL. SHYAMSUNDAR MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE question that falls for decision in this case is the competence of the Magistrate to permit further investigation into a case after accepting the final report submitted by the police in the same case. The facts necessary to disclose the prosecution case are that an FIR was lodged on 28 -4 -1987 by the D.S.P., Vigilance (Special Cell), Cuttack on the allegation that the petitioner, while he was the S.P., Signals had misused his official position by starting a training institute under the name and style "Career Institute" in his official residence oriented at giving coaching to trainees. For the purpose, he made advertisements in the papers and attracted young persons for admission in the institute. Pamphlets, application forms and prospectus were prepared utilising office papers. The forms were also typed and cyclostyled using the office machines. The petitioner collected Rs. 140/ - from different candidates at the rate of Rs. 5/ -from each, through money orders or postal orders, between 17 -9 -1985 to 11 -12 -1985. The institute however was not started but the money was not refunded to the candidates and was misappropriated. The prosecution of the petitioner was, however, not sanctioned and final report was submitted Under Section 173(2). On 21 -12 -1988 the learned Chief Judicial Magistrate, Cuttack passed orders as follows :

(2.) ON 24 -11 -1990 an application was filed before the C. J M., Cuttack by the inspector of Vigilance, Cuttack Shri P.C. Patra, the I. O. in the case, that the final report No. 14 dated 15 -11 -1988 had been, submitted in the case as sanction for the prosecution was, not received from the competent authority but that some new materials, having come to light in the meantime and the petitioner having retired from Government service, sanction for his prosecution was not necessary and orders might be passed to re -open the investigation and submit the final form afresh after further investigation.

(3.) MR . Mohapatra, learned counsel for the petitioner, has urged that the acceptance of the final report by the C. J. M. was a judicial act and' since that order had become final not being challenged before any higher' forum,' it was not competent for the learned Magistrate to again direct" re -opening of the case for further investigation there being no power of the' C.J.M. to review his own earlier order. To substantiate the submission that acceptance of final report is a judicial act, reliance was placed by him on, 1988 (II) OLR 288 (Jaladhar Das and Ors. v. Sridhar Das) (Kamalapati Trivedi v. The State of W. B. ) and (Jitendra Nath Ghosh v. The State). The argument is opposed by the learned Addl. Govt. Advocate contending the order passed accepting the final report to be not a final order and in no way curtailing the power of the Court to take cognizance of the offence at any time subject to legitimate exceptions Under Section 468 of the Code of Criminal Procedure or otherwise.