RAMAKANTA MOHANTY Vs. AJAY KUMAR ROUTRAY

JUDGEMENT

(1.) The question raised by the learned counsel for the petitioner is that the direction by the learned Magistrate in a complaint case, after recording the statements of the complainant and some witnesses, to the police to investigate into the matter Under Section 202 of the Code of Criminal Procedure (hereinafter referred to as 'Cr PC') is illegal as the power under the section vested in the Magistrate is to either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit but not resort to both the methods. The petitioner filed a complaint before the Sub -Divisional Judicial Magistrate, Bhubaneswar, alleging offences against the opposite parties Under Sections 342/347/348/384/465/109/392/354/34, IPC and during the enquiry held by the Magistrate Under Section 200 examined himself, his wife and son as witnesses. The learned Magistrate in his order dated 4 -7 -1992 held that clear evidence was not available regarding obtaining of signature and recovery of gold from the locker by the opposite parties and that such type of allegation can be properly appreciated if it is investigated by the police. He accordingly directed the Inspector -in -charge of Kharvelanagar Police Station to investigate into the allegation made in the complaint and submit the report. Because of the use of the words 'either' and 'or', it is clear, according to Mr. Mohapatra appearing for the petitioner, that only one of the options is available to the Magistrate but not both. The question raised by the learned counsel is no longe res Integra in view of the decision of this Court reported in Vol. 33 (1991) OJD 353 (Criminal) Mrutyunjaya Tripathy v. Naba Kumar Misra) wherein interpreting the provisions of Section 202, Cr PC it was held : 'The words 'either' and 'or' in Section 202 do not mean that the options of the Magistrate are mutually exclusive in the sense that once he directs an investigation by some other authority he is rendered powerless to hold the enquiry himself. Such an interpretation may result in stiffling of the very complaint since if either the police or any other authority to whom the investigation is entrusted does not choose to carry out the direction in spite of reminders and no report is submitted, the Court would be powerless to proceed with the complaint and the complainant would be without remedy. This could never be the intention of the legislature. Hence the power is inherent in the Magistrate to stop the investigation which has been directed and instead proceed with the enquiry himself. The matter was considered in 1986 Cri. LJ 1266 (Parasuram Jha and Ors. v. The State of Bihar and Anr.) where Sandhawalia. CJ held that where alternative choices have to be given, invariably the language employed has to be in the usual form that the person being given such discretion may either resort to one or the other. It does not necessarily follow that he then cannot either resort to both or intermix the same and that the power so vested may include the exercise of both rather than necessarily exclude one from the other and that the more employment of the two words 'either' and 'or' cannot in any way be conclusive.' In AIR 1976 SC 1672 (Deorapalli Laxmi Narain Reddy v. V. Narain Reddy) it was observed that Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceeding under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered Under Section 202 to direct, within the limits circumscribed by that section, an investigation 'for the purpose of deciding whether or not there is sufficient ground for proceeding'. Thus the object of an investigation Under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him. The view that the words 'either' and 'or' are not mutually exclusive to each other is also supported by the decision of the Allahabad High Court reported in 1987 (III) Crimes 379 (Pulloo Jaidev and Ors. v. State of U.P. and Anr.),

(2.) THE question raised by Mr. Mohapatra being thus concluded, to excution can be taken to the order passed by the learned Magistrate. Mr. Mohapatra has also cited some decisions, namely, AIR 1992 All. 211 (Emperor v. Durga Prasad), AIR 1937 Nag. 389 (Tyab Ali Yusuf Ali Bohari v. Husainali Yusafali Bohari),AIR 1949 Pat. 36 (Radha Kishun Sao v. S. K. Misra and Anr.), 1975 Cri LJ 1367 (Nagawwa v. Veeranna Shivalingappa Koujalagi and Ors.) and 1981 Cri LJ 1002 (Sankar Chandra Ghose v. Roopraj S. Bhansally) taking the contrary view, but in view of the decisions of the Supreme Court and this Court, no support can be drawn from those decisions.