DAYANIDHI DHAR AND 5 ORS. Vs. DASARATHI DHAR

JUDGEMENT

(1.) THE material facts connected with the revision petition are as follows: One Gurubari wife of Petitioner No. 4 Shankar Tripathy died under suspicious circumstances. The Police of Attabira P.S. instituted a regular G.R. case (G.R. case No. 69 of 1963) for an offence under Sections 302 and 201 Indian Penal Code and examined witnesses under Section 161 and also got the statements of some of the witnesses recorded by a Magistrate under Section 164 Code of Criminal Procedure. But the investigation was not completed and neither charge sheet nor final report was submitted mainly because the report of the Chemical Examiner to whom the viscera of the deceased had been sent, was not received. In the meantime the opposite party Dasarathi Dhar who is the father of Gurubari, filed a regular complaint before the Sub -divisional Magistrate of Bargarh on 24 -7 -1963 in which he alleged that the Police had not conducted their investigation properly. The learned Sub -divisional Magistrate called for the Case Diary in G.R. case No. 69 of 1963 and then directly took cognizance of the offence against the Petitioners, under Sections 302 and 201 Indian Penal Code and attempted to hold an enquiry for the purpose of committing the accused persons for trial before the Sessions Judge. But when the enquiry commenced he found himself in a difficult situation. The accused persons wanted copies of the statements made by witnesses before the Police to which they were undoubtedly entitled by virtue of sub -section (3) of Section 207 -A Code of Criminal Procedure (Chapter XVIII). The learned Magistrate observed that as the enquiry had been commenced not on Police report but on the basis of a private complaint filed by the aggrieved person, the Petitioners were not entitled to copies of statements of witnesses made before the Police.

(2.) THE learned Magistrate has thus brought about a difficult situation for himself, for the accused persons, and for the Police by his failure to follow strictly the Executive instructions issued by the Government of Orissa in consultation with the High Court, when the scheme of separation of the Judiciary from the Executive was introduced in this State.

(3.) IN the well known case of Emperor v. Nazir Ahmed : A.I.R. 1945 P.C. 18, it was pointed out that in respect of cognizable offences the powers of the Police and the Magistracy are not overlapping but are complementary and the Police should be left free to exercise their statutory functions of completing their investigation under the provisions of Chapter XIV of the Code of Criminal Procedure. So long as the investigation is pending nothing should be done by the Judicial Magistrate which will adversely affect the progress of the investigation. Following this principle, it was made clear in the aforesaid Executive Instructions that until the submission of charge sheet or final report as the case may be, by the Police, the Judicial Magistrate stay his hands -leaving it to the Executive Magistrate to control the investigation by the Police. Even if the aggrieved informant files a regular complaint (commonly known as a protest -petition) before the Sub -divisional Magistrate, during the pendency of the investigation, making allegations against the Police, the Judicial Magistrate should not pass orders on such complaint until final report or charge sheet is received. If charge sheet is submitted the complaint case can be merged with the Police case. If however the Police submit final report the Judicial Magistrate may then exercise his power of calling for charge -sheet and dispose of the matter according to law.