PUSPARANI SAMAL Vs. SURETHA KUMAR BISWAL

JUDGEMENT

(1.) The petitioner, informant in C.R. Case No. 385 of 1994 in the file of the learned S.D.J.M., Bhadrak, has assailed the order dated 7-6-1996 whereby the order taking cognizance of the offences under Ss. 458, 323 and 307 read with Section 34 IPC against the opposite parties has been recalled. The grievance of the petitioner is that the Inspector-in-charge of Bhadrak Town Police Station usurped the power of both investigator and the magistrate and determined about culpability of the opposite parties leaving the learned S.D.J.M. to put his seal of approval to the said action which is impermissible in law.

(2.) In order to appreciate the question involved in the case a few facts need be stated thus :

(3.) Shri Mohapatra, learned Counsel for petitioners, contended that the Inspector In-charge of Bhadrak Town P.S. exceeded his jurisdiction and without there being any further information necessitating further investigation, reopened the case with the sole intention to create evidence to support opposite parties and this having no sanction under law, the second charge-sheet filed by him in exercise of power conferred by Section 173(8), Cr. P.C., should not have been accepted by the learned Court below. Elaborating his argument, Shri Mohapatra urged that when there were sufficient materials collected during investigation which prima facie show about the complicity of all the opposite parties in the incident, there was no reason or occasion to reopen investigation and record the statements of some got-up witnesses who are henchmen of the opposite parties. His main thrust of submission was that when there are two sets of witnesses - one supporting the case of the prosecution and the second supporting the opposite parties, the learned S.D.J.M. without assigning any reason passed the impugned order which amounts to acquitting the opposite parties of the charge without there being any trial. According to him, the power conferred on the Investigating Officer by Section 173(8), Cr. P.C. has been misused and misapplied in the present case, inasmuch as by resorting to said section he has practically taken up the trial of the cases which is the exclusive function of the Court and recorded a verdict in favour of the opposite parties.