JOGENDRA NAHAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) Above noted two writ applications under Arts. 226 and 227 of the Constitution and the Criminal Misc. Case under S.439 Criminal Procedure Code, 1973 (in short 'the Code') were heard analogously and are disposed of by this common judgment.

(2.) O.J.C. No. 17838 of 1997 has been filed by the four petitioners stating that on 12-8-1997 one Balaram Mohanty and his son Hrusikesh Mohanty were brutally assaulted. Balaram Mohanty succumbed to the injuries and it became a sensational political murder case of the locality. On the basis of the F.I.R.(Annexure-1) Purusottampur P.S.Case No. 100(4) of 1997 was registered. It is stated in the writ petition that during the course of investigation several material witnesses including the petitioners were examined by the Investigating Officer, but being politically motivated and influenced, the Investigating Officer omitted to keep in record i.e. in the case diary, statements of such material witnesses. Thus, petitioners prayed for issue of a direction to the Superintendent of Police (O.P.No. 3) and the officer-in-charge-cum-Investigating Officer (O.P.No. 4) to record the statement of such material witnesses under S.161 of the Code, to direct the opposite party No. 4 to produce the material witnesses before the cognizance taking Magistrate i.e. the Judicial Magistrate First Class, Purusottampur for recording of their statements under S.164 of the Code or in the alternative permit the petitioners to appear before the Magistrate and to give their statements under S.164 with suitable direction to the Magistrate concerned to record such statement and to pass appropriate order for reinvestigation of the case by independent investigating agency, Secretary to the Government of Orissa, Home Department, Director General of Police, Superintendent of Police, Berhampur and the Officer-in-charge-cum-Investigating Officer, Purusottampur Police Station are arrayed as opposite parties 1 to 4 respectively.

(3.) Though the State did not file a regular counter it resisted the aforesaid writ application and the prayer thereof. Sri Bhagaban Mohanty who is the brother of the deceased and also the informant in that murder case appeared and permitted to participate as an intervenor. He also resisted the prayers made by the petitioners and inter alia alleged that petitioners are the persons set up by one of the principal accused, viz., Sri R.Jagadish Murty to build up a case of alibi in favour of that accused and therefore, the allegations of improper investigation and malice against the Investigating Officer is out and out false. Opposite parties have prayed to dismiss the writ applications both on law and facts.