Sushree Sangeeta Panda vs State Of Orissa And Another

G. Satapathy, J.

The petitioner by way of this application U/S 482 Cr.P.C. challenges the impugned order taking cognizance of offence and other consequential orders passed by the learned S.D.J.M., Bhubaneswar in C.T. Case No. 4175 of 2021.

According to the petitioner, the O.P.No.2 was a tenant in her house on rent, but since O.P. No.2 was involved in immoral activities, the petitioner asked her to vacate her house, but the O.P. No.2 did not respond and on the relevant day, when the petitioner asked the O.P. No.2 to leave her house, OP NO.2 became infuriated and scolded her in filthy language and the matter was recorded in the CCTV installed by the petitioner and accordingly, the O.P. No.2 lodged an F.I.R. against the petitioner before the I.I.C. Laxmisagar P.S., who registered P.S. Case No. 241 dated 03.08.2021 and entrusted the investigation to the lady S.I.(LSI) Priaydarsini Behera, who in the course of investigation, found the petitioner to have assaulted and tried to kill by pressing her neck, lodged another F.I.R. against the petitioner, which was registered vide Laxmisagar P.S. Case No. 242 of 2021 and accordingly, the petitioner was arrested and forwarded in one case and remanded in other case. On completion of investigation, charge sheet was filed against the petitioner in Laxmisagar P.S. Case No. 241 of 2021 and accordingly, cognizance was taken by the learned S.D.J.M, Bhubaneswar and process was issued against the petitioner.

The short ground under which the petitioner challenges the criminal proceeding against her in C.T. Case No. 4175 of 2021 arising out of Laxmisagar P.S. Case No. 241 of 2021 is that the I.O. in this case being the victim-cum-informant in Laxmisagar P.S. case No. 242 of 2021 should not have been allowed to continue with the investigation of the present case and thereby, the charge sheet filed by her (L.S.I. Priyadarsini Behera) in this case suffers from bias and prejudice.

In support of aforesaid contention, Mr. S.S.Mohanty, learned counsel for the petitioner has relied upon the following decisions in Union of India & another vs. Tulsiram Patel; AIR 1985 SC 1416, Uma Nath Pandey vs. State of U.P; (2009) 12 SCC 40 and State of Punjab vs. Davinder Pal Singh Bhullar & others; (2011) 14 SCC 770, but out of the aforesaid three decisions, the first two decisions have been rendered by the Apex Court on different context/issues like violation of principles of natural justice as appearing in paragraph-84 of Tulsiram Patel (supra) which reads as under:

“How then have the principles of natural justice been interpreted in the courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative processes. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is "nemo judex in causa sua" or "nemo debet esse judex in propria causas" as stated in (1605) 12 Co. Rep. 114, that is, "no man shall be a judge in his own cause". Coke used the form "aliquis non debet esse judex in propria causa quia non potest esse judex et pars" (Co. Litt. 141a), that is, "no man ought to be a judge in his own cause, because he cannot act as judge and at the same time be a party". The form "nemo potest esse simul actor et judex", that is, "no one can be at once suitor and judge" is also at times used. The second rule and that is the rule with which we are concerned in these Appeals and Writ Petitions is "audi alteram partem", that is, "hear the other side". At times and particularly in continental countries the form "audietur et altera pars" is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely, "qui áliquid statuerit parte inaudita altera, aequum licet dixerit, haud aequum fecerit", that is, "he who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right" (see Boswell's Case (1605) 6 Co. Rep. 48b, 52a.) or, in other words, as it is now expressed, "justice should not only be done but should manifestly be seen to be done".

and paragraphs- 5 and 11 of Uma Nath Pandey (supra) which reads as under:

“The crucial question that remains to be adjudicated is whether principle of natural justice have been violated; and if so, to what extent any prejudice has been caused.”

“it should give ‘a full and fair opportunity’ to every party of being heard.”

Besides, the issue raised in Davinder Pal Singh Bhullar (supra) is different from the present case inasmuch as the question therein was whether in exercise of inherent jurisdiction U/S 482 Cr.P.C., the High Court can ask a particular investigating agency to investigate a case.

It is, however, true that the petitioner challenges the investigation conducted by the informant in Laxmisagar P.S. Case No. 242 of 2021 on the ground of prejudice and bias which is a question of fact and can be decided on case to case basis and the same can be decided at the time of trial as held by a five Judge Constitutional Bench of the Apex Court in Mukesh Singh vs. State (Narcotic Branch of Delhi); (2020) 10 SCC 120 wherein, it has been held at paragraph-11 as follows:-

“ 11.Now so far as the submission on behalf of the accused that so far as the NDPS Act is concerned, it carries a reverse burden of proof U/S. 35 & 54 and therefore if the informant who himself has seized the offending material from the accused and he himself thereafter, investigate the case, there shall be all possibilities of apprehension in the mind of the accused that there shall not be fair investigation and that the officer concerned shall try to prove his own version/seizure and therefore, there shall be denial of the “fair investigation” as enshrined under Article 21 of the Constitution of India is concerned, it is required to be noted that whether investigation conducted by the informant concerned was fair investigation or not is always to be decided at the time of trial. The informant/investigator concerned will be cited as a witness and he is always subject to cross-examination. There may be cases in which even the case of the prosecution is not solely based upon the deposition of the informant/informant-cum-investigator but there may be some independent witnesses and/or even the other police witnesses”.

xxx                                        xxx                                         xxx

The Apex Court in the aforesaid decision has further held in paragraph 12.2 which reads as under:-

“Similarly, even with respect to offences under the IPC, as observed hereinabove, there is no specific bar against the informant/complainant investigating the case. Only in a case where the accused has been able to establish and prove the bias and/or unfair investigation by the informant-cum- investigator and the case of the prosecution is merely based upon the deposition of the informant-cum-investigator, meaning thereby prosecution does not rely upon other witnesses, more particularly the independent witnesses, in that case, where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record. Therefore, as rightly observed by this Court in Bhaskar Ramappa Madar vrs. State of Karnataka; (2009)11 SCC 690, the matter has to be decided on a case-to-case basis without any universal generalization”.

From a conspectus of materials placed on record in the case in question and on analysis of the decisions referred to above and the law laid down by the Apex Court in Mukesh Singh(Supra), this Court does not find any merit in the contention of the petitioner to consider that the proceeding against the petitioner in Laxmisagar P.S. Case No. 241 of 2021, corresponding to C.T. Case No. 4175 of 2021 of the Court of learned S.D.J.M., Bhubaneswar is an abuse of process of Court and, therefore, such proceeding cannot be quashed merely because the informant/victim is the investigating officer, unless the prejudice/bias is established in evidence.

In the result, the CRLMC stands dismissed on contest, but in the circumstance, there is no order as to costs.

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