STATE OF ORISSA Vs. MAHIMA MAHIMANANDA MISHRA
SUPREME COURT OF INDIA (FROM: ORISSA)
STATE OF ORISSA
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(2.)The state is in appeal against an order of the Orissa High Court which, inter alia, records as below:
"I am, therefore, of the view that reopening the investigation by examining those witnesses who were examined or available the examined at the time of earlier investigation and recording their statements almost five and half years after the final form was submitted do not appear to be bona fide and further investigation on the basis of statements of witnesses available to be examined during earlier investigation amounts to abuse of process of court and exercise of power not intended to be exercised under section 173 (8) of the Code. The scope of section 173 (8) of the Code cannot be stretched to that extent. Having observed that further investigation by the crime branch by way of examining these witnesses is not bona fide, i quash further investigation on that ground. However, it shall be open for the investigating agency to make further investigation in terms of section 173 (8) of the Code on the basis of such materials which were not available at that time of earlier investigation or not within the knowledge of the investigating agency. "
(3.)Mr. Das, learned counsel appearing for the state, has been rather emphatic in his submission that the High Court hadn't had the requisite jurisdiction to interfere with an order directing further investigation, since the language of section 173 (8) of the Code of Criminal Procedure (hereinafter referred to as "the Code") is rather clear and categorical in that regard. Section 173 (8) of the Code, for proper appreciation, however, is noticed hereinbelow:
"173 (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (2) has been forwarded to the magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2). "
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