Bhubaneswar: With the Orissa High Court still to give its consent to monitor the Special Investigation Team (SIT) on Nayagarh Minor (Pari) Murder case, the big legal hurdle before the SIT is it cannot record statement of the suspects or the witnesses to the case. The big poser then will the SIT exercise in Nayagarh be a futile one?
“As per the Section 2(h) of the Code of Criminal procedure (CrPC), investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in his behalf. Since SIT has not been authorised by any judicial body to conduct the probe, recording of statements are not legally permissible. Moreover, as no law court has authorised the SIT to conduct the inquiry, it also cannot take any suspect into custody,” explained senior advocate Nishikant Mahapatra.
Do Police Have No Powers to Investigate On Its Own ?
On this subject, former DGP Sanjiv Marik said, “Section 156 of the criminal procedure code empowers the officer in charge of a police station to investigate a case in his territorial jurisdiction without the order of the Magistrate, if the offence is cognizable (means serious offence) in nature. The officer may also initiate an investigation on the orders of the Magistrate empowered under Section 190”.
However, senior advocate Nishikant Mahapatra observed that since the crime had happened in Nayagarh, either the Crime Branch of Odisha Police or the Nayagarh district Police can only have the jurisdiction to investigate the case. Any other investigation mechanism need to take the consent of the court of law to investigate, he explained.
How Police Investigate A Cognisable Offence?
As per Section 157 of Criminal Procedure Code, Police begins investigation in a cognizable offence after registering an FIR at the concerned police station, has to promptly intimate the FIR to the Magistrate. Only after this, the concerned IO (investigation Officer) will proceed in person to the spot to collect facts and circumstantial evidence. And the IO then has the powers to take any suspect into custody.
Focusing back to the Nayagarh Minor murder case, here an FIR has been registered by the Nayagarh police. And as per the criminal procedure code, either the Nayagarh Police or the Odisha Crime Branch has the powers to investigate. Because, both pass the territorial jurisdiction test. But the SIT investigation faces the jurisdiction challenge here, unless consented by the Courts of Law. And in this case, Orissa HC is yet to give its consent.
Sample some cases: When Disha rape case happened in Hyderabad, since that was a cognisable offence, the Telangana government formed a SIT that constituted officers from the Commissionerate region only.
Similarly, UP has specialised Crime Investigation units. Their territorial jurisdiction covers the whole State. When the Hathras Crime happened, UP government then had handed over the case to SIT.
Odisha Patnagarh Parcel Blast Case: When the case didn’t make any headway, Odisha government in 2018 constituted a SIT headed by Arun Bothra to investigate the case. Incidentally, ArunBothra was the IGP (EoW, Investgation) at that point of time.
When contacted to Odisha’s Advocate General Ashok Parija, he declined to make any comment. “I am not the appropriate authority to comment on this matter,” he observed.