The court held that the Investigating Officer has the discretion to decide which witnesses to examine or include in the investigation, and the prosecution cannot be compelled to examine or include a particular person as a witness. Mala fide partiality or unfairness during the course of investigation must be alleged and established to warrant intervention by a competent superior authority or Court.

P. K. TRIPATHY, J.

( 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.

( 4 ) IN O. J. C. 9525 of 1998, wife of accused R. Jagadish Murty, viz. , Smt. R. Kameswari has prayed for issuance of a writ of Habeas Corpus on the ground that her husband is innocent of the accusation and his detention in the jail custody is illegal and without jurisdiction. Informant Bhagaban Mohanty has been permitted to participate as an intervenor by adding him as opposite party No. 6. The opposite party No. 3 i. e. , the Superintendent of Police has filed counter-affidavit on behalf of himself as well as opposite party Nos. 1 and 2. In that affidavit, he has denied to the allegations of mala fide actions taken by the Investigating Agency against accused R. Jagadish Murty and has asserted that the investigation conducted by the Investigating Officer and the supervision of the case made by the Additional Superintendent of Police, both reveal a prima facie case against the said accused besides others and the detention being neither illegal nor unjust the prayer for issuance of a writ of Habeas Corpus is not maintainable and that the said accused R. Jagadish Murty had already moved for bail under S. 439, Cr. P. C. , and was granted interim bail in Criminal Misc. Case No. 2281 of 1998.

( 5 ) APPLICATION under S. 439, Cr. P. C. , filed by the accused R. Jaga