ORDER Misc. Case No. 689 & 690 OF 2003 25.4.2003 — Misc. Case No. 689 of 2003 is at the instance of the writ petitioner who seeks variance/modification of paragraph 2 of a common order dated 7.3.2003 passed by a Bench of this Court (in which one of us, B. P. Das, J. was a member) in O.J.C. Nos. 9456, 13305, 12461 of 1999 and 13255 of 2001, Criminal Misc. Case Nos. 8479 and 8555 of 2001 and Criminal Revision No. 593 of 2001. Misc. Case No. 690 of 2003 has been filed for stay of operation of the above order. The C.B.I. has filed its counter. 2. We have heard Shri Panda for the petitioner and Shri Padhi for the C.B.I. He has produced before us the case diary and the copies of the status of reports. 3. At the outset, we may extract paragraph-2 of the order dated 7.3.2003 which is being sought to be modified/varied. “Pursuant to the orders thus issued, the C.B.I. which took up the investigation had been filing status reports before this Court. Regarding the particular incident that triggered the investigation, C.B.I. has stated that it has completed the inves¬tigation and is in a position to file the charge-sheet. We do not think that it is necessary to issue any further direction regard¬ing the particular incident involving Harapriya. We do not find any justification to monitor that prosecution. The C.B.I. can file the charge-sheet before the appropriate Court and if any objection is to be taken, the same can be done before the con¬cerned Court in terms of Section 173 of the Code of Criminal Procedure.” 4. For the purpose of disposal of these applications, a brief resume of relevant events is necessary : Following the publication of a news item in a local daily about a sex racket being run by a P.T.I. (Physical Training Instructor) of K. K. Sabat Women’s College, Balasore, some en¬quiry was conducted about the incident by the Chair-person of the State Commission for Women. The State Police (Crime Branch), Cuttack also made some enquiry about the incident. Meanwhile, one Harapriya Barik wrote a letter on 29.7.1999 to this Court alleg¬ing that no such incident had taken place and that she was not taken by anyone to Bhubaneswar on 9.7.1999. The said letter was registered as a writ petition bearing O.J.C. No. 9456 of 1999. The State Police (Crime Branch), Cuttack also made some enquiry about the incident. Meanwhile, one Harapriya Barik wrote a letter on 29.7.1999 to this Court alleg¬ing that no such incident had taken place and that she was not taken by anyone to Bhubaneswar on 9.7.1999. The said letter was registered as a writ petition bearing O.J.C. No. 9456 of 1999. Initially this Court passed an interim order requiring the State Government to see that her name was not published in the Media. The Court also issued notice on the State Government as well as on the State Commission for Women. However, the matter was not pursued further and by order dated 24.9.1999 the Court directed to close the same. Thereafter, three writ petitions were filed, one of them being OJC No. 13305 of 1999 filed by one Prashanta Kumar Das seeking a direction to the C.B.I. to make investiga¬tion. This Court by order dated 9.5.2000 reopened the matter by directing the State Crime Branch to hand over all the papers relating to the case to the Director of C.B.I. who in turn will cause an investigation into the matter by an officer not below the rank of Deputy Inspector General. Accordingly, F.I.R. was lodged on 1.7.2000 against one Prabasini Kar, Physical Training Instructor of the aforesaid Women’s College and others relating to the incident dated 9.7.1999 and onwards under Sections 120-B, 292, 342, 354, 366, 376 read with Section 511, I.P.C. In obedience to the direction of this Court, the C.B.I. had been submitting status reports from time to time with regard to its investiga¬tion. On 16.11.2001 a Bench of this Court passed an order in O.J.C. No. 13305 of 1999 which reads as follows : “Mr. M. S. Panda for the petitioner and Mr. S. P. Panda on behalf of Mr. Sanjit Mohanty for the C.B.I. are present and heard. The sixth status report covering progress after filing of the charge-sheet on 27.9.2001 has been produced in Court and we have perused the same. It be kept in a sealed cover with the Deputy Registrar (Judl.) of the Court. Call this matter on 14.12.2001 along with O.J.C. No. 9456 of 1999.” Thereafter on 15.2.2002 another order was passed by this Court which is quoted hereunder : “Status report covering the period from 15.10.2001 to 9.12.2001 has been filed. It be kept in a sealed cover with the Deputy Registrar (Judl.) of the Court. Call this matter on 14.12.2001 along with O.J.C. No. 9456 of 1999.” Thereafter on 15.2.2002 another order was passed by this Court which is quoted hereunder : “Status report covering the period from 15.10.2001 to 9.12.2001 has been filed. It is not known as to what further progress, if any, has been made in the case. Fairly a long period has elapsed since the date of our order directing investigation and for that reason, we expect that the investigation needs to be expedited. Accordingly, the matter is adjourned to 01.03.2002 on which day, the up-to-date progress report should be filed and the Court shall also be informed as to what steps are being taken for filing charge-sheet against the persons who are involved in the incident.” When the matter cam up on 8.3.2002, the counsel for the C.B.I. filed the eighth and final status report. Counsel for the petitioner sought time to submit a note relating to the investigation. The Court permitted him to do so. Pursuant to the said liberty, the learned counsel seems to have filed objection. On 16.8.2002 the matter came up before a Bench consisting of former Chief Justice and one of us (B.P. Das, J.). The Court, as is evident from the order dated 16.8.2002, observed that it was necessary to go through the contents of the status reports and accordingly the matter was adjourned to 27.9.2002 for hearing on which date the matter was heard and was reserved for pronounce¬ment of orders. As already mentioned, the order was pronounced on 7.3.2003. 5. Let us now come to the core of the issue. The conten¬tion of Shri Panda is that this Court should not have observed in the order dated 7.3.2003 that it is not necessary to issue any further direction regarding the particular incident involving Harapriya and there is no justification to monitor that prosecu¬tion. According to Shri Panda, the C.B.I. perfunctorily investi¬gated and did not bestow its due attention in conducting investi¬gation particularly in respect of the offence of criminal con¬spiracy punishable under Section 120-B., I.P.C. He stated that since some high officials and bureaucrats are involved, the C.B.I. had been attempting to shield them and does not want to bring them into dragnet although their culpability is apparent. In the circumstances, according to Shri Panda, the Court in the order dated 7.3.2003 should not have observed that objection to the charge-sheet can be taken before the concerned Court in terms of Section 173, Cr.P.C. He submitted that the aforesaid observa¬tions made by this Court are not supported by any reasons and the 13 points of objection raised in paragraph-4 of his ‘objection affidavit’ were not taken into account. He contended that ade¬quate materials are available against Prashanta Kumar Nayak and others and further investigation should be conducted to find out their culpability. 6. The first question is whether this Bench would be within its jurisdiction to vary/modify that part of the order dated 7.3.2003 with which the petitioner feels aggrieved. It is not disputed and rightly that this Court has inherent power to vary/modify its order provided a valid ground is made out on well-established principles. As observed by the Supreme Court in S. Nagaraj v. State of Karnataka, 1993 Supp. (4) SCC 595, rectifica¬tion of an order stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality.....The Court is not thus precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for the sake of justice. Discovery of important matter or evidence is a valid ground for recalling an order. 7. We may state here that when the case was finally heard on 27.9.2002 the case diary was not made available which has now been done by the learned counsel for the C.B.I. On perusal of the case diary and the status reports, we are inclined to hold that the formation of opinion by the investigating agency that “no evidence directly linking NP (real name is not indicated in view of this order as well as for the sake of anonymity) or any other person to the offences under investigation has come on record” is vulnerable. The Investigating Agency lost sight of the fact that it was dealing with a case of criminal conspiracy. It is well known that conspiracy is hatched in secrecy and it may be diffi¬cult to get direct evidence on the same. In considering the question of criminal conspiracy, it is not always possible to get direct evidence about the persons who took part in the formation of conspiracy. It is well known that conspiracy is hatched in secrecy and it may be diffi¬cult to get direct evidence on the same. In considering the question of criminal conspiracy, it is not always possible to get direct evidence about the persons who took part in the formation of conspiracy. Therefore, conclusion has to be inferred from the circumstances proved before, during and after the occurrence to decide the complicity of an accused. From the case diary and the 4th status report it appears that after the alleged incident, one Gaurishankar Panda along with Prabasini Kar and his wife went to Cuttack on 18.7.1999 and stayed in Hotel Vaishalee in the assumed name of his nephew as he wanted to conceal his visit. The said Prabasini Kar repeatedly contacted both NP and Sushanta Kumar Mohapatra from PCO Booth installed in the reception counter of the hotel. After number of calls made to them, Prabasini Kar informed him that they had agreed to pay Rs. 3 lakhs to Tanuja Panda in exchange of the cassette containing conversation between her and Tanuja Panda wherein she had confessed about the incident. They also agreed to offer Panda either a job in NALCO or some contract job there. In course of interrogation, said NP was asked as to whether he received any call from Prabasini Kar which he denied. When his attention was drawn towards the STD printouts showing that calls were made from the residence of Prabasini Kar to him on 5.7.99, 6.7.99, 7.7.99, 8.7.99, 9.7.99 and also on his mobile phone on 15.7.99, said NP stated that those calls might have been made by her regarding grant of UGC scales to P.T.Is. for which she had been fighting. NP also admitted that in this connection Prabasini Kar was introduced to him by Sushant Kumar Mohapatra and he arranged a meeting of P.T.Is. led by Prabasini Kar with the Chief Minister on 12.7.1999. If the aforesaid telephone calls were with regard to grant of U.G.C. scale of pay to the P.T.Is., NP could have straigth away stated so at the first instance and unless there was something, there was no occasion for him to deny the same. led by Prabasini Kar with the Chief Minister on 12.7.1999. If the aforesaid telephone calls were with regard to grant of U.G.C. scale of pay to the P.T.Is., NP could have straigth away stated so at the first instance and unless there was something, there was no occasion for him to deny the same. From the case diary and the 7th status report it appears that Harapriya Barik also identified the said NP as the person to whom Prabasini Kar had set in the High Court campus when they had come there on 29.7.1999 to file a letter petition in the chamber of the Chief Justice. The said Harapriya Barik also disclosed that when she was being brought to Cuttack on 27.7.1999 by Pra¬basini Kar and her son Dr. Sidhartha Patra, Prabasini made tele¬phone call from a PCO Booth at Bhandaripokhari. Subsequently on 28.7.1999 when she was being taken to the Court of Executive Magistrate for swearing affidavit, Prabasini Kar made telephone calls from a PCO Booth located in the campus of High Court. Harapriya Braik’s statement further shows that Prabasini Kar had made telephone calls from a PCO Booth at Pipili on 29.7.1999, when she was being taken to Puri by Prabasini Kar. Harapriya Barik told that Prabasin Kar was most probably talking to NP from these places because whenever the phone line was busy, she heard Prabasini Kar commenting that as he was the Special Secre¬tary to Chief Minister, it was difficult to get him on phone. Congregation of these persons in the High Court premises and telephone calls of NP may constitute missing link and furnish a solid base in the chain of events leading to criminal conspiracy. From the said report as well as his statement recorded under Section 161, Cr.P.C. it would appear that he had taken the plea that he had gone to Cuttack on 9.7.1999 along with one Sudarshan Nayak in connection with filing of a petition in a contempt case and returned to Bhubaneswar in the afternoon and spent the entire day at his official quarters. Sudarshan Nayak however denied to have accompanied him on 9.7.1999 to Cuttack. To verify his verac¬ity whether he was at his residence throughout the night of 9.7.1999, the Investigating Agency remained contented by simply placing a requisition with the Reliance Telecom Limited to know about the Cell ID position of his mobile phone. Sudarshan Nayak however denied to have accompanied him on 9.7.1999 to Cuttack. To verify his verac¬ity whether he was at his residence throughout the night of 9.7.1999, the Investigating Agency remained contented by simply placing a requisition with the Reliance Telecom Limited to know about the Cell ID position of his mobile phone. Whether a person is present/absent at a particular place or time can be verified by collecting many other evidence and merely operation/inopera¬tion of a mobile phone cannot conclusively establish the presence or absence of a person at a particular place or time. It further appears from the case diary as well as the 7th report that a lunch was hosted by Rabi Nanda before filing some affidavit in OJC No. 9456 of 1999 which was attended by NP. Although the host Rabi Nanda denied to have given any such lunch, NP himself admit¬ted to have attended a lunch. 8. In the face of the above materials, we have no hesita¬tion to hold that the conclusion reached by the Investigating Agency that “no evidence directly linking NP or any other person with the offences under investigation has come on record” is faulty which necessitates further probe into the matter. In the circumstances, this Court has to monitor the further investiga¬tion. It is needless to point out that even after laying of the final report, power of police to conduct further investigation is recognized under Section 173 (8) of the Cr.P.C. It is also not necessary to hear any person (accused) when direction to police to conduct further investigation of the case is made (See Shri Bhagwan Samardha Sree Pada Vallabha Venkata Vishwandadha Maharaj v. State of Andhra Pradesh, AIR 1999 SC 2332 ). 9. For the reasons aforesaid, paragraph-2 of the order dated 7.3.2003 is hereby modified to the extent indicated in this order. By this direction, we may not be understood to have formed any opinion on the culpability of any person. Both the misc. cases are accordingly disposed of. Records produced by counsel for C.B.I. be returned to him. Cases disposed of.