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2024 DIGILAW 126 (ALL)

Adil v. State Of U. P.

2024-01-11

VINOD DIWAKAR, VIVEK KUMAR BIRLA

body2024
JUDGMENT : Vivek Kumar Birla, J. 1. Heard Sri Brijesh Kumar Pandey, learned counsel for the petitioner as well as Sri Virendra Kumar Pal, learned AGA appearing for the State respondents and Sri Vinod Singh, learned counsel for the informant and perused the record. 2. Present petition has been filed for quashing the impugned order dated 6.10.2023 whereby the respondent no. 2 has passed the order for further/transfer of the investigation in Case Crime No. 252 of 2023, P.S. Bilaspur, District Rampur. A further prayer is to direct the respondent no. 2 and his subordinates not to arrest/harass the petitioners in pursuance of the order dated 6.10.2023. 3. Brief facts of the case are that the respondent no. 4-Km. Nisha Naaz filed an application under Section 156 (3) CrPC before the concerned Magistrate for registering the FIR with the allegation that she had love affairs with co-accused-furkan Ali and she had physical relationship with him and on being insisted for marriage, he prepared forged nikahnama and married with her. It is being alleged that Gulshan Kajafi and Furkan Ali committed r.ape upon her. Thereafter, a first information report dated 29.7.2023 has been lodged under Section 420, 376, 452, 504, 342, 376D, 506, 120-B of IPC, P.S. Bilaspur, District Rampur against the six accused persons. After the investigation was completed, a charge-sheet dated 24.8.2023, under Sections 498A, 504 and 506 IPC only against the husband (Furkan Ali). After submission of the charge-sheet, learned Magistrate has taken the cognizance vide order dated 30.9.2023. In between, respondent no. 4 filed a Criminal Misc. Writ Petition No. 15260 of 2023 (Km. Nisha Naaz vs. State of UP and others), with the prayer to direct the respondent no. 2 to transfer the investigation of the Case Crime No. 252 of 2023 without disclosing the fact that the chargesheet has already been filed. In the said writ petition, the Hon’ble Court directed the respondent no. 4 to approach the respondent no. 2 Superintendent of Police, Rampur. By the impugned order dated 6.10.2023, the respondent no. 2-Superintendent of Police, Rampur has directed to further investigation by transferring the investigation to another officer. Hence the present petition. 4. In the said writ petition, the Hon’ble Court directed the respondent no. 4 to approach the respondent no. 2 Superintendent of Police, Rampur. By the impugned order dated 6.10.2023, the respondent no. 2-Superintendent of Police, Rampur has directed to further investigation by transferring the investigation to another officer. Hence the present petition. 4. Learned counsel for the petitioner submits that the order impugned herein is illegal as after Investigating Officer after full-fleged investigation submitted the charge-sheet dated 24.8.2023, under Section 498A, 504 and 506 IPC only against Furkan Ali (husband) and the Investigation Officer exculpated the petitioner from the aforesaid case. It is further submitted that the writ petition being Criminal Misc. Writ Petition No. 15260 of 2023 (Km. Nisha Naaz vs. State of UP) without disclosing the fact that the charge-sheet has already been submitted in the aforesaid case crime, is totally misconceived. It is next submitted that once the Magistrate has taken cognizance in the matter, then only the Magistrate, having jurisdiction, is empowered to pass the order for further investigation, if he is in position that from perusal of the case diary or material available, further investigation is required, but in the present case on the basis of the application filed by the respondent no. 4 herein, the respondent no. 2 passed the impugned order for further investigation. Submission is that the impugned order dated 6.10.2023 passed by the respondent no. 2 is illegal as once the charge-sheet has been submitted and the learned Court below has taken cognizance, the respondent no. 2 has no jurisdiction directing for further investigation without the prior permission from the concerned Magistrate. He has placed reliance on the judgment of Hon’ble Apex Court in the case of Peethambaran vs. State of Kerala and another, 2023 SCC Online SC 553. Submission, therefore, is that the order impugned herein is liable to be quashed. 5. Learned counsel for the AGA appearing for the State respondents, on instructions, submits that in the instant case, after the order 6.10.2023 passed by the respondent no. 2, the Investigating Officer, after taking charge of the further investigation, has informed in writing to the concerned Magistrate on 10.10.2023, with regard to the further investigation as Directed by the Superintendent of Police, Rampur vide order dated 6.10.2023 and sought photocopy of entire case diary and all other relevant documents for this purpose. 2, the Investigating Officer, after taking charge of the further investigation, has informed in writing to the concerned Magistrate on 10.10.2023, with regard to the further investigation as Directed by the Superintendent of Police, Rampur vide order dated 6.10.2023 and sought photocopy of entire case diary and all other relevant documents for this purpose. On 12.10.2023, the application was allowed and the relevant record was actually received by the Investigating Officer. Relying upon the provisions of Section 173 (8) of the Code, learned AGA as well as learned counsel for the informant submit that the powers of investigating agency after registration of the F.I.R. are unfettered and for further investigation, no prior permission from Magistrate is required even when the cognizance has been taken by the learned Magistrate. It is further submitted that in any case, even assuming for the sake of arguments that such permission is required, the same was duly received and there is/was no legal infirmity in proceeding with the further investigation. 6. Learned counsel for the informant, drawing attention to photocopy of the application of the Inspector Srikant Dwivedi along with endorsement of the concerned officer and order of the leaned Chief Judicial Magistrate (annexed as Annexure CA-4 to the counter affidavit) submits that no interference is warranted in the order impugned herein as application seeking permission for further investigation before the concerned Magistrate on 10.10.2023 was allowed on 12.10.2023. Submission, therefore, is that the writ petition is devoid of merits. 7. At the very outset, we may note that the facts about filing of such application and that the same had been allowed stands verified from paragraphs 10, 13, 14 and 19 of the instructions supplied by the learned AGA, hence no rebuttal thereof is required by the petitioner. 8. We have considered the rival submissions and have perused the record. 9. We have already considered the entire law on the issue involved in the present petition in our judgment and order passed by a co-ordinate Bench (one of us, Hon’ble Vivek Kumar Birla, J., was a Member) dated 9.11.2023 passed in Criminal Misc. Writ Petition No. 10247 of 2023 (Jitendra Singh @ Bablu and 12 others vs. State of UP and 3 others) extensively. The relevant paragraphs 27 to 32, 34 and 35 of the said judgement are quoted as under: “27. Writ Petition No. 10247 of 2023 (Jitendra Singh @ Bablu and 12 others vs. State of UP and 3 others) extensively. The relevant paragraphs 27 to 32, 34 and 35 of the said judgement are quoted as under: “27. In the case of Peethambaran (supra) relied on by learned counsel in the petitioners, decided on 03.05.2023, relying upon judgments in Vinay Tyagi (supra), which was based on doctrine of "contemporanea expositio", the Apex Court has observed the requirement of permission from learned Magistrate for further investigation and file supplementary report. Paragraph 20 of the aforesaid judgment is quoted as under: "20. The Chief Police Officer of a district is the Superintendent of Police who is an officer of the Indian Police Service. Needless to state, an order from the District Police Chief is not the same as an order issued by the concerned Magistrate. Referring to Vinay Tyagi (supra), this Court in Devendra Nath Singh v. State of Bihar noted that there is no specific requirement to seek leave of the court for further investigation or to file a supplementary report but investigation agencies, have not only understood it to be so but have also adopted the same as a legal requirement. The doctrine of contemporanea exposito aids such an interpretation of matters which have been long understood and implemented in a particular manner to be accepted into the interpretive process. In other words, the requirement of permission for further investigation or to file a supplementary report is accepted within law and is therefore required to be complied with." (emphasis supplied) 28. Hence, on facts Peethambaran (supra) is also distinguishable as in the present case on application, clearly asking for supply of record as further investigation has been directed by the competent police authority, was filed in the court, which was allowed. 29. In the case of State through Central Bureau of Investigation vs. Hemendra Reddy and Another : 2023 SCC OnLine SC 515, the Apex Court has held as under: "83. We may summarise our final conclusion as under: (i) Even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case. In other words, there is no bar against conducting further investigation under Section 173(8) of the CrPC after the final report submitted under Section 173(2) of the CrPC has been accepted. In other words, there is no bar against conducting further investigation under Section 173(8) of the CrPC after the final report submitted under Section 173(2) of the CrPC has been accepted. (ii) Prior to carrying out further investigation under Section 173(8) of the CrPC it is not necessary that the order accepting the final report should be reviewed, recalled or quashed. (iv) Further investigation is merely a continuation of the earlier investigation, hence it cannot be said that the accused are being subjected to investigation twice over. Moreover, investigation cannot be put at par with prosecution and punishment so as to fall within the ambit of Clause (2) of Article 20 of the Constitution. The principle of double jeopardy would, therefore, not be applicable to further investigation. (v) There is nothing in the CrPC to suggest that the court is obliged to hear the accused while considering an application for further investigation under Section 173(8) of the CrPC." (emphasis supplied) 30. In the case of Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj, 1999 (5) SCC 740 , the Hon’ble Apex Court in paragraphs 10 and 11 has held as under:- "10. Power of the police to conduct further investigation, after laying final report, is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi (Admn.) ( AIR 1979 SC 1791 ). The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the court and seek formal permission to make further investigation. 11. In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As law does not require it, we would not burden the magistrate with such an obligation." (emphasis supplied) 31. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As law does not require it, we would not burden the magistrate with such an obligation." (emphasis supplied) 31. We may also refer to the judgment of this Court dated 17.8.2023 passed in Criminal Misc. Writ Petition No. 11257 of 2023 (Smt. Preety Verma vs. State of U.P. and others), wherein identical questions were raised and rejecting the same the petition was dismissed. 32. Therefore, it is settled principles of law that the police has a right to further investigate the matter even after the submissions of the charge sheet/report before the learned Magistrate and even after the Magistrate had taken cognizance of the report/charge sheet. In exercise of power u/ S 173 (8) Cr.P.C of the Code, it has been statutorily recognized that there is no statutory requirement that before initiating further investigation, investigation agency must take permission of the concerned Magistrate. Further, investigation is very distinct from the re-investigation/de novo investigation or fresh investigation. Further investigation is the continuance of the investigation, which has already been done and on discovery of new facts or the facts which were left out during the investigation. Whereas in the case of the fresh, De-novo or reinvestigation, the investigation already done is required to be wiped out and investigation is required to begun from its inception. Further investigation can be carried out even without any permission from the concerned Magistrate. However, fresh, de-novo or reinvestigation cannot be done without the specific orders by the competent Court. 34. In view of the law discussed hereinabove, which clearly reflects that the powers of the Superintendent of Police regarding further investigation are unfettered and there is no statutory requirement of taking permission and there being no specific proforma provided for seeking such permission or the order, which is required to be passed for the purpose of allowing such application, we are of the opinion that this was sufficient compliance of the law as laid down by various judgments stating from Ram Lal Narang (supra) onwards, which is based on long accepted practice of moving such application before the court. 35. 35. To our mind as the police report has already been submitted, the object of filing such application is that the court must be aware of the fact that further investigation has been directed in the matter.” 10. In view of the law as discussed above where it has come on record that after submission of police report, further investigation was directed by respondent no. 2 vide order dated 6.10.2023 and thereafter an application seeking permission of the Magistrate was filed on 10.10.2023 and prayer was made to supply certified copies of the original case diary/charge-sheet, which was allowed on 12.10.2023 (Annexure CA-4 to the affidavit filed by respondent no. 4), we find no illegality in the impugned order dated 6.10.2023. 11. Accordingly, present petition lacks merit and is hereby dismissed. 12. The office is directed to keep a photocopy of the instructions dated 30.11.2023 containing (21) paragraphs submitted by Srikant Dwivedi, Inspector/Investigating Officer, Crime Branch, District Rampur on record and return the instructions in original to learned AGA within three days.