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2011 Supreme(All) 2615
[2010(10) ADJ 315]
ALLAHABAD HIGH COURT
BALA KRISHNA NARAYANA, J.
ILMAS …Applicant
Versus
STATE OF U.P. AND ANOTHER …..Opposite Parties
(Criminal Misc. Application No. 26087 of 2011,
decided on 21st September, 2011)
Brijesh Sahai, Arun Srivastava and Vishal Shukla for the Applicant; K.N. Bajpayee for the Opposite Parties.
Headnote:(A) Criminal Procedure Code, 1973—Sections 482 and 204—(Indian) Penal Code, 1860—Sections 302 and 506—Further investigation—Summoning—Quashing of—Complainant moved application before SSP—Directed further investigation—Pursuant to completion of such further investigation applicant was charge-sheeted—No re-investigation ordered—In term of Section 204 of Cr.P.C. no where requires recording of reasons by Magistrate for summoning a person of accused—Merely because charge-sheet filed on completion of further investigation—It cannot be said that there has been re-investigation—Further investigation is the continuance of investigation—Not a fresh investigation or re-investigation—No further investigation could be done without permission of Court—Question of—In view of Apex Court decisions (1999 (2) SCC 322 and AIR 2004 SC 207) nowhere held that further investigation cannot be conducted without permission of Court—Evidence recorded during further investigation sufficient to summon applicant. [Paras 12, 16, 18, 21 and 22]
(B) Criminal Trial—Further investigation—What amounts to—It is the continuance of earlier investigation—And not a fresh investigation or re-investigation. [Para 18]
(C) Criminal Trial—Re-investigation—What amounts to—It is an investigation which is to be started ab-initio wiping out earlier investigation altogether. [Para 18]
The legal document discusses the procedural aspects and legal principles related to the summoning of an accused and the conduct of further investigation in criminal proceedings. The key points are as follows:
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Order of Summoning: The order summoning the applicant as an accused was scrutinized for being non-speaking and cryptic. However, it was clarified that under the relevant procedural provisions, a detailed order or reasons are not mandatorily required for summoning an accused, as the law does not impose such a requirement (!) (!) (!) (!) (!) .
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Legal Requirements for Orders: The law emphasizes that the Magistrate's primary obligation at the stage of summoning is to form an opinion that there are sufficient grounds for proceeding, which can be inferred from the entire record rather than requiring a detailed, reasoned order (!) (!) (!) (!) .
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Nature of Further Investigation: The court clarified that "further investigation" is a continuation of the initial investigation and not a fresh or re-investigation. It does not wipe out the previous investigation but supplements it, and no court permission is necessary for conducting such further investigation (!) (!) (!) (!) .
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Re-investigation vs. Further Investigation: Re-investigation is distinguished from further investigation; the former involves starting a new investigation from scratch, while the latter is an extension of the existing one. The law permits further investigation without order or permission, provided it is a continuation of the initial investigation (!) (!) (!) (!) .
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Validity of the Charge-sheet: The submission that the charge-sheet filed after further investigation was invalid because it was a reinvestigation is rejected. The description of the charge-sheet as "mool" (main) rather than "supplementary" does not alter its legal standing as a continuation of the initial investigation (!) .
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Permission for Further Investigation: The law permits police to conduct further investigation without prior approval of the court, especially when the investigation is a continuation of the initial inquiry, and the law explicitly allows such investigations under the relevant procedural provisions (!) (!) .
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Sufficiency of Evidence: The evidence collected during the investigation, including witness statements and statements recorded during further investigation, was deemed sufficient to justify summoning the applicant as an accused. The court emphasized that the evidence on record was adequate for the order of summoning (!) .
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Legal Principles on Summoning and Investigation: The court reinforced that detailed reasons or reasons recorded in the order are not mandatory for summoning an accused, and that the entire record can be considered to determine whether there are sufficient grounds for proceeding (!) (!) .
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Conclusion: The application to quash the summoning order was dismissed, affirming that the procedures followed were in accordance with legal provisions and that the evidence was sufficient to justify the summoning of the applicant (!) (!) .
In summary, the document emphasizes that procedural formalities such as detailed reasoning are not obligatory at the stage of summoning, that further investigation is a continuation rather than a re-investigation, and that such investigations do not require court permission. The sufficiency of evidence during investigation is the key factor in summoning an accused.
Hon’ble Bala Krishna Narayana, J.—Heard Sri Brijesh Sahai, learned counsel for the appellant and Sri K.N. Bajpayee, learned A.G.A. for the State.
2. The order which is impugned in the instant application filed by the applicant under Section 482 Cr.P.C. is dated 9.6.2011, passed by Additional Civil Judge (J.D.), Garh Mukteshwar, District Ghaziabad in Case No. 317 of 2011 (State v. Ilmas) arising out of Case Crime No. 35 of 2011 (State v. Bablu and others) under Section 302, 506 I.P.C., P.S. Simbhawali, Ghaziabad by which the applicant has been summoned to face trial for the offences punishable under Sections 302 AND 506 I.P.C.
3. The brief facts of the case are that the opposite party No. 2 Asif lodged a first information report at P.S. Simbhawali on 1.2.2011 (Annexure 1 to the affidavit accompanying this application) at about 8.45 p.m. alleging therein that when on 31.1.2011 at about 6.00 pm the informant, his brother Chaman and one Rahat S/o Tahir after having their meal were going on a walk three persons, namely, Bablu, Nadeem and one unknown person, all armed with country made pistols appeared before them and Nadeem caught hold of Chaman while Bablu shot Chaman in his stomach with his country made pistol and the third person held the informant and Rahat away from Chaman at gunpoint. The injured Chaman was taken to the hospital where he died. On the basis of the aforesaid FIR Case Crime No. 35 of 2011 was registered against Nadeem, Bablu and one unknown person. During the course of investigation the Investigating Officer apart from collecting other materials recorded the statements of informant Nadeem and Rahat and upon completion of investigation laid down charge-sheet bearing No. 33 of 2011 dated 23.2.2011under Sections 302 and 506 I.P.C. (Annexure 8) before the concerned Magistrate against Nadeem and Bablu. On the application moved by the complainant/opposite party No. 2 before the S.S.P., Ghaziabad the matter was directed to be investigated further by S.I.S., Ghaziabad by his order dated 25.2.2011 which has been brought on record by the applicant as Annexure S.A.1 to the supplementary affidavit). During further investigation the S.I.S., Ghaziabad examined the informant Asif and two new witnesses Jan Mohammad @ Janu and Aftab who in their statements claimed that they had seen the applicant alongwith other co-accused armed with country made pistols running away from the place of occurrence on the relevant date after they had reached there upon hearing the sound of gun shot. Relying upon the statements of Jan Mohammad @ Janu and Aftab charge-sheet bearing No. 33-A of 2011 dated 23.5.2011 was submitted against the applicant after completion of further investigation where upon the Court below took cognizance and summoned the applicant by his order dated 9.6.2011 (Annexure 12 to the affidavit accompanying this application).
4. Sri Brijesh Sahai, learned counsel for the applicant vehemently submitted that the impugned order by which the applicant has been summoned by the Court below is an absolutely non-speaking and cryptic order which does not reflect any application of judicial mind by the concerned Magistrate to the facts of the case and the materials on record and since before a Magistrate, upon receipt of a complaint or a police report or any other information showing commission of a cognizable offence, takes cognizance and issues process, it is imperative that it must be discernible from the order of the Magistrate that he has taken into consideration the charge-sheet and the other papers submitted therewith for satisfying himself as to whether a prima facie case against the accused for the concerned offences is made out and since the impugned orders does not conform to the aforesaid requirement, the same cannot be sustained and is liable to be set aside.
5. Sri Brijesh Sahai, next submitted that the applicant having not been charge-sheeted in the investigation which followed the registration of the FIR at the be
