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IN THE HIGH COURT OF ALLAHABAD
ANISH KUMAR GUPTA, J.
Babu Lal Jaiswal And Others – Appellant
Versus
State of U.P. and Another – Respondents
Application U/S 482 No.1784 of 2013
Decided on : 11-12-2023
JUDGMENT :
1. Heard Sri Mohit Verma, advocate, holding brief of Sri S.N. Tripathi, learned counsel for the applicants, Sri D.A. Khan holding brief of Sri C. Prasad, learned counsel for opposite party no. 2 and Sri Pankaj Srivastava, learned AGA for the State.
2. The instant application has been filed under Section 482 Cr.P.C. seeking quashing of the charge sheet dated 17.07.2011 as well as entire proceeding in Case Crime No. 1402 of 2009, under Sections 352, 147, 504, 506, 452, 352, 427 I.P.C. and 3(1)X S.C./S.T. Act, Police Station-Cantt., District-Gorakhpur, pending in the Court of District and Sessions Judge, Court No. 17, Gorakhpur.
3. Learned counsel for the applicants submits that wife of applicant no. 1 and applicant no. 2 were the recorded owners of Khasara Plot No. 724 and they were constructing the boundary wall therein which was objected by the opposite party no. 2 who claims to be the owner of Khasara Plot No. 722 and 726.
4. As per the allegations in the FIR when the opposite party no. 2 objected to the said construction of boundary wall by the applicants herein, the applicants abused and assaulted opposite party no. 2 and others and abused to their caste. Therefore, the instant FIR was registered on 04.07.2009 at 09:30 am for an incident dated 03.06.2009.
5. Learned counsel for the applicants further submits that the opposite party no. 2 has no connection with the Khasara Plot No. 724 owned by the wives of the applicant no. 1 and applicant no. 2 and he has objected to the construction of boundary wall by the applicants without any authority. Therefore, the instant prosecution lodged by the opposite party no. 2 is nothing but a malicious prosecution due to a property dispute sought to be created by opposite party no. 2, for which the wives of the applicants no. 1 and 2 have already filed a civil suit No. 44 of 2009, which is already pending adjudication and an interim injunction has been passed in favour of the wives of the applicant nos. 1 and 2 with regard to Khasara Plot No. 724.
6. Learned counsel for the applicants further submits that after due investigation of the case, initially a final report was filed on 16.08.2009. Against which the protest petition was filed by the opposite party no. 2 herein and simultaneously, he challenged the investigation with the superior authorities who directed the further investigation in the matter. On such further investigation again on 11.12.2009 and 18.03.2010, the final reports were filed by the concerned Investigating Officers. Learned counsel for the applicants further submits that subsequently during the pendency of his protest petition, the opposite party no. 2 approached the Home Secretary, Lucknow on 25.08.2010, who was the distant relative of opposite party no. 2, who has directed the further investigation in the matter on which the supplementary charge-sheet dated 17.07.2011 was filed against the applicants herein.
7. Learned counsel for the applicants further submits that once the final reports are filed and in the instant case three final reports were already filed and the protest petition was already pending then the police authorities or the Home Secretory has no power to direct for further investigation in the matter without the permission of the concerned Magistrate.
8. In support of his submissions, learned counsel for the applicants has relied upon the judgment of Apex Court in Peethambaran vs. State of Kerala & Anr. 2023 SCC OnLine SC 553. Learned counsel for the applicants further submits that while taking cognizance in the matter, the Magistrate is required to consider all the materials available before him and while taking cognizance in the matter, he has not considered the earlier final reports filed by the Investigating agency. Therefore the applicants herein prayed for quashing of the entire proceeding of the aforesaid case including the cognizance/summoning order issued against the applicants.
9. Learned counsel for the applicants further submits that again
The police have the right to conduct further investigation after a charge sheet is filed without needing prior permission from the Magistrate.
The investigation agency has the statutory right to conduct further investigation under Section 173(8) of the Code of Criminal Procedure without seeking permission from the Magistrate.
The Magistrate cannot treat a case as a complaint after taking cognizance based on a charge-sheet; further investigation rights lie with the police.
The Magistrate cannot retroactively classify a case as a complaint after taking cognizance based on an investigation report, as further investigations are solely under the police's purview without re....
The accused has no right to seek further investigation after a charge sheet is filed, and discrepancies in evidence are to be resolved at trial.
Further investigation – Whether further investigation should or should not be ordered is within discretion of Magistrate who will exercise such discretion on facts of each case and in accordance with....
The court emphasized that further investigation must be justified by new evidence or deficiencies in the prior investigation, and the discretion to order it lies with the Magistrate based on case fac....
The main legal point established in the judgment is that further investigation is a statutory right of the police under Section 173(8) of Cr.P.C, and formal permission from the Court is required if t....
The main legal point established in the judgment is that prior permission from the Magistrate is not mandatory for further investigation by the Investigating Officer under Section 173(8) of CrPC.
A Magistrate cannot order further investigation after charges are framed; this power exists only at the pre-cognizance stage to ensure a fair investigation.
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