# Abhay Gupta v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 112
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-13
- **Case number:** Criminal Misc. Writ Petition No. 14212 of 2023
- **Bench:** Vivek Kumar Birla, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhay-gupta-v-state-of-u-p-ors-50837
- **Pages:** 12

## Headnote

A. Constitution of India, 1950-Article
226-Indian Penal Code, 1860-Sections
498-A, 304-B, 120-B r/w Section 3⁄4 D.P.
Act-deceased
died
under
mysterious
circumstances
at
the
petitioner's
residence within seven years of her
marriage-during the investigation certain
evidence collected by the I.O. with regard
to
demand
of
dowry
and
crueltypetitioner contended that brother of his
deceased-wife had an affair with a lady
who had no connection of whatsoever
nature with the in-laws family-certain
social media posts amounts to conduct of
a mini-trial within the purview of writ
jurisdiction, which is impermissible in
law-its evidentiary merits and pertinence
will undergo scrutiny during the trial in
accordance
with
the
Evidence
Act,
1872.(Para 1 to 37)

The writ petition is dismissed. (E-6)

List of cases cited:

## Text

_Characters 0–39,938 of 40,510. This is a partial read: ask again with offset=39938 for what follows._

112 INDIAN LAW REPORTS ALLAHABAD SERIES
exercising power under Section 319 Cr.P.C.
In Section 319 Cr.P.C. the purpose of
providing if "it appears from the evidence
that any person not being the accused has
committed any offence" it is clear from the
words "for which such person could be
tried together with the accused". The words
used are not "for which such person could
be convicted". There is, therefore, no scope
for the court acting under Section 319
Cr.P.C. to form any opinion as to the guilt
of the accused."

20. Thus, the main object for exercise
of powers under Section 319 of the Code is
that the real perpetrator of the offence
should not go away unpunished specially in
a situation where the investigating agency
for any reason whatsoever had not arraigned
any culprit as an accused. The Court would
not be powerless in calling the accused to
face trial, rather it is the duty of the Court to
do justice by punishing the real culprit.

21. In view of the aforesaid facts and
circumstances as well as in the light of
Hon'ble Apex Court judgements, it is
hereby
directed
to
the
Trial
Court
concerned to consider the matter afresh and
pass appropriate orders in the light of
observations as aforesaid.

22. Accordingly, the revision is
disposed of.
----------
(2024) 1 ILRA 112
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Misc. Writ Petition No. 14212 of 2023
Abhay Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjay Vikram Singh

Counsel for the Respondents:
G.A.

A. Constitution of India, 1950-Article
226-Indian Penal Code, 1860-Sections
498-A, 304-B, 120-B r/w Section 3⁄4 D.P.
Act-deceased
died
under
mysterious
circumstances
at
the
petitioner's
residence within seven years of her
marriage-during the investigation certain
evidence collected by the I.O. with regard
to
demand
of
dowry
and
crueltypetitioner contended that brother of his
deceased-wife had an affair with a lady
who had no connection of whatsoever
nature with the in-laws family-certain
social media posts amounts to conduct of
a mini-trial within the purview of writ
jurisdiction, which is impermissible in
law-its evidentiary merits and pertinence
will undergo scrutiny during the trial in
accordance
with
the
Evidence
Act,
1872.(Para 1 to 37)

The writ petition is dismissed. (E-6)

List of cases cited:

1. Babubhai Vs. St. of Guj. & ors.(2010) 12 SCC
254

2. Manu Sharma Vs. St. (NCT of Delhi)
(2010) 6 SCC 1

3. K.Chandrasekhar Vs St. of Ker. & ors.(1998) 5
SCC 223

4. Ramachandran Vs R. Udhayakumar & ors.(2008)
5 SCC 413

5. Mithabhai Pashabhai Patel & ors.Vs St. of Guj.
(2009) 6 SCC 332

6. Kishan Lal Vs Dharmendra Bafna (2009) 7 SCC
685
1 All. Abhay Gupta Vs. State of U.P. & Ors.
113
7. Jamuna Chaudhary & ors. Vs St. of Bih.
(1974) AIR SC 774

8. H.N. Rishbud & Inder Singh Vs The St. of
Delhi (1954) SCC Online SC 34

9. St. of Bih. etc Vs P.P. Sharma,IAS & anr.
(1992) Supp 1 SCC 222

10. Mohan Lal Vs St. of Punj. (2018) 17 SCC
627

11. Vishnubhai Haribhai Malviya & ors .Vs St. of
Guj. & ors.(2019) 17 SCC 1

12. Noor Aga Vs St. of Punj. (2008) 16 SCC 417

13. St. of Bih. & anr. Vs. JAC Saldanha &
ors.(1980) 1 SCC 554

14. Bhaskar Ramappa Madar Vs St. of Karn.
(2009) 11 SCC 690

15. Hardip Singh Vs St. of Punj.(2008) 8 SCC
557

16. B.St. Vs Jayapaul (2004) 5 SCC 223

17. St. of Punj. Vs Baldev Singh (1999) 6 SCC
172

18. Surender Vs St. of Har. CRLA No. S-318-SB
of 2004

(Delivered by Hon'ble Vinod Diwakar, J.)

1. Heard Shri Sanjay Vikram Singh,
learned counsel for the petitioner and
learned AGA for the State.

2. This petition stems from the
impugned FIR bearing Case Crime No.
0079 of 2022, under Sections 498A, 304B
and 120B IPC read with Section 3/4 of D.P.
Act, 1961 registered at P.S. Kurawali,
District
Mainpuri.
Following
the
completion of the investigation, the police
filed a charge sheet against the petitioner
and aggrieved by the filing of the charge
sheet, the petitioner-husband preferred the
instant petition for fair investigation under
Article 226 of the Constitution of India,
seeking a direction for a fair investigation
in the impugned FIR. For clarity, the relief
sought before this Court is delineated as
follows:

"(i) Issue, a writ, order or
direction in the nature of Mandamus
directing the respondent no. 3 to conduct
further investigation in Case Crime No. 79
of 2022, under Sections 498A, 304B IPC
and Section 3⁄4 D.P. Act, P.S. Kurawali,
District Mainpuri."

3. The petitioner, Abhay Gupta,
entered into a matrimonial alliance with
Harshita Gupta on 1.12.2020 in accordance
with Hindu rites and rituals, and during the
marriage, the complainant's family spent
approximately Rs.20 lakhs, and dowry
items were also presented to the petitioner's
family within their means. Subsequently,
the petitioner and his family subjected
Harshita Gupta (deceased-wife) to both
mental and physical cruelty. No child was
born out of the said wedlock, although the
wife was five months pregnant at the time
of the death; however, the insufficient
dowry made the in-laws unsatisfied, and
following this, the complainant's sister was
murdered by the in-law's family, in which
Satish Chandra (father-in-law); Shri Abhay
Kumar and Gaurav Gupta (brothers-in-law
-Jeth), Ajay Gupta (brother-in-law- Devar);
Smt Stuti Nidhi- wife of Gaurav Gupta
(sister-in-law-Jethani);
Manju
wife
of
Satish Chandra (mother-in-law); and sisterin-law
(Nanad)
and
brother-in-law
(Nandoi) are arrayed as accused/suspect in
the FIR.

4. Following the registration of the
impugned FIR, the police conducted an
investigation and, on its conclusion, filed a
114 INDIAN LAW REPORTS ALLAHABAD SERIES
charge sheet under Section 498-A, 304-B
IPC read with Section 3/4 D.P. Act, 1961
against the petitioner and exonerated all
accused persons/suspects named in the FIR.
The doctor opined the cause of death was
asphyxia due to ante mortem hanging.

5. That the petitioner- husband
aggrieved by the filing of the charge sheet
against him, has preferred the instant
petition for fair investigation on the
following grounds:

5.1 No dowry demand was made,
nor was any harassment meted out to the
deceased by the petitioner.

5.2 The postmortem report of the
deceased is silent about the fact of
pregnancy alleged in the FIR, making the
entire prosecution story false and frivolous.

5.3 The FIR was registered
against
the
petitioner
with
malafide
intention and oblique purpose.

5.4 Soon before the unfortunate
incident,
the
petitioner
immediately
informed the parents of the deceased wife
and also made the call to the Women Power
Line 1090; the Investigating Officer has not
looked into the material given by the
petitioner, which could have facilitated a
fair
investigation,
enabling
the
Investigating Officer to reach just and
logical conclusion.

5.5 The complainant- brother of
the deceased had an affair with one Mamta,
and subsequently, the relationship got
spoiled with her. The said Mamta started
posting certain inappropriate comments
against the deceased on social media by
creating a fake account, and that is why, to
save her honour, the deceased committed
suicide.
The
letter
dated
19.10.2022
annexed with the petition finds reference to
the online complaint dated 31.3.2022
bearing
Complaint
No.2022/IC/072020
with regard to the deceased-wife's brother's
girlfriend,
who
had
posted
certain
inappropriate posts before her death, i.e.,
on 23.3.2022.

5.6 The police have not followed
Rule 107 of the U.P. Police Regulations,
1861 in true spirit, which mandates fair
investigation by the police, and to extract
the truth out of the allegations that surfaced
in the complaint.

6. Per contra, learned A.G.A.
supports the prosecution case and asserts
that the allegations are serious in nature,
the deceased has died under mysterious
circumstances at the petitioner's residence
within seven years of her marriage, and
during the investigation, certain inculpatory
evidence has been collected by the
Investigating
Officer
with
regard
to
demand of dowry and cruelty upon the
deceased against the petitioner. He next
submits that the petition is not maintainable
at the behest of the accused, and in criminal
law, the accused has no right to seek further
investigation after filing the charge sheet on
the basis of certain documents which are
not sufficient for the purpose of making the
entire prosecution case false and motivated.

7. The learned counsel for the
petitioner has relied upon the judgment of
the
Supreme
Court
passed
in
the
Babubhai1 case. Besides other judgments
discussed
herein
in
support
of
his
contentions,
the
concept
of
fair
investigation and fair trial are concomitant
to the preservation of the fundamental
rights of the accused under Article 21 of the
Constitution of India.

8. The criminal justice administration
system in India places human rights and
dignity for human life on a much higher
pedestal. In our jurisprudence, an accused
1 All. Abhay Gupta Vs. State of U.P. & Ors.
115
is presumed to be innocent till proven
guilty, the alleged accused is entitled to
fairness and true investigation and fair trial
and the prosecution is expected to play a
balanced role in the trial of a crime. The
investigation should be judicious, fair,
transparent and expeditious to ensure
compliance with the basic rule of law.
These are the fundamental canons of our
criminal jurisprudence, and they are quite
in conformity with the constitutional
mandate contained in Articles 20 and 21 of
the Constitution of India.2

9. It is not only the responsibility of
the investigating agency but also that of the
courts to ensure that the investigation is fair
and does not in any way hamper the
freedom of an individual except in
accordance
with
the
law.
Equally
enforceable canon of the criminal law is
that the high responsibility lies upon the
investigating agency not to conduct an
investigation in a tainted and unfair
manner. The investigation should not prima
facie be indicative of a biased mind, and
every effort should be made to bring the
guilty to the law as nobody stands above
the law and dehors his position and
influence in society2.

10.
He
further
relied
on
K.
Chandrasekhar v. State of Kerala &
Ors.3; Ramachandran v. R. Udhayakumar
& Ors.4; Nirmal Singh Kahlon (supra);
Mithabhai Pashabhai Patel & Ors. v. State
of
Gujarat5;
and
Kishan
Lal
v.
Dharmendra Bafna6 wherein it has been
emphasised that where the Court comes to
the conclusion that there was a serious
irregularity in the investigation that had
taken place, the Court may direct a further
investigation under Section 173(8) Cr.P.C.,
even transferring the investigation to an
independent agency, rather than directing a
re-investigation.
Direction
of
a
reinvestigation, however, being forbidden in
law, no superior court would ordinarily
issue such a direction.

11. The above-referred judgments of
the Supreme Court make it clear that the
scheme
of
investigation,
particularly
Section 173(8) Cr.P.C., provides for further
investigation and not for re-investigation.
Therefore, if the Court, comes to the
conclusion that the investigation has been
done in a manner with the object of helping
a party, the Court may direct for further
investigation and ordinarily not for reinvestigation.

12. In the Babubhai (supra) case, the
Supreme Court has observed that if it is
evident that in exceptional circumstances
and the Court considers it necessary, it may
direct for fresh investigation. For lucidity,
the relevant portion of the judgment is
extracted herein below:

"45. Not only fair trial but fair
investigation is also part of constitutional
rights guaranteed under Articles 20 and 21
of the Constitution of India. Therefore, the
investigation must be fair, transparent and
judicious, as it is the minimum requirement
of the rule of law. The investigating agency
cannot be permitted to conduct an
investigation in a tainted and biased
manner. Where non-interference of the
Court would ultimately result in failure of
justice, the Court must interfere. In such a
situation, it may be in the interest of justice
that an independent agency chosen by the
High Court makes a fresh investigation."

13. The duty of the Investigating
Officer is not merely to bolster up a
prosecution case with such evidence as
may enable the Court to record a conviction
116 INDIAN LAW REPORTS ALLAHABAD SERIES
but to bring out the real, unvarnished
truth.7

14. The investigation thereafter would
commence, and the Investigating Officer to
go step by step. The Supreme Court
contemplates the following steps to be
carried out by the Investigating Officer in
H. N. Rishbud and Inder Singh v. The
State Of Delhi8. The contextual paragraph
is extracted herein below:

"If, upon the completion of the
investigation, it appears to the officer in
charge of the police station that there is no
sufficient evidence or reasonable ground,
he may decide to release the suspected
accused, if in custody, on his executing a
bond. If, however, it appears to him that
there is sufficient evidence or reasonable
ground, to place the accused on trial, he is
to take the necessary steps therefore under
Section 170 of the Code. In either case, on
the completion of the investigation he has
to submit a report to the Magistrate under
Section 173 of the Code in the prescribed
form furnishing various details. Thus,
under the Code investigation consists
generally of the following steps : (1)
Proceeding to the spot, (2) Ascertainment
of the facts and circumstances of the case,
(3) Discovery and arrest of the suspected
offender, (4) Collection of evidence relating
to the commission of the offence which may
consist of (a) the examination of various
persons (including the accused) and the
reduction of their statements into writing, if
the officer thinks fit, (b) the search of
places or seizure of things considered
necessary for the investigation and to be
produced at the trial, and (5) Formation of
the opinion as to whether on the material
collected there is a case to place the
accused before a Magistrate for trial and if
so taking the necessary steps for the same
by the filing of a chargesheet under Section
173."

15. Whereas, learned A.G.A. has
relied upon the State of Bihar etc. v. P.P.
Sharma, IAS and another9, a significant
judgment passed by the Supreme Court of
India, in which it has been held that the
High Court treating the affidavit filed and
document produced before it by the
petitioner-accused as evidence by quashing
the proceedings has committed grave error
in putting an end to the prosecution acted
as such after going into the merits in a pretrial
consideration
of
affidavit
and
documents which, unless proved to be true
and reliable cannot form the basis of any
decision regarding commission of the
offence.
The
salient
paragraph
is
reproduced herein under:

"Malafides means want of good
faith, personal bias, grudge, oblique or
improper motive or ulterior purpose. The
administrative action must be said to be
done in good faith if it is done honestly,
whether it is done negligently or not. An act
done honestly is deemed to have been done
in good faith. An administrative authority
must, therefore, act in a bona fide manner
and should never act for an improper
motive or ulterior purposes or, contrary to
the statute's requirements or the basis of
the circumstances contemplated by law, or
improperly exercise discretion to achieve
some ulterior purpose. The determination
of a plea of mala fide involves two
questions, namely (i) whether there is a
personal bias or an oblique motive and (ii)
whether
the
administrative
action
is
contrary to the objects, requirements and
conditions
of
a
valid
exercise
of
administrative power.

An investigating officer who is
not sensitive to the constitutional mandates,
1 All. Abhay Gupta Vs. State of U.P. & Ors.
117
may be prone to trample upon the personal
liberty of a person when mala fides actuate
him. But as stated, the accused, at the
earliest, should bring to the notice of the
Court of the personal bias and his
reasonable
belief
that
an
objective
investigation into the crime would not be
had at the hands of the investigator by
pleading and proving as of fact with
necessary material facts. If he stands by till
the chargesheet is filed, it must be assumed
that he has waived his objection. After
seeing the adverse report, he cannot turn
down to plead the alleged mala fides.
(Equally laying the information before the
Station House Officer of the commission of
cognizable crime merely sets the machinery
of the investigation in motion to act in
accordance with the procedure established
by law.) The finding of the High Court,
therefore, that the F.I.R. chargesheet
violates the constitutional mandate under
Article 21 is without substance."

16. Learned A.G.A. has also relied
upon Priti Singh v. State of U.P. and others,
passed by the co-ordinate Bench of this
Court in Writ Petition No.11652 of 2023,
wherein the co-ordinate Bench of this
Court has held that the accused has no right
to seek a fair investigation only on the
ground that initially he was informant, and
subsequently has been arrayed as accused
in the impugned FIR.

17. If information is lodged at the
police station and an offence is registered,
the malafide of the informant would be of
secondary importance if the investigation
produces
unimpeachable
evidence
disclosing the offence10.

18. It would be judiciously apt to refer
to two judgments passed by the 3-judge
Bench of the Supreme Court, i) Mohan Lal
v. State of Punjab11, and ii) Vishnubhai
Haribhai Malviya and others v. State of
Gujarat and others12, they may shed light
to reach a logical conclusion in the factscircumstances of the case.

19. After relying upon the cases of
Babubhai v. State of Gujarat (supra),
State of Bihar v. P.P. Sharma (supra), and
Noor Aga v. State of Punjab13, the
Supreme Court in Mohan Lal's case (supra)
has held that in a criminal prosecution,
there is an obligation cast on the
investigator not only to be fair, judicious
and just during the investigation but also
that the investigation on the very face of it
must appear to be so, eschewing any
conduct or impression which may give rise
to a real and genuine apprehension in the
mind of an accused, that the investigation
was not fair. In the circumstances, if an
informant police official in a criminal
prosecution, especially when carrying a
reverse burden of proof, makes the
allegations himself and is asked to
investigate, serious doubts will naturally
arise with regard to his fairness and
impartiality. It is not necessary that bias
must actually be proved. It would be
illogical to presume and, contrary to normal
human conduct, that he would at the end of
the investigation, submit a closure report to
conclude false implication with all its
attendant consequences for the complainant
himself. The result of the investigation
would, therefore be a foregone conclusion.

20. Further, after referring to Bhaskar
Ramappa Madar v. State of Karnataka14;
Hardip Singh v. State of Punjab15; B.
State v. Jayapaul16; State of Punjab v.
Baldev Singh17; Surender v. State of
Haryana18, the Supreme Court in Mohan
Lal's case (supra) has culled out the
underlined proposition:
118 INDIAN LAW REPORTS ALLAHABAD SERIES

"30. In view of the conflicting
opinions expressed by different two-judge
Benches of this Court, the importance of a
fair investigation from the point of view of
an accused is a guaranteed constitutional
right under Article 21 of the Constitution of
India; it is considered necessary that the
law in this regard be laid down with
certainty. To leave the matter for being
determined on the individual facts of a
case, may not only lead to a possible abuse
of powers, but more importantly will leave
the police, the accused, the lawyer and the
courts in a state of uncertainty and
confusion which has to be avoided. It is
therefore held that a fair investigation,
which is but the very foundation of fair
trial,
necessarily
postulates
that
the
informant and the investigator must not be
the same person. Justice must not only be
done, but must appear to be done also. Any
possibility of bias or a predetermined
conclusion has to be excluded. This
requirement is all the more imperative inlaws carrying a reverse burden of proof."

21. In Vishnubhai Haribhai Malviya
case (supra), the Supreme Court has
considered whether, after the police file a
charge-sheet, the Magistrate has the power
to order further investigation, and if so, up
to what stage of the proceedings. In
Vishnubhai Haribhai Malviya case (supra),
pursuant to registration of the FIR, the
investigation was conducted by the police,
which resulted in a charge sheet being
submitted before the Judicial Magistrate,
and the Judicial Magistrate, after taking
cognizance, issued a summons to the
accused persons. Pursuant to the summons
the accused appeared before the Magistrate
and filed an application under section
173(8) of the Code of Criminal Procedure,
1973 for further investigation, and another
application for discharge. The Magistrate
dismissed the applications that were filed
for further investigation, stating that the
facts sought place by the applications were
in the nature of defence and that would be
taken in the trial, and likewise, a discharge
application was also rejected.

22. Separate criminal revisions were
filed before the Sessions Court, Surat. Both
these revision applications were decided by
the learned Additional Sessions Judge,
Surat, by a common order, and found that a
case is made out for further investigation.
In compliance with the session's court
order, the investigation was handed over to
the police. The matter reached before the
High Court, and the High Court found that
the interim investigation reports virtually
acquitted the accused persons; therefore,
the High Court set aside the judgment of
the Additional Sessions Judge, Surat and
remanded the same for fresh consideration
to the sessions court. The sessions judge
rejected the application filed under section
156(3) Cr.P.C. on merits, and there is how,
the matter reached before the Supreme
Court. In the foregoing facts, relying upon
catena of judgments, the Supreme Court
has held that:

"42. There is no good reason in
these decisions as to why a Magistrate's
powers to order further investigation would
suddenly cease upon the process being
issued, and an accused appearing before
the Magistrate, while concomitantly, the
power of the police to further investigate
the offence continues right till the stage the
trial commences. Such a view would not
accord with the earlier judgments of this
Court, in particular, Sakiri Vasu v. State of
U.P.19; Samaj Parivartan Samudaya v.
State of Karnataka20; Vinay Tyagi v. Irshad
Ali21; and Hardeep Singh v. State of
Punjab22; Hardeep Singh v. State of
1 All. Abhay Gupta Vs. State of U.P. & Ors.
119
Punjab23, having clearly held that a
criminal
trial
does
not
begin
after
cognizance is taken, but only after charges
are framed. What is not given any
importance at all in the recent judgments of
this Court is Article 21 of the Constitution
and the fact that the Article demands no
less than a fair and just investigation. To
say that a fair and just investigation would
lead to the conclusion that the police retain
the power, subject, of course, to the
Magistrate's nod under Section 173(8) to
further investigate an offence till charges
are framed, but that the supervisory
jurisdiction of the Magistrate suddenly
ceases
midway
through
the pre-trial
proceedings, would amount to a travesty of
justice, as certain cases may cry out for
further investigation so that an innocent
person is not wrongly arraigned as an
accused or that a prima facie guilty person
is not so left out. There is no warrant for
such a narrow and restrictive view of the
powers of the Magistrate, particularly
when such powers are traceable to Section
156(3) read with Section 156(1), Section
2(h) and Section 173(8) CrPC, as has been
noticed
hereinabove,
and
would
be
available at all stages of the progress of a
criminal case before the trial actually
commences. It would also be in the interest
of justice that this power be exercised suo
motu by the Magistrate himself, depending
on the facts of each case. Whether further
investigation should or should not be
ordered is within the discretion of the
learned Magistrate, who will exercise such
discretion on the facts of each case and in
accordance with law. If, for example, fresh
facts come to light that would lead to
inculpating or exculpating certain persons,
arriving at the truth and doing substantial
justice in a criminal case are more
important than avoiding further delay
being caused in concluding the criminal
proceeding, as was held in Hasanbhai
Valibhai Qureshi v. State of Gujarat24.
Therefore, to the extent that the judgments
in Amrutbhai Shambhubhai Patel v.
Sumanbhai Kantibhai Patel25; Athul Rao
v. State of Karnataka26; and Bikash
Ranjan Rout v. State (NCT of Delhi)27
have held to the contrary, they stand
overruled. Needless to add, Randhir Singh
Rana v. State (Delhi Admn.)28 and Reeta
Nag v. State of W.B.29 also stand
overruled.

44. Union of India v. W.N.
Chadha30, is a judgment that states that
the accused has no right to participate in
the investigation till the process is issued to
him, provided there is strict compliance
with the requirements of fair investigation.
Likewise, the judgments in Nagawwa v. V.S.
Konjalgi31, Prabha Mathur v. Pramod
Aggarwal32, Narender G. Goel v. State of
Maharashtra33, and Dinubhai Boghabhai
Solanki v. State of Gujarat34, which state
that the accused has no right to be heard at
the stage of investigation, has very little to
do with the precise question before us. All
these
judgments
are,
therefore,
distinguishable. Further, Babubhai v. State
of Gujarat (supra) is a judgment that
distinguishes between further investigation
and re-investigation and holds that a
superior court may, in order to prevent
miscarriage of criminal justice if it
considers necessary, direct investigation
de-novo, whereas a Magistrate's power is
limited to ordering further investigation.
Since the present case is not concerned
with re-investigation, this judgment also
cannot take us much further. Likewise,
Romila Thapar v. Union of India35, held
that an accused cannot ask to change an
investigating agency or to require that an
investigation be done in a particular
manner, including asking for a courtmonitored investigation. This judgment
120 INDIAN LAW REPORTS ALLAHABAD SERIES
also is far removed from the question that
we have decided in the facts of this case."

23. In Varinder Kumar v. State of
Himachal Pradesh, a 3-judge Bench of the
Supreme
Court
has
considered
and
distinguished Mohan Lal's case (supra) and
held that where the informant is acting as
an investigating officer, the prospects of a
fair investigation by the accused shall be
governed by their individual facts and held
that; the individual rights of the accused are
undoubtedly
important.
But
equally
important is the societal interest in bringing
the offender to book and for the system to
send the right message to all in the society-
be it the law-abiding citizen or the potential
offender. "Human rights" are not only of
the accused but, extent apart, also of the
victim, the symbolic member of society as
the potential victim and society as a
whole36.

24. Law has to cater to a wide variety
of situations as appear in society. The law
being dynamic, the certainty of the
legislation appears rigid at times whenever
a circumstance (set of facts) appears which
is not catered for explicitly. Expediency
then dictates that the higher judiciary, while
interpreting
the
law,
considers
such
exception(s) as is called for without
disturbing the pith and substance and the
original intention of the legislature. This is
required primarily for the reason to help
strike a balance between competing forcesjustice being the end and also because the
process of fresh legislation could take a
long time, which would mean failure of
justice and, with it, erosion of public
confidence and trust in the justice delivery
system37.

25. The principle of fair trial now
informs and energises many areas of the
law. It is a constant, ongoing, evolutionary
process continually adapting itself to
changing circumstances and endeavouring
to meet the exigencies of the situation-
peculiar at times- and related to the nature
of the crime, persons involved, directly or
operating from behind, and so many other
powerful factors which may come in the
way of administration of criminal justice,
wherefore the endeavour of the higher
courts while interpreting the law, is to strike
the right balance38.

26. Societal interest, therefore,
mandates that the law laid down in Mohan
Lal's case (supra) cannot be allowed to
become a springboard by an accused for
being catapulted to acquittal, irrespective of
all other considerations pursuant to an
investigation and prosecution when the law
in that regard was nebulous. Criminal
jurisprudence
mandates
balancing
the
rights of the accused and the prosecution. If
the facts in Mohan Lal's case (supra) were
telling with regard to the prosecution, the
facts in the present case are equally telling
with regard to the accused. There is a
history of previous convictions of the
appellant also. We cannot be oblivious to
the fact that while the law stood nebulous,
charge sheets have been submitted, trials in
progress
or
concluded,
and
appeals
pending, all of which will necessarily be
impacted39.

27. The criminal justice delivery
system
cannot
be
allowed
to
veer
exclusively to the benefit of the offender,
making it a directional exercise. A proper
administration of the criminal justice
delivery
system,
therefore,
requires
balancing the rights of the accused and the
prosecution so that the law laid down in
Mohan Lal's case (supra) is not allowed to
become a springboard for acquittal in
1 All. Abhay Gupta Vs. State of U.P. & Ors.
121
prosecutions prior to the same, irrespective
of all other considerations. We, therefore,
hold that all pending criminal prosecutions,
trials and appeals prior to the law laid down
in Mohan Lal's case (supra) shall continue
to be governed by the individual facts of
the case40.

28. Turning back to the issue before
us, the record annexed with the petition
suggests that the complainant married her
sister to the petitioner on 1.12.2020, and on
23.3.2022, her sister Harshita Gupta was
found dead at the petitioner's residence
under some mysterious circumstances. On
perusal of the postmortem report, it is
observed that the deceased had the
following external injuries:

"1. Ligature mark size 22 x 2 cm
around the neck with a gap of 13 cm back
of neck ligature mark lies 06 cm below the
right ear, 05 cm below the chin, 03 cm
angle of the left mandible. On the cut
section, the skin is parchment-like and
glistening.

2. Contusion 5 x 5 cm mid of
right leg and size 4 x 2 obliquely on back of
right thigh."

29. The doctor has opined the cause
of death was asphyxia due to ante-mortem
hanging. There are also allegations of
demand for dowry and cruelty upon the
deceased by the husband and his family
members.

30. Undoubtedly, the Constitutional
Courts have the power to give direction for
fair investigation in the interest of justice
where it finds a miscarriage of justice
would be caused if the investigation
conducted by the police is belied upon. But,
the said power is not unregulated power
and cannot be used in a routine manner.
The said power shall be used sparingly and
cautiously in exceptional circumstances to
secure the end of justice. In Babubhai
(supra) case, two incidents had occurred
pursuant to the happening of the incident,
two FIRs were registered, and both the
incidents had occurred at the same place in
close proximity of time. Therefore, there
are two parts of the same transaction.
Needless to say, two FIRs were registered
by the police arising out of the same
incident on the tehrir of respective parties,
who were part of the fight.

31. The investigating agency filed the
charge sheets against the respective parties,
against the same set of accused in both
cases. A charge sheet is the outcome of an
investigation. If the investigation has not
been conducted fairly, we are of the view
that such a vitiated investigation cannot
give rise to a valid charge sheet. Such
investigation would ultimately prove to be
a precursor of a miscarriage of criminal
justice. In such a case, the Court would
simply try to decipher the truth only on the
basis of guesses or conjunctures, as the
whole truth would not come before it. It
will be difficult for the Court to determine
how the incident took place wherein three
persons died and so many persons,
including the complainant and accused, got
injured.

32. The petitioner's sole contention
for seeking a fair investigation is rooted in
the letter dated 19.10.2022, annexed to the
petition,
which
refers
to
an
online
complaint
dated
31.3.2022
bearing
Complaint
No.
2022/IC/072020.
The
complaint pertains to the deceased wife's
brother's girlfriend, Mamta, who allegedly
posted inappropriate content on social
media before the deceased's death on
23.3.2022. The petitioner posits that
122 INDIAN LAW REPORTS ALLAHABAD SERIES
Mamta, due to a soured relationship with
the deceased's brother, sought revenge by
tarnishing the deceased's character on
social media, leading to the tragic outcome
of suicide. This argument serves as the
petitioner's defence. While the rights of the
accused are undeniably significant, so are
the rights of the victim. The law must
address a diverse range of societal
situations, allowing for exceptions without
compromising the essence and original
intent of the legislature, as acknowledged
in the Vishnubhai Haribhai case (supra).
The principle of a fair trial is a continuous
and evolving process that adapts to
changing circumstances. Higher courts
strive to strike a balance between the
accused's rights and societal interests,
preventing
the
accused
from
unduly
delaying the trial by filing frivolous
petitions under writ jurisdiction.

33. In essence, Mohan Lal's case
(supra), as discussed herein above, the
appellant assailed his conviction under
section 18 of the NDPS Act, 1985,
sentencing him to rigorous imprisonment
for ten years with a fine of default
stipulated
therein.
The
issue
of
determination before the Supreme Court
was whether a criminal prosecution would
be in consonance with the principles of
natural
justice,
fair
play
and
fair
investigation if the informant and the
investigating officer were to be the same
person. Specially in cases of the NDPS Act,
carrying a reverse burden of proof.
Therefore, Mohan Lal's judgment was
considered and differentiated in Varinder
Kumar's case because no straight jacket
formula could be culled out in case of
further investigation at the behest of the
accused. It needs to be decided on a caseto-case basis, as in the case of dowry death,
the burden is on the accused to prove
innocence, unlike in NDPS cases. Thus, the
facts of Mohan Lal's case (supra) and
Vishnubhai
Haribhai
Malviya's
case
(supra) are distinct and different from the
instant case. Therefore, the ratio culled out
in both these cases would have no
consequences in the facts- circumstances of
the instant case. As rightly said in Varinder
Kumar's case (supra), the criminal justice
delivery system cannot be allowed to be
exclusive to the benefit of the offender,
making it a unidirectional exercise. Thus, it
cannot be allowed to become a springboard
for the acquittal of accused persons in
offences like dowry death.

34. Despite fair investigation and fair
trial being integral to constitutional rights
guaranteed under Articles 20 & 21 of the
Constitution
of
India,
criminal
jurisprudence rests on the presumption of
the accused's innocence until proven guilty.
Those aggrieved by biased and flawed
police investigations may seek permissible
legal recourse at various stages enshrined
in the Code of Criminal Procedure.

35. The writ jurisdiction in criminal
cases plays a pivotal role in upholding the
rule
of
law,
safeguarding
individual
liberties, and ensuring the equitable and
just conduct of legal proceedings. It acts as
a constitutional check on administrative
and lower court actions, providing a
remedy when fundamental rights are
violated or when there is a miscarriage of
justice within the criminal justice system.
Essentially, this jurisdiction serves as a
constitutional
safeguard,
ensuring
individuals
are
protected
from
any
infringement of their fundamental rights
and affirming that justice is not only
achieved but also transparent and evident,
at the same time, the writ jurisdiction ought
to
be
exercised
judiciously
and
1 All. Smt. Jeet Kaur Vs. Sri Mishri Lal
123
circumspectly, with a primary focus on
serving the end of justice rather than
causing harm to the legally prescribed
procedural framework.

36. Unless an exceptional case is
made out with compelling evidence of
gross misuse of power, particularly when
such misuse is evident on the face of the
investigation, the Court should ideally
intervene in the investigative process, a
domain
statutorily
entrusted
to
law
enforcement and the executive branch of
government. In essence, in instances of a
demonstrated malicious exercise of power
by a police officer, the Court shall
intervene in the change of investigation or
fresh invention, as the facts of the case may
demand.

37. If the legal proceedings are
aborted at this stage at the behest of the
accused, in the given facts-circumstances,
in which a young lady has died under
mysterious circumstances at in-laws' house
within seven years of her marriage, and
where there are allegations of dowry
demand and cruelty, the petition cannot be
allowed merely on the basis averments
contended by the petitioner-husband that
the brother of his deceased-wife had an
affair with a lady who had no connection of
whatsoever nature with the in-laws family,
Additionally, considering the letter dated
19.10.2022 (Annexure-17 to the writ
petition) and certain social media posts
(Annexure-12 to the writ petition) amounts
to conduct of a mini-trial within the
purview of writ jurisdiction, which is
impermissible in law. The letter dated
19.11.2022, at its zenith, could serve as the
petitioner's
defence.
However,
its
evidentiary merits and pertinence will
undergo scrutiny during the trial in
accordance with the Evidence Act, 1872.

38. In the foregoing discussions, the
petition is devoid of merit and hence
dismissed.

39. The observations made herein are
expressly confined to the disposition of this
case and hold no relevance or impact on the
ongoing proceedings within the trial court
under the jurisdiction of the District &
Sessions Judge, Mainpuri.
----------
(2024) 1 ILRA 123
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 2053 of 1980

Smt. Jeet Kaur ...Appellant
Versus
Sri Mishri Lal ...Respondent

Counsel for the Appellant:
Sri G.N. Verma, Sri A.N. Verma, Sri Omuir
Babu, Sri Vishnu Sahai

Counsel for the Respondent:
Sri S.N. Singh, Sri Ashok Kumar Srivastava,
Sri R.N. Singh

A.