# Adil & Ors v. The State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 1550
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-11
- **Case number:** Criminal Misc. Writ Petition No. 18834 of 2023
- **Bench:** Vivek Kumar Birla, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/adil-ors-v-the-state-of-u-p-ors-51293
- **Pages:** 6

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Sections 173(8) &
156(3) - Further Investigation - Power of
2 All. Adil & Ors. Vs. The State of U.P. & Ors.
1551
Investigating Agency - Judicial Review - Article
226
The petitioners sought to quash the order dated
06.10.2023 by the Superintendent of Police,
Rampur, directing further investigation in Case
Crime No. 252 of 2023 (P.S. Bilaspur, Rampur)
under Sections 420, 376, 452, 504, 342, 376D,
506, 120-B IPC, and to restrain their arrest or
harassment. The F.I.R., lodged based on an application
under Section 156(3) CrPC by respondent no. 4 (Km.
Nisha Naaz), alleged rape and forgery by co-accused
Furkan Ali and others. After investigation, a charge-sheet
was filed on 24.08.2023 against only Furkan Ali under
Sections 498A, 504, and 506 IPC, exculpating the
petitioners, and cognizance was taken by the Magistrate
on 30.09.2023. Respondent no. 4's writ petition (No.
15260 of 2023) led to the impugned order for further
investigation without disclosing the charge-sheet's filing.
The petitioners argued that the Superintendent lacked
jurisdiction to order further investigation post-cognizance
without Magistrate's permission, citing Peethambaran Vs
St. of Kerala (2023 SCC OnLine SC 553). Held: The
court, relying on St. through CBI Vs Hemendra Reddy
(2023 SCC OnLine SC 515), Sri Bhagwan Samardha Vs
St. ((1999) 5 SCC 740), and Ram Lal Narang Vs St. (AIR
1979 SC 1791), held that Section 173(8) CrPC permits
further
investigation
post-charge-sheet
without
mandatory prior permission from the Magistrate, though
informing the court is desirable. In this case, the
Investigating Officer sought and obtained Magistrate's
permission on 12.10.2023 for case diary copies,
complying with the practice noted in Peethambaran. The
petitioners' reliance on Peethambaran was distinguished,
as permission was sought and grante The court found
no illegality in the impugned order, as the investigating
agency's powers under Section 173(8) are unfettered,
and further investigation is a continuation, not a de novo
investigation. The petition was dismissed as meritless.

Case Law Cited:

## Text

1550 INDIAN LAW REPORTS ALLAHABAD SERIES
with these objectives, aiming to facilitate
accessible credit to farmers through co-operative
societies on equitable terms.

19. In light of the stated aims and
objectives of the Co-operative Societies Act of
1965, it is reasonably deduced that the
registration of the impugned First Information
Report in the present case does not prima facie
contravene any provisions of the Act. The
regulatory framework appears to be in
consonance with the broader objectives of
shielding the agricultural community from
exploitation and promoting their economic wellbeing through co-operative initiatives. In the
wake of the aims and objective of the Act, it
could be safely concluded that no provisions of
the Co-operative Societies Act, 1965 have prima
facie been violated for registration of the
impugned F.I.R. in the instant case.

20. Lalita Kumari case (supra) explicitly
emphasizes the mandatory nature of First
Information Report registration, as outlined in
Section 154 of the Code of Criminal Procedure.
The Uttar Pradesh Co-operative Societies Act,
1965 remains silent on the specific procedure for
registering an F.I.R. in cases involving
embezzlement of society funds and the illicit
recovery of credit from farmers, therefore,
general legal principles in the regards would be
applicable. The petitioner neither contends that
the criminal proceedings against him is tainted
with malice nor suggests any ulterior motives in
the initiation of the prosecution.

21. Furthermore, the petitioner fails to
align their case with any of the seven illustrations
provided in the landmark judgment of State of
Haryana and others v. Bhajan Lal and others4,
which delineates circumstances warranting the
quashing of criminal proceedings.

22. Turning to the facts of present case,
serious allegations of embezzlement amounting
to Rs.16,17,833.00, collected unlawfully from
impoverished farmers by the Officiating
Secretary of the Samiti, form the crux of the
matter. The registration of the F.I.R. follows a
conclusive determination of embezzlement by a
three-member
committee.
No
substantive
reasons have been proffered by the petitioner's
counsel to dispute the findings of this committee,
which serves as the basis for the impugned F.I.R.
In the legal context, the delegation of the power
to register the F.I.R. holds no consequential
weight, both in light of Lalita Kumari case
(supra) and on broader legal grounds.

23. As the investigation is in its initial
stages, the extraordinary power vested in this
Court under Article 226 of the Constitution of
India to quash the F.I.R. is deemed unwarranted
given the current facts-circumstances.

24. The instant petition is devoid of
merits, and hence dismissed.
----------
(2024) 2 ILRA 1550
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2024

BEFORE

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

Criminal Misc. Writ Petition No. 18834 of 2023

Adil & Ors. ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Brijesh Kumar Pandey

Counsel for the Respondents:
G.A., Sri Vinod Singh

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 173(8) &
156(3) - Further Investigation - Power of
2 All. Adil & Ors. Vs. The State of U.P. & Ors.
1551
Investigating Agency - Judicial Review - Article
226
The petitioners sought to quash the order dated
06.10.2023 by the Superintendent of Police,
Rampur, directing further investigation in Case
Crime No. 252 of 2023 (P.S. Bilaspur, Rampur)
under Sections 420, 376, 452, 504, 342, 376D,
506, 120-B IPC, and to restrain their arrest or
harassment. The F.I.R., lodged based on an application
under Section 156(3) CrPC by respondent no. 4 (Km.
Nisha Naaz), alleged rape and forgery by co-accused
Furkan Ali and others. After investigation, a charge-sheet
was filed on 24.08.2023 against only Furkan Ali under
Sections 498A, 504, and 506 IPC, exculpating the
petitioners, and cognizance was taken by the Magistrate
on 30.09.2023. Respondent no. 4's writ petition (No.
15260 of 2023) led to the impugned order for further
investigation without disclosing the charge-sheet's filing.
The petitioners argued that the Superintendent lacked
jurisdiction to order further investigation post-cognizance
without Magistrate's permission, citing Peethambaran Vs
St. of Kerala (2023 SCC OnLine SC 553). Held: The
court, relying on St. through CBI Vs Hemendra Reddy
(2023 SCC OnLine SC 515), Sri Bhagwan Samardha Vs
St. ((1999) 5 SCC 740), and Ram Lal Narang Vs St. (AIR
1979 SC 1791), held that Section 173(8) CrPC permits
further
investigation
post-charge-sheet
without
mandatory prior permission from the Magistrate, though
informing the court is desirable. In this case, the
Investigating Officer sought and obtained Magistrate's
permission on 12.10.2023 for case diary copies,
complying with the practice noted in Peethambaran. The
petitioners' reliance on Peethambaran was distinguished,
as permission was sought and grante The court found
no illegality in the impugned order, as the investigating
agency's powers under Section 173(8) are unfettered,
and further investigation is a continuation, not a de novo
investigation. The petition was dismissed as meritless.

Case Law Cited:

1. Peethambaran Vs St. of Kerala, 2023 SCC OnLine SC
553

2. St. through Central Bureau of Investigation Vs
Hemendra Reddy, 2023 SCC OnLine SC 515

3. Sri Bhagwan Samardha Sreepada Vallabha Venkata
Vishwanandha Maharaj Vs St., (1999) 5 SCC 740

4. Ram Lal Narang Vs St. (Delhi Admn.), AIR 1979 SC
1791
5. Jitendra Singh @ Bablu Vs St. of U.P., Criminal Mis
Writ Petition No. 10247 of 2023, decided on 09.11.2023
(All. HC)

6. Smt. Preety Verma Vs St. of U.P., Criminal Mis Writ
Petition No. 11257 of 2023, decided on 17.08.2023 (All.
HC)

(Delivered by Hon'ble 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
1552 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 2Superintendent 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
judgement 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. 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
2 All. Adil & Ors. Vs. The State of U.P. & Ors.
1553
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 judgement 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. 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 judgement 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.
1554 INDIAN LAW REPORTS ALLAHABAD SERIES

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.

(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. 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
2 All. Deepanshu @ Sudhanshu Tripathi Vs. State of U.P. & Ors.
1555
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. 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.
----------
(2024) 2 ILRA 1555
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.01.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Transfer Application (Criminal) No. 83 of 2023

Deepanshu @ Sudhanshu Tripathi
 ...Applicant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicant:
Ganga Singh

Counsel for the Respondent:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure-Sectiontion 181-Genesis of all the
six cases is a single recovery memo -which has
been executed -three cases are pending
consideration - the cases, so indicated be