# Ajay Kumar Pandey v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 255
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-27
- **Case number:** Criminal Misc. Writ Petition No. 15692 of 2020
- **Bench:** Surya Prakash Kesarwani, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-pandey-v-state-of-u-p-ors-46928
- **Pages:** 11

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 156(3) - Fair
and proper investigation - confers power
upon any officer in-charge of a police
station to investigate any cognizable case
- provides for a cheque by the Magistrate
on the police performing its duties under
Chapter XII, Cr.P.C. - cases where the
256 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate finds that police has not done
its duty of investigating the case at all or
has not done it satisfactorily - he can issue
a direction to the police to do the
investigation properly and can monitor the
same.(Para -11)

(B) Criminal law - criminal justice system
- any investigation into the crime should
be fair, in accordance with law and should
not be tainted - interested or influential
persons are not able to misdirect or hijack
the investigation, so as to throttle a fair
investigation resulting in the offenders
escaping punitive course of law - Breach
of rule of law amounts to negation of
equality
under
Article
14
of
the
Constitution of India - Article 21 of the
Constitution of India makes it clear that
the procedure in criminal trials must be
right, just and fair and not arbitrary,
fanciful or oppressive.(Para - 7)

Petitions filed by the petitioners praying for a
direction to the concerned police authorities for
fair and proper investigation in criminal cases in
which investigation is going on.(Para -2)

HELD:- If an informant/ petitioner is aggrieved
that proper/ fair investigation is not being done
by the investigating officer, then he/ she may
approach the concerned Magistrate by moving
an application under Section 156(3) Cr.P.C. for
appropriate orders instead of invoking writ
jurisdiction under Article 226 of the Constitution
of India. (Para -14)

Criminal Misc. Writ Petitions dismissed. (E6)

List of Cases Cited:-

## Text

3 All. Ajay Kumar Pandey Vs. State of U.P. & Ors.
255
exceeding one month under sub - Rule (2).
To meet the emergent situations in the
interest of justice, the District Magistrate of
the District to which the prisoner belongs
has been empowered to suspend the
sentence of a prisoner upto 72 hours on the
grounds mentioned in Clauses (a) and (b)
of sub Rule (3) of Rule 3.

13. Extension of the period of
suspension after two months is provided in
Rule 4. Procedure for suspension of
sentence is provided in Rule 5 which
requires submission of an application in
prescribed Form-I by the prisoner himself
or by a member of the family or a close
relative of the prisoner in duplicate through
the Superintendents of the Jail concerned,
who shall forward one copy of it along with
his comments and Jail reports in Form II to
the Government and other copy to the
District Magistrate concerned.

14. The Government may call for a
report from the District Magistrate and the
Superintendent of Police concerned on the
desirability of the suspensions of the
sentence of the prisoner, who after
conducting
such
enquiry
as
deemed
necessary shall submit their report in Form
III within 30 days to the Government. In
appropriate cases the Government may call
for opinion under sub-section (2) of Section
432 of the Code of Criminal Procedure,
1973. After complying with the procedure
as provided in sub Rule 1,2 and 3 of Rule 5
of the Rules 2007 a Prisoner may be
released on parole on suspension of
sentence provided he furnishes security
alongwith personal bond to the satisfaction
of the District Magistrate to the effect that
he shall surrender in Jail concerned on
expiry of the period of suspension of
sentence and shall maintain peace and good
conduct during the period of suspension of
sentence. Condition of suspension of
sentence is provided in Rule 6 of the Rules
2007. Thus, a complete procedure has been
provided under the Rules 2007 for
suspension of sentence by the competent
authority. Therefore, writ petition under
Article 226 of the Constitution of India is
not the proper remedy for aforesaid
purpose.

15. For all the reasons aforestated we
do not find any merit in the present writ
petition. Consequently, the writ petition
fails and is hereby dismissed.
----------
(2021)03ILR A255
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE SHAMIM AHMED, J.

Criminal Misc. Writ Petition No. 15692 of 2020
with
Criminal Misc. Writ Petition No. 15750 of 2020
and other connected cases

Ajay Kumar Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sachida Nand Tiwari

Counsel for the Respondents:
A.G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 156(3) - Fair
and proper investigation - confers power
upon any officer in-charge of a police
station to investigate any cognizable case
- provides for a cheque by the Magistrate
on the police performing its duties under
Chapter XII, Cr.P.C. - cases where the
256 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate finds that police has not done
its duty of investigating the case at all or
has not done it satisfactorily - he can issue
a direction to the police to do the
investigation properly and can monitor the
same.(Para -11)

(B) Criminal law - criminal justice system
- any investigation into the crime should
be fair, in accordance with law and should
not be tainted - interested or influential
persons are not able to misdirect or hijack
the investigation, so as to throttle a fair
investigation resulting in the offenders
escaping punitive course of law - Breach
of rule of law amounts to negation of
equality
under
Article
14
of
the
Constitution of India - Article 21 of the
Constitution of India makes it clear that
the procedure in criminal trials must be
right, just and fair and not arbitrary,
fanciful or oppressive.(Para - 7)

Petitions filed by the petitioners praying for a
direction to the concerned police authorities for
fair and proper investigation in criminal cases in
which investigation is going on.(Para -2)

HELD:- If an informant/ petitioner is aggrieved
that proper/ fair investigation is not being done
by the investigating officer, then he/ she may
approach the concerned Magistrate by moving
an application under Section 156(3) Cr.P.C. for
appropriate orders instead of invoking writ
jurisdiction under Article 226 of the Constitution
of India. (Para -14)

Criminal Misc. Writ Petitions dismissed. (E6)

List of Cases Cited:-

1. Menka Gandhi Vs U.O.I., AIR 1978 SC 597

2. Vinubhai Haribhai Malviya & ors. Vs St. of
Guj.& anr., AIR 2019 SC 5233

3. Subramanian Swamy Vs C.B.I., (2014) 8 SCC
682

4. Commissioner of Police, Delhi Vs Registrar,
Delhi High Court, New Delhi, AIR 1997 SC 95

5. Rampal Pithwa Rahidas Vs St. of Mah., 1994
Suppl. (2) SCC 73

6. Sasi Thomas Vs State, (2006) 12 SCC 421

7. Dilawar Vs St. of Har., (2018) 16 SCC 521

8. Hussainara Khatoon (I) Vs St. of Bihar,
(1980) 1 SCC 81

9. Abdul Rehman Antulay Vs R.S. Nayak, (1992)
1 SCC 225

10. P. Ramchandra Rao Vs St. of Karnatka,
(2002) 4 SCC 578

11. H.N. Rishbud Vs St. of Delhi, AIR 1955 SC
196

12. Sakiri Vasu Vs St. of U.P. & ors., (2008) 2
SCC 409 .

13. Mohd. Yousuf Vs Smt. Afaaq Jahan, (2006)
1 SCC 627

14. Dilawar Singh Vs St. of Delhi1, JT 2007 (10)
SC 585

15. St.of Bihar Vs A.C. Saldana, AIR 1980 SC
326

16. U.O.I. Vs Paras Laminates (P) Ltd., (1990) 4
SCC 453

17. I.T.O. Vs Mohd. Kunhi, AIR 1969 SC 430

18. R.B.I. Vs Peerless General Finance &
Investment Comp.Ltd, (1996) 1 SCC 642

19. Chief Executive Officer & Vice Chairman
Gujarat Maritime Board Vs Haji Daud Haji Harun
Abu, 1996 (11) SCC 23

20. J.K. Synthetics Ltd. Vs Collector of Central
Excise, (1996) 6 SCC 92
3 All. Ajay Kumar Pandey Vs. State of U.P. & Ors.
257
21. State of Karnataka Vs Vishwabharati House
Building Co-op Society, 2003 (2) SCC 412

22. Sudhir Bhaskar Rao Tambe Vs Hemant
Yaswant Dhage, (2016) 6 SCC 277

23. Vinay Tyagi Vs Irshad Ali, (2013) 5 SCC 762

24. Vinubhai Haribhai Malviya & ors. Vs St.of
Guj. & anr. , AIR 2019 SC 5233

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard learned counsels for the
petitioners and the learned A.G.A. for the
State-respondents in this batch of writ
petitions.

2. All the above noted writ petitions
have been filed by the petitioners praying
for a direction to the concerned police
authorities for fair and proper investigation
in criminal cases in which investigation is
going on. Thus, following questions of law
are involved in the present writ petition:-

(a) Whether the jurisdictional
Magistrate has power to direct the police
authority concerned for fair and proper
investigation?

(b) Whether the petitioners are
justified to file writ petitions under Article
226 of the Constitution of India without
approaching the concerned Magistrate
under Section 156(3) of the Code of
Criminal Procedure, 1973 for fair and
proper investigation?

Submissions:

3. Learned counsel for the petitioners
submitted that an important facet of the rule
of law is that in criminal justice system,
investigation into the crime should be fair,
in accordance with law and should not be
tainted. Therefore, if the investigating
authority is not fairly and properly
investigating into crime then this court has
power to issue appropriate directions under
Article 226 of the Constitution of India.
They further submitted that once the power
is available to this court, there is no need to
invoke the powers of the concerned
Magistrate under Section 156(3) of the
Code
of
Criminal
Procedure,
1973
(hereinafter referred to as ''Cr.P.C.').

4. Learned A.G.A. submitted that the
Magistrate has the power under Section
156(3) of the Cr.P.C. to order for fair and
proper investigation and, therefore, the
petitioners should have approached the
concerned Magistrate for redressal of their
grievances.

Discussion and Findings:

5. We have carefully considered the
submissions of the learned counsels for the
parties.

6. Relevant provisions for the
purposes of controversy involved in the
present writ petitions are Sections 2(c),
2(d), 2(g), 2(h), 36 and 156, Cr.P.C., which
are reproduced below:

"Section
2(c):-
"cognizable
offence" means an offence for which, and
"cognizable case" means a case in which,
a police officer may, in accordance with
the First Schedule or under any other law
for the time being in force, arrest without
warrant.

Section
2(d):-
"complaint"
means any allegation made orally or in
writing to a Magistrate, with a view to his
taking action under this Code, that some
person, whether known or unknown, has
258 INDIAN LAW REPORTS ALLAHABAD SERIES
committed an offence, but does not include
a police report.

Section 2(g):- "inquiry" means
every inquiry, other than a trial, conducted
under this Code by a Magistrate or Court;

Section 2(h):- "investigation"
includes all the proceedings under this
Code for the collection of evidence
conducted by a police officer or by any
person (other than a Magistrate) who is
authorised by a Magistrate in this behalf.

Section 36:- Powers of superior
officers of police. Police officers superior
in rank to an officer in charge of a police
station may exercise the same powers,
throughout the local area to which they are
appointed, as may be exercised by such
officer within the limits of his station.

Section 156. Police officer's
power to investigate cognizable case.-(1)
Any officer in charge of a police station
may, without the order of a Magistrate,
investigate any cognizable case which a
Court having jurisdiction over the local
area within the limits of such station would
have power to inquire into or try under the
provisions of Chapter XIII.

(2) No proceeding of a police
officer in any such case shall at any stage
be called in question on the ground that the
case was one which such officer was not
empowered
under
this
section
to
investigate.

(3) Any Magistrate empowered under
Section
190
may
order
such
an
investigation as above-mentioned."

Fair Investigation - Rule of Law:

7. The criminal justice system
mandates that any investigation into the
crime should be fair, in accordance with
law and should not be tainted. It is equally
important that interested or influential
persons are not able to misdirect or hijack
the investigation, so as to throttle a fair
investigation resulting in the offenders
escaping punitive course of law. These are
important facets of the rule of law. Breach
of rule of law amounts to negation of
equality
under
Article
14
of
the
Constitution of India. Article 21 of the
Constitution of India makes it clear that the
procedure in criminal trials must be right,
just and fair and not arbitrary, fanciful or
oppressive, vide Menka Gandhi vs. Union
of India1 (para-7) and Vinubhai Haribhai
Malviya and others vs. State of Gujrat
and another2 (paras-16 and 17) and
Subramanian Swamy vs. C.B.I.3 (para86). Article 21 enshrines and guarantees the
precious right of life and personal liberty to
a person which can only be deprived on
following the procedure established by law
in a fair trial which assures the safety of the
accused. The assurance of a fair trial is
the first imperative of the dispensation of
justice, vide Commissioner of Police,
Delhi vs. Registrar, Delhi High Court,
New Delhi4 (para-16). The ultimate aim of
all investigation and inquiry whether by the
police or by the Magistrate is to ensure that
those who have actually committed a
crime, are correctly booked and those who
have not, are not arraigned to stand trial.
This is the minimal and fundamental
requirement
of
Article
21
of
the
Constitution of India. Interpretation of
provisions of Cr.P.C. needs to be made so
as to ensure that Article 21 is followed both
in letter and in sprit. "A speedy trial" is the
essence of companion in concept in "fair
trial".
Both
being
inalienable
jurisprudentially,
the
guarantee
under
Article 21 of the Constitution of India
embraces both life and liberty of the
accused as well as interest of the victim, his
near and dear ones as well as of the
community at large and, therefore, cannot
be alienated from each other. A fair trial
3 All. Ajay Kumar Pandey Vs. State of U.P. & Ors.
259
includes fair investigation as reflected from
Articles 20 and 21 of the Constitution of
India. If the investigation is neither
effective nor purposeful nor objective nor
fair,
the
courts
may
if
considered
necessary, may order fair investigation,
further investigation or reinvestigation as
the case may be to discover the truth so as
to prevent miscarriage of justice. However,
no hard and fast rules as such can be
prescribed by way of uniform and universal
invocation and decision shall depend upon
facts and circumstances of each case.

8. Fair and proper investigation is the
primary duty of the investigating officer. In
every civilized society, the police force is
invested with powers of investigation of a
crime to secure punishment for the criminal
and it is in the interest of the society that the
investigating agency must act honestly and
fairly and not resort to fabricating false
evidence or creating false clues only with a
view to secure conviction because such acts
shake the confidence of the common man not
only in the investigating agency but in the
ultimate
analysis
in
the
system
of
dispensation of criminal justice. Proper result
must be obtained by recourse to proper
means, otherwise it would be an invitation to
anarchy, vide Rampal Pithwa Rahidas vs.
State
of
Maharastra5
(para-37).
Investigation must be fair and effective and
must proceed in the right direction in
consonance with the ingredients of the
offence and not in a haphazard manner
moreso in serious case. Proper and fair
investigation on the part of the investigating
officer is the backbone of rule of law vide
Sasi Thomas vs. State6 (para-15 and 18).

Investigation under the Cr.P.C.:-

9. No investigating agency can take
unduly
long
time
in
completing
investigation. There is implicit right under
Article 21 for speedy trial which in turn
encompasses speedy investigation, inquiry,
appeal, revision and retrial. There is clear
need
for
time
line
in
completing
investigation for having in-house oversight
mechanism wherein accountability for
adhering to lay down timeline, can be fixed
at different levels in the hierarchy, vide
Dilawar vs. State of Haryana7 (paras-4 to
8), Menka Gandhi (supra), Hussainara
Khatoon (I) vs. State of Bihar8, Abdul
Rehman Antulay vs. R.S. Nayak9 and P.
Ramchandra
Rao
vs.
State
of
Karnatka10.

10. For the purposes of investigation,
offences are divided into two categories
"cognizable" and "non-cognizable". When
information of a cognizable offence is
received or such commission is suspected,
the proper police officer has the authority
to enter in the investigation of the same but
where the information relates to a noncognizable offence, he shall not investigate
it without the order of the competent
Magistrate. Investigation includes all the
proceedings under the Cr.P.C. for the
collection of evidence conducted by a
police officer or by any person other
than a Magistrate (who is authorised by a
Magistrate in his behalf). Investigation
consists of steps, namely (i) proceeding to
spot, (ii) ascertainment of the facts and
circumstances of the case, (iii) discovery
and arrest of the suspected offender, (iv)
collection of evidence relating to the
commission of the offence and (v)
formation of opinion as to whether on the
material collected therein to place the
accused before a Magistrate for trial and if
so to take necessary steps for the same by
filing a chargesheet under Section 173,
Cr.P.C., vide H.N. Rishbud vs. State of
Delhi11.
260 INDIAN LAW REPORTS ALLAHABAD SERIES

Remedy for Proper Investigation:-

11. Section 156(1) confers power
upon any officer in-charge of a police
station to investigate any cognizable case.
Section 156(3) provides for a cheque by the
Magistrate on the police performing its
duties under Chapter XII, Cr.P.C. In cases
where the Magistrate finds that police has
not done its duty of investigating the case
at all or has not done it satisfactorily, he
can issue a direction to the police to do the
investigation properly and can monitor the
same.

12. In Sakiri Vasu vs. State of U.P.
and others12 (paras-11 to 18 and 27 to 30)
Hon'ble Supreme Court considered Section
156(3), Cr.P.C. and after referring to its
earlier decisions in Mohd. Yousuf vs. Smt.
Afaaq Jahan13 (para-11), Dilawar Singh
vs. State of Delhi14 (para-17), State of
Bihar vs. A.C. Saldana15 (para-19) and
also refering to its judgments on the point
of "doctrine of implied powers", in Union
of India vs. Paras Laminates (P)
Ltd.16,I.T.O.
vs.
Mohd.
Kunhi17,
Reserve Bank of India vs. Peerless
General
Finance
and
Investment
Company Ltd18,Chief Executive Officer
& Vice Chairman Gujarat Maritime
Board vs. Haji Daud Haji Harun
Abu19,J.K. Synthetics Ltd. vs. Collector
of Central Excise20, State of Karnataka
vs. Vishwabharati House Building Co-op
Society21, held as under:

"11. In this connection we would
like to state that if a person has a grievance
that the police station is not registering his
FIR underSection 154Cr.P.C., then he can
approach the Superintendent of Police
underSection
154(3)Cr.P.C.
by
an
application in writing. Even if that does not
yield any satisfactory result in the sense
that either the FIR is still not registered, or
that even after registering it no proper
investigation is held, it is open to the
aggrieved person to file an application
underSection 156(3)Cr.P.C. before the
learned Magistrate concerned. If such an
application underSection 156(3) is filed
before the Magistrate, the Magistrate can
direct the FIR to be registered and also
can direct a proper investigation to be
made, in a case where, according to the
aggrieved person, no proper investigation
was made. The Magistrate can also under
the
same
provision
monitor
the
investigation
to
ensure
a
proper
investigation.

12. Thus inMohd. Yousuf vs. Smt.
Afaq Jahan & Anr. this Court observed:
(SCC p.631 para 11)

"11. The clear position therefore
is that any judicial Magistrate, before
taking cognizance of the offence, can order
investigation underSection 156(3)of the
Code. If he does so, he is not to examine
the complainant on oath because he was
not taking cognizance of any offence
therein. For the purpose of enabling the
police to start investigation it is open to the
Magistrate to direct the police to register
an FIR. There is nothing illegal in doing
so. After all registration of an FIR
involves only the process of entering the
substance of the information relating to
the commission of the cognizable offence
in a book kept by the officer in charge of
the police station as indicated inSection
154of the Code. Even if a Magistrate does
not say in so many words while directing
investigating underSection 156(3)of the
Code that an FIR should be registered, it is
the duty of the officer in charge of the
police
station
to
register
the
FIR
regarding the cognizable offence disclosed
by the complaint because that police
officer
could
take
further
steps
3 All. Ajay Kumar Pandey Vs. State of U.P. & Ors.
261
contemplated in Chapter XII of the Code
only thereafter."

13. The same view was taken by
this Court in Dilawar Singh vs. State of
Delhi (2007) 12 SCC 641 (JT vide para
17). We would further clarify that even if
an FIR has been registered and even if the
police has made the investigation, or is
actually making the investigation, which
the aggrieved person feels is not proper,
such
a
person
can
approach
the
Magistrate underSection 156(3)Cr.P.C.,
and if the Magistrate is satisfied he can
order a proper investigation and take
other suitable steps and pass such order
orders as he thinks necessary for ensuring
a proper investigation. All these powers a
Magistrate
enjoys
underSection
156(3)Cr.P.C.

14. Section 156(3) states:

"156(3)
Any
Magistrate
empowered underSection 190may order
such an investigation as abovementioned."

The words "as abovementioned"
obviously refer toSection 156(1), which
contemplates investigation by the officer in
charge of the Police Station."

15. Section 156(3)provides for a
check by the Magistrate on the police
performing its duties under Chapter
XIICr.P.C. In cases where the Magistrate
finds that the police has not done its duty
of investigating the case at all, or has not
done it satisfactorily, he can issue a
direction
to
the
police
to
do
the
investigation properly, and can monitor
the same.

16. The power in the Magistrate
to order further investigation underSection
156(3)is an independent power, and does
not affect the power of the investigating
officer to further investigate the case even
after submission of his report videSection
173(8). Hence the Magistrate can order reopening of the investigation even after the
police submits the final report, videState of
Bihar vs. A.C. Saldanna(1980) 1 SCC 554
(SCC: para 19).

17.
In
our
opinionSection
156(3)Cr.P.C. is wide enough to include
all such powers in a Magistrate which are
necessary
for
ensuring
a
proper
investigation, and it includes the power to
order registration of an F.I.R. and of
ordering a proper investigation if the
Magistrate is satisfied that a proper
investigation has not been done, or is not
being
done
by
the
police.Section
156(3)Cr.P.C., though briefly worded, in
our opinion, is very wide and it will
include all such incidental powers as are
necessary
for
ensuring
a
proper
investigation.

18. It is well-settled that when a
power is given to an authority to do
something it includes such incidental or
implied powers which would ensure the
proper doing of that thing. In other words,
when any power is expressly granted by
the statute, there is impliedly included in
the grant, even without special mention,
every power and every control the denial
of which would render the grant itself
ineffective. Thus where an Act confers
jurisdiction it impliedly also grants the
power of doing all such acts or employ
such means as are essentially necessary to
its execution.

27. As we have already observed
above, the Magistrate has very wide
powers to direct registration of an FIR
and to ensure a proper investigation, and
for this purpose he can monitor the
investigation
to
ensure
that
the
investigation is done properly (though he
cannot investigate himself). The High
Court should discourage the practice of
filing a writ petition or petition under
Section 482Cr.P.C. simply because a
person has a grievance that his FIR has
262 INDIAN LAW REPORTS ALLAHABAD SERIES
not been registered by the police, or after
being registered, proper investigation has
not been done by the police. For this
grievance, the remedy lies underSections
36and154(3)before the concerned police
officers, and if that is of no avail,
underSection 156(3)Cr.P.C. before the
Magistrate
or
by
filing
a
criminal
complaint underSection 200Cr.P.C. and
not by filing a writ petition or a petition
underSection 482Cr.P.C.

28. It is true that alternative
remedy is not an absolute bar to a writ
petition, but it is equally well settled that if
there is an alternative remedy the High
Court should not ordinarily interfere.

29. In Union of India vs. Prakash
P. Hinduja and another(2003) 6 SCC 195
(SCC vide para 13), it has been observed by
this Court that a Magistrate cannot interfere
with the investigation by the police. However,
in our opinion, the ratio of this decision
would only apply when a proper investigation
is being done by the police. If the Magistrate
on
an
application
underSection
156(3)Cr.P.C.
is
satisfied
that
proper
investigation has not been done, or is not
being done by the officer-in-charge of the
concerned police station, he can certainly
direct the officer in charge of the police
station to make a proper investigation and
can further monitor the same (though he
should not himself investigate)."(Emphasis
supplied)

13. The principles laid down in the case
of Sakiri Vasu (supra) has been reiterated
by Hon'ble Supreme Court in Sudhir
Bhaskar Rao Tambe vs. Hemant Yaswant
Dhage22 (paras-2, 3 and 4) and Vinay Tyagi
vs. Irshad Ali23 (paras-40 to 40.6, 43, 44,
45, 46, 47, 48). In the case of Vinay Tyagi
(supra), Hon'ble Supreme Court held as
under:

"43. At this stage, we may also
state another well-settled canon of criminal
jurisprudence that the superior courts have
the jurisdiction underSection 482of the Code
or evenArticle 226of the Constitution of India
to direct ''further investigation', ''fresh' or ''de
novo' and even ''reinvestigation'. ''Fresh', ''de
novo', and ''reinvestigation' are synonymous
expressions and their result in law would be
the same. The superior courts are even vested
with the power of transferring investigation
from one agency to another, provided the
ends of justice so demand such action. Of
course, it is also a settled principle that this
power has to be exercised by the superior
courts very sparingly and with great
circumspection.

44. We have deliberated at some
length on the issue that the powers of the
High Court underSection 482of the Code
do not control or limit, directly or
impliedly, the width of the power of
Magistrate underSection 228of the Code.
Wherever a charge sheet has been
submitted to the Court, even this Court
ordinarily
would
not
reopen
the
investigation, especially by entrusting the
same to a specialised agency. It can safely
be stated and concluded that in an
appropriate case, when the court feels that
the investigation by the police authorities
is not in the proper direction and that in
order to do complete justice and where the
facts of the case demand, it is always open
to the Court to hand over the investigation
to a specialised agency. These principles
have been reiterated with approval in the
judgments of this Court in the case ofDisha
v. State of Gujarat & Ors. [(2011) 13 SCC
337].Vineet Narain v. Union of India
[(1998) 1 SCC 226],Union of India v.
Sushil Kumar Modi [1996 (6) SCC 500]
andRubabbuddin Sheikh v. State of Gujarat
[(2010) 2 SCC 200].
3 All. Ajay Kumar Pandey Vs. State of U.P. & Ors.
263

48. What ultimately is the aim or
significance of the expression ''fair and
proper
investigation'
in
criminal
jurisprudence? It has a twin purpose:
Firstly,
the
investigation
must
be
unbiased, honest, just and in accordance
with law; secondly, the entire emphasis on
a fair investigation has to be to bring out
the truth of the case before the court of
competent jurisdiction. Once these twin
paradigms
of
fair
investigation
are
satisfied, there will be the least requirement
for the court of law to interfere with the
investigation, much less quash the same, or
transfer it to another agency. Bringing out
the truth by fair and investigative means in
accordance with law would essentially
repel the very basis of an unfair, tainted
investigation or cases of false implication.
Thus, it is inevitable for a court of law to
pass a specific order as to the fate of the
investigation, which in its opinion is
unfair, tainted and in violation of the
settled
principles
of
investigative
canons."(Emphasis supplied)

14. In the case of Vinubhai Haribhai
Malviya and others vs. State of Gujrat
and
another24
(para-23),
Hon'ble
Supreme Court held as under:

"23. It is thus clear that the
Magistrate's power underSection 156(3)of
the CrPC is very wide, for it is this judicial
authority that must be satisfied that a
proper investigation by the police takes
place.
To
ensure
that
a
"proper
investigation" takes place in the sense of a
fair and just investigation by the police -
which such Magistrate is to supervise -
Article 21of the Constitution of India
mandates that all powers necessary, which
may also be incidental or implied, are
available to the Magistrate to ensure a
proper investigation which, without doubt,
would include the ordering of further
investigation after a report is received by
him underSection 173(2); and which power
would continue to enure in such Magistrate
at all stages of the criminal proceedings
until the trial itself commences. Indeed,
even textually, the "investigation" referred
to inSection 156(1)of the CrPC would, as
per the definition of "investigation" under
Section 2(h), include all proceedings for
collection of evidence conducted by a
police officer; which would undoubtedly
include proceedings by way of further
investigation under Section 173(8)of the
CrPC."(Emphasis supplied)

15. In the case of Sudhir Bhaskar
Rao Tambe (supra) (paras-2, 3 and 4),
Hon'ble Supreme Court following the
judgment in the case of Sakiri Vasu
(supra) held that if a person has a
grievance that his FIR has not been
registered by the police or having been
registered proper investigation is not
being done, then the remedy of the
aggrieved person is not to go to the High
Court
under
Article
226
of
the
Constitution of India but to approach
the Magistrate concerned under Section
156(3), Cr.P.C. If such an application
under Section 156(3) Cr.P.C. is made,
and the Magistrate is, prima facie,
satisfied, he can direct the FIR to be
registered or if it has already been
registered,
he
can
direct
proper
investigation to be done which includes in
his discretion if he deems it necessary
recommending change of the investigating
officer so that a proper investigation is
done in the matter. Thus, the law laid
down by Hon'ble Supreme Court is that
after
registration
of
the
First
Information
Report
if
proper
investigation is not being done by the
investigating officer, then informant may
264 INDIAN LAW REPORTS ALLAHABAD SERIES
approach
the
magistrate
concerned
under Section 156(3), Cr.P.C. so that
proper investigation is done. A three
judges bench of Hon'ble Supreme Court in
the case of M. Subramaniam and others
vs. S. Janki and others (Criminal Appeal
No.102 of 2011 decided on 20.03.2020)
quoted with approval the law laid down by
two judges bench in the case of Sakiri
Vasu (supra) and Sudhir Bhaskar (supra)
and thus, it affirmed the principles laid
down in those judgments that even if a first
information
report
has
already
been
registered, on an application under Section
156(3) Cr.P.C., the Magistrate can direct
proper investigation and writ petition for
this purpose should not generally be
entertained by the High Court in view of
the
remedy
available
before
the
Magistrate under Section 156(3), Cr.P.C.

16. In a recent judgment of this court
dated 08.01.2021 in Criminal Misc. Writ
Petition No.16288 of 2020 (Ram Shila
Gupta vs. State of U.P. and 3 others), a
Division Bench of this court has held as
under:

"In the case of M. Subramanian
and another Vs. Janki and another
(Criminal Appeal No.102 of 2011) decided
on 20.03.2020, the Hon'ble Supreme Court
observed that if FIR has already been
registered then the Magistrate can direct
proper investigation to be done which
includes his discretion, if he deems it
necessary, recommending change of the
investigation officer, so that a proper
investigation is done in the matter. The
High Courts have been flooded with writ
petitions praying for registration of the
first information report or praying for a
proper investigation and if the High
Courts entertain such writ petitions then
they will be flooded with such writ
petitions and will not be able to do any
other work except dealing with such writ
petitions. Hon'ble Supreme Court further
held that the complainant must avail of
his alternative remedy to approach the
Magistrate
concerned
under
Section
156(3) Cr.P.C and if he does so, the
Magistrate will ensure, if prima facie he is
satisfied,
registration
of
the
first
information report and also ensure a
proper investigation in the matter, and he
can also
recommend
to
the
Senior
Superintendent of Police/ Superintendent of
Police
concerned
a
change
of
the
investigating officer, so that a proper
investigation is done. The Magistrate can
also monitor the investigation, though he
cannot
himself
investigate.
The
observations made by the Hon'ble Supreme
Court are also in reiteration of the
principle laid down by the Hon'ble
Supreme Court in the case of SUDHIR
BHASKARRAO TAMBE VS. HEMANT
YASHWANT DHAGE AND OTHERS;
2016(6) SCC 277 and in the case of
SAKIRI VASU VS. STATE OF UTTAR
PRADESH AND OTHERS, 2008(2) SCC
409.

In view of the aforesaid, we do
not find any good reason to entertain the
writ petition.

Consequently, considering the
submissions of the learned counsel for the
parties, this writ petition is dismissed
leaving it open to the petitioner to avail
such remedy as may be available to him
under law."

17. In view of the discussions made
above, we hold that if an informant/
petitioner is aggrieved that proper/ fair
investigation is not being done by the
investigating officer, then he/ she may
approach the concerned Magistrate by
moving an application under Section
3 All. Sunil Sharma Vs. Smt. Gunjan Kumari @ Sitara Begum
265
156(3) Cr.P.C. for appropriate orders
instead of invoking writ jurisdiction
under Article 226 of the Constitution of
India.

18. For all the reasons aforestated, all
the writ petitions are dismissed leaving it
open to the petitioners to approach the
Magistrate concerned under Section 156(3)
of Cr.P.C. for fair and proper investigation.
----------
(2021)03ILR A265
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.01.2021

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE SANJAY KUMAR PACHORI, J.

First Appeal Defective No. 338 of 2020

Sunil Sharma ...Appellant
Versus
Smt. Gunjan Kumari @ Sitara Begum
 ...Respondent

Counsel for the Appellant:
Sri Ram Jatan Yadav, Sri Rakesh Kumar
Verma

Counsel for the Respondent:
-----

Appeal against the interim maintainancehusband claims that before mariage-his
wife had converted herself as Muslim and
also married a muslim-and had a child-all
the
facts
were
concealed-anulment
petition filed-Maintenance u/s 125 Cr.P.C.
may be claimed irrespective of religious
community-Appeal dismissed. (E-7)

Cases cited:

1. Bhagwan Dutt Vs Kamla Devi, 1975 (2) SCC
386
2.Rajnesh Vs Neha & ors., MANU/SC/0833/2020

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.
& Hon'ble Sanjay Kumar Pachori,J.))

1. Heard learned counsel for the
appellant.

2. Cause shown in the affidavit
accompanying
the
delay
condonation
application is sufficient. The application is
allowed. Office is directed to accord
regular number to the appeal.

3. Present appeal has been preferred
assailing the validity of the order dated
28.02.2020 passed by Addl. Principal
Judge, Family Court No.2, Agra on the
interim
maintenance
application
9-Ga
under Section 24 of the Hindu Marriage
Act, 19551 filed in Case No.172 of 2017
(Sunil Sharma v. Smt. Gunjan Kumari) by
which the opposite party (appellant herein)
was directed to pay Rs. 5000/- per month as
interim maintenance on 10th of each month
with further direction that if opposite party
is being given maintenance in any other
proceeding, the same would be adjusted in
this interim maintenance.

4. Brief facts giving rise to present
appeal is that the marriage of the appellant
(husband) was solemnized with respondent
(wife) as per Hindu rites and rituals on
21.11.2015 at Arya Samaj Temple, Raja Ki
Mandi, Agra. It is alleged that after the
marriage the appellant came to know that
before the marriage the respondent had
converted herself and practised Muslim
religion and was known as Sitara Begum.
She married on 10.04.2013 with one
Azeem Uddin @ Kunal @ Sameer son of
Shri Shamim Ahmad resident of Rajavpur
P.S. Rajavpur Distt. J.P. Nagar and out of