# Ajit Kumar Gupta v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 7 ILRA 417
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-06-14
- **Case number:** Application u/s 482 No. 37458 of 2016
- **Bench:** Siddharth
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajit-kumar-gupta-v-state-of-u-p-anr-opp-parties-50354
- **Pages:** 10

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 2(h), 156(1), 156(3),
173(2), 173(8), 231 & 482 - Indian Penal
Code, 1860 - Sections 420, 467, 468, 120B & 471 - Evidence Act, 1872 -Section - 25
- Transfer of Property Act, 1882 -Section -
54 - Constitution of India, 1950 - Article -
21: - Application U/s 482 - for quashing the
supplementary charge-sheet and impugned
summoning order along with entire proceedings
- complaint - FIR - offence of Cheating and
dishonesty - forgery of valuable security -
investigation
-
Charge-sheet,
in
which
application & anr.co-accused was exonerated -
further investigation - supplementary chargesheet - summoning order - court finds that, civil
dispute is pending between mother of opposite
party no. 2 and co-accused - admittedly, the
applicant is neither the seller nor the buyer of
the property in dispute, co-accused, is the
intended purchaser of the property and the
applicant is only alleged to be the witness to the
agreement to sell allegedly executed by mother
of opposite party no. 2 in favour of co-accused -
applicant claimed that only his name has been
mentioned in block letters as attesting witness
in the disputed agreement to sell, he has not
signed the same - he had no interest in the
property - it is co-accused who is in possession
over property in dispute - held, no criminal
liability can be attributed to the applicant for
allegedly attesting as unregistered agreement to
sell allegedly executed by mother of opposite
party no. 2 in favour of co-accused unless there
is allegation of conspiracy under section 120-B
IPC -hence, investigation conducted against
applicant is on the basis of St.ment of coaccused and submission of supplementary
charge-sheet on its basis were in accordance
with law - but no offence is made out against
the applicant from the allegations of fact on
record - Application is allowed.
(Para - 18, 19, 21)

Application u/s 482 allowed. (E-11)

List of Cases cited:

## Text

7 All. Ajit Kumar Gupta Vs. State of U.P. & Anr.
417
(2023) 7 ILRA 417
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.06.2023

BEFORE

THE HON'BLE SIDDHARTH, J.

Application u/s 482 No. 37458 of 2016

Ajit Kumar Gupta ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Ashutosh Sharma

Counsel for the Opp. Parties:
G.A., Sri Rahul Mishra, Sri Sanjay Mishra

Criminal Law - Criminal Procedure Code,
1973 - Sections 2(h), 156(1), 156(3),
173(2), 173(8), 231 & 482 - Indian Penal
Code, 1860 - Sections 420, 467, 468, 120B & 471 - Evidence Act, 1872 -Section - 25
- Transfer of Property Act, 1882 -Section -
54 - Constitution of India, 1950 - Article -
21: - Application U/s 482 - for quashing the
supplementary charge-sheet and impugned
summoning order along with entire proceedings
- complaint - FIR - offence of Cheating and
dishonesty - forgery of valuable security -
investigation
-
Charge-sheet,
in
which
application & anr.co-accused was exonerated -
further investigation - supplementary chargesheet - summoning order - court finds that, civil
dispute is pending between mother of opposite
party no. 2 and co-accused - admittedly, the
applicant is neither the seller nor the buyer of
the property in dispute, co-accused, is the
intended purchaser of the property and the
applicant is only alleged to be the witness to the
agreement to sell allegedly executed by mother
of opposite party no. 2 in favour of co-accused -
applicant claimed that only his name has been
mentioned in block letters as attesting witness
in the disputed agreement to sell, he has not
signed the same - he had no interest in the
property - it is co-accused who is in possession
over property in dispute - held, no criminal
liability can be attributed to the applicant for
allegedly attesting as unregistered agreement to
sell allegedly executed by mother of opposite
party no. 2 in favour of co-accused unless there
is allegation of conspiracy under section 120-B
IPC -hence, investigation conducted against
applicant is on the basis of St.ment of coaccused and submission of supplementary
charge-sheet on its basis were in accordance
with law - but no offence is made out against
the applicant from the allegations of fact on
record - Application is allowed.
(Para - 18, 19, 21)

Application u/s 482 allowed. (E-11)

List of Cases cited:

1. Vinay Tyagi Vs Irshad Ali & ors.(2013 vol. 5
SCC 762),

2. Vinubhai Haribhai Malviya & ors.Vs St. of Guj.
& anr.(2019 vol. 17 SCC 1),

3.
Peethambaran
Vs
St.
of
Kerala
&
anr.(Criminal appeal no. 1381/2023),

4. St. of Haryana Vs Bhajan Lal (1992 Supp. (1)
SCC 335),

5. Rama Chaudhary Vs St. of Bihar (2009 vol. 6
SCC 346),

6. Dharampal Vs St. of Har. (2016 vol. 4 SCC
160),

(Delivered by Hon'ble Siddharth, J.)

1. This application under Section 482
Cr.P.C. has been filed praying for quashing
of the supplementary charge-sheet dated
28.8.2016 and summoning order dated
28.9.2016 in Case Crime No. 203 of 2014,
under Sections 420, 467, 468, 471 IPC,
Police Station Juhi and District Kanpur
Nagar alongwith entire proceedings of the
case.

2. An FIR was lodged by opposite
party no.2 on 02.6.2014 before police
station alleging that she is living in U.S.A.
418 INDIAN LAW REPORTS ALLAHABAD SERIES
for last 11 years. The applicant, Ajit Kumar
Gupta and co-accused, Narendra Kumar
Singh and Kanhaiya Gupta, have occupied
her house situated in Anandpuri, Transport
Nagar, Kanpur, with the help of gangsters .
It was further alleged that accused persons
have fabricated documents to justify their
illegal occupation. Her mother never signed
any document in their favour and her
signatures have been digitally created. The
aforesaid FIR was registered after a letter
was sent to the Chief Minister of the State
by the opposite party no.2 from United
State of America.

3. Learned counsel for the applicant
submits that after investigation chargesheet no. 38/16 dated 27.5.2016 was
submitted by the police only against coaccused, Narendra Kumar Singh and the
applicant was exonerated. At the behest of
co-accused,
further
investigation
was
conducted by the police and supplementary
charge-sheet No. 38-A/16 dated 28.8.2016
was filed before the Additional Chief
Metropolitan
Magistrate,
Court
No.2/Additional Judge, Kanpur Nagar,
who took cognizance of the same on
28.9.2016 and summoned the applicant.
In
the
disputed
house,
co-accused,
Narendra Kumar Singh, is in possession
on the basis of an agreement to sell dated
31.5.2004 executed by mother of opposite
party no.2. The name of the applicant is
mentioned in the agreement in block
letters without any signature, purportedly
as a witness of the agreement. Civil
dispute is pending between the mother of
the opposite party no.2 and co-accused,
Narendra
Kumar
Singh.
In
the
supplementary charge-sheet, the applicant
has been charge-sheeted solely on the
basis of the statement of co-accused,
Narendra
Kumar
Singh
and
supplementary
charge-sheet
was
submitted against him. The court below
has summoned the applicant on its basis.

4. Learned counsel for the applicant
has submitted that even if it is assumed
that the applicant signed the disputed
agreement to sell as a witness, even then
it is unregistered document written on
stamp of Rs.100/- and no title of the
property has passed on its basis in favour
of the applicant or any of the co-accused.
The applicant claims that he has no
criminal history.

5. Learned counsel for the applicant
has submitted that further investigation in
the case was done without any order of
Magistrate and supplementary chargesheet was illegally submitted against the
applicant. He has pointed out to the order
dated 12.1.2023 passed by this Court
wherein a report was called from the
Magistrate concerned as to whether any
direction for further investigation was
given by the court or not. The Chief
Metropolitan Magistrate, Kanpur Nagar,
has sent report dated 15.4.2023 informing
that there is no order found on the record
of the case directing further investigation
in this case by the Investigating Officer.

6. Learned counsel for the applicant
has submitted that filing of supplementary
charge-sheet against the applicant on the
basis of unauthorized further investigation
is bad in law. In the case of Vinay Tyagi
Vs. Irshad Ali and others, (2013)5 SCC
762 such a course adopted has been
deprecated and it has been held by Apex
Court that :

"40. Having analysed the provisions of
the Code and the various judgments as
afore-indicated,
we
would
state
the
following conclusions in regard to the
7 All. Ajit Kumar Gupta Vs. State of U.P. & Anr.
419
powers of a magistrate in terms of Section
173(2) read with Section 173(8) and
Section 156(3) of the Code :

40.1. The Magistrate has no power to
direct
'reinvestigation'
or
'fresh
investigation' (de novo) in the case initiated
on the basis of a police report.

40.2. A Magistrate has the power to
direct 'further investigation' after filing of a
police report in terms of Section 173(6) of
the Code.

40.3. The view expressed in (2) above
is in conformity with the principle of law
stated in Bhagwant Singh's case (supra) by
a three Judge Bench and thus in conformity
with the doctrine of precedence.

40.4. Neither the scheme of the Code
nor any specific provision therein bars
exercise of such jurisdiction by the
Magistrate. The language of Section 173(2)
cannot be construed so restrictively as to
deprive the Magistrate of such powers
particularly in face of the provisions of
Section 156(3) and the language of Section
173(8) itself. In fact, such power would
have to be read into the language of
Section 173(8).

40.5. The Code is a procedural
document,
thus,
it
must
receive
a
construction which would advance the
cause of justice and legislative object
sought to be achieved. It does not stand to
reason that the legislature provided power
of further investigation to the police even
after filing a report, but intended to curtail
the power of the Court to the extent that
even where the facts of the case and the
ends of justice demand, the Court can still
not direct the investigating agency to
conduct further investigation which it could
do on its own.

40.6. It has been a procedure of
proprietary that the police has to seek
permission of the Court to continue 'further
investigation'
and
file
supplementary
chargesheet. This approach has been
approved by this Court in a number of
judgments. This as such would support the
view that we are taking in the present case.

 (Emphasis supplied)

XXXXXXXXXXXXX

49. Now, we may examine another
significant aspect which is how the
provisions of Section 173(8) have been
understood and applied by the courts and
investigating agencies. It is true that
though there is no specific requirement in
the provisions of Section 173(8) of the Code
to conduct 'further investigation' or file
supplementary report with the leave of the
Court, the investigating agencies have not
only understood but also adopted it as a
legal practice to seek permission of the
courts to conduct 'further investigation'
and file 'supplementary report' with the
leave of the court. The courts, in some of
the decisions, have also taken a similar
view. The requirement of seeking prior
leave of the Court to conduct 'further
investigation'
and/or
to
file
a
'supplementary report' will have to be read
into, and is a necessary implication of the
provisions of Section 173(8) of the Code.
The doctrine of contemporanea expositio
will fully come to the aid of such
interpretation as the matters which are
understood and implemented for a long
time, and such practice that is supported by
law should be accepted as part of the
interpretative process.

50. Such a view can be supported from
two different points of view. Firstly, through
the doctrine of precedence, as aforenoticed, since quite often the courts have
taken such a view, and, secondly, the
investigating agencies which have also so
understood and applied the principle. The
matters
which
are
understood
and
implemented as a legal practice and are not
420 INDIAN LAW REPORTS ALLAHABAD SERIES
opposed to the basic rule of law would be
good practice and such interpretation
would be permissible with the aid of
doctrine of contemporanea expositio. Even
otherwise, to seek such leave of the court
would meet the ends of justice and also
provide adequate safeguard against a
suspect/accused."

6A. The case of Vinubhai Haribhai
Malviya and others Vs. State of Gujarat
and Another, (2019) 17 SCC 1 has also
been relied upon by the counsel for the
applicant in support of his contention
wherein it has been held:

"38. There is no good reason given by
the Court in these decisions as to why a
Magistrate's powers to order further
investigation would suddenly cease upon
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
(supra),
Samaj
Parivartan Samudaya (supra), Vinay Tyagi
(supra), and Hardeep Singh (supra);
Hardeep Singh (supra) 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 mid- way 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) of the 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 which 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 (supra). Therefore, to the
extent that the judgments in Amrutbhai
Shambubhai Patel (supra), Athul Rao
(supra) and Bikash Ranjan Rout (supra)
have held to the contrary, they stand
overruled. Needless to add, Randhir Singh
Rana v. State (Delhi Administration) (1997)
1 SCC 361 and Reeta Nag v. State of West
Bengal and Ors. (2009) 9 SCC 129 also
stand overruled."

7. Finally reliance on a recent
judgement of Apex Court in the case of
Peethambaran Vs. State of Kerela and
7 All. Ajit Kumar Gupta Vs. State of U.P. & Anr.
421
Another, (Criminal Appeal No.1381 of
2023), has been made wherein it has been
held:

"19. 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
and Ors.9 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."

8. It has further been argued that the
implication of the applicant on the basis of
confession of co-accused, Narendra Kumar
Singh, is hit by Section 25 of Evidence Act.
Finally reliance on the judgement of of the
Apex Court in the case of State of
Haryana Vs. Bhajan Lal, 1992 Supp (1)
SCC 335 has been made in support of the
argument that even if all the allegations
made in the FIR and supplementary chargesheet are taken to be correct, no offence is
made out against the appellant."

9. Learned AGA has vehemently
opposed the submissions made by learned
counsel for the applicant alongwith
opposite party no.2.

10. Learned counsel for opposite
party
no.2
has
submitted
that
no
permission
is
required
for
further
investigation
from
the
Metropolitan
Magistrate
by
the
police.
He
has
submitted that the police has unfettered
power
of
investigation
and
such
investigation can continue even after the
charge-sheet has been filed under Section
173 (2) Cr.P.C. and cognizance has been
taken thereon by the Magistrate. Reliance
has been place on the judgement of Apex
Court in the case of Rama Chaudhary
Vs. State of Bihar, (2009) 6 SCC 346
wherein it has been held that:

"Among other sub-sections, we are
very much concerned about sub- section
(8) which reads as under:-

"(8) Nothing in this section shall be
deemed to preclude further investigation
in respect of an offence after a report
under sub-section (2) has been forwarded
to the Magistrate and, where upon such
investigation, the officer in charge of the
police station obtains further evidence,
oral or documentary, he shall forward to
the Magistrate a further report or reports
regarding such evidence in the form
prescribed; and the provisions of subsections (2) to (6) shall, as far as may be,
apply in relation to such report or reports
as they apply in relation to a report
forwarded under sub-section (2)."

8) A mere reading of the above
provision makes it clear that irrespective of
report under sub-section (2) forwarded to
the Magistrate, if the officer in-charge of
the police station obtains further evidence,
it is incumbent on his part to forward the
same to the Magistrate with a further
422 INDIAN LAW REPORTS ALLAHABAD SERIES
report with regard to such evidence in the
form prescribed.

9) The above said provision also
makes it clear that further investigation is
permissible, however, reinvestigation is
prohibited. The law does not mandate
taking of prior permission from the
Magistrate
for
further
investigation.
Carrying out a further investigation even
after filing of the charge-sheet is a statutory
right of the police. Reinvestigation without
prior permission is prohibited. On the other
hand, further investigation is permissible.

10) From a plain reading of subsection (2) and sub-section (8) of Section
173, it is evident that even after submission
of police report under sub-section (2) on
completion of investigation, the police has
a right to "further" investigation under subsection (8) of Section 173 but not "fresh
investigation" or "reinvestigation". The
meaning of "Further" is additional; more;
or supplemental. "Further" investigation,
therefore, is the continuation of the earlier
investigation and not a fresh investigation
or reinvestigation to be started ab initio
wiping
out
the
earlier
investigation
altogether. Sub- section (8) of Section 173
clearly envisages that on completion of
further investigation, the investigating
agency has to forward to the Magistrate a
"further" report and not fresh report
regarding the "further" evidence obtained
during such investigation.

11) As observed in Hasanbhai Valibhai
Qureshi vs. State of Gujarat and Others,
(2004) 5 SCC 347, the prime consideration
for further investigation is to arrive at the
truth and do real and substantial justice.
The hands of investigating agency for
further investigation should not be tied
down on the ground of mere delay. In other
words, the mere fact that there may be
further delay in concluding the trial should
not stand in the way of further investigation
if that would help the court in arriving at
the truth and do real and substantial as
well as effective justice.

12) If we consider the above legal
principles, the order dated 19.02.2008 of
the trial Court summoning the witnesses
named in the supplementary charge-sheet
cannot be faulted with. It is true that after
enquiry and investigation charges were
framed on 11.03.2004 and thereafter in the
course of trial about 21 witnesses were
examined.
In
the
meantime,
Police
submitted supplementary charge-sheet with
certain new materials and on the basis of
supplementary
charge-
sheet,
the
prosecution
filed
an
application
on
12.01.2008 in a pending Sessions Trial No.
63 of 2004 to the trial Court for
summoning the persons named in the
charge-sheet for their examination as
prosecution witnesses. On a careful perusal
of the application, the trial Court, by order
dated 19.02.2008, allowed the same and
has summoned those witnesses named in
the supplementary charge-sheet.

13) The law does not mandate taking
prior permission from the Magistrate for
further investigation. It is settled law that
carrying out further investigation even
after filing of the charge-sheet is a statutory
right of the Police. [vide K. Chandrasekhar
vs. State of Kerala and Others, (1998) 5
SCC 223.] The material collected in further
investigation cannot be rejected only
because it has been filed at the stage of
trial. The facts and circumstances show
that the trial Court is fully justified to
summon witnesses examined in the course
of further investigation. It is also clear from
Section 231 of the Cr.P.C. that the
prosecution is entitled to produce any
person as witness even though such person
is not named in the earlier charge-sheet.
All those relevant aspects have been taken
note of by the learned Magistrate while
7 All. Ajit Kumar Gupta Vs. State of U.P. & Anr.
423
summoning
the
witnesses
based
on
supplementary charge-sheet. This was
correctly appreciated by the High Court by
rightly rejecting the revision. We fully agree
with the said conclusion."

11. Finally reliance on the judgement
in the case of Dharampal Vs. State of
Haryana, (2016) 4 SCC 160 has been
made by learned counsel for opposite party
no.2 as follows"-

17. In this context, we may notice the
statutory
scheme
pertaining
to
investigation.Section 173Cr.P.C. empowers
the Police Officer conducting investigation
to file a report on completion of the
investigation
with
the
Magistrate
empowered to take cognizance of the
offence.Section 173(8)Cr.P.C. empowers
the office-in-charge to conduct further
investigation even after filing of a report
underSection 173(2)Cr.P.C. if he obtains
further evidence, oral or documentary.
Thus, the power of the Police Officer
underSection 173(8)Cr.P.C. is unrestricted.
Needless to say, the Magistrate has no
power to interfere but it would be
appropriate on the part of the investigating
officer to inform the Court. It has been so
stated inRama Chaudhary v. State of
Bihar4.

18.In Vinay Tyagi v. Irshad Ali5,
wherein a two-Judge Bench, after referring
to the decision inBhagwant Singh v.
Commr. Of4 (2009) 6 SCC 346 5 (2013) 5
SCC 762Police6 has held thus:-

"However,
having
given
our
considered thought to the principles stated
in these judgments, we are of the view that
the Magistrate before whom a report
underSection 173(2)of the Code is filed, is
empowered in law to direct "further
investigation" and require the police to
submit a further or a supplementary report.
A three-Judge Bench of this Court in
Bhagwant Singh has, in no uncertain terms,
stated that principle, as aforenoticed."

19. In the said case, the question had
arisen whether a Magistrate can direct for
re-investigation. While dealing with the
said issue, the Court has observed:-

"At this stage, we may also state
another well-settled canon of the 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."
[Emphasis supplied] And again:-

"Whether the Magistrate should direct
"further investigation" or not is again a
matter which will depend upon the facts of
a given case. The learned Magistrate or the
higher court of competent jurisdiction
would direct "further investigation" or
"reinvestigation" as the case may 6 (1985)
2 SCC 537be, on the facts of a given case.
Where the Magistrate can only direct
further investigation, the courts of higher
jurisdiction
can
direct
further,
reinvestigation or even investigation de
novo depending on the facts of a given
case. It will be the specific order of the
court that would determine the nature of
investigation."

12. After hearing rival contentions
and going through the authorities cited at
424 INDIAN LAW REPORTS ALLAHABAD SERIES
the bar, this Court finds that in the present
case, the first question required to be
decided is (I) whether the action of the
Investigating Officer of proceeding with
further
investigation
and
filing
supplementary charge-sheet after once
submitting a charge-sheet against coaccused is permissible in law or not. The
second question, which is required to be
decided is (ii) whether a mere signatory to
an agreement to sell can be held liable for
the same offence as allegedly committed by
the beneficiary of the agreement to sell, the
co-accused in this case.

13. Proceeding with the first question,
this Court finds that the Apex Court in the
case
of
Vinay
Tyagi
(Supra)
and
Peethambaran (Supra) has held that leave
of the Magistrate is required to conduct
further
investigation
or
to
file
supplementary report while the judgement
of other set of judgements relied by counsel
for opposite party no.2 in the cases of
Rama Chaudhary (Supra), Hasanbhai
Valibbhai Qureshi (Supra), Dharampal
(Supra) provide otherwise. The second set
of the judgements of the Apex Court
mandates that Section 173(8) Cr.P.C.
empowers the Investigating Officer to
conduct further investigation even after
filing of a report under Section 173(2)
Cr.P.C. if he obtains further evidence, oral
or documentary. No orders are required for
further investigation by the Investigating
Officer from the Magistrate.

14. This Court finds that the
judgements of the Apex Court in the case
of Vinay Tyagi (Supra) and Peethambaran
(Supra) have not considered the law of the
Apex in the case of Rama Chaudhary
(Supra). The observation in the judgement
of Dharampal (Supra) made by the Apex
Court that it would be appropriate for the
Investigating Officer to inform the court
before
proceeding
with
further
investigation as stated in Rama Chaudhary
(Supra) is not borne out from the record.
The judgement of Vinubhai Haribhai
Malviya and others (Supra) cited by
learned counsel for the applicant is on a
different issue as to whether the Magistrate
has discretion to order further investigation
even after submission of police report
under Section 173(2) Cr.P.C. or not.

15. The power of the Magistrate is not
in dispute in the present case to order
further
investigation.
The
dispute
is
whether the Investigating Officer can
conduct
further
investigation
without
orders of Magistrate or not. A perusal of
Section 173 (8) shows that it provides for
further investigation by the Investigating
Officer after submission of report. It no
where provides for prior permission of
Magistrate to do so. The Apex Court in the
case of Rama Chaudhary (Supra) has
relied on the same. In the judgement of
Hasanbhai Valibbhai Qureshi (Supra) it
has held that the power can be exercised by
Investigating Officer to conduct further
investigation without any order from the
Magistrate. Even otherwise the Apex Court
in the case of Vinay Tyagi (Supra) held that
it has been a procedure of proprietary that
the police has to seek permission of the
Court to continue 'further investigation'
and file supplementary charge-sheet, which
has been approved by Apex Court in a
number of judgments. The judgements of
both the sets cited at the bar are of Benches
of equal strength.

16.

In
view
of
the
above
consideration, the first question raised by
learned counsel for the applicant is
answered in negative and held that there
was no fault on the part of the Investigating
7 All. Ajit Kumar Gupta Vs. State of U.P. & Anr.
425
Officer to conduct further investigation and
file supplementary charge-sheet against the
applicant.

17. Now adverting to the second
question, this Court finds that a perusal of
Section 54 of the Transfer of Property Act,
1882, clearly proves that a contract for the
sale of immoveable property is only a
contract that sale of such property shall
take place on terms settled between the
parties. It does not, of itself, create any
interest in or charge on such property.
Therefore, it is clear that an agreement to
sell does not creates any right or title in
favour of intending buyer. It is only a
document creating right to get another
document of sale from seller on fulfilment
of terms and conditions specified therein.
On the strength of such an agreement, a
buyer does not becomes the owner of the
property. The ownership remains with the
seller. It will be transferred to the buyer
only on the execution of the sale deed by
the seller. The buyer obtains only right to
get sale deed executed in his favour.

18. Admittedly, the applicant is
neither the seller nor the buyer of the
property
in
dispute.
Co-accused,
Narendra Kumar Singh, is the intended
purchaser of the property and the
applicant is only alleged to be the witness
to the agreement to sell allegedly
executed by mother of opposite party
no.2 in favour of co-accused, Narendra
Kumar Singh. A witness of an agreement
to sell only testifies to due execution of
the document before him by the seller
and buyer. This Court further finds that
the attesting witness of an agreement to
sell or any other document cannot be
criminally prosecuted unless there is
allegation of conspiracy under Section
120-B IPC. The witness is not necessarily
required to know what is contained in the
document. He stands witness to due
execution of the document before him. In
the present case, the applicant claims that
only his name has been mentioned in
block letters as attesting witness in the
disputed agreement to sell. He has not
signed the same. He had no interest in the
property nor he is in possession over the
same. It is the co-accused, who is in
possession over the property in dispute
and not the applicant. The applicant could
have been held liable for the alleged
offence only if it was found that he had
some interest in the property in disptue
and he attested the agreement to sell only
to protect his interest. It is not the case
here.

19. Hence it is clear that no criminal
liability can be attributed to the applicant
for allegedly attesting an unregistered
agreement to sell allegedly executed by
mother of opposite party no.2 in favour of
co-accused, Narendra Kumar Singh. The
second
question
framed
above
is
answered accordingly.

20. The Apex Court in the case of
Bhajan Lal Vs. State of Haryana (Supra),
has clearly laid down the para meters where
the proceedings against an accused can be
quashed and this case comes within the
same.

21. This Court concludes that further
investigation conducted against applicant is
on the basis of statement of co-accused,
Narendra Kumar Singh and submission of
supplementary charge-sheet on its basis
were in accordance with law, but no
offence is made out against the applicant
from the allegations of fact on record and
the relevant law of execution of agreement
to sell. Hence supplementary charge-sheet
426 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 28.8.2016 and summoning order
dated 28.9.2016 are hereby quashed.

22. The application is allowed.
----------
(2023) 7 ILRA 426
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.07.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Criminal Appeal No. 559 of 1996

Vinod & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri G.S. Chaturvedi, Sri Anurag Shukla

Counsel for the Respondent:
G.A., Sri Jitendra Shanker Pandey, Ms. Seema
Singh

Criminal Law - Indian Penal Code,1860 -
Sections 302/34, 307/34 & 323/34 -
Appeal against conviction - Rigorous
imprisonment - Indian Evidence Act,
1872 - Section 145 - Code of Criminal
Procedure, 1973 - Sections 161, 313 - As
per prosecution, PW-1 was cousin of
PW-2 and P.W.-3 - All three have their
separate agricultural land as evident
from evidence of PW2 - Accused wished
to purchase agricultural land but it was
purchased
by
PW-2
-
Strained
relationship was only against PW-2, but
he St.d in cross examination that neither
anyone exhorted to beat him nor anyone
has beaten him - Further St.d appellant
no. 1 spoken to take revenge - According
to him, "revenge" mean appellant no. 1
will not allow crop to cut - Dispute arose
between them on issue of cutting of crop
- Motive for commission of offence
appears doubtful - Nothing on record
show that apart from allegation of
strained relationship, there was any
other cause - PW-1 in cross-examination
St.d PW-2 was present on spot when
incident occurred and Rekhpal Singh not
fired at PW-2 and none beaten PW-2 and
appellant no. 1 exhorted to beat - PW-3
assigned role of exhortation to appellant
no. 1 who exhorted to beat to take
revenge
-
No
exhortation
to
kill
deceased
has
been
alleged
against
appellants. (Para 35, 36, 37)

No
evidence
to
establish
prior
conspiracy formed either prior to or in
course of crime, to kill deceased -
Evidence of PW-1, PW-2 and PW-3 are
consistent to effect that simple injuries
by lathi was caused by appellant no.1 on
right arm of PW-3 and appellant no.2
caused simple injury on left arm of PW-3
and on leg of injured Sanwaliya by lathi
and injuries proved by PW-4. (Para 38,
51)

Appeal partly allowed. (E-13)

List of Cases cited:

1. Malkhan Singh Vs St. (1975) 3 SCC 311 (Para 7)

2. Parasa Raja Manikyala Rao & anr. Vs St. of
A.P. (2003) 12 SCC 306 (Para 11 and 12)

3. Suresh Vs St. of U.P., (2001) 3 SCC 673, (Para
24 and 40)

4. Lallan Rai Vs St. of Bihar, (2003) 1 SCC 268,
(Para 22)

5. Chhota Ahirwar Vs St. of M.P., (2020) 4 SCC
126, (Para 24)

6. Barendra Kumar Ghosh Vs King Emperor, AIR
1925 PC 1

7. Mahbub Shah Vs Emperor, AIR 1945 PC 118

8. Rambilas Singh & ors. Vs St. of Bihar, (1989)
3 SCC 605, (Para 7)

9. Krishnan & anr.Vs St. of Kerala, (1996) 10
SCC 508, (Para 15)