# Daroga & Ors v. State of U.P. & Anr

- **Citation:** (2020) 11 ILRA 65
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-13
- **Case number:** Application U/S 482 No. 13698 of 2005
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/daroga-ors-v-state-of-u-p-anr-45429
- **Pages:** 4

## Headnote

(A) Criminal law - Indian Penal Code,
1860 - Sections 147, 149, 323, 452, 435,
504 and 506 - Police has power to make
further investigation under Section 173(8)
Cr.P.C.
-
normally
permission
of
Magistrate should
be obtained when
seized with the matter and charge-sheet
submitted - mere non obtaining of
permission
from
Magistrate
further
investigation, if any, made by Police would
not be per se vitiated - Charge-sheet
including summoning order quashed. Para
- 8,12

Applicants challenged subsequent investigation
and second charge-sheet - ground - reinvestigation is not permissible - without
permission of Magistrate, Police could not have
proceeded for further investigation at all - order
of transfer of investigation obtained/ passed
without considering the fact that investigation
was already complete and charge-sheet was
submitted before Magistrate.Para - 6,13

HELD:- The material fact that the order of
transfer of investigation
obtained/ passed
without considering the fact that investigation
was already complete and charge-sheet was
submitted before Magistrate has not been
considered by Superintendent of Police and
further investigation has been made at P.S.
Salempur Deoria, in my view, it amounts to
gross abuse of process of law and second
charge-sheet for offences which included the
offences which were not inflicted in earlier
charge-sheet is vitiated in law.Para - 13

Application u/s 482 Cr.P.C. allowed. (E -7)

List of Cases Cited:-

## Text

11 All. Daroga & Ors. Vs. State of U.P. & Anr.
65
and the application u/s 482 Cr.P.C. is
hereby dismissed.
----------
(2020)11ILR A65
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.04.2020

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Application U/S 482 No. 13698 of 2005

Daroga & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Neeraj Singh

Counsel for the Opposite Parties:
A.G.A., Sri K.N. Mishra, Sri R.K. Sahi

(A) Criminal law - Indian Penal Code,
1860 - Sections 147, 149, 323, 452, 435,
504 and 506 - Police has power to make
further investigation under Section 173(8)
Cr.P.C.
-
normally
permission
of
Magistrate should
be obtained when
seized with the matter and charge-sheet
submitted - mere non obtaining of
permission
from
Magistrate
further
investigation, if any, made by Police would
not be per se vitiated - Charge-sheet
including summoning order quashed. Para
- 8,12

Applicants challenged subsequent investigation
and second charge-sheet - ground - reinvestigation is not permissible - without
permission of Magistrate, Police could not have
proceeded for further investigation at all - order
of transfer of investigation obtained/ passed
without considering the fact that investigation
was already complete and charge-sheet was
submitted before Magistrate.Para - 6,13

HELD:- The material fact that the order of
transfer of investigation
obtained/ passed
without considering the fact that investigation
was already complete and charge-sheet was
submitted before Magistrate has not been
considered by Superintendent of Police and
further investigation has been made at P.S.
Salempur Deoria, in my view, it amounts to
gross abuse of process of law and second
charge-sheet for offences which included the
offences which were not inflicted in earlier
charge-sheet is vitiated in law.Para - 13

Application u/s 482 Cr.P.C. allowed. (E -7)

List of Cases Cited:-

1. Hasanbhai Valibhai Qureshi Vs St. of Guj. ,
2004 AIR SCW 2063

2. K. Chandra Sekhar Vs St. of Ker. , 1998 (37)
ACC 136.

3. Awdhesh Kumar Jha @ Akhilesh Kumar Jha &
anr. Vs St. of Bih. , (2016) 3 SCC 8

4. Rama Chaudhary Vs St. of Bih. , (2009) 6
SCC 346

5. Sri Bhagwan Samardha Sreepada Vallabha
Venkata Vishwandadha Maharaj Vs St. of A.P. &
ors. , 1999 Cri.L.J. 3661 (SC)

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Neeraj Singh, Advocate,
for applicants and learned A.G.A. for State.

2. This is an application under Section
482 Cr.P.C. filed by five applicants,
Daroga, Rakesh, Chandrika, Pramod and
Manoj, with a prayer to quash Case No.
1278 of 2005 under Sections 147, 149, 323,
452, 435, 504 and 506 I.P.C. P.S. Bankata,
District Deoria arising from Case Crime
No. 3 of 2005 and pending in the Court of
Judicial Magistrate, Court-11, Deoria.

3. Facts in brief giving rise to present
application
are
that
Uma
Shankar
Kushwaha, opposite party-2, (hereinafter
referred to as informant-complainant) filed
66 INDIAN LAW REPORTS ALLAHABAD SERIES
a First Information Report being Case
Crime No. 3 of 2005, under Sections 147,
148, 323, 504, 506, 452, 435 I.P.C., P.S.
Bankata, District Deoria against eight
accused including five applicants alleging
that applicants and others, with a common
object, formed unlawful assembly with an
intention to take possession of Sehan by
opening door of their houses and threw
domestic goods of informant-complainant
kept near the door and abused him. When
he stopped them, they abusing him,
threatened of life and exhorted to set his
house on
fire.
Informant-Complainant
somehow escaped to save him whereafter
accused-applicants
and
others
entered
Informant-Complainant's house and beat
his wife and two daughters with Bhala,
Lathi, Danda and Farsa and injured them
badly and also put his Chappar on fire.

4.

During
investigation
Police
recorded Statement of Subhash Yadav, Jai
Prakash Chaurasia, Ramcheej Prasad and
Srikrishna Bhagat who were eye witness
and stated that it is the InformantComplainant himself who put his Jhopari
on fire just to falsely implicate applicants
and others. Police falsely implicated
applicants. Later Police submitted chargesheet under Sections 147, 323, 504, 506
I.P.C. on 13.01.2005.

5. Magistrate taking cognizance
summoned applicants in Case No. 846 of
2005, under Sections 147, 323, 504, 506
I.P.C.
vide
order
dated
29.03.2005.
Applicants appeared and released on bail.
Thereafter
the
Informant-Complainant
submitted
an
application
before
Superintendent
of
Police,
Deoria
on
22.01.2005 for transfer of his case from
Police Station Bankata to Police Station
Kotwali Salempur for re-investigation.
Superintendent of Police, Deoria passed
order transferring the case, as requested, by
order dated 10.02.2005 and directed for reinvestigation
without
seeking
formal
permission of Trial Court. No reason was
given by Superintendent of Police for
transferring the case. Thereafter, matter was
re-investigated by Ramashrya Yadav, SubInspector
of
Police
Station
Kotwali
Salempur, District Deoria and he submitted
charge-sheet
against
applicants
under
Sections 147, 149, 452, 435, 323, 504, 506
I.P.C. on 14.04.2005. The aforesaid chargesheet is illegal inasmuch applicants were
already
absolved
of
offences
under
Sections 149, 452, 435 I.P.C. but second
Investigating Officer (hereinafter referred
to as "I.O.") implicated applicant for the
offence under the aforesaid sections. On the
second charge-sheet submitted by I.O.,
Judicial Magistrate registered Case No.
1278 of 2004 and summoned applicants
under Section 147, 149, 452, 435, 504, 506
I.P.C. vide order dated 15.06.2005. Before
passing the order, Superintendent of Police
has not taken permission of Court;.
Applicants are already facing trial pursuant
to first charge-sheet dated 13.01.2005 and
therefore
second
charge
sheet
dated
14.04.2005 is nothing but an abuse of
process of law. Relying on Supreme Court's
decision in Hasanbhai Valibhai Qureshi
Vs. State of Gujarat 2004 AIR SCW
2063, learned counsel for applicants
submitted that without permission of Court,
further investigation could not have been
conducted by Police, therefore, second
charge-sheet is illegal.

6. Learned counsel for applicants has
challenged subsequent investigation and
second charge-sheet on the ground, firstly
that re-investigation is not permissible and
secondly without permission of Magistrate,
Police could not have proceeded for further
investigation at all. In support thereof,
11 All. Daroga & Ors. Vs. State of U.P. & Anr.
67
besides
relying
on
Supreme
Court's
judgment in Hasanbhai Valibhai Qureshi
Vs. State of Gujarat (supra) reliance is
also placed on K. Chandra Sekhar Vs.
State of Kerala 1998 (37) ACC 136.

7. From the record, I find that
Informant-Complainant, in his application
dated
22.01.2005,
submitted
before
Superintendent of Police, stated that I.O. P.S.
Bankata is not making proper inquiry but
trying to save applicants under their influence
and other co-accused, therefore in the interest
of justice investigation should be transferred
to P.S. Kotwali Salempur. At that time,
charge-sheet dated 13.01.2005 under Section
147, 323, 504, 506 I.P.C. was already
submitted in the Court but this fact was not
disclosed by Informant-Complainant in his
application dated 22.01.2005. Superintendent
of Police also did not try to make any efforts
to know status of investigation and simply
transferred the same from P.S. Bankata to P.S.
Kotwalai
Salempur
by
order
dated
10.02.2005. There is nothing on record to
show that either Informant-Complainant
requested for re-investigation and that was
directed by Superintendent of Police and
Police
made
re-investigation
or
fresh
investigation but the fact remains that when
application
was
filed
by
InformantComplainant to Superintendent of Police and
order was passed by him transferring
investigation, this fact was never disclosed
that investigation has already completed and
charge-sheet has been submitted by Police
and Magistrate was seized with the matter.

8. It cannot be doubted that Police has
power to make further investigation under
Section 173(8) Cr.P.C.

9. In Sri Bhagwan Samardha
Sreepada
Vallabha
Venkata
Vishwandadha Maharaj Vs. State of A.P.
and others, 1999 Cri.L.J. 3661 (SC)
Court said:

"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 : (1979 Cri LJ 1346)."
(emphasis added)

10. In Rama Chaudhary vs. State of
Bihar, 2009(6) SCC 346 Court said:

"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 subsection (2) on completion of investigation,
the police has a right to "further"
investigation under sub-section (8) of
Section 173 ... 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." (emphasis added)

11. It has been followed in Awdhesh
Kumar Jha @ Akhilesh Kumar Jha &
another vs. State of Bihar, 2016(3) SCC
8.

12. It is well settled that normally
permission of Magistrate when he is seized
with the matter and charge-sheet has been
submitted should have been obtained which
has not been done in the case in hand, but it
68 INDIAN LAW REPORTS ALLAHABAD SERIES
is also well settled that mere non obtaining
of permission from Magistrate further
investigation, if any, made by Police would
not be per se vitiated.

13. However, in the present case,
order of transfer of investigation has been
obtained/ passed without considering the
fact that investigation was already complete
and charge-sheet was submitted before
Magistrate. Since this material fact has not
been considered by Superintendent of
Police and further investigation has been
made at P.S. Salempur Deoria, in my view,
it amounts to gross abuse of process of law
and second charge-sheet for offences which
included the offences which were not
inflicted in earlier charge-sheet is vitiated
in law.

14. In view of above, the application
allowed. Charge-sheet dated 14.04.2005
including
summoning
order
dated
15.06.2005 are hereby quashed. This order,
however, shall not affect the proceedings
pursuant to charge sheet dated 13.01.2005
wherein summoning order was passed by
Magistrate on 29.03.2005. I also make it
clear that in case Police finds any reason to
conduct further investigation, such power
will not be construed to be restricted or
prohibited by this order and it is free to
proceed in accordance with law.

15. The application is allowed in the
manner as aforesaid.
----------
(2020)11ILR A68
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.09.2020

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
Application U/S 482 No. 14068 of 2020

Ravi Dixit ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ajay Dubey

Counsel for the Opposite Parties:
A.G.A.

(A) Civil law - Negotiable Instrument Act,
1881 - Section 138 - Dishonour of cheque ,
Section 142 - Cognizance of offences -
provision of Section 138 of the Act, 1881 -
cannot be interpreted to mean - even if
the accused refuses to make payment, the
complainant cannot file complaint -
Proviso (c) of the said Act - to see the
bona fide of the drawer of the cheque and
is with a view to grant him a chance to
make the payment - does not constitute
ingredients of offence punishable under
Section 138 - Offence is completed the
moment the cheque is dishonoured. Para -
8,10

Cheque drawn by the accused - Period of 15
days is for making payment - accused did not
make the payment and did not even appear
before the Court below for a year petitioner
replied to the notice - which goes to show that
the intention of the drawer is clear that he did
not wish to make the payment.Para - 9,12

HELD:- In this case it appears that notice was
deemed to have been served to the petitioner
and he was under an obligation to discharge his
liability which he has not done. The only object
of proviso (c) to Section 138 of the Act, 1881 is
to avoid unnecessary hardship if the drawer
wants to make payment. Hence, this Court does
not find any reason to interfere with the well
reasoned summoning order passed by the
learned Magistrate.Para - 13

Application u/s 482 Cr.P.C. dismissed.
(E -7)

List of Cases Cited:-