# Dinesh Kumar Yadav v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 255
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-09
- **Case number:** U/S 482/378/407 No. 4406 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-kumar-yadav-v-state-of-u-p-ors-46497
- **Pages:** 6

## Headnote

evidence of video and photographs which
shows that money given to the servant of the
complainant-Petitioner
filed
an
application
before the Magistrate for direction to the
investigating officer to take his (accused)
evidence on record-rejected-no direction can
be issued to the I.O. on apprehension of unfair
practice.

Petition dismissed. (E-9)

List of Cases cited:

1.Sakiri Vasu Vs St. of U.P. reported in (2008) 2 SCC 409,

## Text

11 All. Dinesh Kumar Yadav Vs. State of U.P. & Ors.
255
application at the various stages available under
the law, if he is so advised, but the invalidity of
the investigation, if any, has no relevance to the
competence of the court concerned. The
question so formulated in this case has been
answered accordingly.

29. No order as to costs.
----------
(2021)11ILR A255
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.11.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

U/S 482/378/407 No. 4406 of 2021

Dinesh Kumar Yadav ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Gaurav Gupta

Counsel for the Opposite Parties:
G.A.

FIR by the complainant who borrowed money
from Petitioner but instead of refunding lodged
FIR to implicate-IO did not took on record the
evidence of video and photographs which
shows that money given to the servant of the
complainant-Petitioner
filed
an
application
before the Magistrate for direction to the
investigating officer to take his (accused)
evidence on record-rejected-no direction can
be issued to the I.O. on apprehension of unfair
practice.

Petition dismissed. (E-9)

List of Cases cited:

1.Sakiri Vasu Vs St. of U.P. reported in (2008) 2 SCC 409,

2. Vinubhai Haribhai Malaviya & ors. Vs St. of Guj. &
anr. reported in (2019) 17 SCC 1
3. Neeharika Infrastructure Pvt. Ltd. Vs St. of Mah. &
ors. reported in AIR 2021 SC 1918

4. King Emperor Vs Khwaja Nazir Ahmad reported in
AIR 1945 PC 18

5. Union of India Vs Prakash P. Hinduja, reported in
(2003) 6 SCC 195

6. St. of Orissa & ors. Vs Ujjal Kumr Burdhan reported
in (2012) 4 SCC 547

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

(1) Heard the learned counsel for the
petitioner and Shri S.P. Tiwari, who appears for
the State respondents.

(2) It is the case of the petitioner that he is
an accused in F.I.R. dated 10.04.2021 where the
complainant Chandra Shekhar had borrowed
Rs.20 lacs in the form of Recurring Deposit
from the petitioner for the purpose of investment
in real estate. The load had also been admitted
by him. The complainant instead of refunding
the amount has falsely implicated the petitioner.

(3) The petitioner filed a cross F.I.R.

(4) The complainant had approached this
Court in a petition No.4300 of 2021 which was
dismissed by this Court on 11.02.2021 refusing
to interfere in the F.I.R.

(5)

The
petitioner approached
the
Investigating Officer annexing all evidence with
regard to Video and Photographs taken on
29.07.2019 saying that money had been given to
the servant of the complainant. The Investigating
Officer did not take the same on record.

(6) It has been argued that in Sakiri Vasu
Vs. State of U.P. reported in (2008) 2 SCC
409, and Vinubhai Haribhai Malaviya and
Others Vs. State of Gujarat and Another
reported in (2019) 17 SCC 1. The Supreme
256 INDIAN LAW REPORTS ALLAHABAD SERIES
Court has observed that a fair and just
investigation is a fundamental right of the
accused, and that the Magistrate can direct the
Investigating Officer to take the evidence
produced by the accused on record while
submitting his report. The petitioner, therefore,
filed an application before the Additional Chief
Judicial Magistrate-1, Lucknow namely CM
Application No.4377/2021 under Section 156
(3) Cr.P.C. and prayed for a direction to the
concerned Investigating Officer to take the
above said evidence of the accused on record.
This application was rejected on 20.09.2021 on
the ground that the concerned Investigating
Officer had filed a report on 19.08.2021 wherein
it was stated that the accused had denied to give
any statement to him.

(7) Even after rejection of his application
by the concerned Magistrate on 20.09.2021, the
petitioner approached the Commissioner by
filing application on 24.09.2021 mentioning that
he wished to give evidence to the concerned
Investigating Officer and the same be directed to
be taken on record. On failure to pay heed to
such application, the petitioner was left with no
other remedy but to approach this Court by
filing Writ Petition No.22926 (M/B) of 2021
(Dinesh Kumar Yadav Vs. State of U.P. and
others) wherein this Court dismissed the
petition observing that since the Investigation
was under way, it is the prerogative of the
Investigating
Officer
to
record
the
statement/evidence of the petitioner as and when
required and necessary and that no interference
was called for by the Court in its extraordinary
power under Article 226 of the Constitution of
India.

(8) After his petition was rejected on
07.10.2021, the petitioner sent a representation
to the concerned Investigating Officer as well as
to the Police Commissioner and the concerned
Station House Officer on 18.10.2021 but no
heed was paid. Apprehending that the concerned
Investigating Officer shall file a report without
taking into account the evidence produced by the
petitioner, this petition has been filed praying for
quashing of the order dated 20.09.2021 and for
directing the Investigating Officer to conduct
fair investigation in F.I.R. No.297/2021.

(9) Learned counsel for the petitioner has
placed reliance upon judgment rendered in
Vinubhai Haribhai Malaviya and Others Vs.
State of Gujarat and Another (Supra) and has
read out the Paragraph-42 of the said judgment
to argue that the concerned Trial Court has
power to direct the police to conduct further
investigation as per law settled already by
Hon'ble the Supreme Court in its earlier
judgments.

(10) Paragraph-42 of the said judgment
rendered in Vinubhai Haribhai Malaviya and
Others Vs. State of Gujarat and Another
(Supra) as read out by the learned counsel for
the petitioner is being quoted hereinbelow:-

"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
11 All. Dinesh Kumar Yadav Vs. State of U.P. & Ors.
257
the police retain the power, subject, of course, to
the Magistrate's nod under Section 173 (8) to
further investigate an offence till charges are
framed, but that the supervisory jurisdiction of
the Magistrate suddenly ceases midway through
the pre-trial proceedings, would amount to a
travesty of justice, as certain cases may cry out
for further investigation so that an innocent
person is not wrongly arraigned as an accused
or that a prima facie guilty person is not so left
out. There is no warrant for such a narrow and
restrictive view of the powers of the Magistrate,
particularly when such powers are traceable to
Section 156 (3) read with Section 156 (1)
Section 2(h), and Section 173 (8) of the Cr.P.C.,
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 Vs. State (Delhi Administration) (1997) 1
SCC 361 and Reeta Nag V. State of West Bengal
and Others (2009) 9 SCC 129 also stand
overruled."

(11) Shri S.P. Tiwari, learned Additional
Government Advocate has pointed out from the
facts mentioned in the judgment rendered in
Vinubhai Haribhai Malaviya and Others Vs.
State of Gujarat and Another (Supra) that the
case of the appellants therein was in a different
fact situation and the observations made in
Paragraph-42 have to be read in context of the
facts in the case of Vinubhai Haribhai
Malaviya and Others Vs. State of Gujarat
and Another (Supra).

(12) This Court has carefully perused the
judgment rendered by three Judges of Hon'ble the
Supreme Court cited before this Court by the
learned counsel for the petitioner. It appears from a
perusal of the said judgment that F.I.R. was lodged
on 22.12.2009 by one Nitinbhai Patel on behalf of
Ramanbhai Patel and Shankerbhai Patel that they
are absolutely independent owners of the disputed
land situated in Surat, Gujarat since 1975. Because
of recent price hike of lands situated at Surat, the
accused had hatched a conspiracy in collusion with
the heirs of the original tenure holder and tried to
extort more money from the complainant. Pursuant
to the filing of the F.I.R. the investigation was
conducted by the police which resulted in report
dated 22.04.2010 being submitted to the Judicial
Magistrate. The Magistrate took cognizance and
issued summons to the accused on 23.04.2010
under Sections 420, 465, 467, 471, 384 and 511 of
the IPC. Pursuant to the summons the accused
appeared before the Magistrate and filed an
application for further investigation under Section
173 (8) of the Cr.P.C. and another application for
discharge. Similar applications were filed by the
other accused. By order dated 24.08.2011 the
Magistrate rejected the applications that were filed
for further investigation, stating that the fact sought
to be placed by the applicants were in the nature of
evidence of the defence and would be taken into
account in the Trial. The Magistrate also rejected
the discharge application.

(13) Another application in the meanwhile,
had been filed by the applicant Manubhai
Heerabhai and other accused before the
Magistrate under Section 156 (3) Cr.P.C. to
258 INDIAN LAW REPORTS ALLAHABAD SERIES
order for investigation and to register an F.I.R.
against the complainant. This application was
rejected by the learned Magistrate by an order
dated 09.09.2011.

(14) The Criminal Revisions were filed
thereafter which were decided by the Second
Additional Sessions Judge, Surat, by a common
order dated 10.09.2012. The Additional Sessions
Judge went in detail into the facts that were
alleged in the application under Section 173 (8)
Cr.P.C. and found that the case has been made
out for further investigation. He, therefore,
directed
for
further
investigation
to
be
conducted. The investigation was handed over to
the another Investigating Officer. Two further
investigation reports were submitted thereafter
by the police.

(15) A Special Criminal Application
No.727/2012 was filed before the High Court
challenging the order passed by the Revisional
Court. The Court observed that the Investigating
Officer furnished an interim investigation report
not to the Magistrate but to the learned
Additional Sessions Judge, which smacked of
malafides as if the Investigating Officer wanted
to favour the accused persons. The High Court
further observed that for an interim investigation
the reports which were submitted by the
Investigating Officer virtually acquitted the
accused persons. The High Court set aside the
order passed by the learned Additional Sessions
Judge, and remanded the same for a fresh
consideration to the learned Additional Sessions
Judge who would then decide as to whether the
F.I.R. should be registered in so far as
allegations contained in the application for
further investigation are concerned.

(16) The Supreme Court after recording
the submissions made by the learned Senior
Advocate appearing on behalf of the appellant
observed in Paragraph-10 that the question of
law that arose in the case of was :- "Whether
after a Charge-sheet is filed by the police, the
Magistrate
has
power
to
order
further
investigation and if so upto what stage of a
criminal procedure."

(17) The Court thereafter considered the
entire gamut of sections in the Cr.P.C. relating to
the power of Police Officer to investigation the
cognizable offence and also considered the
definition
of
"Complaint"
"Enquiry"
and
"Investigation", as given in the Cr.P.C. The
Supreme Court thereafter discussed in detail the
observations of the Court made in earlier cases
relating to Section 173 (8) of the Cr.P.C. as also
Section 156 (3) Cr.P.C. The Supreme Court
observed that the Magistrate's power under
Section 156 (3) Cr.P.C. is very wide for which
his judicial authority must be satisfied that a
proper investigation by the police had taken
place. After a report is submitted under Section
173 (2) Cr.P.C. this power would continue to
enure and would be available at all stages of the
progress of a criminal proceeding until the Trial
itself
commences.
The
Supreme
Court,
therefore, made such observations in Paragraph42, which paragraph has been read out by the
learned counsel for the petitioner.

(18) In the case of the petitioner, however,
it is evident that the police has not yet submitted
any report under Section 173 (2) of the Cr.P.C.
The Investigation in the two F.I.Rs. is still going
on. The judgment as cited by the learned counsel
for the petitioner is inapplicable to the case of
the petitioner.

(19) This Court has also perused the order
impugned dated 20.09.2021. The learned Trial
Court has observed that an application has been
submitted by the accused Dinesh Kumar Yadav
saying that a direction be issued to the
Investigating Officer to record his statement.
The concerned police station had reported that
on 08.08.2021 the statement of the accused was
recorded and that he had denied any offence,
11 All. Dinesh Kumar Yadav Vs. State of U.P. & Ors.
259
having been committed by him, and said that he
would produce the evidence in Court through his
counsel. The Court, therefore, observed that
since the investigation was in progress, there
was no presumption that the Investigating
Officer shall not record the evidence produced
by either side. The application of the petitioner
was hence rejected.

(20) This Court finds no legal and factual
infirmity in such order. The petitioner has
approached this Court prematurely. This Court
cannot
also
issue
any
direction
to the
Investigating Officer on mere apprehension of
unfair practice on the part of the Investigating
Officer as alleged in this petition.

(21) The Supreme Court in the case of
Neeharika Infrastructure Pvt. Ltd. Vs. State
of Maharashtra and Others reported in AIR
2021 SC 1918, has observed in Paragraph 8
onwards, the rights and duties of the police to
investigate into cognizable offences. The Court
has placed reliance upon the judgment rendered
by the Privy Council in the case of King
Emperor V. Khwaja Nazir Ahmad reported
in AIR 1945 PC 18, to say that in India, there is
a statutory right on the part of the police to
investigate
the
circumstances
of
alleged
cognizable
crime
without
requiring
any
Authority from the judicial authorities. It is
further observed that it would be an unfortunate
result if it should be held possible to interfere
with those statutory rights by an exercise of
inherent jurisdiction of the Court. It was
observed that the functions of the judiciary and
the police are complementary not overlapping,
combination of investigating an offence with a
duty for observance of law and order. It shall be
appropriate to leave each to exercise its own
function. The Court consider the question
whether the High Court would be justified in
interfering with the investigation by the police
while exercising the inherent powers under
Section 482 of the Criminal Procedure Code and
/or Article 226 of the Constitution of India. It
observed that there is a clear cut and well
demarcated spheres of activity in the field of
crime
detection
and
crime
punishment.
Investigation of an offence is the field
exclusively reserved for the Executive through
the Police Department, the Superintendence over
which is based in the State Government. The
Executive which is charged with a duty to keep
vigilance over the law and order situation is
obliged to prevent crime and if an offence as
alleged to have been committed, it is its moral
duty to investigate into the offence and borne the
offender to book. Once it investigates and finds
offence having been committed it its duty to
collect evidence for the purpose of proving the
offence.

There is thus, a well and definitely
demarcated field of crime detection and its
subsequent adjudication between the police and
the Magistrate.

(22) In the case of Union of India Vs.
Prakash P. Hinduja, reported in (2003) 6
SCC 195, the Supreme Court observed in
Paragraph-20 as under:-

"Thus, the legal position is absolutely
clear and also settled by judicial authorities that
the court would not interfere with the
investigation
or
during
the
course
of
investigation, which would mean from the time
of the lodging of the first information report till
the submission of the report by the officer in
charge of the police station in court under
Section 173 (2) Code of Criminal Procedure,
this field being exclusively reserved for the
Investigating Agency".

(23) In State of Orissa & Others Vs.
Ujjal Kumr Burdhan reported in (2012) 4
SCC 547, the Supreme Court observed that
unless a case of gross abuse of power is made
out against those incharge of investigation, the
260 INDIAN LAW REPORTS ALLAHABAD SERIES
High Court should be loathe to interfere at
early/premature stage of investigation.

(24) The petition is dismissed as
misconceived. No order as to costs.
----------
(2021)11ILR A260
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.11.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

U/S 482/378/407 No. 4658 of 2021

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

Counsel for the Applicants:
Rajiva Dubey

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,1973 - Section 207 - Application
application for supplying of extracts of the C.D.
of footage of CCTV camera producd by
informant-which is part of charge sheetSection 207 Cr.P.C. may not be ignoredmandatory condition -if application is filed by
accused-it should be considered and decided by
speaking and reasoned order-impugned order
not speaking-set aside.

Petition allowed. (E-9)

List of Cases cited:

1. Shafi Mohammad Vs St. of H.P. reported in (2018)
Crl.L.J 1714

2. P. Gopalkrishnan Alias Dileep Vs St. of Kerala &
anr., (2020) 9 SCC 161

(Delivered by Hon'ble Rajesh Singh Chauhan, J.)

1. Heard Sri Rajiva Dubey, learned counsel
for the petitioners and Sri Ran Vijay Singh,
learned Additional Government Advocate for
the State.

2. In view of the proposed order, the notice
to opposite party No.3 is hereby dispensed with.

3. By means of this petition, the petitioners
have prayed for the following relief:-

"Wherefore, it is most respectfully
prayed in the interest of justice that this Hon'ble
Court may kindly be pleased to allow this
petition under Section 482 Cr.P.C. and quash
the impugned order dated 06.10.2021 passed by
the learned III Additional Sessions Judge,
District-Lakhimpur Kheri in Sessions Trial
No.181 of 2020, Crime No.853 of 2020, under
Section 302 I.P.C., Police Station-Kotwali
Sadar, District-Lakhimpur Kheri and also issue
direction commanding the learned Trial Court
to immediately supply to the petitioners the
extract of the C.D. of the footage of C.C.T.V.
Camera produced by the information, which is
part of charge-sheet.

The petitioners have further prayed for
stay the criminal proceedings pending against
the petitioners before the learned Trial Court
i.e. learned III Additional Sessions Judge,
District-Lakhimpur Kheri in Sessions Trial
No.181 of 2020, Crime No.853 of 2020, under
Section 302 I.P.C., Police Station-Kotwali
Sadar, District-Lakhimpur Kheri."

4. At the very outset, learned counsel for
the petitioners has drawn attention of this Court
towards Annexure No.2 of the petition, which is
an application dated 16.10.2021 filed before the
learned trial court for getting the Compact Disk
(C.D.), which has been made part of the case
diary with the request that for submitting the
defence by the petitioners such C.D. would be
relevant and required in the interest of justice.