# Dr. Parvez Alam v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 399
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-11
- **Case number:** Application U/S 482 No. 29079 of 2022
- **Bench:** Dr. Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-parvez-alam-v-state-of-u-p-ors-47831
- **Pages:** 5

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 420 & 409 - The Code of
Criminal Procedure, 1973 - Section 482 -
Inherent power -all powers necessary,
which may also be incidental or implied,
are available to the Magistrate to ensure a
proper investigation in the matter in the
sense of a fair and just investigation by
the police, which power includes ordering
of further investigation after submission
of police report under Section 173 (2)
Cr.P.C.(Para -6 )
400 INDIAN LAW REPORTS ALLAHABAD SERIES
Complaint made by opposite party no.2 -
against applicant - enquiry - applicant found
guilty for charges pertaining to cheating,
criminal breach of trust and misuse of college
land - during course of trial - applicant moved
an application for further investigation into the
matter on the basis of documents adduced by
him - application got rejected - hence before
Court.(Para -3 )

HELD:-Rejection of application for further
investigation not sustainable. Further delay in
concluding the trial should not stand in the way
of further investigation if that helps the Court
arrive at the truth and do real, substantial, and
effective justice. Impugned order set aside.
Matter remitted to Court below to consider and
decide the matter afresh in accordance with
law. (Para -7,8)

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

List of Cases cited:-

Vinubhai Haribhai Malaviya & ors. Vs St. of U.P.
& anr. , 2020 (3) SCC 228

## Text

11 All. Dr. Parvez Alam Vs. State of U.P. & Ors.
399
Narinder Singh (supra) and in category
specified in para No.15.1 laid down by
Apex Court in State of Madhya Pradesh
vs. Laxmi Narayan and others (supra)
regarding which proceedings relating to
matrimonial dispute can be quashed in
exercise of power under Section-482
Cr.P.C.

14. As parties have reached/arrived at
compromise/settlement, and the same has
also been verified by their being appeared in
person in the Court so the conviction of
opposite party is remote and bleak and
continuation of criminal cases would put the
accused to great oppression and prejudice and
extreme injustice would be caused to him by
not quashing the criminal cases.

15. In view of the discussions made
above, it would be unnecessary to drag these
proceeding, as continuation of the criminal
proceeding
despite
settlement
and
compromise would amount to abuse of
process of law accordingly, the instant
application under Section 482 Cr.P.C. is
allowed on the basis of compromise dated
08.07.2022.

16. The proceeding of charge sheet
No.484 of 2020 dated 29.09.2020 as well as
summoning and cognizance order dated
30.07.2021 passed by the learned Additional
Chief Judicial Magistrate-IV, Allahabad filed
in Criminal Case No.322 of 2011 (State of
U.P. Vs. Amit Kumar and others) arising out
of Case Crime No.828 of 2019, under
Sections 498-A and 323 of IPC and 3/4 of
D.P. Act,
Police
Station-Dhoomanganj,
District-Prayagraj
including
the
entire
proceedings of the case are hereby quashed.

Criminal
Misc.
Correction
Application No.02 of 2022:-

1. Heard learned counsel for the
parties.

2. The judgment and order dated
19.09.2022
will
stand
corrected
as
follows:-

3. In the 6th line of second paragraph
and 5th line of 16th paragraph of the order
dated 19.09.2022 in place of '2011' shall be
read as "2021".

4.

Accordingly,
the
correction
application is allowed.
----------
(2022) 11 ILRA 399
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.10.2022

BEFORE

THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Application U/S 482 No. 29079 of 2022

Dr. Parvez Alam ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Sikandar B. Kochar

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 420 & 409 - The Code of
Criminal Procedure, 1973 - Section 482 -
Inherent power -all powers necessary,
which may also be incidental or implied,
are available to the Magistrate to ensure a
proper investigation in the matter in the
sense of a fair and just investigation by
the police, which power includes ordering
of further investigation after submission
of police report under Section 173 (2)
Cr.P.C.(Para -6 )
400 INDIAN LAW REPORTS ALLAHABAD SERIES
Complaint made by opposite party no.2 -
against applicant - enquiry - applicant found
guilty for charges pertaining to cheating,
criminal breach of trust and misuse of college
land - during course of trial - applicant moved
an application for further investigation into the
matter on the basis of documents adduced by
him - application got rejected - hence before
Court.(Para -3 )

HELD:-Rejection of application for further
investigation not sustainable. Further delay in
concluding the trial should not stand in the way
of further investigation if that helps the Court
arrive at the truth and do real, substantial, and
effective justice. Impugned order set aside.
Matter remitted to Court below to consider and
decide the matter afresh in accordance with
law. (Para -7,8)

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

List of Cases cited:-

Vinubhai Haribhai Malaviya & ors. Vs St. of U.P.
& anr. , 2020 (3) SCC 228

(Delivered by Hon'ble Dr. Gautam
Chowdhary, J.)

1. Heard Sri Sikandar B. Kochar,
learned counsel for the applicant, Sri
Rajeshwar Singh and Sri J.P.S.Chauhan,
learned A.G.A. for the State and perused
the material on record.

2. The present application under
Section 482 Cr.P.C. has been filed for
quashing the order dated 28.07.2022 passed
by learned Chief Judicial Magistrate,
Bulandshahr in Criminal Case No. 5259 of
2020 (State Vs. Dr. Parvez Alam) arising
out of Case Crime No. 0228 of 2020 under
Sections 420, 409 I.P.C. Police Station
Shikarpur, District Bulandshahr, whereby
the application for further investigation of
the matter on the basis of documents
adduced by the applicant, has been
rejected.

3. Brief facts of the case are that the
applicant was the Manager of National
Inter
College,
Shikarpur,
District
Bulandshahr w.e.f November 2017 till
2020, which institution is an aided
institution upto High School and is unaided
institution with respect to Class XI and XII.
Initially a complaint was made by the
opposite party no.2 against the applicant, in
which, after enquiry, the applicant was
found guilty for the charges pertaining to
the cheating, criminal breach of trust and
misuse of the college land, vide enquiry
report dated 05.05.2020. On the basis of
that enquiry report, the opposite party no.2
lodged a first information report dated
27.05.2020 against the applicant in Case
Crime No. 0228 of 2020 under Sections
409, 420 I.P.C. The matter was entrusted
for investigation which culminated in
submission
of
charge
sheet
dated
15.10.2020, upon which cognizance was
taken on 17.10.2020 and during the course
of trial, the applicant moved an application
for further investigation into the matter on
the basis of documents adduced by him,
however said application has been rejected
vide order impugned dated 28.07.2022. It is
this order, which is under challenge before
this Court.

4. Learned counsel for the applicant
submits that on the complaint filed by the
opposite party no.2 the District Inspector of
Schools,
Bulandshahr
conducted
an
enquiry, in which the applicant was found
guilty, thereafter the matter was referred to
the Joint Director (Education) Meerut,
Zone, who issued a show cause notice to
the applicant, which was specifically
replied
by
the
applicant
and
after
considering the reply of the applicant, the
Joint Director (Education), exonerated the
applicant from the charges levelled against
him. It is further contended that when the
11 All. Dr. Parvez Alam Vs. State of U.P. & Ors.
401
applicant was discharged from the charges
levelled against him, the applicant moved
an
application
before
the
Senior
Superintendent of Police, Bulandshahr as
well as before the Investigating Officer of
the Case Crime No. 0228 of 2020 to
investigate the matter after considering the
documents furnished by him, however the
same was not considered during the
investigation and charge sheet dated
15.10.2020 was submitted against the
applicant under Section 409, 420 I.P.C. He
further submits that the learned Magistrate
while taking cognizance, failed to consider
the factual and legal aspect of the matter
and in a routine manner took cognizance
upon the charge sheet. Thereafter, the
applicant moved an application before the
learned
Court
below
to
direct
the
Investigating Officer to further investigate
the matter in light of the documents
adduced by him, however the same has
been illegally rejected by the learned Court
below. Learned counsel has next argued
that the very basis of lodging of the F.I.R.
was the enquiry report dated 05.05.2020
wherein the applicant was found guilty,
thereafter, the show cause notice was issued
by Joint Director of Education, Meerut
Zone, Meerut, which was replied by the
applicant and after considering the reply,
the applicant was exonerated from the
charges levelled against him and therefore
the basis for lodging of the FIR does not
survive any more. The learned Magistrate
ought to have considered the documents
sought to be relied upon by the applicant so
that justice may be done, therefore the
impugned order is illegal, arbitrary and is
liable to be quashed by this Court.

5. On the other hand, learned A.G.A.
submits that after framing of charges
against the applicant, the applicant moved
an application only to linger on the trial,
and thus the learned Court below has
rightly rejected the application vide order
impugned, which order is perfectly legal,
just and proper and thus the same calls for
no interference by this Court.

6. The Hon'ble Apex Court in the
matter of Vinubhai Haribhai Malaviya
and others Vs. State of U.P. and another
reported in 2020 (3) SCC 228 has held that
all powers necessary, which may also be
incidental or implied, are available to the
Magistrate to ensure a proper investigation
in the matter in the sense of a fair and just
investigation by the police, which power
includes ordering of further investigation
after submission of police report under
Section
173
(2)
Cr.P.C.
Relevant
paragraphs of the aforesaid Judgement is
quoted below:-

18. It is clear that a fair trial
must kick off only after an investigation is
itself fair and just. 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.
That this is the minimal procedural
requirement
that
is
the
fundamental
requirement
of
Article
21
of
the
Constitution of India cannot be doubted. It
is the hovering omnipresence of Article 21
over the CrPC that must needs inform the
interpretation of all the provisions of the
CrPC, so as to ensure that Article 21 is
followed both in letter and in spirit.

31. Hasanbhai Valibhai Qureshi
v. State of Gujarat and Ors. (2004) 5 SCC
347 is an important judgment which deals
with the necessity for further investigation
being balanced with the delaying of a
criminal proceeding. If there is a necessity
for further investigation when fresh facts
402 INDIAN LAW REPORTS ALLAHABAD SERIES
come to light, then the interest of justice is
paramount and trumps the need to avoid
any delay being caused to the proceeding.
The Court therefore held:

"11. Coming to the question
whether
a
further
investigation
is
warranted, the hands of the investigating
agency or the court should not be tied
down
on
the
ground
that
further
investigation may delay the trial, as the
ultimate object is to arrive at the truth.

12. Sub-section (8) of Section 173
of the Code permits further investigation,
and even dehors any direction from the
court as such, it is open to the police to
conduct proper investigation, even after the
court took cognisance of any offence on the
strength
of
a
police
report
earlier
submitted. All the more so, if as in this
case, the Head of the Police Department
also was not satisfied of the propriety or
the manner and nature of investigation
already conducted.

13. In Ram Lal Narang v. State
(Delhi Admn.) [(1979) 2 SCC 322: 1979
SCC (Cri) 479 : AIR 1979 SC 1791] it was
observed by this Court that further
investigation is not altogether ruled out
merely because cognizance has been taken
by the court. When defective investigation
comes to light during course of trial, it may
be cured by further investigation, if
circumstances so permitted. It would
ordinarily be desirable and all the more so
in this case, that the police should inform
the court and seek formal permission to
make further investigation when fresh facts
come to light instead of being silent over
the matter keeping in view only the need for
an early trial since an effective trial for
real or actual offences found during course
of proper investigation is as much relevant,
desirable and necessary as an expeditious
disposal of the matter by the courts. In view
of the aforesaid position in law, if there is
necessity for further investigation, the same
can certainly be done as prescribed by law.
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. We make it clear that we
have not expressed any final opinion on the
merits of the case."

42. 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
11 All. Sanjay Kumar Gupta @ Sanjay Gupta Vs. State of U.P. & Anr.
403
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 361and Reeta Nag v. State of
West Bengal and Ors. (2009) 9 SCC 129 also
stand overruled.

7. In the instant case, the very basis of
lodging of the F.I.R. against the applicant was
the enquiry conducted by the concerned District
Inspector of Schools, wherein the applicant was
held guilty, later on, after submission of reply
by the applicant before the Joint Director of
Education Meerut Zone. Meerut, the applicant
was exonerated from the charges levelled
against him in the meantime, charge sheet was
filed against the applicant and trial commenced.
During the course of trial, the applicant moved
an application with a prayer for further
investigation, which has been rejected vide
order impugned, which order, in the opinion of
the Court, is not sustainable in view of the fact
that there may be further delay in concluding
the trial but that 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.

8. Considering the aforesaid observations
of Hon'ble Apex Court as well as the facts and
circumstances of the case, the impugned order
is set aside. The matter is remitted to the
concerned Court below to consider and decide
the matter afresh in accordance with law,
preferably within a period of one month from
the date of production of a certified copy of the
order before it.

9. Learned counsel for the applicant
undertakes that the applicant shall furnish a
certified copy of the order before the concerned
court below within 10 days from today.

10. It is made clear that this Court has not
expressed any opinion on the merits of the case.

11. The instant application is accordingly
disposed of.
----------
(2022) 11 ILRA 403
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.09.2022

BEFORE

THE HON'BLE AJAI TYAGI, J.

Application U/S 482 No. 9643 of 2022
And
Application U/S 482 No. 5158 of 2022

Sanjay Kumar Gupta @ Sanjay Gupta
 ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Amrish Sahai