# Ikram Husain v. State of U.P. and others

- **Citation:** (2011) 1 ILRA 152
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-25
- **Bench:** Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ikram-husain-v-state-of-u-p-and-others-41814
- **Pages:** 6

## Text

152 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
offence, for which he can be tried with
other accused.

8. So far as in terms of evidence is
concerned, it is defined under the Indian
Evidence Act as under:-

"Evidence" - "Evidence" means
and includes -

(1) all statements which the Court
permits or requires to be made before it
by witnesses, in relation to matters of
fact under inquiry;

Such statements are called oral
evidence;

(2)
all
documents
including
electronic record produced for the
inspection of the Court."

9. In the present case on the
application moved by the complainant,
the learned Magistrate has found it
proper and in the interest of justice to
summon the petitioners for trial, which
shall be treated his satisfaction regarding
necessity the trial of the petitioners along
with other accused.

10. Therefore, I do not find error in
the order impugned dated 10th of
November,
2010
passed
by
the
Additional Sessions Judge, Sitapur in
Sessions Trial No. 562 of 2006.

The petition is dismissed.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.02.2011

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Writ Petition No. 1057 (MS) of 2011 (CRL.)

Ikram Husain

 ...Petitioner
Versus
State of U.P. and others ...Opp. Parties.

Code
of
Criminal
Procedure-Section
173(8)-re-investigation-after considering
Final
Report-Magistrate
directed
for
investigation-challenge made on ground
there can be further investigation but
cannot
be
re-investigation-held
misconceived-direction for investigation
amounts to further investigation-order
passed by Magistrate-held justified.

Held: Para 13

Similarly, in this case also, the court has
issued direction for investigation which
is
a
direction
for
only
further
investigation and not for re-investigation
of the case. Therefore, I am of the view
that the impugned order dated 3rd
December, 2010, passed by the Judicial
Magistrate, Mohammadi, District Kheri
does not suffer from any error and the
petition is liable to be dismissed.
Case law discussed:
Air 1998 SC 2001; AIR 1968 SC 117; (1985) 2
SCC 537; (2008) 2 SCC (Cri.) 631; (1999) 5
SCC 740; (2009) 6 Supreme Court Cases 346;
(2009) 7 Supreme Court Cases 685; (1999) 5
Supreme Court Cases 740; (2009) 9 Supreme
Court Cases 129; (2008) 2 Supreme Court
Cases 383; 2006 (7) scc 296; AIR 1998 SC
,2001

(Delivered by Hon'ble Shri Narayan Shukla, J. )

1. Heard Mr. K.S.Rastogi, learned
counsel for the petitioner as well as Mr.
Rajendra
Kumar
Dwivedi,
learned
1 All] Ikram Husain V. State of U.P. and others
153
Additional Government Advocate for the
State.

2. This petition under Article 226 of
the Constitution of India has been filed by
the petitioner challenging the order dated
3rd December, 2010, passed by the
Judicial Magistrate, Mohammadi, District
Kheri in Case Crime No. 1152 of 2010,
under Sections 419, 420 I.P.C., Police
Station
Mohammadi,
District
Kheri
whereby the Magistrate has permitted
allegedly for reinvestigation of the case.

3. Briefly the facts of the case as set
out by the petitioner, are that even after
submission
of
final
report,
the
Investigating
Officer
submitted
an
application before the learned Judicial
Magistrate, Mohammadi, District Kheri
seeking permission for reinvestigation of
the case. The learned Magistrate by
means of order dated 3rd of December,
2010 permitted so.

4. Learned counsel for the petitioner
Mr.K.S.Rastogi, invited the attention of
this court towards Section 173 of the
Code
of
Criminal
Procedure
and
submitted that the Investigating Officer is
empowered
only
to
make
further
investigation and thus he submits that the
direction
for
reinvestigation
is
not
permissible under law. In support of his
submission, he cited several decisions,
which are referred hereunder:-

(1) K.Chandrasekhar Vs. State of
Kerala and others AIR 1998 SC 2001.

(2) Abhinandan Jha & Ors. Versus
Dinesh Mishra, AIR 1968 SC 117.

(3)
Bhagwant
Singh
Vs.
Commissioner of Police and another
reported in (1985) 2 SCC 537.

(4)
Ramachandran
versus
R.Udhayakumar and others reported in
(2008) 2 SCC (Cri.) 631.

(5)
Sri
Bhagwan
Samardha
Sreepada
Vallabha
Venkata
Vishwanandha Maharaj versus State of
A.P.and others reported in (1999) 5 SCC
740.

5. The provisions of investigation
are provided under Section 173 of the
Code of Criminal Procedure under the
different sub-sections. However, in the
context of present case, I am very much
concerned about sub-Section (8) of
Section 173 of the Code of Criminal
Procedure, which reads as under:-

"173.(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 documentary,
he shall forward to the Magistrate a
further report or reports regarding such
evidence in the form prescribed; and the
provisions of sub-section (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)."

6. A mere reading of the above
provision makes it clear that irrespective
of the 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
154 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
with a further report with regard to such
evidence in the form prescribed. The
abovesaid provision also makes it clear
that further investigation is permissible,
however, reinvestigation is prohibited.

7. The Hon'ble Supreme Court in the
case of Rama Chaudhary Vs. State of
Bihar, reported in (2009) 6 Supreme
Court Cases 346, has held that even after
submission of police report under Subsection (2) of Section 173 of the Code of
Criminal Procedure on completion of
investigation, the police has a right to
further investigate the case under Subsection (8) of Section 173 of the Code of
Criminal
Procedure.
The
relevant
paragraphs 16, 17, 18 and 22 of the
judgment are reproduced herebelow:-

"16. 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.

17. From a plain reading of subsection (2) and sub-section (8) of Section
173, it is evident that even after
submission of the police report under subsection
(2)
on
completion
of
the
investigation, the police has a right to
"further" investigation under sub-section
(8) of Section 173 but not "fresh
investigation"
or
"reinvestigation".
"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.

18. 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 a fresh report
regarding the "further" evidence obtained
during such investigation.

22. 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 v. State of Kerala). The
material collected in further investigation
cannot be rejected only because it has
been filed at the stage of the 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 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.

8. Though, the learned counsel for
the petitioner has given much emphasis
for direction of re-investigation but
keeping in view the facts of the case, it is
obvious that after coming some new facts
in light relating to the offence, the
Investigating Officer sought permission
for investigation which is incontinuation
of the earlier investigation and the report
submitted by him shall be an additional
report only.

9. In the case of Kishan Lal Vs.
Dharmendra
Bafna
and
another,
reported in (2009) 7 Supreme Court
Cases 685, the Hon'ble Supreme Court
has expressed the same opinion. The
1 All] Ikram Husain V. State of U.P. and others
155
relevant paragraph 16 of the judgment is
extracted herebelow:-

"16. The investigating officer may
exercise his statutory power of further
investigation in several situations as, for
example, when new facts come to his
notice; when certain aspects of the matter
had not been considered by him and he
found
that
further
investigation
is
necessary to be carried out from a
different angle(s) keeping in view the fact
that new or further materials came to his
notice. Apart from the aforementioned
grounds, the learned Magistrate or the
superior
courts
can
direct
further
investigation, if the investigation is found
to be tainted and/or otherwise unfair or is
otherwise necessary in the ends of justice.
The question, however, is as to whether in
a cause of this nature a direction for
further investigation would be necessary.

10. In the case of Sri Bhagwan
Samardha Sreepada Vallabha Venkata
Vishwanandha Maharaj Vs. State of
A.P. and others, reported in (1999) 5
Supreme Court Cases 740, the Hon'ble
Supreme Court has held in paragraphs 10
and 11 of the judgment which are being
extracted herebelow:-

"10. Power of the police to conduct
further investigation, after laying final
report, is recognized 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.).
The only rider provided by the aforesaid
decision is that it would be desirable that
the police should inform the court and
seek formal permission to make further
investigation.

11. In such a situation the power of
the court to direct the police to conduct
further investigation cannot have any
inhibition. There is nothing in Section 173
(8) to suggest that the court is obliged to
here the accused before any such
direction is made. Casting of any such
obligation on the court would only result
in encumbering the court with the burden
of searching for all the potential accused
to be afforded with the opportunity of
being heard. As the law does not require
it, we would not burden the Magistrate
with such an obligation."

11. In the case of Reeta Nag Vs.
State of West Bengal and others,
reported in (2009) 9 Supreme Court
Cases 129, the Hon'ble Supreme Court
has expressed the opinion in paragraph 25
of the judgment which is being extracted
herebelow:-

"25.
What
emerges
from
the
abovementioned decisions of this Court is
that once a charge-sheet is filed under
Section 173 (2) CrPC and either charge is
framed or the accused are discharged, the
Magistrate may, on the basis of a protest
petition, take cognizance of the offence
complained of or on the application made
by the investigating authorities permit
further investigation under Section 173
(8). The Magistrate cannot suo motu
direct a further investigation under
Section
173(8)
CrPC
or
direct
a
reinvestigation into a case on account of
the bar of Section 167(2) of the Code.

The
same
question
has
been
considered by the Hon'ble Supreme Court
in the case of State of Andhra Pradesh
156 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Vs. A.S. Peter, reported in (2008) 2
Supreme Court Cases 383. The relevant
paragraphs 9 and 18 of the judgment are
being reproduced hereunder:-

"9. Indisputably, the law does not
mandate taking of prior permission from
the Magistrate for further investigation.
Carrying out of a further investigation
even after filing of the charge-sheet is a
statutory right of the police. A distinction
also exists between further investigation
and
reinvestigation.
Whereas
reinvestigation without prior permission
is
necessarily
forbidden,
further
investigation is not.

18. Reliance placed by the High
Court as also by Mr. Rai on K.
Chandrasekhar is misplaced. Therein
investigation had been carried out by the
Central Bureau of Investigation with the
consent of the State. However, the State
withdrew the same. The question which
arose for consideration therein was as to
whether it was permissible for the State to
do so. The said issue was answered in the
negative stating that the investigating
officer must be directed to complete the
investigation.
In
the
aforementioned
situation it was opined: (SCC p 237, para
24).

" 24. From a plain reading of the
above section it is evident that even after
submission of police report under Section
(2) on completion of investigation, the
police has a right of 'further' investigation
under sub-section(8) but not 'fresh
investigation' or 'reinvestigation.' that the
Government of Kerala was also conscious
of this position is evident from the fact
that though initially it stated in the
Explanatory Note of their Notification
dated 27.6.1996 that the consent was
being withdrawn in public interest to
order a 'reinvestigation' of the case by a
special team of the State police officers, in
the amendatory Notification it made it
clear that they wanted in 'further
investigation of the case' instead of
'reinvestigation
of
the
case'.
The
dictionary meaning of 'further' (when
used as an adjective) is 'additional; more;
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. In drawing this conclusion we
have also drawn inspiration from the fact
that sub-section (8) clearly envisages that
on completion of further investigation the
investigating agency has to forward to the
Magistrate a 'further' report or reports-
and not fresh report or reports- regarding
the 'further' evidence obtained during
such investigation. Once it is accepted-
and it has got to be accepted in view of
the judgment in Kazi Lhendup Dorji- that
an investigation undertaken by CBI
pursuant to a consent granted under
Section 6 of the Act is to be completed,
notwithstanding
withdrawal
of
the
consent and that 'further investigation' is
a continuation of such investigation which
culminates in a further police report
under sub-section (8) of Section 173, it
necessarily means that withdrawal of
consent in the instant case would not
entitle the State Police, to further
investigate into the case. To put it
differently, if any further investigation is
to be made it is CBI alone which can do
so, for it was entrusted to investigate into
the case by the Stage government.
Resultantly,
the
Notification
issued
withdrawing the consent to enable the
State Police to further investigate into the
case is patently invalid and unsustainable
1 All] Hardwari Lal V. State of U.P. and another
157
in law. In view of this finding of ours we
need not go into the questions, whether
Section 21 of the General Clauses Act
applies to the consent given under Section
6 of the Act and whether consent given for
investigating into Crime No. 246 of 1994
was redundant in view of the general
consent earlier given by the State of
Kerala".

12. Mr. Rajendra Kumar Dwivedi,
learned Additional Government Advocate
reminded that this Court had an occasion
to deal with the same question in the case
of Nandan Singh Bora Vs. State of U.P.
and another (Criminal Misc. Case No.
2882 of 2008, under Section 482 Cr.P.C.,
decided on 18.12.2008), in which the
observation of Hon'ble Supreme Court
referred in the case of Popular Muthiah
Vs. State, reported in 2006 (7) SCC 296
as well as K.Chandrasekhar Vs. State of
Kerala and others, reported in AIR
1998 SC, 2001, has been considered and
submits that keeping in view the facts of
the case, the order for re-investigation
issued by the learned Magistrate has been
considered as of further investigation.

13. Similarly, in this case also, the
court
has
issued
direction
for
investigation which is a direction for only
further investigation and not for reinvestigation of the case. Therefore, I am
of the view that the impugned order dated
3rd December, 2010, passed by the
Judicial Magistrate, Mohammadi, District
Kheri does not suffer from any error and
the petition is liable to be dismissed.

14. The petition is, therefore,
dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED LUCKNOW 24.02.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J

Service Single No. - 1225 of 1995

Hardwari Lal

 ...Petitioner
Versus
State of U.P. Thr. Sec. Sugar Industries,
Lucknow and another
 ...Respondents

Counsel for the Petitioner
Ganga Singh

Counsel for the Respondent
C S C

Constitution of India-Article 21-Right of
livelihood-petitioner
working
as
watchman-after 20 years service without
opportunity without show cause noticeservice terminated on ground of physical
disability as suffering from blindnessfrom perusal of medical certificate by
Regional
Institute
of
Opthalmology
Sitapur-petitioner
suffering
from
glaucoma
in
right
eye
but
fit
for
discharge of duty-cannot be disputed-in
view of Narendra Kumar Chawla caseright to livelihood an integral part of lifeshould not be deprived from livelihood-if
the
unit
closed-entitled
for
compensation-considering mental and
physical agency Rs.2,50000/-ex-gratia
compensation be paid within 3 month
failing which entitled for 8 % interest.

Held: Para 8

It is evident at the face of record that
while passing the impugned order, no
prior notice or opportunity of hearing
was provided. The General Manager has
passed the impugned order without
serving any show cause notice on the
petitioner. The averments contained in
para 4 of the writ petition have not been
denied.
Accordingly,
the
certificate