# Indu Awasthi @ Sarvendra Awasthi & Ors v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 395
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-30
- **Case number:** Matters Under Article 227 No. 9451 of 2023
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indu-awasthi-sarvendra-awasthi-ors-v-state-of-u-p-ors-52114
- **Pages:** 11

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 306 - The Code of Criminal
Procedure, 1973 - Sections 173(8), 156(3)
- On application u/s 156(3) Cr.P.C. by
informant, the learned Special Judge
directed the Station Officer to register a
criminal case, in compliance of this, an
F.I.R. u/s 306 IPC was registered against
seven named persons and one unknown
person including present petitioners -
Police
submitted
charge-sheet
-
Application for further investigation -
Rejected by Magistrate - Scope of Section
173(8) Cr.P.C. - Held, an application to
conduct further investigation moved by
accused was misconceived, without any
right provided to accused by law - Case was
thoroughly investigated by I.O. and he
noticed that one earlier application was
moved by informant alleging the same facts
therein , he conducted the investigation
accordingly and mentioned this fact in
charge-sheet - Power to make order as to
further

investigation
is
available
to
Magistrate u/s 156 (3) CrPC even at postcognizance stage until trial commences i.e.
charges are framed - It can exercised suo
motu by Magistrate himself, depending on
facts of each case - No locus standi to move
application - Hence, no illegality in impugned
order and accordingly dismissed. (Para 3, 4,
34, 36, 38, 39)

Petition dismissed. (E-13)

List of Cases cited:

## Text

5 All. Indu Awasthi @ Sarvendra Awasthi & Ors. Vs. State of U.P. & Ors.
395
the High Court wherein this Court dismissed
the appeal of the judgment debtor and the
respondent lost in his SB Civil Writ Petition
No.1052/2008 Satya Narain & Ors. vs.
District Judge, Churu & Ors. suit and
regular appeal and the Hon'ble Apex Court
specifically refused the interim relief, the
High Court may under Article 227 of the
Constitution of India exercise jurisdiction in
pending proceedings in civil court in rarest
of rate case and it is one of such case where
the continuation of the proceedings in the
trial court will amount to abuse of process
of the court."

22. Therefore, under such facts and
circumstances of the case, the impugned
order dated 25.1.2024 passed by Revisional
Court/ In-charge District Judge, Azamgarh
is hereby quashed and petition is allowed.
Execution Court is directed to proceed in
accordance with law and complete the
execution
proceeding
at
the
earliest
considering this fact that SCC Suit for
eviction was filed in 1981.

23. No order as to costs.
----------
(2024) 5 ILRA 395
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2024

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Matters Under Article 227 No. 9451 of 2023

Indu Awasthi @ Sarvendra Awasthi & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Mahesh Pandey, Narendra Kumar Singh,
Santosh Kumar Pandey
Counsel for the Respondents:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Section 306 - The Code of Criminal
Procedure, 1973 - Sections 173(8), 156(3)
- On application u/s 156(3) Cr.P.C. by
informant, the learned Special Judge
directed the Station Officer to register a
criminal case, in compliance of this, an
F.I.R. u/s 306 IPC was registered against
seven named persons and one unknown
person including present petitioners -
Police
submitted
charge-sheet
-
Application for further investigation -
Rejected by Magistrate - Scope of Section
173(8) Cr.P.C. - Held, an application to
conduct further investigation moved by
accused was misconceived, without any
right provided to accused by law - Case was
thoroughly investigated by I.O. and he
noticed that one earlier application was
moved by informant alleging the same facts
therein , he conducted the investigation
accordingly and mentioned this fact in
charge-sheet - Power to make order as to
further

investigation
is
available
to
Magistrate u/s 156 (3) CrPC even at postcognizance stage until trial commences i.e.
charges are framed - It can exercised suo
motu by Magistrate himself, depending on
facts of each case - No locus standi to move
application - Hence, no illegality in impugned
order and accordingly dismissed. (Para 3, 4,
34, 36, 38, 39)

Petition dismissed. (E-13)

List of Cases cited:

1. Babubhai Vs St. of Gujarat & ors., 2010 AIR
SCW 5126

2. St. Through Central Bureau of Investigation
Vs Hemendhra Reddy & anr., Etc., 2023 SCC
Online SC 515

3. Vinay Tyagi Vs Irshad Ali @ Deepak & ors.
reported in (2013) 5 SCC 762

4. Ram Lal Narang Vs State (Delhi Admn.), AIR
1979 SC 1791
396 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Nirmal Singh Kahlon Vs St. of Pun. & ors.,
(2009) 1 SCC 441

6. Sri Bhagwan Samardha Sreepada Vs Venkata
Vishwandadha Maharaj Vs St. of Andhra Pradesh
& Others, AIR 1999 Supreme Court 2332

7. National Multi Commodity Exchange of India
Ltd. Vs St. of Guj. & anr. (Special Criminal
Application (Quashing) No. 1359 of 2014

8. Nitinbhai Mangubhai Patel Vs St. of Guj. &
ors. reported in 2013 LawSuit(Guj) 1124

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Heard Sri U.K. Saxena, Senior
Advocate assisted by Sri S.K. Pandey,
learned counsel for the petitioners and
learned Additional Government Advocate
appearing for the State-respondent.

2. By way of present petition under
Article 227 of the Constitution of India, the
petitioners have made a prayer to issue an
order / direction to stay the effect and
operation of the impugned order dated
29.08.2023 passed by Judicial Magistrate,
Hawali,
Farrukhabad
whereby
the
application in Case Crime No.111 of 2021
under Section 306 IPC, P.S. Kotwali
Fatehgarh, District Farrukhabad bearing
Case No.04 of 2023 (State Vs. Gunjan
Awasthi
and
others)
for
further
investigation, under Section 156 (3) Cr.P.C.
read with Section 173 (8) Cr.P.C. moved by
the petitioners was rejected. Further prayer
has been made that the Investigating Agency
be directed by order / direction to make
further investigation under Section 173 (8)
Cr.P.C. in the case mentioned here-inabove.

3. It is submitted by learned counsel
for the petitioners that on an application
under section 156 (3) Cr.P.C. moved by the
informant Rachna Singh being Criminal
Misc. Case No.139/12/2021, the learned
Special Judge (D.A.A.) / III Addl. Session
Judge, Farrukhabad passed an order dated
25.8.2021 directing the Station Officer,
Police Station Kotwali, Farrukhabad to
register a criminal case under relevant
sections on the aforesaid application and in
compliance of the said order of the court, an
F.I.R. as case crime no.111 of 2021 under
Section 306 IPC was registered against
seven named persons and one unknown
person including the present petitioners at
Police Station Kotwali - Farrukhabad,
District Farrukhabad.

4. It is further submitted that after
investigation, the police submitted chargesheet dated 12.4.2021 under section 306 IPC
against six accused persons including the
present petitioners and the investigation was
continued against one of the accused
persons Amit Shukla.

5. It is further urged that Crl. Misc.
Writ Petition No.10539 of 2022 was
preferred by the present petitioners before
this Court with a prayer to command the
respondents / Investigating Officer to make
further investigation under section 173 (8)
Cr.P.C. in the above mentioned case crime
number wherein this Court, after examining
and determining the question involved
therein, came to the conclusion that to pass
direction for further investigation in this
matter was not required and the relief was
declined to the petitioners, but however the
petitioners were left on liberty to pursue
their remedy before the Magistrate if
necessary ingredients for invoking such
jurisdiction is shown to exist in the matter,
vide order dated 10.8.2022.

6. Another submission is that before
the Court of Magistrate concerned, an
5 All. Indu Awasthi @ Sarvendra Awasthi & Ors. Vs. State of U.P. & Ors.
397
application under Section 156 (3) read with
173 (8) Cr.P.C. was moved praying for
further investigation in Case No.1108 of
2021, which was rejected by the Magistrate
vide order dated 29.8.2023.

7. It is further submitted by the
learned counsel for he petitioners that
meanwhile the cognizance order of the
Magistrate dated 11.6.2021 after submission
of charge-sheet into the matter, was also
challenged before the Sessions Judge,
Farrukhabad by way of Criminal Revision
No.70 of 2021 by the present petitioners, but
after hearing, the same was dismissed by the
Sessions Judge, Farrukhabad vide order
dated 5.10.2021.

8. Advancing his argument the
learned
counsel
for
the
petitioners
vehemently submitted that from the perusal
of application under section 156 (3) Cr.P.C.
moved by the informant Smt. Rachna Singh,
prima facie no offence was made out against
the present petitioners under section 306
IPC and surprisingly after lodging of the
F.I.R., no investigation was made on the
point of abetment or instigation on the part
of the petitioners to the deceased, which led
him to commit suicide and charge-sheet was
submitted in haste by the Investigating
Officer without ascertaining the fact that
prima facie the ingredients to establish an
offence under section 306 IPC were
absolutely not existing against the present
petitioners and that is why the petitioners
were compelled to move an application
under section 173 (8) Cr.P.C. for further
investigation into the matter to find out
whether any act of abetment or instigation
by the petitioners to the deceased was made
out and prima facie evidence in this
connection
was
available
to
the
Investigating Officer or not, but the learned
Magistrate
did
not
appreciate
the
contentions raised by the petitioners and in
an illegal manner and without considering
the applicability of relevant laws on the
point, rejected the said application of the
petitioners which again compelled the
petitioners to move present petition before
this Court.

9. Another limb of argument put
forth before this Court by the learned
counsel for the petitioners is that the
impugned order is illegal, perverse and
erroneous both on fact and law. This is the
matter
which
certainly
requires
superintending authority and command of
the High Court to be acted upon.

10. Per contra, learned A.G.A.
opposed the prayer made in the petition and
it has been vehemently argued that the
power to further investigate into the matter
after submission of police report under
section 173 (2) Cr.P.C. lies with the
investigating agency under section 173 (8)
Cr.P.C. and the permission of the court is not
required in all cases.

11. Before adverting to the rival
submissions made by the learned counsel for
the parties, apt would be to determine as to
what is the actual scope of the provisions of
section 173 (8) Cr.P.C.

12. It is provided under section 173
(8) Cr.P.C. that -

 "Section 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 officer-incharge of the police station obtains further
evidence, oral or documentary, he shall
forward to the Magistrate a further report
398 INDIAN LAW REPORTS ALLAHABAD SERIES
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)."

13. The police report submitted to
the Court under section 173 (2) Cr.P.C. is, in
fact, a bundle of facts and evidence, which
is collected by the Probe agency during
investigation. The concluding remark of the
I.O. of the case on the basis of the collection
of relevant facts and evidence may be
termed as police report filed under section
173 (2) Cr.P.C. whether it supports the
F.I.R. version or not. Normally if it supports
the prosecution version given in the F.I.R.,
it is called a charge-sheet in popular terms
and if not, it is taken as a final report or
closure report although, interestingly both
the words i.e. charge-sheet and final /
closure report have not been used under any
provision of Cr.P.C. The court, which is
competent to take cognizance upon the
police report under section 190 (1) (b) of
Cr.P.C., takes the police report as a base
whereupon it takes cognizance of the case
and proceeds with the case for further
action.

14. The question which arises in the
case in hand takes the case one step further
to the submission of the charge-sheet and
drives the Court into the sphere of further
investigation, which means an investigation,
which is prayed for after the police report
under section 173 (2) Cr.P.C. has already
been submitted, but not a re-investigation
into the case.

15. Since the learned State counsel
has specifically mentioned that the order for
further investigation could not be passed by
the Court where the police report under
section 173 (2) Cr.P.C. was submitted and it
was the prerogative of the Investigating
Agency to make further investigation into
the matter or not, he was intending to submit
that the learned Magistrate made no mistake
in rejecting the application for further
investigation at the instance of accused
persons / present petitioners as they were not
entitled to move any application for further
investigation into the matter before the
court. Learned State counsel in this way
tried to restrict the power of the court, which
could be invoked under section 173 (8)
Cr.P.C. and at the same time the liberty of
the accused to move an application with the
prayer for the same has also been put to
question. The matter certainly requires
consideration.

16. In Babubhai vs. State of
Gujarat and others, 2010 AIR SCW 5126,
Hon'ble the Apex Court had an occasion to
look into the scope of further investigation
and it was so held that -

"The Scheme of investigation,
particularly, Section 173 (8), provides for
further investigation and not of re-
investigation. Therefore, if the Court, comes
to the conclusion that the investigation has
been done in a manner with an object of
helping a party, the Court may direct for
further investigation and ordinarily not for
re-investigation.
The
expression
"ordinarily" means normally and it is used
where there can be an exception. Thus, in
the exceptional circumstances, the Court in
order to prevent the miscarriage of criminal
justice, if considers necessary, it may direct
for investigation de novo wherein the case
presents exceptional circumstances."

17. Further, in State Through
Central Bureau of Investigation Vs.
Hemendhra Reddy & Another, Etc., 2023
5 All. Indu Awasthi @ Sarvendra Awasthi & Ors. Vs. State of U.P. & Ors.
399
SCC Online SC 515 (Criminal Appeal
Nos.1300 - 1302 of 2023, decided on April
28, 2023) examining the scope of power of
the Court and investigating agency in
respect of a matter relating to further
investigation and also power of Court to take
cognizance on a charge-sheet submitted by
the Probe agency as an outcome of further
investigation after once submission of final
report into the matter, it was held that even
after the final report is laid before the
Magistrate and is accepted, it is permissible
for the investigating agency to carry out
further investigation in the case. There is no
bar against conducting further investigation
under Section 173(8) of the CrPC after the
final report submitted under Section 173(2)
of the CrPC has been accepted. Prior to
carrying out further investigation under
Section 173(8) of the CrPC it is not
necessary that the order accepting the final
report should be reviewed, recalled or
quashed. Though the order passed by the
Magistrate accepting a final report under
Section 173 is a judicial order, there is no
requirement for recalling, reviewing or
quashing the said order for carrying out
further investigation under Section 173(8) of
the CrPC. There is nothing in the CrPC to
suggest that the court is obliged to hear the
accused while considering an application for
further investigation under Section 173(8) of
the CrPC. 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 and
effective justice.

18. It was further clarified that
further
investigation
is
merely
a
continuation of the earlier investigation,
hence it cannot be said that the accused are
being subjected to investigation twice over.
Investigation cannot be put at par with
prosecution and punishment so as to fall
within the ambit of Clause (2) of Article 20
of the Constitution. The plea of double
jeopardy would, therefore, not be applicable
to further investigation.

19. A rider was provided on the
power
of
police
to
carry
further
investigation in Vinay Tyagi vs. Irshad Ali
alias Deepak and Others reported in
(2013) 5 SCC 762 wherein it was cautioned
that a police officer can carry on further
investigation even after a report under
section 173 (2) of the Cr.P.C. is submitted,
in view of section 173 (8) of the Cr.P.C., but
only rider being that the police should seek
formal permission from the Court.

20. The same view was earlier
expressed in Ram Lal Narang vs. State
(Delhi Admn.), AIR 1979 SC 1791 wherein
it was observed 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.

21. The controversy involved in the
matter in hand at this juncture leads the
Court to some factual aspect of the matter.
In the present case, F.I.R. was lodged by the
order of the Court of Special Judge (D.A.A.)
/ III Additional Session Judge, Farrukhabad
vide order dated 25.8.2021 on an application
moved by the informant Rachna Singh
under section 156 (3) Cr.P.C. In the said
application it was alleged that Gunjan
Awasthi son of Indu Awasthi made a
telephonic call to Mangal Singh, husband of
400 INDIAN LAW REPORTS ALLAHABAD SERIES
the informant, and told him to come to his
house whereupon he along with his friend
Deepu went to the house of Gunjan Awasthi.
The aforesaid Deepu was returned back by
Gunjan Awasthi and some other persons
including a servant and his elder brother
Gaurav Awasthi and subsequently her
husband
Mangal
Singh
was
bitterly
assaulted after being tied up with a chair and
when Raj Pratap Singh, the friend of her
husband reached there on call, her husband
was again assaulted before him as well, who
anyhow rescued and informed the informant
about the incident. On intimation given by
the informant to the police, the police
reached the house of Gunjan Awasthi and
her husband was released, who was kept
confined wrongfully in the house of Gunjan
Awasthi for many hours and they also looted
about Rs. 6000/- from her husband and also
threatened him for life. After the said
incident, her husband was threatened and
pressurized illegally by the accused persons
and he was also harassed and subjected to
cruelty physically and mentally both by
them and subsequently he committed
suicide on 16.3.2021.

22. After lodging of the F.I.R. at
case crime no.111 of 2021 under section 306
IPC against a total number of 8 persons (six
named, one unknown and one servant of
accused Gunjan Awasthi) based upon an
application under section 156 (3) Cr.P.C.
moved by Smt. Rachna Singh, investigation
started, which culminated into charge-sheet
under section 306 IPC against the aforesaid
accused persons except the absconding
accused Amit Shukla against whom the
investigation
was
kept
pending
and
cognizance of the case was taken by the
court and in the said charge-sheet, it was
also mentioned by the I.O. that on the basis
of same facts, another F.I.R. as case crime
no.745 of 2021 under sections 395, 342, 306
IPC was also lodged by the same informant
in respect of the same incident. In the matter
which was initiated on an application under
section 156 (3) Cr.P.C. moved by the
deceased
Mangal
Singh
himself
(in
amended manner which was made by Smt.
Rachna Singh), F.I.R. was also lodged as
case crime no.745 of 2021 under sections
395, 342, 306 IPC and after investigation a
final report was submitted into the matter.
The I.O. mentioned therein that as an
outcome of the investigation, case under
section 395, 342 IPC was found to be false
and so far as the offence under section 306
IPC is concerned, since a charge-sheet had
already been submitted by the police for the
said offence earlier in case crime no.111 of
2021, final report no.143 of 2021 dated
14.9.2021 is being submitted.

23. Now the outcome of the entire
investigation was that offence under section
306 IPC was prima facie found to be made
out against the present petitioners and
charge-sheet in respect of the said offence
was submitted by the police.

24. The application for further
investigation in case crime no.111 of 2021
after submission of charge-sheet was though
entertained by the court, but it was rejected
by the impugned order dtd. 29.08.2023
passed by Judicial Magistrate, Hawali,
Farrukhabad.

25. In the aforesaid application for
further investigation, it was alleged that the
whole story disclosed in the application
under section 156 (3) Cr.P.C. which
subsequently was reproduced in the F.I.R.
lodged under the order of the court, is false
and fabricated and it was alleged that an
agreement to sale was executed between the
deceased and Amit Shukla, but when the
deceased did not play his role in the
5 All. Indu Awasthi @ Sarvendra Awasthi & Ors. Vs. State of U.P. & Ors.
401
agreement, he was pressurized by Amit
Shukla for executing the sale deed in his
favour, who had already given Rs.6,80,000/-
to him on 21.6.2018 and the outstanding
amount of Rs.7,50,000/- was to be paid by
Amit Shukla, but subsequently Mangal
Singh (deceased) refused to execute the sale
deed in his favour and committed suicide on
16.3.2021. Subsequent to that, another
agreement to sale was executed by Smt.
Rachna Singh and Munshi Lal without
refunding the money to the tune of
Rs.6,80,000/-.
During
investigation,
statement of Sunil Kumar Singh Rathore,
advocate and Pawan Singh @ Sonu was
recorded by the police and in the application
for further investigation, it was alleged by
accused Indu Awasthi @ Sarvendra Awasthi
that Advocate Sunil Kumar Singh Rathore
was involved in criminal activities and
extorting money from many persons. He
also tried to extort amount for a sum of
Rs.80 lakh and F.I.R. was lodged in that case
and charge-sheet was also submitted against
the petitioner Indu Awasthi. He was also
said to be an eyewitness of the incident
which happened with the husband of the
informant, but still he filed his vakalatnama
on behalf of the complainant on 17.8.2021.
It was further alleged that Pawan Singh, who
is junior advocate of Sunil Kumar Singh
Rathore, was also an eyewitness of the
incident.

26. The further investigation was
prayed for on the ground that Sunil Kumar
Singh Rathore was in inimical terms with
the petitioner and he tried to grab money
from him by lodging false and frivolous
F.I.R with the help of the informant Smt.
Rachna Singh and he also used his status of
advocacy in pressurizing the investigating
agency for submitting the charge-sheet
against the petitioner and other persons. It is
further mentioned in the said application for
further investigation that in an application
u/s 482 Cr.P.C. registered as Application
No.614 of 2022 (Indu Awasthi @ Sarvendra
Awasthi vs. State of U.P. and others), an
order was passed by the High Court in
favour of the applicant Indu Awasthi on
16.4.2022 and during the course of hearing,
both the parties consented for mediation and
accordingly order was also passed by this
Court, but however mentioning that the
complainant of the case was not interested to
participate in the mediation proceedings, the
application for settlement of dispute filed by
the applicant Indu Awasthi was rejected by
the Magistrate concerned. Punitive process
were issued by the Magistrate Court
concerned against the applicant Indu
Awasthi and a complaint was also made
against Sunil Kumar Singh Rathore,
advocate. The further investigation was
prayed for mentioning the aforesaid facts
and also highlighting this fact that only two
witnesses were interrogated by the I.O.
namely Sunil Kumar Singh Rathore and
Pawan Solanki, who were the men of the
informant Rachna Singh. The police / I.O.
falsely implicated the applicant Indu Singh
in the said case for taking Rs.20 lakh for
compromise in the case. This is the said
application which was rejected by the Court
of Judicial Magistrate, Hawali, Farrukhabad
by the impugned order dtd. 29.08.2023.

27. Referring to the provisions of
section 306 IPC it was also alleged in the
said application for further investigation that
the complete missing of all the essential
ingredients to constitute an offence under
section 306 IPC was absolutely overlooked
by the I.O. of the case.

28. Now coming back to the point
which was being discussed above, this Court
can safely rely upon a very pertinent and
guiding observation made by the Hon'ble
402 INDIAN LAW REPORTS ALLAHABAD SERIES
Apex Court in Nirmal Singh Kahlon vs.
State of Punjab and Others, (2009) 1 SCC
441 is necessary to be quoted where it was
held as under -

"68.
An
order
of
further
investigation in terms of Section 173(8) of
the Code by the State in exercise of its
jurisdiction under Section 36 thereof stands
on a different footing. The power of the
investigating officer to make
further
investigation in exercise of its statutory
jurisdiction under Section 173(8) of the
Code and at the instance of the State having
regard to Section 36 thereof read with
Section 3 of the Police Act, 1861 should be
considered in different contexts. Section
173(8) of the Code is an enabling provision.
Only when cognizance of an offence is
taken, the learned Magistrate may have
some say. But, the restriction imposed by
judicial legislation is merely for the purpose
of
upholding
the
independence
and
impartiality of the judiciary. It is one thing
to say that the court will have supervisory
jurisdiction to ensure a fair investigation, as
has been observed by a Bench of this Court
in Sakiri Vasu v. State of U.P. [(2008) 2 SCC
409 : (2008) 1 SCC (Cri) 440], correctness
whereof is open to question, but it is another
thing to say that the investigating officer will
have no jurisdiction whatsoever to make any
further investigation without the express
permission of the Magistrate."

29. In the case in hand Ram Lal Narang
(supra) and Vinay Tyagi (supra), it has
already been settled that the police has
power to conduct further investigation after
submission of the charge-sheet, but it should
take / seek formal permission from the
Court.

30. The legal issue has also been
settled in Sri Bhagwan Samardha Sreepada
V. Venkata Vishwandadha Maharaj vs.
State of Andhra Pradesh & Others, AIR
1999 Supreme Court 2332 wherein it was
clarified by the Hon'ble Apex Court that -

 "Power of the police to conduct
further investigation, after laying final report,
is recognised under Section 173 (8). 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. In such situation power
of Court to direct police to conduct further
investigation cannot have any inhibition.
There is nothing in Section 173 (8) to suggest
that the Court is obliged to hear the accused
before any such direction is made. Casting of
any such obligation on the Court would only
result in encumbering it with burden of
searching for all potential accused to be
afforded with the opportunity of being heard."

31. The aforesaid legal dictum
promulgated by the Hon'ble Apex Court
makes it clear that to hear the accused while
making an order for further investigation
under section 173 (8) of Cr.P.C. is not required
for the Court and at the same time it is also
settled that if the police wants to conduct
further investigation under section 173 (8) of
Cr.P.C. after submission of the police report, it
has to take a formal permission from the Court
and further investigation is the power of the
Court undoubtedly. Now the issue whether
further investigation can be done at the
instance of the accused, finds its answer on the
basis of the aforesaid discussion which
negates the power of the accused to knock at
the door of the Court to pass an order for
performing further investigation into a matter.

32. In National Multi Commodity
Exchange of India Limited Vs. State of
Gujarat & another (Special Criminal
Application (Quashing) No. 1359 of 2014
5 All. Indu Awasthi @ Sarvendra Awasthi & Ors. Vs. State of U.P. & Ors.
403
decided on 21.04.2015, his Lordship of
Gujarat High Court discussing the law over
the subject held like this -

"40. A learned Single Judge of this
Court in the case of Nitinbhai Mangubhai
Patel v. State of Gujarat and others
reported in 2013 LawSuit(Guj) 1124 h
ad the occasion to consider the issue on
hand. I may quote the relevant observations
of the learned Single Judge as under:

Considering section 173 (8) of the
CrPC, there cannot be any further
investigation at the instance of the accused
on the grounds which infact are their
defences
which
are
required
to
be
considered at the time of trial and that too
after the IO has submitted the charge sheet
against the accused having found prima
facie case which requires further trial and
more particularly on the very grounds the
accused
submitted
the
discharge
applications which not only came to be
rejected by the learned CJM but even the
same was confirmed by the learned Sessions
Court. Section 173 (8) of the CrPC permits
the IO / officer in charge of the police station
for further investigation in respect of an
offence after report under subsection (2) of
section 173 has been forwarded to the
Magistrate. Therefore, there cannot be a
further investigation as provided under
section 173 (8) of the CrPC after a report
under subsection (2) of section 173 of CrPC
has been forwarded to the Magistrate and
that too on the grounds which are the
defence of the accused. The powers which
are available for further investigation under
section 173 (8) of the CrPC would be
available only to the IO / officer in charge of
the police station."

33. It is pertinent to mention here
that
in
the
aforesaid
case,
further
investigation was ordered at the instance of
the accused and his Lordship held that the
learned revisional court committed material
error in not appreciating the scope of further
investigation under section 173 (8) of
Cr.P.C. that too at the instance of the
accused and when the charge-sheet was
already filed and even the grounds which
were invoked were virtually the defences of
the accused.

34. From a co-joint reading of all
the legal views discussed here-in-above in
the peculiar facts and circumstances of this
case, this Court finds itself in a position to
draw a conclusoin that an application to
conduct further investigation moved by the
accused
Indu
Awasthi
was
totally
misconceived
and
without
any
right
provided to the accused by law. The case
was thoroughly investigated by the I.O. and
he also noticed that one earlier application
was already moved by the informant
alleging the same facts therein and that is
why he conducted the investigation of the
case in hand accordingly and also mentioned
this fact in the charge-sheet. It is also not be
incorrect to say that the grounds on which
further investigation was sought for by the
accused Indu Awasthi are really the
defences of the accused which may be taken
by him at any subsequent stage of the trial
and in fact the perusal of the application for
further investigation indubitably confirms
that the accused wants the investigating
agency to investigate the case from
particular angle which suits the accused and
he has also included in his application the
allegations against other persons who have
not been arrayed as accused by the I.O.

35.

Article
227
of
the
Constitution of India, which embodies
power
of
High
Court
to
have
superintendence over all Courts of the
State, provides as hereunder.
404 INDIAN LAW REPORTS ALLAHABAD SERIES

"227. Power of superintendence
over all courts by the High Court - (1)
Every
High
Court
shall
have
superintendence over all courts and tribunals
throughout the territories interrelation to
which it exercises jurisdiction.

(2) Without prejudice to the
generality of the foregoing provisions, the
High Court may-

(a) call for returns from such
courts;

(b) make and issue general rules
and prescribe forms for regulating the
practice and proceedings of such courts; and

(c) prescribe forms in which
books, entries and accounts shall be kept by
the officers of any such courts.

(3) The High Court may also settle
tables of fees to be allowed to the sheriff and
all clerks and officers of such courts and to
attorneys, advocates and pleaders practising
therein:

Provided that any rules made,
forms prescribed or tables settled under
clause (2) or clause (3) shall not be
inconsistent with the provision or any law
for the time being in force, and shall require
the previous approval of the Governor.

(4) Nothing in this article shall be
deemed to confer on a High Court powers of
superintendence over any court or tribunal
constituted by or under any law relating to
the Armed Forces."

36. The issue as to whether a
Criminal Court is armed with the power to
order further investigation after submission
of the charge-sheet has been well clarified in
Vishnubhai Haribhai Malaviya vs. State of
Gujarat, (2019) 17 SCC 1 wherein it has
been promulgated by the Hon'ble Apex
Court that power to make order as to further
investigation is available to Magistrate
under Section 156 (3) CrPC even at postcognizance stage until trial commences i.e.
charges are framed. The power can also be
exercised suo motu by the Magistrate
himself, depending on the facts of each case.

37. In the present petition, further
investigation into the matter has been prayed
for on two points. Firstly, that the first
informant Smt. Rachna Singh was having
unfair relations with Sunil Kumar Singh
Rathore, advocate, which was protested by
the deceased Mangal Singh, but she was not
ready to break her relations with him and the
second point for further investigation in the
present petition is that the deceased Mangal
Singh and Pawan Awasthi had borrowed a
huge amount of money from several persons
for business purpose, but they were not in a
position to return it back and they had
concealed themselves here and there and
were planning to shift in some other district
and Pawan Awasthi was shifted as well in
another district, but Mangal Singh was
harassed by the money lenders from whom
he had borrowed a huge amount of money
and he died in suspicious circumstances and
the present petitioners had no concern with
all his affairs. It is notable that so far as the
first ground is concerned, it was never
mentioned in the original application for
further
investigation
moved
by
the
petitioners / accused themselves and now
surprisingly the first ground was introduced
in the present petition for the first time
before any Court. The second point finds
place in the application for further
investigation as detailed here-in-above, but
this Court is of the considered view after
considering the facts and circumstances of
this case that this is nothing but an attempt
on the part of the accused just to create
future defence in the case in hand, which is
not permissible under law.

38. Hence the present petition under
Article 227 of the Constitution of India is
5 All. Prof. Soniya Nityanand & Ors. Vs. Prof. Ashish Wakhlu
405
liable to be dismissed on all the grounds
whether it is legal or factual. The accused /
petitioners have no locus standi to move
application for further investigation before
the Magistrate and in the facts and
circumstances of the case, if the Magistrate
found that the application was not worth
credit and he rejected it accordingly, no
legal or factual error was committed by the
concerned Magistrate.

39. Considering the entire facts and
circumstances of the case, the submissions
advanced by learned counsel for the parties
and also keeping in view the above stated
legal position, there is no such illegality,
perversity or any error of jurisdiction in the
impugned order so as to warrant exercise of
powers under Article 227 of the Constitution
of India by this Court. There is no
justification warranting any interference
with the impugned order in this petition.
Consequently, the present petition is liable
to be dismissed.

40. Accordingly, the instant petition
under article 227 of the Constitution is
hereby dismissed.
----------
(2024) 5 ILRA 405
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 125 of 2024

Prof. Soniya Nityanand & Ors.
 ...Petitioners
Versus
Prof. Ashish Wakhlu ...Respondent

Counsel for the Petitioners
Lal Prasad Misra, Shubham Tripathi

Counsel for the Respondent:
Sandeep Kumar Ojha

A. Contempt Law - Constitution of India -
Article 215 - Contempt of Courts Act, 1971
- Section 23 - Contempt proceeding -
Nature - Standard of proof - Held,
contempt proceedings are quasi criminal in
nature and the standard of proof is beyond
reasonable doubt. These proceedings carry
a rigor much more than any other judicial
proceedings for adjudication of disputes.
These proceedings are in exercise of
powers of the High Court to punish for its
contempt and that of the subordinate
courts. Therefore, they should be exercised
with circumspection and due and proper
application of mind even at the stage of
initiation of such proceedings. (Para 23)

B. Contempt Law - Contempt of Courts
Act, 1971 - Section 23 - Contempt
proceeding - Scope of punishment -
Prima facie satisfaction - Necessity -
Non existence of jurisdictional facts -
Effect - Notice was issued altogether
with
allowing
the
impleadment
of
appellant - Legality challenged - Held,
Issuance of notice in a contempt matter
is not a causal or routine procedure. It
requires due and proper application of
mind - Ordinarily, when an application
for impleadment is filed in a pending
contempt proceedings, practice has
been to issue notice to the proposed
opposite party before considering it so
that they may have an opportunity to
inform the contempt court about the
correct facts, unless from the facts
placed and documents annexed, an
exceptional case is made out, prima
facie. - Division Bench gave liberty to
the appellants to move an application
before Single Bench for discharge of
notices issued against him. (Para 23, 24
and 27)

Appeal disposed of. (E-1)

List of Cases cited: