# Jaypee Hospital v. State of U.P. & Ors

- **Citation:** (2025) 2 ILRA 90
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-21
- **Case number:** Matters Under Article 227 No. 13987 of 2024
- **Bench:** Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jaypee-hospital-v-state-of-u-p-ors-53035
- **Pages:** 10

## Headnote

Criminal Law - Constitution of India, 1950
- Article 21, 22 & 227 - Indian Penal
Code, 1860 - Sections - 304-A, 420, 468 &
201 - Criminal Procedure Code, 1973 -
Sections 173(2), 173(8) & 438: - writ
petition - petitioner challenge the Sessions
Court's order - by which trial court directed to
I.O. to re-investigate the role of hospital in the
case, while granting anticipatory bail to Doctor -
on the ground that the Sessions Court
overstepped its jurisdiction, as only higher
constitutional courts (High Court or Supreme
Court) can order re-investigation and the
direction
for
re-investigation
is
deemed
unjustified and beyond the scope of anticipatory
bail proceedings under Section 438 CrPC. -
court finds that, -the main issue revolved
around whether the Sessions Court could
order a re-investigation while considering an
Anticipatory bail application - Distinction
Between
Re-investigation
and
Further
Investigation - Re-investigation requires prior
investigation to be set aside and is rarely
ordered, whereas further investigation can
occur without invalidating earlier findings -
Scope of Anticipatory Bail Proceedings - there
was no other issue under Section 438 Cr.P.C.
to deal with other matter and the observation
made by the learned Session Court was
uncalled - held, - the power of reinvestigation has not been given to the other
court of law especially below to the High
Court, - the Sessions Court lacked jurisdiction
to direct re-investigation is hereby set-aside -
petition stands Allowed. (Para - 27, 28, 30, 36,
37, 38)

Writ petition Allowed (E-11)

List of Cases cited:

## Text

90 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2025) 2 ILRA 90
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2025

BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Matters Under Article 227 No. 13987 of 2024

Jaypee Hospital ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rohan Gupta

Counsel for the Respondents:
Deepak Pandey, G.A., Lavlesh Kumar
Sharma

Criminal Law - Constitution of India, 1950
- Article 21, 22 & 227 - Indian Penal
Code, 1860 - Sections - 304-A, 420, 468 &
201 - Criminal Procedure Code, 1973 -
Sections 173(2), 173(8) & 438: - writ
petition - petitioner challenge the Sessions
Court's order - by which trial court directed to
I.O. to re-investigate the role of hospital in the
case, while granting anticipatory bail to Doctor -
on the ground that the Sessions Court
overstepped its jurisdiction, as only higher
constitutional courts (High Court or Supreme
Court) can order re-investigation and the
direction
for
re-investigation
is
deemed
unjustified and beyond the scope of anticipatory
bail proceedings under Section 438 CrPC. -
court finds that, -the main issue revolved
around whether the Sessions Court could
order a re-investigation while considering an
Anticipatory bail application - Distinction
Between
Re-investigation
and
Further
Investigation - Re-investigation requires prior
investigation to be set aside and is rarely
ordered, whereas further investigation can
occur without invalidating earlier findings -
Scope of Anticipatory Bail Proceedings - there
was no other issue under Section 438 Cr.P.C.
to deal with other matter and the observation
made by the learned Session Court was
uncalled - held, - the power of reinvestigation has not been given to the other
court of law especially below to the High
Court, - the Sessions Court lacked jurisdiction
to direct re-investigation is hereby set-aside -
petition stands Allowed. (Para - 27, 28, 30, 36,
37, 38)

Writ petition Allowed (E-11)

List of Cases cited:

1. Vinay Tyagi Vs Irshad Ali @ Deepak & ors.,
2013 (5) SCC 762,

2. Father Thomas Vs St. of U.P. & anr., 2011,
CrI. L. J. 2278,

3. Hussain Arif & anr. Vs St. of U.P. & ors.
passed - (Application U/s 482 No. 2562 of 2003
decided on dated 02.11.2011),

4. Srikant Upadhyay & ors. Vs St. of Bihar &
anr.(2024) 3 SCR 421,

5. Sushila Aggarwal Vs St. (NCT of Delhi) [2020]
2 SCR 1,

6. Savita Garg Vs The Director, National Heart
Institute, (2004) 8 SCC 56,

7. St. through CBI Vs Hemendara Reddy, 2023
SCC online SC 515.

8. Prabir Kumar Chatterjee Vs St. of W.B.& ors.,
2008 CRILJ 841.

9. Rama Chaudhary Vs St. of Bihar, 2009 (6)
SCC 346,

10. Supriya Jain Vs St. of Har. & anr., 2023 (7)
SCC 711,

11. Amit Kapoor Vs Ramesh Chander, 2012 (9)
SCC 460,

12. St. of U.P. Vs Akhil Sharda & ors., 2022 SCC
Online 4 of 11 SC 820,

13. M/s Neeharika Infrastructure Pvt. Ltd. Vs St.
of Mah. & ors., 2021 (4) SCR 1044.
2 All. Jaypee Hospital Vs. State of U.P. & Ors.
91
14. Naresh Kumar Mangala Vs Anita Agrawal &
ors., (2021) 15 SCC 777,

15. Gurubaksh Singh Sibbia Vs St. of Punjab,
1980 (2) SCC 565

16. St. of M.P. Vs Pradeep Sharma, 2014 (1)
RCR (Crl) 269.

(Delivered by Hon'ble Saurabh Srivastava, J.)

1. Heard Sri Rohan Gupta, learned
counsel for petitioner, Sri Deepak Pandey,
learned counsel for respondent no. 4 and
Sri Anand Sagar Dubey, learned AGA-I
appearing for respondent nos. 1 to 3.

Prayer

2.
Present
petition
has
been
preferred with the following prayers:-

 "i) To pass an appropriate order
or direction setting aside the order dated
17.05.2024, to the extent it contains
directions to the Investigating Officer to
reinvestigate into role of the petitioner,
while granting bail to the accused in
paragraph no. 14 of the anticipatory bail
order, passed by the Additional District &
Sessions Judge-II/Special Judge (SC/ST)
Act, District Court Gautam Buddha Nagar
in Anticipatory Bail Application No.
1696/2024, arising out of First Information
Report dated 08.08.2023, registered as
Case Crime No. 148 of 2023 under sections
304-A, 420, 468 and 201 IPC, PS-Sector
126, District: Commissionerate Gautam
Budh Nagar.

ii) To pass an appropriate order or
direction,
restraining
the
Investigating
Officer
from
conducting
any
further
investigation
or
inquiry
against
the
petitioner-hospital in pursuance of the
impugned directions contained in paragraph
no. 14 of the anticipatory bail order dated
17.05.2024, passed by Additional District &
Sessions Judge-II/Special Judge (SC/ST) Act,
District Court Gautam Buddha Nagar in
Anticipatory Bail Application No. 1696/2024,
arising out of Case Crime no. 148 of 2023,
under sections 304-A, 420, 468 and 201 IPC,
PS- Sector 126, District: Commissionerate
Gautam Budh Nagar."

3. The instant petition has been
preferred at the behest of petitioner for
assailing the legality of the order dated
17.05.2024 passed by learned Additional
District & Sessions Judge-II/Special Judge
(SC/ST) Act, District Court Gautam Buddha
Nagar through which learned Sessions Court,
directed the Inquiry Officer to re-investigate
the role of the hospital in the matter.

Petitioner's submission

4. Learned counsel for petitioner
submitted that the direction available under
para 14 of the order dated 17.05.2024 was
uncalled for since the same has been issued in
anticipatory bail application no. 1696 of 2024
filed by Dr. Gyanendra Aggarwal against
petitioner who has been exonerated in the
charge sheet and was not even present before
the learned Sessions Court and as such the
direction for re-investigation has been passed
without jurisdiction on the several other
grounds inter alia precisely on the ground that
re-investigation can only be ordered by
higher courts which are constitutional courts
i.e. the High Court and Hon'ble Supreme
Court, moreover even further investigation
can only be directed by a Magistrate when
proper proceedings are initiated before the
learned court concerned which in this case
would be protest petition.

5. Learned counsel further tried to
demolish the operation of the order dated
17.05.2024 through which although bail
92 INDIAN LAW REPORTS ALLAHABAD SERIES
has been granted to one Dr. Gyanendra
Aggarwal but at the same time direction
has been issued for re-investigation and
there is no protest petition preferred by the
informant and the directions issued in that
regard by learned Additional District &
Sessions Judge-II/Special Judge (SC/ST)
Act, District Court Gautam Buddha Nagar
amount to usurping the power of the
Magistrate
which
could
have
been
exercised by the Magistrate only when a
protest petition was filed before the
concerned court, itself.

6. It is further submitted that the
order for re-investigation is completely
without jurisdiction since the matter before
the learned Additional District & Sessions
Judge-II/Special
Judge
(SC/ST)
Act,
District Court Gautam Buddha Nagar was
with regard to grant of anticipatory bail to
the accused Dr. Gyanendra Agrawal and
the exoneration of the petitioner was not
the issue before learned Additional District
& Sessions Judge-II/Special Judge (SC/ST)
Act, District Court Gautam Buddha Nagar
nor
could
be
considered
in
these
proceedings especially in absence of the
petitioner.

7. For substantiating arguments
raised by learned counsel for the petitioner,
Sri Rohan Gupta, relied upon case of Vinay
Tyagi vs. Irshad Ali alias Deepak and
others, 2013 (5) SCC 762 wherein it has
been held by Hon'ble Apex Court that in
case of fresh investigation, re-investigation
or de novo investigation there has to be a
definite order of the court. The order of the
court unambiguously should should state
as to whether the previous investigation, for
the reasons to be recorded, is incapable of
being acted upon. Neither the Investigating
Agency nor the Magistrate has any power
to order or conduct 'fresh investigation'.
This is primarily for the reason that it
would be opposed to the scheme of the
Code. It is essential that even an order of
"fresh"/"de novo" investigation passed by
the higher judiciary should always be
coupled with a specific direction as to the
fate of the investigation already conducted.
The cases where such direction can be
issued are few and far between. This is
based upon a fundamental principle of our
criminal jurisprudence which is that it is the
right of a suspect or an accused to have a
just and fair investigation and trial. This
principle flows from the constitutional
mandate contained in Articles 21 and 22 of
the Constitution of India. Where the
investigation ex facie is unfair, tainted,
mala fide and smacks of foul play, the
courts would set aside such an investigation
and direct fresh or de novo investigation
and,
if
necessary,
even
by
another
independent Investigating Agency. As
already noticed, this is a power of wide
plenitude and therefore has to be exercised
sparingly. The principle of the rarest of
rare cases would squarely apply to such
cases.
Unless
the
unfairness
of
investigation is such that it pricks the
judicial conscience of the Court, the Court
should be reluctant to interfere in such
matter to the extent of quashing an
investigation
and
directing
a
"fresh
investigation".

Respondent's submissions

8. Per contra, Sri Deepak Pandey,
learned counsel appearing on behalf of
respondent no. 4 vehemently opposed the
prayer as made in the petition and rebutted
the stand taken up by Sri Rohan Gupta,
learned counsel for the petitioner and in
reply it is submitted by Sri Deepak Pandey
that the prospective accused has no locus
standi
to
challenge
a
direction
for
2 All. Jaypee Hospital Vs. State of U.P. & Ors.
93
investigation for cognizable offence under
Cr.P.C. before issuance of process against
him. Since gross medical negligence and
fabrication along with manipulation of
medical
records
and
destruction
of
evidences has been observed by learned
Additional
Sessions
Judge
while
considering
the
anticipatory
bail
application of Dr. Gyanendra Aggrawal
which culminated into passing direction for
re-investigation.

9. In support of order dated
17.05.2024, it is also submitted by learned
counsel for respondent no. 4 that power to
grant bail under Section 438 Cr.P.C. is an
extraordinary power which is to be
exercised depending on the facts and
circumstances of each case and as such
there is no bar under Section 438 Cr.P.C. to
direct further investigation. It is further
submitted that Court cannot shut its eyes to
the arbitrary, biased, mischievous and
mysterious acts glaringly evident on
records as well as in the charge sheet which
compelled the learned Additional District
& Sessions Judge-II/Special Judge (SC/ST)
Act, District Court Gautam Buddha Nagar
to pass an observation. The learned court
after examining the material on records,
reports and findings of expert committee is
of the view that Dr.Gyanendra Agrawal and
Jaypee Hospital were named in the FIR.
However, the name of Jaypee hospital was
mysteriously dropped in the final charge
sheet, however the alleged manipulation of
records
whose
custodian
is
the
administration of Jaypee Hospital is a
matter of concern before learned Sessions
Court. Learned Additional Sessions Judge,
took serious view as to fairness of
investigation while dropping the name of
Jaypee Hospital as accused from the charge
sheet. It is further observed by learned
Additional District and Sessions Judge
while passing order dated 17.05.2024 that
however the act of hospital and doctor in
alleged
fabricating/manipulating
the
records is a matter of concern but the Court
finds that the custodian of records is the
administrative head of Jaypee Hospital and
police has conveniently dropped the name
of the hospital in the charge sheet for the
reason best known to them and therefore
the learned court directed the Inquiry
Officer of the case to re-investigate the role
of the hospital in the matter.

10. It is also submitted by learned
counsel for respondent no. 4 that further
investigation is permitted under Section
173(8) Cr.P.C. and further investigation
and
re-investigation
are
many
times
synonyms and as such prosecution cannot
be scuttled, mini trial cannot be sought.

11.
For
substantiating
the
arguments raised by learned counsel for
respondent no. 4, he relied upon judgment
of Father Thomas vs. State of U.P. and
another, 2011, CrI. L. J. 2278, rendered by
full Bench of Allahabad High Court. The
ratio has been relied upon in another case
of this Court i.e in case of Hussain Arif
and another vs. State of U.P. and others
passed in application under Section 482
Cr.P.C. no. 2562 of 2003 decided on dated
02.11.2011. He also relied upon the case of
Srikant Upadhyay and others vs. State of
Bihar & Another (2024) 3 SCR 421,
Sushila Aggarwal vs. State (NCT of Delhi)
[2020] 2 SCR 1, Savita Garg vs. The
Director, National Heart Institute, (2004)
8 SCC 56, State through CBI vs.
Hemendara Reddy, 2023 SCC online SC
515. Judgment rendered by Calcutta High
Court in case of Prabir Kumar Chatterjee
vs. State of West Bengal and others, 2008
CRILJ 841. Other judgments rendered by
Hon'ble Apex Court such as Rama
94 INDIAN LAW REPORTS ALLAHABAD SERIES
Chaudhary vs. State of Bihar, 2009 (6)
SCC 346, Supriya Jain vs. State of
Haryana and another, 2023 (7) SCC 711,
Amit Kapoor vs. Ramesh Chander, 2012
(9) SCC 460, State of U.P. vs. Akhil
Sharda and others, 2022 SCC Online SC
820, M/s Neeharika Infrastructure Pvt.
Ltd. vs. State of Maharashtra and others,
2021 (4) SCR 1044.

12. Sri Anand Sagar Dubey,
learned AGA-I, also opposed the prayer as
made in the petition and while supporting
portion of the order dated 17.05.2024
passed by learned Additional District and
Sessions Judge-II/Special Judge, SC/ST
Act, Gautam Buddha Nagar he submitted
that
in
compliance
of
order
dated
17.05.2024, further investigation is being
conducted by the police against the Jaypee
Hospital and the investigation vide all the
previous case diaries is being considered
along with and further investigation into
the role of Jaypee Hospital in Case Crime
no. 148 of 2023 in compliance of the order
dated 17.05.2024 has been continuing and
there is no bar under Section 438 Cr.P.C.
for further investigation as issued vide
order dated 17.05.2024 passed by learned
Additional District and Sessions JudgeII/Special Judge, SC/ST Act, Gautam
Buddha Nagar. The said direction is also in
conformity with the judgment of Hon'ble
Supreme Court in case of Naresh Kumar
Mangala vs. Anita Agrawal and others,
(2021) 15 SCC 777.

13. Sri Anand Sagar Dubey,
learned AGA-I further submitted that in
view of the law settled by this Court as well
as by Hon'ble Supreme Court, further
investigation which is presently in progress
is necessary to continue, to reach its logical
conclusion in the interest of justice and no
prejudice would be caused in any manner
to anyone with further investigation against
the petitioner and as such the instant
petition is not maintainable and is liable to
be dismissed in the interest of justice.

Observations and Conclusion

14.
After
hearing
the
rival
submissions extended by learned counsel
appearing for the parties only two issues
are involved for consideration before this
Court are as under:

 I. Whether learned Additional
District and Sessions Judge-II/Special
Judge, SC/ST Act, Gautam Buddha
Nagar, was empowered to pass an order
for re-investigation?
 II. Whether, learned Additional
District and Sessions Judge-II/Special
Judge, SC/ST Act, Gautam Buddha
Nagar while entertaining anticipatory
bail application can pass other than the
order
from
rejecting
or
allowing
anticipatory bail application?

15. The entire arguments and the
written submissions submitted by learned
counsel for the parties over the request
made by this Court at the time of reserving
the judgment is broadly based on the
competency of the learned Additional
Sessions Judge for exercising its power in
shape of issuing directing to concerned
Investigating Officer to re-investigate the
role of petitioner who has already been
exonerated at the time of preferring report
under Section 173(2) Cr.P.C. The majority
of the judgments relied upon by learned
counsel for the respondents crystal clearly
demonstrated the issue of learned court
concerned for directing the matter to be
further investigated in pursuance to Section
173(8) Cr.P.C but at the same time, in the
judgment relied upon by learned counsel
2 All. Jaypee Hospital Vs. State of U.P. & Ors.
95
for the petitioner i.e. in case of Vinay Tyagi
(supra), the distinction between further
investigation and re-investigation is crystal
clearly defined. For adjudicating the
controversy as raised through the instant
petition, it is relevant to reproduce relevant
para nos. 22, 23, 28, 29, 30, 40, 41 and 43
of the judgment of Vinay Tyagi (supra)
which are as under:-

 "22. 'Further investigation' is
where the Investigating Officer obtains
further oral or documentary evidence after
the final report has been filed before the
Court in terms of Section 173(8). This
power is vested with the Executive. It is the
continuation of a previous investigation
and, therefore, is understood and described
as a 'further investigation'. Scope of such
investigation is restricted to the discovery
of further oral and documentary evidence.
Its purpose is to bring the true facts before
the Court even if they are discovered at a
subsequent
stage
to
the
primary
investigation. It is commonly described as
'supplementary
report'.
'Supplementary
report' would be the correct expression as
the subsequent investigation is meant and
intended
to
supplement
the
primary
investigation conducted by the empowered
police officer. Another significant feature of
further investigation is that it does not have
the effect of wiping out directly or impliedly
the initial investigation conducted by the
investigating agency. This is a kind of
continuation of the previous investigation.
The basis is discovery of fresh evidence and
in continuation of the same offence and chain
of events relating to the same occurrence
incidental thereto. In other words, it has to be
understood in complete contradistinction to a
'reinvestigation',
'fresh'
or
'de
novo'
investigation.

23. However, in the case of a
'fresh investigation', 'reinvestigation' or 'de
novo investigation' there has to be a
definite order of the court. The order of the
Court unambiguously should state as to
whether the previous investigation, for
reasons to be recorded, is incapable of
being acted upon. Neither the Investigating
agency nor the Magistrate has any power
to order or conduct 'fresh investigation'.
This is primarily for the reason that it
would be opposed to the scheme of the
Code. It is essential that even an order of
'fresh'/'de novo' investigation passed by the
higher judiciary should always be coupled
with a specific direction as to the fate of the
investigation already conducted. The cases
where such direction can be issued are few
and far between. This is based upon a
fundamental principle of our criminal
jurisprudence which is that it is the right of
a suspect or an accused to have a just and
fair investigation and trial. This principle
flows from the constitutional mandate
contained in Articles 21 and 22 of the
Constitution
of
India.
Where
the
investigation ex facie is unfair, tainted,
mala fide and smacks of foul play, the
courts
would
set
aside
such
an
investigation and direct fresh or de novo
investigation and, if necessary, even by
another independent investigating agency.
As already noticed, this is a power of wide
plenitude and, therefore, has to be
exercised sparingly. The principle of rarest
of rare cases would squarely apply to such
cases. Unless the unfairness of the
investigation is such that it pricks the
judicial conscience of the Court, the Court
should be reluctant to interfere in such
matters to the extent of quashing an
investigation
and
directing
a
'fresh
investigation'.

28. Next question that comes up
for consideration of this Court is whether
the
empowered
Magistrate
has
the
jurisdiction to direct 'further investigation'
96 INDIAN LAW REPORTS ALLAHABAD SERIES
or 'fresh investigation'. As far as the latter
is concerned, the law declared by this
Court consistently is that the learned
Magistrate has no jurisdiction to direct
'fresh' or 'de novo' investigation. However,
once the report is filed, the Magistrate has
jurisdiction to accept the report or reject
the same right at the threshold. Even after
accepting the report, it has the jurisdiction
to discharge the accused or frame the
charge and put him to trial. But there are
no provisions in the Code which empower
the Magistrate to disturb the status of an
accused pending investigation or when
report is, filed to wipe out the report and its
effects in law. Reference in this regard can
be made to K. Chandrasekhar v. State of
Kerala [(1998) 5 SCC 223]; Ramachandra
v. R.Udhayakumar [(2008) 5 SCC 413],
Nirmal Singh Kahlon v State of Punjab &
ors. [(2009) 1 SCC 441]; Mithabhai
Pashabhai Patel & ors. v. State of Gujarat
[(2009) 6 SCC 332]; and Babubhai v. State
of Gujarat [(2010) 12 SCC 254].
 29. Now, we come to the former
question, i.e., whether the Magistrate has
jurisdiction under Section 173(8) to direct
further investigation.
 30. The power of the Court to
pass an order for further investigation has
been a matter of judicial concern for some
time now. The courts have taken somewhat
divergent but not diametrically opposite
views in this regard. Such views can be
reconciled
and
harmoniously
applied
without violation of the rule of precedence.
In the case of State of Punjab vs. Central
Bureau of Investigation [(2011) 9 SCC
182], the Court noticed the distinction that
exists between 'reinvestigation' and 'further
investigation'. The Court also noticed the
settled principle that the courts subordinate
to the High Court do not have the statutory
inherent powers as the High Court does
under Section 482 of the Code and
therefore, must exercise their jurisdiction
within the four corners of the Code.
 40.
Having
analysed
the
provisions of the Code and the various
judgments as afore-indicated, we would
state the following conclusions in regard to
the powers of a magistrate in terms of
Section 173(2) read with Section 173(8)
and Section 156(3) of the Code :
 40.1. The Magistrate has no
power to direct 'reinvestigation' or 'fresh
investigation' (de novo) in the case initiated
on the basis of a police report.
 40.2. A Magistrate has the power
to direct 'further investigation' after filing
of a police report in terms of Section
173(6) of the Code.
 40.3. The view expressed in Subpara 40.2 above is in conformity with the
principle of law stated in Bhagwant Singh's
case (supra) by a three Judge Bench and
thus in conformity with the doctrine of
precedence.
 40.4. Neither the scheme of the
Code nor any specific provision therein
bars exercise of such jurisdiction by the
Magistrate. The language of Section 173(2)
cannot be construed so restrictively as to
deprive the Magistrate of such powers
particularly in face of the provisions of
Section 156(3) and the language of Section
173(8) itself. In fact, such power would
have to be read into the language of
Section 173(8).
 40.5. The Code is a procedural
document,
thus,
it
must
receive
a
construction which would advance the
cause of justice and legislative object
sought to be achieved. It does not stand to
reason that the legislature provided power
of further investigation to the police even
after filing a report, but intended to curtail
the power of the Court to the extent that
even where the facts of the case and the
ends of justice demand, the Court can still
2 All. Jaypee Hospital Vs. State of U.P. & Ors.
97
not direct the investigating agency to
conduct further investigation which it could
do on its own.
 40. 6. It has been a procedure of
proprietary that the police has to seek
permission of the Court to continue 'further
investigation'
and
file
supplementary
chargesheet. This approach has been
approved by this Court in a number of
judgments. This as such would support the
view that we are taking in the present case.
 41. Having discussed the scope of
power of the Magistrate under Section 173
of the Code, now we have to examine the
kind of reports that are contemplated under
the provisions of the Code and/or as per
the judgments of this Court. The first and
the foremost document that reaches the
jurisdiction of the Magistrate is the First
Information Report. Then, upon completion
of the investigation, the police are required
to file a report in terms of Section 173(2) of
the Code. It will be appropriate to term this
report as a primary report, as it is the very
foundation of the case of the prosecution
before the Court. It is the record of the case
and the documents annexed thereto, which
are considered by the Court and then the
Court of the Magistrate is expected to
exercise any of the three options aforenoticed. Out of the stated options with the
Court, the jurisdiction it would exercise has
to be in strict consonance with the settled
principles of law. The power of the
magistrate to direct 'further investigation'
is a significant power which has to be
exercised sparingly, in exceptional cases
and to achieve the ends of justice. To
provide fair, proper and unquestionable
investigation is the obligation of the
investigating agency and the Court in its
supervisory capacity is required to ensure
the same. Further investigation conducted
under the orders of the Court, including
that of the Magistrate or by the police of its
own accord and, for valid reasons, would
lead to the filing of a supplementary report.
Such supplementary report shall be dealt
with as part of the primary report. This is
clear from the fact that the provisions of
Sections 173(3) to 173(6) would be
applicable to such reports in terms of
Section 173(8) of the Code.
 43. At this stage, we may also
state another well-settled canon of criminal
jurisprudence that the superior courts have
the jurisdiction under Section 482 of the
Code
or
even
Article
226
of
the
Constitution of India to direct 'further
investigation', 'fresh' or 'de novo' and even
'reinvestigation'. 'Fresh', 'de novo', and
'reinvestigation'
are
synonymous
expressions and their result in law would
be the same. The superior courts are even
vested with the power of transferring
investigation from one agency to another,
provided the ends of justice so demand
such action. Of course, it is also a settled
principle that this power has to be
exercised by the superior courts very
sparingly and with great circumspection. "

16. All the judgments of Hon'ble
Apex Court as well as passed by different
High Courts relied upon by learned counsel
appearing for respondents is based upon
powers conferred with the learned court
concerned for issuing direction for further
investigation specifically under Section 438
Cr.P.C. and 173(8) Cr.P.C. In judgment
passed by Calcutta High Court in case of
Prabir Kumar Chatterjee (supra) relied
upon by learned counsel appearing for
respondent no. 4 wherein, it has been held
that Magistrate's order directing 'further
investigation'
or
're-investigation'
is
manifestly absurd or patently illegal or not
and the learned Magistrate having assigned
reasons, I do not think that the order
complained of needs any interference.
98 INDIAN LAW REPORTS ALLAHABAD SERIES
Since both the words are synonyms, but the
in judgment relied by learned counsel for
the petitioner which has been rendered by
Hon'ble Apex Court, the clarity and
distinction between 'further investigation'
and 're-investigation' has been clearly
demonstrated in case of Vinay Tyagi
(supra) decided on 13.12.2012 and as such
the law enunciated by Hon'ble Apex Court
will preside over the judgment rendered by
any other court of law even after the same
has been passed after relying upon the
judgement
of
Hon'ble
Apex
Court
available, referred, considered at that time.

17. Sri Anand Sagar Dubey,
learned AGA-I appearing for State relied
upon judgment passed by Hon'ble Apex
Court in case of Naresh Kumar Mangla vs.
Anita Agrawal and others (supra) decided
on 17.12.2020 wherein the decision of the
constitutional Bench in Gurubaksh Singh
Sibbia vs. State of Punjab, 1980 (2) SCC
565 has been relied upon and the same
judgment has been relied by larger Bench
consisting of five Judges of Hon'ble Apex
Court in case of State of Madhya Pradesh
vs. Pradeep Sharma, 2014 (1) RCR (Crl)
269 wherein, it has been held that an order
of anticipatory bail does not in any manner
limit or restricts the rights or duties of
police
or
Investigating
Agency
to
investigate into the charges against the
person who seeks and is granted pre-arrest
bail.

18. After thorough scrutiny of the
judgments relied upon by the learned
counsels appearing for the parties as well as
on the basis of arguments raised by them,
the law is crystal clear in pursuance to the
verdicts rendered by Hon'ble Apex Court
and
the
distinction
between
'reinvestigation' and 'further investigation' is
broadly defined and distinguished. There is
hardly any ambiguity in respect of specific
word
'
re-investigation'
and
'further
investigation'. If in any manner, learned
court
of
Additional
Sessions
JudgeII/Special Judge, SC/ST Act, Gautam
Buddha Nagar was under impression to
proceed further against petitioner but the
direction contained under para 14 of the
order dated 17.05.2024 is having direction
in favour of the concerned Inquiry Officer
for re-investigation in place of further
investigation, moreover, learned Additional
Sessions Judge-II/Special Judge, SC/ST
Act, Gautam Buddha Nagar was not having
any jurisdiction and was not empowered
either to pass direction to concerned
Investigating
Officer
for
further
investigation
or
re-investigation.
The
gravity of re-investigation is much higher
than further investigation and as such in
catena of judgements rendered by Hon'ble
Apex Court, the power of re-investigation
has not been given to the other court of law
especially below to the High Court. If in
any case, High Court directs for reinvestigation,
the
entire
investigation
carried out earlier has to be set aside by
way of recording proper reasoning in
support of direction for re-investigating the
matter, whereas the direction for further
investigation lies only with the mandate of
procedure which is available under Section
173(8)
Cr.P.C.
but
while
granting
anticipatory bail, in favour of one of the coaccused, learned court of Additional
Sessions Judge-II/Special Judge, SC/ST
Act, Gautam Buddha Nagar was not
empowered
to
direct
concerned
Investigating Officer even for further
investigation also.

19. In the light of the reasoning
recorded above issue no. I is hereby
decided that learned court of Additional
District
and
Sessions
Judge-II/Special
2 All. Rajesh Kumar Sharma Vs. State of U.P. & Ors.
99
Judge, SC/ST Act, Gautam Buddha
Nagar was not having any power provided
as per law for passing an order of reinvestigating the matter in reference of the
petitioner.

20. With regard to issue no. II,
learned
counsel
for
the
petitioner
specifically took a ground while submitting
written submissions that there was hardly
any occasion available before learned
Additional District and Sessions JudgeII/Special Judge, SC/ST Act, Gautam
Buddha Nagar to pass any other order
except
rejecting
or
allowing
the
anticipatory bail application preferred at the
behest of Dr. Gyanendra Aggarwal. The
issue before the learned Sessions Judge was
for consideration of anticipatory bail filed
by Dr. Gyanendra Aggarwal and there was
no other issue under Section 438 Cr.P.C to
deal
with
other
matters
and
the
observations made by learned Sessions
Judge was uncalled for and moreover on
the basis of the observation, the direction
issued to concerned Investigating Officer
for re-investigation is liable to be set aside.

21. In view of the aforementioned
facts and circumstances and discussions
made in the light of the judgments as
referred above rendered by Hon'ble Apex
Court as well as by different High Courts,
part of the direction, contained in order
dated 17.05.2024 under para no. 14
specifically issuing direction to concerned
Investigating Officer for re-investigation, is
hereby set aside.

22. The instant petition stands
allowed accordingly.
----------
(2025) 2 ILRA 99
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2025
BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Matters Under Article 227 No. 15602 of 2024

Rajesh Kumar Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Deepak Pandey, Lavlesh Kumar Sharma

Counsel for the Respondents:
G.A.

Criminal Law-The Constitution of India,
1950-Article 227 - The Code of Criminal
Procedure,
1973-Section
439(2)---Bail
cancellation application can only be preferred
under Section 439(2) Cr.P.C--- The procedure
has not mandated for seeking cancellation of
bail through preferring petition under Article
227 of the Constitution of India and the
prayer made in the instant petition for
seeking quashing the order only to the extent
insofar as it considers the non-bailable
offences against the respondent as bailable
and
granted
anticipatory
bail
to
the
respondent cannot be considered since the
same is directly seeking cancellation of the
bail as extended in favour of respondent.

Petition dismissed. (E-15)

List of Cases cited:

1. Srikant Upadhyay & ors.Vs St. of Bihar & ors.,
2024 (3) SCR 421

2. Abdul Basit Vs Mohd. Abdul Kadir Chaudhary,
2014 (10) SCC 754

(Delivered by Hon'ble Saurabh Srivastava, J.)

1. Heard Sri Deepak Pandey, learned
counsel for petitioner, Sri Anand Sagar
Dubey, learned AGA-I for respondent no. 1
and Sri Rohan Gupta, learned counsel for
respondent no. 2.