# Kamlesh Singh & Anr v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 2 ILRA 1205
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-09
- **Case number:** Application u/s 482 No. 10136 of 2023
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-singh-anr-v-state-of-u-p-anr-opp-parties-51325
- **Pages:** 18

## Headnote

1206 INDIAN LAW REPORTS ALLAHABAD SERIES
G.A., Shishir Pradhan

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Indian Penal Code, 1860 - Sections
147, 148, 149 & 302 - Magistrate can
summon the accused even if his name
does not find place in Column (2) - High
Court should exercise its power under
Section 482 Cr.P.C. sparingly, only in rare
cases, and with due care and caution -
High Court should refrain from undue
interference,
avoiding
meticulous
examination of evidence - Interference is
warranted
only
to
prevent
patent
miscarriage of justice or correct grave
errors Court must balance individual
freedom with the prosecution's right to
investigate and prosecute - Quashing a
charge is an exception, and the High Court
should prioritize permitting prosecution
over quashing proceedings at the initial
stage. (Para - 32 ,36)

FIR was lodged alleging murder - charge sheet
prepared but not filed due to interim order passed in
writ petition - case was transferred to CBCID - which
filed a new charge sheet - sufficient material was
available before Magistrate for summoning all accused.
(Para - 28,29)

HELD: - Magistrate/Court has not committed any
illegality in summoning the accused-applicant(s). Two
accused expired during trial trial. Court to proceed
matter expeditiously. (Para - 33,38)

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

List of Cases cited:

## Text

_Characters 0–39,939 of 63,666. This is a partial read: ask again with offset=39939 for what follows._

2 All. Kamlesh Singh & Anr. Vs. State of U.P. & Anr.
1205
to the vested interests with singular agenda
to
spread
false
narratives.
Verily,
gangsterism poses an ominious threat to
public order. Vile and abhorrent acts of
gangsterism do evoke collective societal
anger and anguish. While the war against
gangsterism must be waged by the State
with unwavering resolve but a civil
democratic society can ill afford sacrificing
the procedural safeguards legislatively
provided, and which is an integrated facet
of the due process of law, at the altar of
perceived peril to public order.

"The Siren Song that the 'end
justifies the means', and that the procedural
safeguards
are
subdervient
to
the
overwhelming need to ensure that the
accused is prosecuted and punished, must
be muzzled by voice of Rule of Law."

22. For all the reasons recorded above, the
court is of the view that at the stage of
preparing and approving the gang-chart on
the basis of materials placed, the competent
Authorities
should
have
satisfied
themselves that there is a legal basis and
justifiction for taking and persuing action
against the accused under the Act of 1986.
At the stage of approval of the gang-chart,
the approving Authority has to be satisfied
that a case for action under the Act of 1986
is made out and that satisfaction should be
reflected from the gang chart and other
records. But in this case, the competent
authorities, unhesitatingly just paid lip
service to the legislative mandate and
unfortunately had undertaken the whole
exercise of preparation and approval of the
gang chart as a ritualistic formality without
due application of mind. Thus, civil dispute
relating to land has been given colour of
criminality and to add insult to injury, in
the course of investigation, Section 2/3 of
Gangster Act has been added in the
criminal case that is unnecessarily given
shape of act of gangsterism and anti social
activities on the part of police and
admistrative authorities. the initiation and
continuation
of
the
entire
criminal
proceedings is persecution and harassment
of the accused , amounting to be sheer
abuse of process of law as well as abuse of
process of court, that is in order to
sotherwise ensure the ends of justice is
liable to be quashed.

23. In such view of the matter, the
entire proceedings pending in the court of
learned Special Judge (Gangster Act),
Allahabad in Case No.97/08, in case crime
no.113/07 under Sections 147, 148, 323,
504, 506, 420, 406 IPC and Section 2/3 of
Gangster Act is, hereby, quashed against
the applicant (Mohd. Muslim).

24. The application is, accordingly,
allowed.

25. A copy of this order be certified to
the lower court forthwith.
----------
(2024) 2 ILRA 1205
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.02.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Application u/s 482 No. 10136 of 2023

Kamlesh Singh & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Dhirendra Pratap Singh

Counsel for the Opp. Parties:
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
G.A., Shishir Pradhan

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Indian Penal Code, 1860 - Sections
147, 148, 149 & 302 - Magistrate can
summon the accused even if his name
does not find place in Column (2) - High
Court should exercise its power under
Section 482 Cr.P.C. sparingly, only in rare
cases, and with due care and caution -
High Court should refrain from undue
interference,
avoiding
meticulous
examination of evidence - Interference is
warranted
only
to
prevent
patent
miscarriage of justice or correct grave
errors Court must balance individual
freedom with the prosecution's right to
investigate and prosecute - Quashing a
charge is an exception, and the High Court
should prioritize permitting prosecution
over quashing proceedings at the initial
stage. (Para - 32 ,36)

FIR was lodged alleging murder - charge sheet
prepared but not filed due to interim order passed in
writ petition - case was transferred to CBCID - which
filed a new charge sheet - sufficient material was
available before Magistrate for summoning all accused.
(Para - 28,29)

HELD: - Magistrate/Court has not committed any
illegality in summoning the accused-applicant(s). Two
accused expired during trial trial. Court to proceed
matter expeditiously. (Para - 33,38)

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

List of Cases cited:

1. Hasanbhai Valibhai Qureshi Vs St. of Guj. & ors.,
(2004) 5 SCC 347

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

3. Nahar Singh Vs St. of U.P. & anr., (2022) 2 SCC (Cri)
328

4. CBI Vs Aryan Singh Etc., 2023 SCC OnLine SC 379

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

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

1. Third application for Interim relief filed
in the Court today, is taken on record.

2. Heard Sri Dhirendra Pratap Singh,
learned counsel for the applicants, Sri Anirudha
Kumar Singh, learned AGA for the State and Sri
Shishir Pradhan, Advocate, learned counsel for
the opposite party No.2.

3. By means of instant application under
Section 482 Cr.P.C. Kamlesh Singh and
Bhagauti Singh, have approached this Court
impeaching the order dated 27.03.2023 passed
by the Chief Judicial Magistrate, Court No.9,
Raebareli (in short "C.J.M.") in Case No.8528 of
2020 and have also assailed the order dated
30.09.2023 passed by the Additional District and
Sessions Judge-II, Raebareli (in short "revisional
court") in Criminal Revision No.139 of 2023 as
also the Charge Sheet No.369 dated 12.11.1992,
Charge Sheet No.49 dated 26.11.1998 and
Charge Sheet No.49A dated 12.04.2001, arising
out of Case Crime No.373 of 1991 under
Sections 147, 148, 149 & 302 IPC, P.S.-Kotwali,
District-Raebareli.

4. Vide impugned order dated 27.03.2023,
C.J.M. took cognizance against all the accused
persons and abated the proceedings against
Ashok Kumar Singh and Akhilesh Singh on
account of the fact that during pendency of
the trial these accused were expired.

5. Vide order dated 30.09.2023 the
revisional court dismissed the Criminal
Revision No.139 of 2023, which was filed
assailing the order dated 27.03.2023 passed
by the C.J.M.

6. Brief facts, which are relevant for
the purposes of disposal of present
application, are to the effect that after
lodging of an FIR dated 27.07.1991 of
2 All. Kamlesh Singh & Anr. Vs. State of U.P. & Anr.
1207
murder of Iqbal Haider Raza implicating
Akhilesh Singh, Kamlesh Singh, Ashok
Singh (in documents on record name of the
accused is also indicated as Ashok Kumar
Singh) and Bhagauti Singh, the local police
started the investigation. The investigation
subsequently was transferred to CBCID
from local police on 01.08.1991, as
indicated in the application. Thereafter,
investigation was again transferred from
CBCID to local police on 15.10.1991. The
order of transferring the investigation from
CBCID to local police was assailed before
this Court by means of Writ Petition
No.3523 (M/B) of 1991, which was
subsequently dismissed as not pressed vide
order dated 01.10.1992. After dismissal of
aforesaid writ petition on 01.10.1992,
Charge Sheet No.369 dated 12.11.1992 was
prepared by the local police, however, the
same was not filed before the trial Court on
account of interim order dated 13.11.1992
passed in Writ Petition No.4672 (M/B) of 1992
and this Court provided liberty to CBCID to
investigate the case. After the order of this
Court dated 13.11.1992, the local police on
26.07.1997 sent the entire documents/case diary
to CBCID and thereafter, the CBCID started the
investigation on 23.05.1998 and after due
investigation, the CBCID submitted the Charge
Sheet No.49 dated 26.11.1998 before the
competent court of jurisdiction upon which the
cognizance was taken on 02.12.1998.

7. At this stage, this Court finds it
appropriate to reproduce the relevant contents
of the Parcha No.25/Charge Sheet dated
26.11.1998, as available on record (Annexure
No.10), which reads as under:-

"अि तक की की तमामी प्रववेििा से संकप्रलत साक्ष्य के
आर्ार पर अप्रियुक्त अप्रखलेश प्रसंह पुत्र र्ु्िी प्रसंह कमलेश प्रसंह पुत्र
र्ु्िी प्रसंह अशोक प्रसंह पुत्र देवे्र प्रसंह प्रिवासी लालूपुर िौहाि थािा
महाराजगंज एवं िगवती प्रसंह पुत्र श्री देवी िक्स प्रसंह प्रिवासी पूरे
आदमपुर थािा महाराजगंज जिपद रायिरेली के प्रवरुद्ध प्रदिांक 27 जुलाई
91 को श्री इकिाल हैदर रजा को राप्रत्र 8:30 िजे उिके घर में दरवाजा
खुलवाकर गोली मारकर हत्या करिे का अपरार् िथम दृप्रिया र्ारा 147
148 149 302 िारतीय दंड प्रवर्ाि के अंतगषत िथम दृप्रिया होिा
प्रसद्ध है अप्रियुक्त अप्रखलेश प्रसंह व कमलेश प्रसंह के प्रवरुद्ध प्रदिांक12
िवंिर 92 को स्थािीय पुप्रलस द्वारा माह िरवरी में आरोप पत्र संख्या
369 प्रदिांक 12 िवंिर 92 को िेप्रर्त प्रकया गया प्रववेििा से ताईद
एवं तस्दीक की जाती है।

अप्रियुक्त अशोक कुमार प्रसंह पुत्र देवेंर प्रसंह उिष छोटे
लाल प्रसंह प्रिवासी ग्राम लालपुर िौहाि थािा महाराजगंज एवं िगवती
प्रसंह पुत्र देवी िक्स प्रसंह ग्राम पुरे गोसाई माजरा आदमपुर थािा
महाराजगंज प्रजला रायिरेली के प्रवरुद्ध इकिाल हैदर रजा की हत्या करिे
और िथम दृप्रिया प्रसद्ध होिे के िलस्वरूप र्ारा 147 148 149
302 िारतीय दंड प्रवर्ाि के अंतगषत आरोप पत्र िेप्रर्त।

प्रववेििा समाि की जाती है"

8. The earlier part of above quoted
Charge Sheet dated 26.11.1998 indicates that
therein Investigating Officer (in short "I.O.")
specifically
observed
that
after
due
investigation, prima facie, offence of murder of
Iqbal Haider Raza is made out against accused
Akhilesh Singh, Kamlesh Singh, Ashok Singh
and Bhagauti Singh and thereafter confirmed
and verified the Parcha No.369/Charge Sheet
dated 12.11.1992, which was with regard to two
accused namely Akhilesh Singh and Kamlesh
Singh, the same reads as under:-

"श्रीमाि जी से प्रिवेदि है प्रक प्रद० 27.7.91 को वादी
मुकदमा खािा िं०1 श्री िदीम इकिाल पुत्र श्री इकिाल रजा हैदर के
मकाि प्रस्थत मो० दप्रक्षणी जहािािाद थािा कोतवाली रायिरेली पर
लगिग 8.30 िजे रात मुप्रल्जमाि खािा िं०3 मय अपिे साप्रथयों
मुप्रल्जमाि खािा िं०2 के साथ एक राय होकर सस्त्रों से सुसप्र्जत
पुरािी दुश्मिी के कारण उसके माकि पर पहुंिे और वादी के प्रपता
श्री इकिाल रजा हैदर पुत्र श्री हाजी अब्दुल गिूर को िायर करके
गोप्रलयों से मौके पर ही जाि से मार डाले। मुप्रल्जमाि वादी व
गवाहाि द्वारा मौके पर प्रिजली की रोशिी में देखे व पहिािे वादी
की तहरीरी सूििा पर प्रदिांक 27.7.91 को 21.30 िजे थािा
स्थािीय पर मुप्रल्जमाि के प्रवरुद्ध अप्रियोग पंजीकृत हुआ। प्रववेििा
की गयी। प्रववेििा से ियािात गवाहाि, प्रिरीक्षण घटिास्थल,
ितीजा PM से मुप्रल्जमाि के प्रवरूद्ध जुमष र्ारा
147/148/149/302 IPC ििता है। अस्तु प्रगरफ्तार ि होिे
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
कारण िालाि मिरूरी में प्रकया जाता है। गवाहाि सिूत तलि करके
इिके प्रवरूद्ध कायषवाही करिे की कृपा की जाय।"

9. From a conjoint reading of contents
of the FIR and the above quoted portion(s)
of the Charge Sheet(s) dated 26.11.1998
and 12.11.1992, it is apparent that all the
accused committed crime against whom the
FIR was lodged namely Akhilesh Singh,
Kamlesh Singh, Ashok Singh and Bhagauti
Singh and therefore in the earlier part of
Charge Sheet dated 26.11.1998 the I.O. in
specific terms indicated that the Charge Sheet
dated 12.11.1992 is confirmed and verified and
thereafter in later part of Charge Sheet dated
26.11.1998 the I.O. indicated the names of
accused namely Ashok Singh and Bhagauti
Singh, against whom the Charge Sheet was not
prepared earlier.

10. It is evident from the above quoted
portion of Charge Sheet dated 26.11.1998 that
I.O. has not indicated therein that the sufficient
material/evidence is not available against
accused namely Akhilesh Singh and Kamlesh
Singh.

11. It would further be relevant to indicate
that vide order dated 02.12.1998 the cognizance
was taken by the C.J.M. against all the accused
persons. The order dated 02.12.1998 on
reproduction reads as under:-

"आज आरोप पत्र अ्तगषत आ० सं० 373/91, र्ारा
147, 148, 149, 302 िा०द०प्रव०, थािा-कोतवाली, रायिरेली के
अप्रियुक्तगण अशोक प्रसंह व िगौती प्रसंह, अप्रखलेश कुमार प्रसंह व
कमलेश के प्रवरुद्ध, C.B.C.I.D. द्वारा िाि हुआ। पढ़ा।

आदेश हुआ प्रक िसंज्ञाि प्रकया गया। दजष रप्रजस्टर हो।
िकलें ििवायी जायें। प्रद० 10.12.98 के वास्ते आदेश पेश हों।"

12. The order dated 02.12.1998 was
assailed by means of Criminal Revision No.6 of
1999. This revision was filed by all the accused
namely Kamlesh Singh, Akhilesh Singh,
Bhagauti Singh and Ashok Singh. The
revisional Court allowed the revision vide order
dated 11.05.1999 and remanded the matter back
to the C.J.M. for re-consideration in the light of
the observation made in the order dated
11.05.1999. The observation being relevant, as
pointed by the learned counsel for the
applicants, on reproduction, reads as under:-

"As said above, the chargesheet, in
which cognizance has been taken, only two
accused are named, namely, Ashok singh and
Bhagauti Singh, and in the other Charge Sheet
Akhilesh Kumar Singh and Kamlesh Singh are
accused and Ashok Singh and Bhagauti Singh
are named as suspected accused. The
subsequent chargesheet (paper no.5Ka/3) is
neither duly filed in the court by the
investigating agency nor cognizance has been
taken by the learned Chief Judicial Magistrate,
Raebareli, but all the four accused, mentioned
above,
have
been
summoned.
In
the
circumstances, aforementioned, there appears
to be material irregularity in exercise of
Jurisdiction and it does not appear that mind
has been applied by the learned Chief Judicial
Magistrate, Rae Bareli on paper no. 5Ka/3
aforementioned.

In view of the aforementioned
circumstances, the case deserves to be
sent back for reconsideration by the
learned Chief Judicial Magistrate, Rae
Bareli. The learned Chief Judicial
Magistrate, Rae Bareli, shall make
enquiry as to who scored out the
signature and date on paper no. 5Ka/3
and thereafter, after applying his mind
on paper no.5Ka/3 (chargesheet) and its
validity, he shall pass necessary orders.
The revisions are directed to appear and
object
before
the
Chief
Judicial
Magistrate, Rae Bareli, and if they do
so, their submission shall be considered.

ORDER
2 All. Kamlesh Singh & Anr. Vs. State of U.P. & Anr.
1209

The revision is allowed and order
impugned is set aside. The case is sent back
to the learned Chief Judicial Magistrate,
Rae Bareli for reconsideration in the light
of observations made above."

13. After the aforesaid direction of the
revisional Court dated 11.05.1999, the trial
Court passed the order of cognizance dated
02.05.2005. This order was again assailed
by the accused persons namely Kamlesh
Singh, Akhilesh Singh, Bhagauti Singh and
Ashok Kumar Singh by preferring the
Criminal Revision No.118 of 2005. The
revisional Court again interfered in the
order of cognizance dated 02.05.2005 and
remanded the matter back to the trial Court
for re-consideration vide its order dated
07.12.2005. The observation made by the
revisional
Court
in
its
order
dated
07.12.2005 indicates that while taking
cognizance in the matter vide order dated
02.05.2005 the concerned Court failed to
take note of observations made by the
revisional court in its earlier order dated
11.05.1999.

14. After the aforesaid order dated
07.12.2005, the C.J.M. by the impugned
order dated 27.03.2023 took cognizance.
The relevant portion of the impugned order
dated
27.03.2023
is
reproduced
hereinunder:-

"On perusal of case diary parcha
number 5 the special secretary Home UP
Lucknow in case Crime number 373/91 U/S
147/148 and 149/302 IPC Reg at PS
Kotwali District Raebareli entrusted to
CID for investigation. The investigation by
local police was stayed and the copy for
compliance was sent to the state official
dated August 1st 1991. On perusal of case
diary the investigation was forwarded to
the concerned and the investigation was
closed by the local police. Meanwhile the
charge sheet was filed by the local police
but on perusal it was not filed by in
consonance with section 158 CRPC. Later
on two charge sheet were filed by CBCID
naming four accused as above mentioned.
By one order of this court the Cognizance
was again taken but it was reverted back
for rehearing giving direction above
mentioned for reconsideration and set aside
the order passed by this court.

Section 460 of CRPC clearly
States about the irregularities which do not
vitiate
proceeding
in
which
mere
irregularities in taking Cognizance can be
caused.

Now coming on the fact of several
charge sheet filed both by local police and
CBCID. When due investigation was
transferred to CBCID in 1991 and CBCID
after investigation file two Charge sheet
naming all the four accused. Firstly CBCID
has filed charge sheet naming two accused
and later on supplementary cahrgesheet
naming other 2 accused.

The charge sheet filed by the
local police in mere irregularities and it
may not be taken in account because the
whole investigation was transferred to CB
CID and later on CBCID has filed their
Charge sheet naming all the four accused.

The Honorable Allahabad High
Court in case application under section
482 CrPC number 12578 of 2021 Badri
Prasad and 3 others vs. State of UP and
another; has stated that "at a stage where it
is to be decided as to whether process
should be issued, the magistrate would not
be required to enter into a detailed
discussion on merits or demerits of the case
and it would suffice if the evidence led by
the
complainant
in
support
of
the
allegation is taken into consideration and
determining the question whether any
process is to be issued or not, what the
1210 INDIAN LAW REPORTS ALLAHABAD SERIES
magistrate has to be satisfied is whether
there is sufficient ground for proceeding
and not whether there is sufficient grounds
for conviction."

The Honorable court has stated a
distinction
drawn
between
taking
Cognizance based upon charge sheet filed
by the police under section 190 (1) (b) of
the code and taking Cognizance based on a
complaint under section 190 (1) (a). As for
Cognizance based on a police report is
concerned, the magistrate would have the
advantage of the charge sheet, statement of
witnesses and other evidence collected by
the police during the investigation. The fact
that after investigation of the case, the
police has filed a charge sheet along with
the material thereon, may be considered as
sufficient
ground
for
proceeding
for
issuance of summon under section 204 of
the code.

Thus, coming to the conclusion of
this court, the investigating agency in this
case is CBCID and CBCID has filed
chargesheet against all the accused.
Perused all the document filed by CBCID
and this court finds that there are sufficient
material and evidence against the accused
for proceeding and taking Cognizance and
issuance of process against all the accused.
The charge sheet filed by local police is
mere
irregularity
and
was
cured
subsequently by filing chargesheet by
CBCID. The matter is grave in nature and
oldest and this court is of no view for
further delaying the case only based on
technical grounds. There is sufficient
ground for issuance of process against
accused.

Order

Cognizance
against
all
the
accused is taken by this court under section
147/148/149/302 of IPC in the light of
direction given by the Revisional court. The
accused have knowledge as the legal
representative are arguing and objecting on
Cognizance. Thus, issuance of B.W. of
10000 against two accused. Two of the
accused have expired during this stage and
the proceeding has abated against them by
the previous order of the court. Issue
Bailable warrant 10000 against Kamlesh
Singh and Bhagauti Singh. Case is put up
on 21.4.23."

15. At this stage, it would be relevant
to indicate that after the order of the
revisional Court dated 11.05.1999, it
appears that S.P., CBCID, U.P., Lucknow,
directed
the
Circle
Officer,
CBCID,
Lucknow vide his letter dated 18.03.2001
to file the Supplementary Charge Sheet
(frfrEek vkjksi i=) and for this purpose the
S.P., CBCID in his letter dated 18.03.2001
took note of the fact that the Charge Sheet
of CBCID itself indicates that there is
sufficient evidence against all the accused
persons namely Kamlesh Singh, Akhilesh
Singh, Bhagauti Singh and Kamlesh Singh
and thereafter in terms of the letter dated
18.03.2001 of S.P., CBCID, the Charge
Sheet No. 49A dated 12.04.2001 was filed
against Akhilesh Singh and Kamlesh Singh.

16. In the aforesaid background of the
case, as per submissions advanced by the
learned counsel for the applicants, the
present application has been filed under
Section 482 of Cr.P.C. on the following
main grounds:-

(i) Section 460 of Cr.P.C. would
not be attracted as in fact irregularity was
committed by the Investigating Agency.

(ii) For filing supplementary
Charge Sheet No.49A dated 12.04.2001 no
order was passed by the concerned
Magistrate under Section 173(8) of Cr.P.C.

(iii) The Charge Sheet No.49A
dated 12.04.2001 was filed without further
2 All. Kamlesh Singh & Anr. Vs. State of U.P. & Anr.
1211
investigation in the matter. In other words,
based upon the earlier evidence available
with the prosecution fresh Charge Sheet
No. 49A was filed.

(iv) The Court while taking
cognizance by the impugned order dated
27.03.2023 failed to observe on the issues
indicated by the revisional Court in the
order dated 11.05.1999, according to
which, the trial Court was under obligation
to make an inquiry in respect of Parcha
No.5Ka-3 and in this case, no inquiry was
carried out, as such, the trial Court failed
to conduct the proceedings in accordance
with the order of remand dated 11.05.1999
and it is settled principle of law that the
subordinate
court/authority
is
under
obligation to conduct the proceedings in
terms of order of remand.

17.

In
support
of
aforesaid
submissions, reliance has been placed by
the learned counsel appearing for the
applicants on the judgment passed by the
Hon'ble Apex Court in the case of
Hasanbhai Valibhai Qureshi vs. State of
Gujarat And Others; (2004) 5 SCC 347.
Relevant paragraphs 12 and 13 of the same
on reproduction read as under:-

"12. Sub-section (8) of Section
173
of
the
Code
permits
further
investigation,
and
even
dehors
any
direction from the court as such, it is open
to
the
police
to
conduct
proper
investigation, even after the court took
cognisance of any offence on the strength of
a police report earlier submitted. All the
more so, if as in this case, the Head of the
Police Department also was not satisfied of
the propriety or the manner and nature of
investigation already conducted.
13. In Ram Lal Narang v. State (Delhi
Admn.) [(1979) 2 SCC 322 : 1979 SCC
(Cri) 479 : AIR 1979 SC 1791] it was
observed by this Court that further
investigation is not altogether ruled out
merely because cognisance has been taken
by the court. When defective investigation
comes to light during course of trial, it may
be cured by further investigation, if
circumstances so permitted. It would
ordinarily be desirable and all the more so
in this case, that the police should inform
the court and seek formal permission to
make further investigation when fresh facts
come to light instead of being silent over
the matter keeping in view only the need for
an early trial since an effective trial for
real or actual offences found during course
of proper investigation is as much relevant,
desirable and necessary as an expeditious
disposal of the matter by the courts. In view
of the aforesaid position in law, if there is
necessity for further investigation, the same
can certainly be done as prescribed by law.
The mere fact that there may be further
delay in concluding the trial should not
stand in the way of further investigation if
that would help the court in arriving at the
truth and do real and substantial as well as
effective justice. We make it clear that we
have not expressed any final opinion on the
merits of the case."

18. Opposing the present application,
learned AGA says that the orders impugned
as also the charge sheet(s), in issue, are not
liable to be interfered with by this Court.
Elaborating the same, learned AGA says
that with regard to Charge Sheet No. 369
dated 12.11.1992, the applicants have not
pleaded in entire application regarding
illegality committed by the prosecution. In
regard
to
the
Charge
Sheet
dated
26.11.1998 only this much has been
indicated in the application that while filing
the charge sheet, CBCID in the case diary
observed that the Charge Sheet prepared by
the local police dated 12.11.1992 is
1212 INDIAN LAW REPORTS ALLAHABAD SERIES
confirmed and verified and alleging this,
the Charge Sheet dated 26.11.1998 has
been assailed in this application.

19. Learned AGA further submitted
that Supplementary Charge Sheet No. 49A
dated 12.04.2001 is also not liable to be
interfered by this Court on the grounds
taken by the applicants in the instant
application for the reason that from a bare
perusal of charge sheet dated 26.11.1998, it
is apparent that the I.O. in specific terms
observed that after due investigation, prima
facie, offence against all accused is made
out and in the same, the names of all
accused namely Akhilesh Singh, Kamlesh
Singh, Ashok Singh and Bhagauti Singh
and were specifically indicated and in this
regard, he drawn the attention of the Court
on the relevant contents of Charge Sheet
dated 26.11.1998, at the cost of repetition,
the same is extracted hereinunder:-

"अि तक की की तमामी प्रववेििा से संकप्रलत
साक्ष्य के आर्ार पर अप्रियुक्त अप्रखलेश प्रसंह पुत्र र्ु्िी प्रसंह
कमलेश प्रसंह पुत्र र्ु्िी प्रसंह अशोक प्रसंह पुत्र देवे्र प्रसंह प्रिवासी
लालूपुर िौहाि थािा महाराजगंज एवं िगवती प्रसंह पुत्र श्री देवी
िक्स प्रसंह प्रिवासी पूरे आदमपुर थािा महाराजगंज जिपद रायिरेली
के प्रवरुद्ध प्रदिांक 27 जुलाई 91 को श्री इकिाल हैदर रजा को
राप्रत्र 8:30 िजे उिके घर में दरवाजा खुलवाकर गोली मारकर
हत्या करिे का अपरार् िथम दृप्रिया र्ारा 147 148 149
302 िारतीय दंड प्रवर्ाि के अंतगषत िथम दृप्रिया होिा प्रसद्ध है
अप्रियुक्त अप्रखलेश प्रसंह व कमलेश प्रसंह के प्रवरुद्ध प्रदिांक12
िवंिर 92 को स्थािीय पुप्रलस द्वारा माह िरवरी में आरोप पत्र
संख्या 369 प्रदिांक 12 िवंिर 92 को िेप्रर्त प्रकया गया प्रववेििा
से ताईद एवं तस्दीक की जाती है।"

20. He further submitted that the
submissions of the learned counsel for the
applicant which are to the effect that for the
purposes
of
submitting
the
Supplementary/Additional Charge Sheet
the order of competent Court/Magistrate is
required and Parcha No.49-A/Charge Sheet
dated 12.04.2001 was submitted without
the leave of the Court/Magistrate, as such,
the cognizance taken by the Magistrate on
the basis of Parcha No.49-A/Charge Sheet
dated 12.04.2001 is liable to be interfered
with, are completely fallacious.

21. Elaborating the aforesaid, learned
AGA submitted that in the instant case,
Parcha
No.49-A/Charge
Sheet
dated
12.04.2001 was placed before the Court in
the light of letter of S.P., CBCID, dated
18.03.2001 and a perusal of this letter dated
18.03.2001 would show wherein the
observations are that sufficient evidence to
prosecute all the accused namely Akhilesh
Singh, Kamlesh Singh, Ashok Singh and
Bhagauti Singh was available but in the
later part of Charge Sheet dated 26.11.1998
the name of Akhilesh Singh and Kamlesh
Singh was not indicated, though, should
have been indicated and for this reason, a
direction
was
issued
to
file
Supplementary/Additional Charge Sheet
and therefore, Supplementary/Additional
Parcha
No.49A/Charge
Sheet
dated
12.04.2001 was filed before the Court
concerned.

22. In continuation, he submitted that
the leave of the Court, as per law laid down
by the Hon'ble Apex Court in the case of
Vinay Tyagi vs. Irshad Ali @ Deepak and
Others ; (2013) 5 SCC 762, is required for
further investigation and in the instant case,
no further investigation was carried out by
the Investigating Officer for the purpose of
filing of Supplementary/Additional Charge
Sheet. The Investigating Officer based
upon
the
evidence
collected
during
investigation prior to filing of Charge Sheet
dated 26.11.1998 filed the Additional
Parcha No.49A/Charge Sheet 12.04.2001.
Thus, no illegality was committed in filing
2 All. Kamlesh Singh & Anr. Vs. State of U.P. & Anr.
1213
the Parcha No.49A/Charge Sheet dated
12.04.2001.

23. It is also stated that if it is
presumed that the said Charge Sheet dated
12.04.2001 ought not to have been taken
note of while taking cognizance by the
Magistrate concerned even then in view of
the evidence available against all the
accused the C.J.M. was/is empowered to
summon all the accused after taking
cognizance against all the accused.

24. He further submitted that in view
of law laid by the Hon'ble Apex Court in
the case of Nahar Singh vs. State of U.P.
And Another; (2022) 2 SCC (Cri) 328,
the Magistrate is empowered to take
cognizance and issue summons to the
accused against whom Charge Sheet was
not filed if the material is available before
the Magistrate/Court concerned. Para(s) 17
to 30 of the judgment, referred above, are
extracted hereinunder:-

"17.As
regards
scope
of
jurisdiction of the Magistrate in a situation
of this nature, it was held by the
Constitution Bench inDharam Pal[Dharam
Palv.State of Haryana, (2014) 3 SCC 306 :
(2014) 2 SCC (Cri) 159] : (SCC p. 319,
paras 35-36)

"35. In our view, the Magistrate
has a role to play while committing the
case to the Court of Session upon taking
cognizance on the police report submitted
before him under Section 173(2)CrPC. In
the event the Magistrate disagrees with the
police report, he has two choices. He may
act on the basis of a protest petition that
may be filed, or he may, while disagreeing
with the police report, issue process and
summon the accused. Thereafter, if on
being satisfied that a case had been made
out to proceed against the persons named
in Column 2 of the report, proceed to try
the said persons or if he was satisfied that a
case had been made out which was triable
by the Court of Session, he may commit the
case to the Court of Session to proceed
further in the matter.

36. This brings us to the third
question as to the procedure to be followed
by the Magistrate if he was satisfied that a
prima facie case had been made out to go
to trial despite the final report submitted by
the police. In such an event, if the
Magistrate decided to proceed against the
persons accused, he would have to proceed
on the basis of the police report itself and
either inquire into the matter or commit it
to the Court of Session if the same was
found to be triable by the Sessions Court."

18.Another Constitution Bench
inHardeep Singhv.State of Punjab[Hardeep
Singhv.State of Punjab, (2014) 3 SCC 92 :
(2014) 2 SCC (Cri) 86] followedDharam
Pal[Dharam Palv.State of Haryana, (2014)
3 SCC 306 : (2014) 2 SCC (Cri) 159] . It
was opined by the Constitution Bench
inHardeep Singh[Hardeep Singhv.State of
Punjab, (2014) 3 SCC 92 : (2014) 2 SCC
(Cri) 86] : (Hardeep Singh case[Hardeep
Singhv.State of Punjab, (2014) 3 SCC 92 :
(2014) 2 SCC (Cri) 86] , SCC p. 139, para
111)"

111. Even the Constitution Bench
inDharam
Pal[Dharam
Palv.State
of
Haryana, (2014) 3 SCC 306 : (2014) 2
SCC (Cri) 159] has held that the Sessions
Court can also exercise its original
jurisdiction and summon a person as an
accused in case his name appears in
Column 2 of the charge-sheet, once the
case had been committed to it.It means that
a person whose name does not appear even
in the FIR or in the charge-sheet or whose
name appears in the FIR and not in the
main part of the charge-sheet but in
Column 2 and has not been summoned as
1214 INDIAN LAW REPORTS ALLAHABAD SERIES
an accused in exercise of the powers under
Section 193CrPC can still be summoned by
the court, provided the court is satisfied
that the conditions provided in the said
statutory provisions stand fulfilled."

19.Earlier, a Coordinate Bench
inRaj Kishore Prasadv.State of Bihar[Raj
Kishore Prasadv.State of Bihar, (1996) 4
SCC 495 : 1996 SCC (Cri) 772] expressed
the view that power under Section 209 of
the Code to summon a new offender was
not vested with a Magistrate. In this
decision, the correctness of the view taken
inKishun Singhv.State of Bihar[Kishun
Singhv.State of Bihar, (1993) 2 SCC 16 :
1993 SCC (Cri) 470] andNisarv.State of
U.P.[Nisarv.State of U.P., (1995) 2 SCC 23
: 1995 SCC (Cri) 306] was doubted. The
latter
decision
followedKishun
Singh[Kishun Singhv.State of Bihar, (1993)
2 SCC 16 : 1993 SCC (Cri) 470] . The
Constitution Bench inDharam Pal[Dharam
Palv.State of Haryana, (2014) 3 SCC 306 :
(2014) 2 SCC (Cri) 159] affirmed the view
taken by this Court inKishun Singh[Kishun
Singhv.State of Bihar, (1993) 2 SCC 16 :
1993 SCC (Cri) 470] and overruledRaj
Kishore Prasad[Raj Kishore Prasadv.State
of Bihar, (1996) 4 SCC 495 : 1996 SCC
(Cri) 772] . In fact, again a Coordinate
Bench
inBalveer
Singhv.State
of
Rajasthan[Balveer
Singhv.State
of
Rajasthan, (2016) 6 SCC 680 : (2016) 2
SCC (Cri) 622] has followed bothDharam
Pal[Dharam Palv.State of Haryana, (2014)
3 SCC 306 : (2014) 2 SCC (Cri) 159]
andKishun Singh[Kishun Singhv.State of
Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri)
470] . In the latter authority (i.e.Kishun
Singh[Kishun Singhv.State of Bihar, (1993)
2 SCC 16 : 1993 SCC (Cri) 470] ), it was,
inter
alia,
held
:
(Kishun
Singh
case[Kishun Singhv.State of Bihar, (1993) 2
SCC 16 : 1993 SCC (Cri) 470] , SCC pp.
28-29, para 13)

"13. The question then is whether
de hors Section 319 of the Code, can
similar power be traced to any other
provision in the Code or can such power be
implied from the scheme of the Code? We
have already pointed out earlier the two
alternative modes in which the criminal
law can be set in motion; by the filing of
information with the police under Section
154 of the Code or upon receipt of a
complaint or information by a Magistrate.
The former would lead to investigation by
the police and may culminate in a police
report under Section 173 of the Code on the
basis whereof cognizance may be taken by
the Magistrate under Section 190(1)(b) of
the Code. In the latter case, the Magistrate
may either order investigation by the police
under Section 156(3) of the Code or himself
hold an inquiry under Section 202 before
taking cognizance of the offence under
Section 190(1)(a) or (c), as the case may
be, read with Section 204 of the Code.
Once the Magistrate takes cognizance of
the offence he may proceed to try the
offender (except
where
the
case is
transferred under Section 191) or commit
him for trial under Section 209 of the Code
if the offence is triable exclusively by a
Court of Session. As pointed out earlier
cognizance is taken of the offence and not
the offender. This Court inRaghubans
Dubeyv.State
of
Bihar[Raghubans
Dubeyv.State of Bihar, (1967) 2 SCR 423 :
AIR 1967 SC 1167] stated that once
cognizance of an offence is taken it
becomes the Court's duty 'to find out who
the offenders really are' and if the Court
finds 'that apart from the persons sent up
by the police some other persons are
involved, it is its duty to proceed against
those persons' by summoning them because
'the summoning of the additional accused
is part of the proceeding initiated by its
taking cognizance of an offence'. Even
2 All. Kamlesh Singh & Anr. Vs. State of U.P. & Anr.
1215
after the present Code came into force, the
legal position has not undergone a change;
on
the
contrary
the
ratio
ofDubey
case[Raghubans Dubeyv.State of Bihar,
(1967) 2 SCR 423 : AIR 1967 SC 1167]
was affirmed inHareram Satpathyv.Tikaram
Agarwala[Hareram
Satpathyv.Tikaram
Agarwala, (1978) 4 SCC 58 : 1978 SCC
(Cri) 496] . Thus far there is no difficulty."

20.There is a difference so far as
the position of law on which the opinions of
the
two
Constitution
Benches
were
delivered in relation to the facts of the
present
case.
InDharam
Pal[Dharam
Palv.State of Haryana, (2014) 3 SCC 306 :
(2014) 2 SCC (Cri) 159] andHardeep
Singh[Hardeep Singhv.State of Punjab,
(2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] ,
summons were issued against the persons
whose names had figured in Column (2) of
the charge-sheet. Both these authorities also
dealt with exercise of jurisdiction of the Court
of Session under Section 193 of the Code.
This provision reads:

"193.Cognizance of offences by
Courts of Session.-Except as otherwise
expressly provided by this Code or by any
other law for the time being in force, no
Court of Session shall take cognizance of any
offence as a Court of original jurisdiction
unless the case has been committed to it by a
Magistrate under this Code."

21.It would appear from the Code
that the jurisdiction to take cognizance has
been vested in the Magistrate (under Section
190 thereof) as also Court of Session under
Section 193, which we have quoted above.
This question has been examined inDharam
Pal[Dharam Palv.State of Haryana, (2014) 3
SCC 306 : (2014) 2 SCC (Cri) 159] and on
this point it has been held : (SCC pp. 319-20,
para 39)

"39. This takes us to the next
question as to whether under Section 209, the
Magistrate was required to take cognizance
of the offence before committing the case to
the Court of Session.It is well settled that
cognizance of an offence can only be taken
once. In the event, a Magistrate takes
cognizance of the offence and then commits
the case to the Court of Session, the question
of taking fresh cognizance of the offence and,
thereafter, proceed to issue summons, is not in
accordance with law. If cognizance is to be
taken of the offence, it could be taken either
by the Magistrate or by the Court of
Session.The language of Section 193 of the
Code very clearly indicates that once the case
is committed to the Court of Session by the
learned Magistrate, the Court of Session
assumes original jurisdiction and all that
goes with the assumption of such jurisdiction.
The provisions of Section 209 will, therefore,
have to be understood as the learned
Magistrate playing a passive role in
committing the case to the Court of Session
on finding from the police report that the case
was triable by the Court of Session. Nor can
there be any question of part cognizance
being taken by the Magistrate and part
cognizance being taken by the learned
Sessions Judge."

22.The scope of jurisdiction of the
Magistrate in taking cognizance of an
offence was earlier examined by a threeJudge Bench of this Court inRaghubans
Dubeyv.State
of
Bihar[Raghubans
Dubeyv.State of Bihar, (1967) 2 SCR 423 :
AIR 1967 SC 1167] . This authority was
relied upon by the Coordinate Bench
inKishun Singh case[Kishun Singhv.State of
Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri)
470] . Dealing with broadly similar
provisions of the old Code of 1898, it was
observed by this Court : (AIR pp. 1169-70,
para 9)

"9. ... In our opinion, once
cognizance
has
been
taken
by
the
Magistrate, he takes cognizance of an
offence and not the offenders; once he takes
1216 INDIAN LAW REPORTS ALLAHABAD SERIES
cognizance of an offence it is his duty to
find out who the offenders really are and
once he comes to the conclusion that apart
from the persons sent up by the police some
other persons are involved, it is his duty to
proceed
against
those
persons.
The
summoning of the additional accused is
part of the proceeding initiated by his
taking cognizance of an offence. As pointed
out by this Court inPravin Chandra
Modyv.State
of
A.P.[Pravin
Chandra
Modyv.State of A.P., (1965) 1 SCR 269 :
AIR 1965 SC 1185 : (1965) 2 Cri LJ 250]
the
term
"complaint"
would
include
allegations made against persons unknown. If a
Magistrate takes cognizance under Section
190(1)(a) on the basis of a complaint of facts he
would take cognizance and a proceeding would
be instituted even though persons who had
committed the offence were not known at that
time. The same position prevails, in our view,
under Section 190(1)(b)."