# Kumar Gupta v. State of U.P

- **Citation:** (2008) 1 ILRA 64
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-28
- **Case number:** Criminal Misc. Application No. 149 of 2008
- **Bench:** V.D. Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumar-gupta-v-state-of-u-p-41146
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section 173
(2)-Re-investigation first charge sheet
submitted
disclosing
offence
under
Section
354
IPC-on
re-investigation
charge sheet u/s 376 IPC filed-HeldMagistrate committed no illegality-no
error in direction for re-investigation.

Held: Para 7 & 8

In view of what has been discussed
above, I find no illegality in the order
directing re-investigation nor I find any
illegality in the investigation wherein the
statement of a witness was re-recorded
by the I.O.

The Magistrate committed no error in
taking the cognizance on a police report
submitted under Section 173 (2) Cr.P.C.
The petition is devoid of merits. It is
therefore dismissed.
Case law discussed:
2006 (55) ACC-180 distinguished, AIR 1999
SC-2332 relied on.

## Text

64 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
royalty on the supply of the stone bolders
is not in accordance with law.

7. Accordingly, the writ petition is
finally disposed of with the direction to
the respondent no.3 to consider the case
of the petitioner after getting bills and
Rawannas and make his payment without
delay. If there is any lacuna in the bills or
Rawannas the petitioner may be asked to
remove it. The petitioner shall file details
of bills and Rawannas before the
respondent no.3 within fifteen days from
today and respondent no.3 will decide his
payment within a further period of six
weeks by passing a detailed and reasoned
order.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.01.2008

BEFORE
THE HON'BLE V.D. CHATURVEDI, J.

Criminal Misc. Application No. 149 of 2008

Devendra

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Applicant:
Sri Shashi Dhar Pandey

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure-Section 173
(2)-Re-investigation first charge sheet
submitted
disclosing
offence
under
Section
354
IPC-on
re-investigation
charge sheet u/s 376 IPC filed-HeldMagistrate committed no illegality-no
error in direction for re-investigation.

Held: Para 7 & 8

In view of what has been discussed
above, I find no illegality in the order
directing re-investigation nor I find any
illegality in the investigation wherein the
statement of a witness was re-recorded
by the I.O.

The Magistrate committed no error in
taking the cognizance on a police report
submitted under Section 173 (2) Cr.P.C.
The petition is devoid of merits. It is
therefore dismissed.
Case law discussed:
2006 (55) ACC-180 distinguished, AIR 1999
SC-2332 relied on.

(Delivered by Hon'ble V.D. Chaturvedi, J.)

1. Learned counsel for the petitioner
contends that in Case Crime No.197 of
2007, under Section 376 IPC the I.O.
earlier submitted a charge sheet under
Section 354 IPC but the Circle Officer by
his order dated 8.8.2007 directed for reinvestigation
hence,
the
I.O.
reinvestigated the case, re-recorded the
statement
of
the
prosecutrix
and
submitted the subsequent charge sheet
under Section 376 IPC. Learned counsel
for
the
petitioner
relied
upon
the
judgement given by the another single
bench of this Court in the case of Krishna
Kumar Gupta Vs. State of U.P.
reported in 2006(55) ACC 180.

2. The earlier charge sheet dated
6.6.2007 for offence under Section 354
IPC did not reach the Court when the
Circle Officer passed the order dated
8.8.2007. The Court took the cognizance
on the charge sheet dated 15.8.2007 and
not on the charge sheet dated 6.6.2007.
Thus, the Magistrate took the cognizance
on a police report submitted under Section
173 (2) Cr.P.C. The charge sheet
consisted of the statements of the
prosecutrix recorded times under Section
1 All] Devendra V. State of U.P. and another
65
161 Cr.P.C. and also the statement of the
prosecutrix recorded under Section 164
Cr.P.C.

3. The provisions contained in Subsection (3) and Sub-section (8) of Section
173
Cr.P.C.
empowers
for
further
investigation. But on its basis it cannot be
construed that the I.O. has no power to rerecord the statement of any witness.

4. There is no bar for the I.O., in
Cr.P.C., to re-record the statement of any
witness if the circumstances so require.
The re-examination of witnesses even by
the trial Court is permitted under the
Evidence Act. Therefore, there is nothing
to hold that the I.O. may not re-record the
statement of any witness. The record
reveals that an objection was raised
against the I.O. hence I.O. was changed
and re-investigation was ordered. The
circumstances, in which the I.O. was
changed and the statements of the
witnesses
were
re-recorded,
were
appropriate
circumstances.
There
is
nothing in the code of Criminal Procedure
which may restrict the Investigating
Officer to record the statement of a
witness only once.

5. The prosecutrix in her second
statement has supported the F.I.R. and has
given the explanation for concealing in
her first statement the fact of rape upon
her. She has supported the allegation of
rape in her statement recorded under
Section 164 Cr.P.C. also.

6. A matter came before Hon'ble the
Supreme
Court
in
B.S.S.
V.V.
Vishwandadha Maharaj Vs. State of
Andhra Pradesh reported in AIR 1999
S.C. 2332 wherein the Investigating
Officer earlier submitted a final report.
The Magistrate ordered on 2.8.1995 for
"re-investigation of the case."

Pursuant to the said order, the police
re-investigated and filed a report on
15.9.1997 holding that the appellant has
committed the offence under Section 420
of the I.P.C. The Magistrate took
cognizance of the offence on the receipt
of the said report and issued warrant of
arrest. The Hon'ble Supreme Court found
no illegality in the order nor in the reinvestigation made by the Investigating
Officer. The case reported in AIR 1999
S.C. 2332 also fortifies the view that there
is nothing wrong if the case is reinvestigated under Section 173(8) or
under Section 173(3) Cr.P.C.

7. In view of what has been
discussed above, I find no illegality in the
order directing re-investigation nor I find
any illegality in the investigation wherein
the statement of a witness was re-recorded
by the I.O.

8. The Magistrate committed no
error in taking the cognizance on a police
report submitted under Section 173 (2)
Cr.P.C. The petition is devoid of merits. It
is therefore dismissed.

9. The petitioner's counsel, after the
above order is dictated, further argues that
the police has no power to re-investigate
and that I.O. has re-investigated the case.

10. The both of these points have
met their reply in the discussion made
above. No case to interfere. The petition
is dismissed.
---------
66 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2007

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE S.P. MEHROTRA, J.

Civil Misc. Writ Petition No. 37849 of 2004

Hukum Chand

...Petitioner
Versus
State Services Tribunal, Indira Bhawan,
Lucknow and others
...Respondents

Counsel for the Petitioner:
Sri L.P. Singh
Sri P.K. Sharma
Sri Veer Singh
Sri K.K. Pandey
Sri Manu Yadav

Counsel for the Respondents:
Sri B.K. Pandey
S.C.

Constitution of India, Art. 226-Service
law-Dismissal
order
challenged
on
ground non supply of enquiry report-No
show
cause
notice-as
well
as
on
quantum of punishment-before tribunal
copy of enquiry report supplied-full
opportunity given-No prejudice shown
for
non
supply
of
enquiry
report
disciplinary authority considered past
conduct of the petitioner-found habitual
of marpit with other employees as well
as officers-considering the charges-of
assault on his superior officer found
proved-punishment of dismissal-can not
be disproportionate.

Held: Para 31, 34 & 42

Having examined the material on the
said record and having considered the
submissions
made
by
the
learned
counsel for the parties, we are of the
view that even if the copy of the Inquiry
Report was supplied to the petitioner,
the same would have made no difference
to the ultimate findings of the Inquiry
Officer and the punishment given to the
petitioner.

We are of the view that the Disciplinary
Authority did not commit any illegality in
taking into account the past history in
regard to work, behaviour and conduct
of
the
petitioner
for
deciding
the
quantum of punishment to be imposed
on the petitioner.

Keeping in view the aforesaid facts and
circumstances, it is evident that the
Disciplinary Authority was justified in
imposing the punishment of dismissal
from service on the petitioner.
Case law discussed:
AIR 1994 SC-1074, AIR 1962 SC-1130, AIR
2003 SC-1571, AIR 2005 SC-3417, AIR 2006
SC-2208

(Delivered by Hon'ble R.K. Agrawal, J.)

1. The present Writ Petition has
been filed by the petitioner under Article
226 of the Constitution of India, interalia,
praying for issuance of writ, order or
direction in the nature of certiorari
quashing the order dated 6.10.1999
(Annexure-6 to the Writ Petition), the
order dated 16.5.2000 (Annexure-8 to the
Writ Petition), the order dated 3.10.2003
(Annexure-11 to the Writ Petition) and
the order dated 4.8.2004 (Annexure-13 to
the Writ Petition), and further, for
issuance of writ, order or direction in the
nature
of
mandamus
directing
the
respondents to reinstate the petitioner in
service with all consequential benefits to
which he is entitled.

2. As per the averments made in the
Writ Petition, the petitioner was appointed
on the post of Palledar (Class-IV) by the
Assistant
Commissioner
Shasakiya/
respondent no.3; and that the post of