# Nusrat & Ors v. State of U.P. & Anr

- **Citation:** Application U/S 482 Cr.P.C. No. 1652 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-23
- **Case number:** Application U/S 482 Cr.P.C. No. 1652 of 2020
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nusrat-ors-v-state-of-u-p-anr-46356
- **Pages:** 4

## Headnote

(A) Criminal Law- Dowry prohibition
Act,1961- Section 3⁄4-Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - Indian Penal
Code, 1860 - Sections 498A, 323, 504,
506, 376D, 307, 201, 342 I.P.C. & - in
case of recovery of further evidence
related with above offence, further
investigation under Section 173(8) of
Cr.P.C. is to be directed - order of
magistrate for further investigation -
formal permission - according with
law. (Para-10)

First Information Report lodged against
accused persons - accusation of offences
punishable under Sections 376-D, 307 I.P.C. -
investigated and mentioned that those offences
were not made out - nothing new added by I.O
- since the beginning, and the contention of
informant-victim was intact - Subsequent
investigation
mentioned
the
evidence
collected
after
submission
of
previous
charge-sheet
-
on
the
basis
of
that
evidence, subsequent charge-sheet was
filed, over which cognizance was taken
.(Para-11)

HELD:- In exercise of inherent jurisdiction
under Section 482 of Cr.P.C., court is not to
embark upon factual matrix because it may
prejudice trial and the fact is to be seen by
trial court .(Para-11)

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

List Of Cases Cited:-

## Text

3-5 All. Nusrat & Ors. Vs. State of U.P. & Ors.
1533

15. It is however always open for
opposite party no. 2 to proceed in
accordance with law in the light of the
judgment of Apex Court in the case of
Yogendera Pratap Singh v. Savitri
Pandey and Another, reported in 2014
LawSuit (SC) 793.
----------
(2020)03-05ILR A1533
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.01.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 Cr.P.C. No. 1652 of 2020

Nusrat & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Nazrul Islam Jafri, Sri Sadaful Islam Jafri

Counsel for the Opposite Parties:
A.G.A., Sri Akhilesh Chandra Shukla

(A) Criminal Law- Dowry prohibition
Act,1961- Section 3⁄4-Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - Indian Penal
Code, 1860 - Sections 498A, 323, 504,
506, 376D, 307, 201, 342 I.P.C. & - in
case of recovery of further evidence
related with above offence, further
investigation under Section 173(8) of
Cr.P.C. is to be directed - order of
magistrate for further investigation -
formal permission - according with
law. (Para-10)

First Information Report lodged against
accused persons - accusation of offences
punishable under Sections 376-D, 307 I.P.C. -
investigated and mentioned that those offences
were not made out - nothing new added by I.O
- since the beginning, and the contention of
informant-victim was intact - Subsequent
investigation
mentioned
the
evidence
collected
after
submission
of
previous
charge-sheet
-
on
the
basis
of
that
evidence, subsequent charge-sheet was
filed, over which cognizance was taken
.(Para-11)

HELD:- In exercise of inherent jurisdiction
under Section 482 of Cr.P.C., court is not to
embark upon factual matrix because it may
prejudice trial and the fact is to be seen by
trial court .(Para-11)

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

List Of Cases Cited:-

1. Vinubhai Haribhai Malaviya & ors. Vs. St. of
Gujrat & anr., AIR 2019 SC 5233

2. Bikash Ranjan Rout Vs. St. through the
Secretary (Home), Govt. of NCT Delhi, AIR 2019
SC 2002

3.
Amrut
bhai
Shambhubhai
Patel
Vs.
Sumanbhai Kantibhai Patel & ors., AIR 2017 SC
774

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. The applicants namely, Nusrat,
Noor
Mohammad,
Nurkan,
Furkana,
Anjum, by means of this application under
Section 482 Cr.P.C., have invoked the
inherent jurisdiction of the Court with
prayer to set aside impugned charge-sheet
dated 26.9.2019, order dated 4.9.2019,
passed by Judicial Magistrate, Mawana,
Meerut as well as the entire proceeding of
Criminal Case No. 7075/9 of 2019 (State
V/s Nusrat), arising out of Case Crime No.
4 of 2019, under Sections 498A, 323, 504,
506, 376D, 307, 201, 342 I.P.C. & Section
3⁄4 of D.P. Act, P.S. Mawana, District
Meerut, pending in the Court of Special
Chief Judicial Magistrate, Meerut, which
was subsequently filed after filing of
1534 INDIAN LAW REPORTS ALLAHABAD SERIES
previous
charge-sheet
and
taking
of
cognizance over it, in course of further
investigation made by Investigating Officer
and in accordance with order of Magistrate,
over an application moved under Section
173(8) of Cr.P.C.

2. Heard learned counsel for the
applicants and learned A.G.A. for the State.

3. Learned counsel for the applicants
argued that Case Crime No. 4/2019, was
got registered under Sections 498A, 323,
504, 506, 376-D, 307, 201, 342 I.P.C. &
Section 3/4 of D.P. Act, upon the report of
Saima, against Nusrat- husband, Noor
Mohammad-
father-in-law,
Nurkan
brother-in-law,
Furkana-
sister-in-law,
Anjum- sister-in-law and one friend of
Nurkan. This was investigated, wherein,
charge-sheet was filed and cognizance over
this charge-sheet was taken, for offences
punishable under Sections 498A, 323, 504,
506 I.P.C. read with Section 3/4 of D.P.
Act. Offences punishable under Sections
376-D, 307, 201 and 342 I.P.C. were held
to be not made out and for those offences,
charge-sheet was not filed. Subsequently,
an application for further investigation was
moved by Investigating Officer, before
Magistrate and it was rejected, vide order
dated 27.8.2019. It was a detailed judicial
order, whereby, application moved under
Section 173(8) of Cr.P.C. was rejected.
Again, an application was moved by I.O.
with same prayer, which was allowed by
order dated 4.9.2019, by writing a single
word "permitted" by Judicial Magistrate
and in view of this, further investigation,
made by Investigating Officer, subsequent,
charge-sheet
was
filed,
wherein,
cognizance
was
taken
for
offences
including
offences
punishable
under
Sections 376-D, 307, 201 and 342 I.P.C.,
which was apparently erroneous. Hence,
this application under Section 482 of
Cr.P.C. was filed. But due to mistake by
steno, both of the cognizance taking orders
were challenged. Whereas, this application
was filed for challenging second and
subsequent
cognizance
taking
order.
Hence, on previous date, this Court
permitted
for
making
deletion
and
correction in application, with a direction
for filing of supplementary affidavit, which
has been filed on today and taken on
record.
Hence,
this
subsequent
investigation,
in
form
of
further
investigation, was not permitted and the
subsequent
charge-sheet
for
those
additional sections were under abuse of
process of law. Hence, for ensuring end of
justice, this application has been filed with
above prayer.

4. Learned counsel for the informant
vehemently opposed with this contention
that primarily it is being challenged that in
Para 5 of affidavit filed on today, it has
been written that it is the first petition
under Section 482 of Cr.P.C., which is
against the fact and it can never be said that
owing to error of steno relief was
mentioned in application. The subsequent
objection is that it was the order of Senior
Superintendent of Police for making further
investigation, which is provided under
Section 173(8) of Cr.P.C. to Police Officer
for making further investigation, in case of
receiving of further changed circumstances
and fact, even after, cognizance taken by
Magistrate in a charge-sheet filed before,
and this order of S.S.P. has not been
challenged. Inspector in-charge submitted
application
before
Magistrate
for
a
permission, which needs to be a formal
permission for further investigation, but it
was rejected because there was no
specification as to what evidence were
available and what compels for moving of
3-5 All. Nusrat & Ors. Vs. State of U.P. & Ors.
1535
this application. Under above circumstance,
application
was
rejected.
Subsequent
application was moved, with mentioning of
those facts and it was allowed by
Magistrate and after obtaining this formal
permission by Magistrate, investigation
was made, wherein, charge-sheet was filed
and cognizance over it, was taken. Hence,
the application merits its dismissal. It be
dismissed.

5. Learned AGA has also vehemently
opposed the argument of learned counsel
for the applicants.

6. The mere question to be seen at this
juncture,
is
as
to
whether
further
investigation continued in exercise of
permission granted by Magistrate, was
erroneous? Or it was valid permission.

7. Apex Court in Vinubhai Haribhai
Malaviya and others vs. State of Gujrat
and another, AIR 2019 SC 5233, has held
that Magistrate has power to order further
investigation under Section 156(3) of
Cr.P.C. even at post cognizance stage. At
page No. 60, Apex Court has discussed
various previous laws, which were of this
view that in post cognizance stage, power
to permit for further investigation by
Magistrate was not there, but this was held
to be incorrect law and this power remains
with Magistrate at even post cognizance
stage.

8.

Section
173(8)
of
Cr.P.C.
provides:-

"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 in charge of the
police station obtains further evidence, oral
or documentary, he shall forward to the
Magistrate a further report or reports
regarding such evidence in the form
prescribed; and the provisions of sub-
sections (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)."

9. Meaning thereby, Magistrate needs
for giving a formal permission to be given
for further investigation. Though this
power remains with Police officer under
circumstances, when new facts emerges
regarding the same case crime number and
it
is
never
mandatory
that
further
investigation may not be proceeded by
Investigating Officer, if Magistrate has
denied for further investigation.

10. Now, in present case, the order of
Magistrate,
passed
while
rejecting
application
previously
moved,
under
Section 173(8) of Cr.P.C., reveals that law
of Apex Court in Bikash Ranjan Rout Vs.
State through the Secretary (Home), Govt.
of NCT Delhi, AIR 2019 SC 2002 as well
as in Amrut bhai Shambhubhai Patel vs.
Sumanbhai Kantibhai Patel & others, AIR
2017 SC 774, has been discussed, wherein,
the law is very well elaborated that further
investigation
is
to
be
initiated
on
application of prosecution/ investigating
agency by Magistrate, if there is detection
of material evidence/fresh 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. Meaning thereby, in case of
recovery of further evidence related with
above offence, further investigation under
Section 173(8) of Cr.P.C. is to be directed.
But the condition in which this application
was rejected, was that that nothing has been
1536 INDIAN LAW REPORTS ALLAHABAD SERIES
mentioned by Investigating Officer in its
application
regarding
what
kind
of
evidence is there, which required further
investigation.
Hence,
application
was
vague in nature, that is why it was rejected.
Meaning thereby, merit of application was
not discussed in above order, but on the
basis of devoid of fact to be written in it
and being it a vague application, it was
rejected. Subsequently, application by I.O.
was moved with above fact, as was there,
requiring further investigation and the order
of rejection by Court of Magistrate was
mentioned in this application that once an
application was moved and it was rejected
because of application being vague and
with no fact and on this application, the fact
which came in the light, were written. Then
after, the same Magistrate permitted for
further investigation. Hence, the very
argument of learned counsel for the
applicants
that
first
order
was
not
mentioned in this application, which was
subsequently moved, was incorrect and
against the fact. It was written in that
application,
subsequently
moved,
that
previous application, moved by I.O., was
not with that facts, which were required in
view of law of Apex Court given in case of
Amrut bhai Shambhubhai Patel vs.
Sumanbhai Kantibhai Patel & others
(supra). Hence, the order for formal
investigation could not be obtained.

11.

In
present
case,
a
First
Information Report was lodged against
accused
persons,
with
accusation
of
offences punishable under Sections 376-D,
307 I.P.C. and it was investigated and
mentioned that those offences were not
made out i.e. it is nothing new added by
I.O. Rather, it was since the beginning, and
the contention of informant-victim was
intact. Subsequent investigation mentioned
the evidence collected after submission of
previous charge-sheet and on the basis of
that evidence, subsequent charge-sheet was
filed, over which cognizance was taken.
Hence, this Court, in exercise of inherent
jurisdiction under Section 482 of Cr.P.C., is
not to embark upon factual matrix because
it may prejudice trial and the fact is to be
seen by trial court. The order of Magistrate
for further investigation was a formal
permission, given in accordance with law.
Hence, this application merits its dismissal.

12. Dismissed, as such.
----------
(2020)03-05ILR A1536
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.01.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 Cr.P.C. No. 1946 of 2020

Ajit Pratap Singh ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Amit Daga, Sri Satendra Singh

Counsel for the Opposite Parties:
A.G.A., Sri Anurag Dubey

(A) Criminal law- Dowry Prohibition
Act - Section 311 - Section 3/4. -
Cr.P.C Code of criminal procedure,
1973 - Sections 482 - Inherent
jurisdiction - Indian Penal Code, 1860
- Sections 498-A, 304-B, 504 I.P.C. -
Power to summon material witness,
or examine person present - principles
governing Section 311 Cr.P.C. and end
of justice is a sine qua non for
exercise of jurisdiction under this
section - no frustration of end of
justice.(Para - 9)