# Pawan Kumar Kushwaha & others v. State of U.P. and another

- **Citation:** (2012) 2 ILRA 880
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-20
- **Bench:** Ramesh Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-kushwaha-others-v-state-of-u-p-and-another-42193
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section 482quashing of proceedings-on ground once
investigation
conducted-final
report
submitted-without permission of courtre-investigation not permissible-earlier
investigate
confined
in
respect
of
allegations under 498-A and 3⁄4 D.P. Act,
subsequent F.I.R. Allegation of offenceunder Section 307, 326, 504 I.P.C.
Conducted-Magistrate
confined
its
consideration with scope of Section 173
(8)
Cr.P.C.-amounts
to
further
investigation on basis of supplementary
chargesheet-due application of mind
taking
into
consideration
of
facts
collected during further investigation,
Magistrate
being
original
court
not
precluded to do so-proceedings can not
be quashed

Held: Para 8

However, if the Magistrate was passing
an
order
on
the
basis
of
the
supplementary charge-sheet after due
application of his mind to the facts
collected during further investigation
and was asking the accused to appear in
respect of other offences also, it could be
treated as another order of summoning
and that the magistrate in my considered
view,
being
the
court
of
original
jurisdiction
in
that
behalf,
is
not
precluded to do.
Case law discussed:
2009 (65) ACC 962; 2008 (62) ACC 351;
(2004) 5 SCC 347; 2002 (1) SCC 714

## Text

880 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
category of dependents of freedom fighter is
set aside. The respondents are directed to
reinstate the petitioner from the date she has
been terminated and this shall be construed
to be continuity of her service from the date
her
services
have
been
terminated.
However, she will not be entitled to
backwages. This may be done, if possible,
within a period of three months from the
date certified copy is served on them.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.07.2012

BEFORE
THE HON'BLE RAMESH SINHA, J.

Criminal Misc. 482 Cr.P.C. Application No.
20760 of 2012.

Pawan Kumar kushwaha & others

 ...Applicants
Versus
State of U.P. & another ...Respondents

Counsel for the Applicants:
Sri Anuj Bajpai

Counsel for the Respondents:
Sri Ram Krishna Dubey
Sri A.P. Tewari
A.G.A.

Code of Criminal Procedure-Section 482quashing of proceedings-on ground once
investigation
conducted-final
report
submitted-without permission of courtre-investigation not permissible-earlier
investigate
confined
in
respect
of
allegations under 498-A and 3⁄4 D.P. Act,
subsequent F.I.R. Allegation of offenceunder Section 307, 326, 504 I.P.C.
Conducted-Magistrate
confined
its
consideration with scope of Section 173
(8)
Cr.P.C.-amounts
to
further
investigation on basis of supplementary
chargesheet-due application of mind
taking
into
consideration
of
facts
collected during further investigation,
Magistrate
being
original
court
not
precluded to do so-proceedings can not
be quashed

Held: Para 8

However, if the Magistrate was passing
an
order
on
the
basis
of
the
supplementary charge-sheet after due
application of his mind to the facts
collected during further investigation
and was asking the accused to appear in
respect of other offences also, it could be
treated as another order of summoning
and that the magistrate in my considered
view,
being
the
court
of
original
jurisdiction
in
that
behalf,
is
not
precluded to do.
Case law discussed:
2009 (65) ACC 962; 2008 (62) ACC 351;
(2004) 5 SCC 347; 2002 (1) SCC 714

(Delivered by Hon'ble Ramesh Sinha, J.)

1. Heard Sri Anuj Bajpai, learned
counsel for the applicants, Sri Ram Krishna
Dubey, learned counsel for opposite party
no.2 and learned A.G.A. for the State.

2. By means of application under
Section 482 Cr.P.C., the applicants have
prayed
for
quashing
of
the
entire
proceedings of Case No. 1172 of 2011,
State Versus Gullu Prasad and others
arising out of Case Crime No. 124 of 2011
under Section 498A, I.P.C. and 3/4 , D.P.
Act,
police
station
Kareli,
District
Allahabad
pending
in
the
court
of
Additional Chief Judicial Magistrate, Court
No.5, Allahabad.

3. Brief facts of the present case are
that the opposite party no.2, Smt. Vandana
Kushwaha w/o Pawan Kumar Kushwaha,
applicant no.1 and daughter of Lalta Prasad
Kushwaha had filed an application before
the D.I.G for registration of F.I.R. against
2 All] Pawan Kumar Kushwaha & others V. State of U.P. and another
881
the applicants on which the matter was
enquired by the S.I. of police station
Dhoomanganj, who submitted his report to
the D.I.G. In the said report, it was stated
that the applicants have not committed any
offence
against
opposite
party
no.2.
Thereafter, opposite party no.2 moved an
application under Section 156 (3) Cr.P.C.
before
the
Additional Chief
Judicial
Magistrate, Allahabad which was dismissed
by the Court on the request of counsel for
opposite party no.2 as not pressed vide
order dated 7.7.2011. Subsequently, an
F.I.R. was lodged against the applicants by
opposite party no.2 on 10.5.2011 which was
registered as Case Crime No. 124 of 2011
under Section 498A, 307, 326, 504, I.P.C.
and 3/4, D.P. Act at police station Kareli,
District Allahabad in connection with
offences
having
taken
place
from
11.12.2008
to
24.4.2010.
After
investigation, the first Investigating Officer,
namely, Ram Nath Singh submitted a
charge-sheet against the applicants being
Charge-sheet
No.58
of
2011
dated
29.6.2011 for offences under Section 498A,
I.P.C. and 3/4 D.P. Act and stated in the
said charge-sheet that no offence under
Section 307, 326, 504, I.P.C. was made out
against the applicants. On the basis of the
said charge-sheet, the learned Magistrate on
6.7.2011 took cognizance of the offence and
directed that the case be registered as Case
No. 1172 of 2011. A copy of the said
charge sheet has been annexed as annexure4 to the affidavit filed in support of the
present application. The applicants appeared
before the court and were granted bail on
29.8.2011 except applicant no.1, Pawan
Kumar Kushwaha, who was granted bail by
this Court on 2.11.2011. It appears that
when the complainant came to know about
the submission of Charge-sheet under
Sections 498A, I.P.C. and 3/4 D.P. Act
submitted against the applicants by the
Investigating Officer, Ram Nath Singh then
she moved an application alongwith an
affidavit before the D.I.G., Allahabad
alleging that the first Investigating Officer
had not conducted the investigation in a fair
manner on which the D.I.G. Vide order
dated 29.8.2011 entrusted the investigation
to another Investigating Officer with
immediate effect and further ordered the
Station Officer, Kareli to carry on the
investigation in view of the provisions of
Section 173 (8) Cr.P.C. after completing all
the
legal
formalities.
The
second
Investigating Officer submitted chargesheet
against
the
applicants
on
13.12.2011.From the order sheet of the
Court
of
Additional
Chief
Judicial
Magistrate V in Case No. 1172 of 2011, it
appears that 27.1.2012 was fixed for
framing of charges and on 7.1.2012 a
supplementary charge sheet No. 58 A was
filed in the Court of Magistrate for offences
under Sections 307, 326, 504, I.P.C. on the
basis of which the learned magistrate again
took cognizance of the offence and directed
that the case be registered against the
applicants on the basis of the supplementary
charge sheet. The court fixed 14.12.2011 for
framing of charges against the applicants
vide
ordered
dated
5.11.2011.
The
applicants again appeared before the court
on 27.1.2012, date fixed for framing of
charges.

4. It has been contended by the
learned counsel for the applicants that the
manner in which the supplementary charge
sheet has been brought on record before the
trial court and the second cognizance taken
for the offences under Sections 307, 326,
504, I.P.C. by the trial court on 7.1.2012 is
not sustainable in the eyes of law. It is
further submitted that the learned magistrate
after taking cognizance on 6.7.2011 on the
basis of the earlier charge sheet could not
882 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
have taken cognizance again on 7.1.2012
for the offences under Sections 307, 326,
504, I.P.C. on the basis of the investigation
ordered under Section 173 (8), Cr.P.C. He
submitted that after the cognizance, the
reinvestigation which was alleged to have
been ordered by the D.I.G. under Section
173 (8) Cr.P.C. is barred. It was further
submitted by the learned counsel for the
applicants that the discharge application
moved by the applicants for discharging
them for offences under Section 498A,
I.P.C. and 3/4 D.P. Act was also illegally
rejected by the magistrate vide order dated
26.5.2012 and the applicants were directed
to appear before the court for getting
themselves bailed out for offences under
Sections 307, 326 and 504, I.P.C. In support
of his contention, learned counsel for the
applicants has placed reliance on two
judgments of the Apex Court reported in
2009 (65) ACC 962, Rama Chaudhary Vs.
State of Bihar in which the Hon'ble Apex
Court has held that further investigation is
permitted under Section 173 (8), Cr.P.C.
whereas reinvestigation is prohibited. In
another judgment relied upon by the learned
counsel for the applicants reported in 2008
(62) ACC 351, Ramachandran vs. R
Udhayakumar it was held that the police
has no right of fresh investigation or
reinvestigation.

5. On the other hand, learned A.G.A.
replying to the submissions made by
learned counsel for the applicants has
submitted that after the submission of
charge sheet under Section 498A, I.P.C. and
3/4 D.P. Act by the first Investigating
Officer, the D.I.G. Allahabad on the
complaint received by opposite party no.2
was of the view that the Investigating
Officer, who had submitted charge sheet
only under Section 498A, I.P.C. and 3/4,
D.P.
Act
had
not
conducted
the
investigation in a fair manner hence he
entrusted the investigation to another
Investigating Officer and directed him to
conduct the investigation under Section 173
(8), Cr.P.C. He further submitted that the
D.I.G. did not order for reinvestigation of
the case which is evident from the order
dated
29.8.2011
passed
by
D.I.G.,
Allahabad in pursuance of which, the
second Investigating Officer carried out
further investigation in the case. After
collecting the medical examination report of
the injured/opposite party no.2, Smt.
Vandana incorporated the same in the
supplementary case diary, submitted a
supplementary charge sheet on 13.12.2011
against the applicants for offences under
Section 307, 326 and 504, I.P.C. and filed
the same before the court of Magistrate.
Learned A.G.A. has further relied on the
judgment of the Apex Court in the case of
Rama Choudhry (Supra) which was also
relied upon by the learned counsel for the
applicants and has argued that in the said
case, the Apex Court has held that the law
does not mandate taking appropriate
permission from the Magistrate for further
investigation under Section 173 (8), Cr.P.C.
and it is well settled that carrying out further
investigation even after filing of the chargesheet is a distinct statutory right of the
police. He relied upon paragraphs 9 and 13
of the said judgment in support of his
arguments. He further submitted that further
investigation was not altogether ruled out
merely because cognizance has been taken
by the Court. The court has to arrive at the
truth, to do real and substantial as well as
effective
justice.
In
support
of
his
contention, learned A.G.A. has also relied
upon the judgment of the Apex Court
reported in (2004) 5 SCC 347 Hasanbhai
Valibhai Qureshi Vs. State of Gujrat and
others and also 2002 (1) SCC 714 Kari
Choudhary Vs. Sita Devi in which the
2 All] Pawan Kumar Kushwaha & others V. State of U.P. and another
883
Apex Court clearly laid down the law on
Section 173 (8) Cr.P.C.

6. Having considered the submissions
advanced by the learned counsel for the
parties, it appears from the record that the
first
Investigating
Officer
who
had
submitted the charge-sheet for the offence
under Section 498-A, I.P.C. and Section
3/4, D.P. Act did not conduct the fair
investigation though the case was also
registered under Sections 307, 326, 504,
I.P.C. along with the aforesaid offences and
had stated that no offence under Sections
307, 326, 504, I.PC. was disclosed against
the applicants. From the perusal of the
F.I.R. as well as the statement of the victim
recorded under Section 161 Cr.P.C. and her
parents and other witnesses, it is apparent
that there is an allegation that the victim
Smt. Vandana Kushwaha was burnt by
pouring kerosene oil by the applicants
including her husband and she received
sufficient burn injuries on her body for
which she was admitted into Narayan
Swaroop hospital by her father and she
remained in the hospital from 26.4.2010 to
11.5.2010 and the doctor made a diagnosis
of Thermal burn injuries 33% on her body
for which she was given medical treatment
in the said hospital as is evident from the
prescription and the medical documents
filed as C.A.-1 along with short counter
affidavit by opposite party no.2 before this
Court. The fact about the medical treatment
in the said hospital was also found endorsed
in the supplementary charge-sheet, being
charge-sheet
No.
58A
of
2011
on
13.12.2011 under Sections 307, 326, 504,
I.P.C. It is apparent from the record that the
other Investigating Officer carried out
further investigation in view of the
provisions contained under Section 173 (8)
Cr.P.C. and submitted a supplementary
charge-sheet against the applicants in
accordance with law. The submission made
by learned counsel for the applicants that
the police had no power to re-investigate the
matter in view of the provisions contained
under Section 173 (8), Cr.P.C. when
cognizance has earlier been taken by the
learned Magistrate on the first charge-sheet
under Section 173 (8) Cr.P.C. on 6.7.2011
which submitted for the offence under
Section 498A, I.P.C. and Sections 3/4, D.P.
Act only is wholly unfounded and the case
laws which have been relied upon by
learned counsel for the applicants, i.e.,
Rama Chaudhary (Supra) and Rama
Chandran (Supra) lay down that even after
completion of investigation under Section
173 (8), Cr.P.C., the police has a statutory
right to further investigate the matter under
Section 173 (8), Cr.P.C. The investigation
which was carried out by the second
Investigating Officer, who submitted a
supplementary charge-sheet under Sections
307, 326, 504 I.P.C. against the applicants,
was in accordance with the provisions
contained under Section 173 (8) Cr.P.C.
which was in pursuance of the order of
D.I.G. who did not order to re-investigate
rather only to further investigate the matter
under Section 173 (8), Cr.P.C. The very
order of the DIG to investigate under
Section 173 (8) Cr.P.C. is itself a point to
the fact that further investigation had only
been ordered as that particular provision
concerns the police-powers to that effect.
As such, the submission that the IInd I.O.
re-investigated the case appears quite
hollow and merit less. Hence the case laws
cited by the learned counsel for the
applicants do not support his contention,
rather it supports the argument of the
learned A.G.A. Thus the argument of
learned counsel for the applicants to this
respect is not sustainable in the eyes of law.
884 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

7. Learned A.G.A. has produced the
copy of the order dated 29th August, 2011
passed by the D.I.G., Allahabad by which
he has ordered for investigation in
pursuance of the provisions contained under
Section 173 (8), Cr.P.C. before this Court
along with the case diary and after perusal
of the same it transpires that the contention
of the learned counsel for the applicants that
reinvestigation was ordered by the D.I.G. in
view of the provisions contained under
Section 173 (8), Cr.P.C. has no force.

8. From a perusal of the order-sheet of
the case, it appears that the learned
magistrate has taken cognizance of the
offence again on the basis of supplementary
charge-sheet vide order dated 7.1.2012
which is not sustainable in the eye of law,
hence the order of the magistrate only in
that respect by which he has taken again
cognizance is struck down. However, if the
Magistrate was passing an order on the
basis of the supplementary charge-sheet
after due application of his mind to the facts
collected during further investigation and
was asking the accused to appear in respect
of other offences also, it could be treated as
another order of summoning and that the
magistrate in my considered view, being the
court of original jurisdiction in that behalf,
is not precluded to do.

9. Learned Magistrate is directed to
proceed with the case taking into account all
the materials available on record including
those which were collected during further
investigation under Section 173 (8), Cr.P.C.
and examine the offences disclosed against
the applicants at the time of framing
charges.

10. No ground for quashing the entire
proceedings is made out, the same is hereby
refused.

11. Applicants are directed to appear
before the court below within two weeks
from today as ordered by the court below
vide order dated 26.5.2012.

12. With the above observations, the
application stands disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.05.2012

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No. 21952 of 2012

Abdul Hai and Others
 ...Petitioners
Versus
Union of India & another ...Respondents

Counsel for the Petitioner:
Sri Gopal Krishna Pandey

Counsel for the Respondents:
Abu Sufiyan Azmi
A.S.G.I.

Constitution
of
India,
Article
226Passport-Delay
in
issuancerepresentation-remained
unhearddirection to decide within 15 days if no
legal impediment-aggrieved party may
approach before Permanent Lok Adalatseeking
compensation
for
delay
in
issuance of Passport.

(Delivered by Hon'ble Amitava Lala, J.)

Amitava
Lala,
J.--
When
the
representation dated 28.11.2011 has been
filed for non issuance of pass port annexing
a judicial order, we fail to understand as to
why so much delay is being caused.
Therefore, in disposing the writ petition, at
the stage of admission, we direct he