# Pooja Sharma @ Pinkey Giri v. State of U.P

- **Citation:** (2023) 4 ILRA 825
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-12
- **Case number:** Application U/S 482. No. 41406 of 2022
- **Bench:** Mrs. Sadhna Rani (Thakur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pooja-sharma-pinkey-giri-v-state-of-u-p-50024
- **Pages:** 6

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections
376D
&
506
-
Power
of
Magistrate to direct further investigation
is a significant power which has to be
826 INDIAN LAW REPORTS ALLAHABAD SERIES
exercised sparingly, in exceptional cases
and to achieve the ends of justice -
Magistrate if not satisfied with chargesheet may direct further investigation but
before taking cognizance - After taking
cognizance the Magistrate will have no
power
to
suomoto
direct
further
investigation, it can be directed if the
investigating agency seeks such direction.
(Para - 15)

(B) Criminal Law - Code of Criminal
Procedure, 1973
- Section 173(8)
-
Magistrate can exercise power of further
investigation on the application of the
investigating
officer
even
if
the
cognizance has been taken by the court -
Magistrate cannot suo moto exercise its
power to order further investigation.(Para
- 16)

Application moved by applicant under Section
156 (3) Cr.P.C. - FIR registered - statements of
victim under Sections 161 and 164 Cr.P.C. -
charge sheet - cognizance - applicant moved an
application under Section 173 (8) Cr.P.C. - for
further investigation by police - application of
applicant was rejected - ground - on charge
sheet
cognizance
has
been
taken
-
complainant/alleged victim moved application
for further investigation alleging the facts.(Para
-1 to 12 )

HELD:-Magistrate has no power to order for
further investigation suo motu after taking
cognizance on charge sheet. Order for further
investigation in exceptional circumstances and
that too on the prayer of the Investigating
Officer. Magistrate can always take recourse to
the provision of section 319 cr.p.c. if any
material is disclosed during examination of the
witnesses during trial.(Para - 17,18,19)

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

List of Cases cited:

## Text

4 All. Pooja Sharma @ Pinkey Giri Vs. State of U.P.
825
High Court under Section 482 of the
Cr.P.C., if it chooses to quash the initiation
of the prosecution against an accused, at
the stage of issuing process, or at the stage
of committal, or even at the stage of
framing of charges. These are all stages
before the commencement of the actual
trial. The same parameters would naturally
be available for later stages as well. The
power vested in the High Court under
Section 482 of the Cr.P.C., at the stages
referred to hereinabove, would have far
reaching consequences, inasmuch as, it
would
negate
the
prosecution's/complainant's case without
allowing the prosecution/complainant to
lead evidence. Such a determination must
always be rendered with caution, care and
circumspection. To invoke its inherent
jurisdiction under Section -

482 of the Cr.P.C. the High Court
has to be fully satisfied, that the material
produced by the accused is such, that
would lead to the conclusion, that his/their
defence is based on sound, reasonable, and
indubitable facts; the material produced is
such, as would rule out and displace the
assertions contained in the charges levelled
against the accused; and the material
produced is such, as would clearly reject
and overrule the veracity of the allegations
contained in the accusations levelled by the
prosecution/complainant.
It
should
be
sufficient to rule out, reject and discard the
accusations
levelled
by
the
prosecution/complainant,
without
the
necessity of recording any evidence. For
this the material relied upon by the defence
should
not
have
been
refuted,
or
alternatively, cannot be justifiably refuted,
being material of sterling and impeccable
quality. The material relied upon by the
accused should be such, as would persuade
a reasonable person to dismiss and
condemn
the
actual
basis
of
the
accusations as false. In such a situation,
the judicial conscience of the High Court
would persuade it to exercise its power
under Section 482 of the Cr.P.C. to quash
such criminal proceedings, for that would
prevent abuse of process of the court, and
secure the ends of justice."

16. In view of the aforesaid facts, the
prayer for quashing or setting aside the
entire proceeding as well as impugned
order dated 26.08.2022 passed by learned
Chief Judicial Magistrate, Baghpat, is
refused as I do not see any illegality,
impropriety and incorrectness in the
impugned order or the proceedings un der
challenge, hence, the application u/s 482
Cr.P.C. is dismissed.
----------
(2023) 4 ILRA 825
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.04.2023

BEFORE

THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

Application U/S 482. No. 41406 of 2022

Pooja Sharma @ Pinkey Giri ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Rajnish Dubey

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections
376D
&
506
-
Power
of
Magistrate to direct further investigation
is a significant power which has to be
826 INDIAN LAW REPORTS ALLAHABAD SERIES
exercised sparingly, in exceptional cases
and to achieve the ends of justice -
Magistrate if not satisfied with chargesheet may direct further investigation but
before taking cognizance - After taking
cognizance the Magistrate will have no
power
to
suomoto
direct
further
investigation, it can be directed if the
investigating agency seeks such direction.
(Para - 15)

(B) Criminal Law - Code of Criminal
Procedure, 1973
- Section 173(8)
-
Magistrate can exercise power of further
investigation on the application of the
investigating
officer
even
if
the
cognizance has been taken by the court -
Magistrate cannot suo moto exercise its
power to order further investigation.(Para
- 16)

Application moved by applicant under Section
156 (3) Cr.P.C. - FIR registered - statements of
victim under Sections 161 and 164 Cr.P.C. -
charge sheet - cognizance - applicant moved an
application under Section 173 (8) Cr.P.C. - for
further investigation by police - application of
applicant was rejected - ground - on charge
sheet
cognizance
has
been
taken
-
complainant/alleged victim moved application
for further investigation alleging the facts.(Para
-1 to 12 )

HELD:-Magistrate has no power to order for
further investigation suo motu after taking
cognizance on charge sheet. Order for further
investigation in exceptional circumstances and
that too on the prayer of the Investigating
Officer. Magistrate can always take recourse to
the provision of section 319 cr.p.c. if any
material is disclosed during examination of the
witnesses during trial.(Para - 17,18,19)

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

List of Cases cited:

1.
Luckose
Zachariah
@
Zak
Appellants
Nedumchira Luke & ors. Vs Joseph Joseph &
ors., 2022 LiveLaw (SC) 230

2. Vinay Tyagi Vs Irshad Ali @ Deepak & ors.,
2013 0 AIR (SCW) 220
3. Bikash Ranjan Rout Vs St. through the Secy.
(Home), Govt. of NCT of Delhi in Criminal
Appeal No. 687 of 2019, SLP (Criminal) No. 297
of 2015

(Delivered by Hon'ble Mrs. Sadhna Rani
(Thakur), J.)

1. Heard learned counsel for the
applicant, learned A.G.A. and perused the
record.

2. By moving this application prayer
is made to quash the order dated
30.09.2022
passed
by
the
Judicial
Magistrate, Mathura arising out of Case
Crime No. 1538 of 2018, under Sections
376D, 506 IPC Police Station Highway,
District Mathura in Case No. 6936 of 2020
(State Vs. Satendra Bhati and others and to
allow the application dated 19.07.2022
filed by the applicant before the trial court
for further investigation in the case filed
under Section 173 Cr.P.C.

3. Vide order dated 30.09.2022 the
Judicial Magistrate, Mathura rejected the
application of the applicant filed under
Section 173 (8) Cr.P.C.

4. As per the facts of the case, an
application was moved by the applicant
under
Section
156
(3)
Cr.P.C.
on
16.08.2018 whereby an FIR, Case Crime
No. 1538 of 2018 regarding incident dated
30.07.2018
was
registered
against
Satyendra Bhati, Gaurav and one unknown
person under Sections 506 and 376D IPC.

5. It was the allegation of the
applicant that she was from a very poor
family. On the basis of a telephonic call of
Satyendra Bhati that he would arrange a job
for her, on 30.07.2018 at 2.00 p.m. the
applicant, who was a 23 years old married
lady, came at Mandi Chauraha, Saukh
4 All. Pooja Sharma @ Pinkey Giri Vs. State of U.P.
827
Road, from where Satyendra took her to an
electronic shop at Saunkh Road, Mathura
by his motorcycle. In the shop computers
were fixed, two persons were already
present there. Satyendra disclosed himself
to be a financer. One person went out of the
shop and when she was busy in talking
with Satyendra, the person who went out,
closed the shutter of the shop and
Satyendra on the point of pistol and other
person Gaurav holding her hair gave her
threat of life, laid her down on the floor and
committed rape on her one by one. After
giving threat of life she was directed to
leave the place. She was also followed by
the accused persons. When she went to
lodge her FIR, neither her First Information
Report was lodged nor she was medically
examined. On 09.08.2018 she sent the
applications to the SSP, Mathura, Chief
Minister, U.P. and I.G. Agra by registered
post but nothing could be done. The
enquiry from Satyendra regarding that
unknown person is must and pistol is also
to be recovered.

6. On this application under Section
156 (3) Cr.P.C. of the applicant FIR was
registered
and
after
recording
the
statements of the victim under Sections 161
and 164 Cr.P.C. on 09.10.2018 and
27.10.2018 respectively and after due
investigation charge sheet was submitted
against accused Satyendra and Gaurav
under Sections 376D and 506 IPC on
05.04.2019, and the cognizance was taken
by the court on 01.05.2019.

7. On 19.07.2022 the applicant moved
an application under Section 173 (8)
Cr.P.C. before the trial court with the
version that prior to 30.07.2018 she met a
person in Aligarh, who lured her of
providing
job
and
because
of
this
enticement on 30.07.2018 at 2.00 p.m. she
reached at the fixed place Mandi Chauraha,
Mathura and met a person, who was tall
and dark and about 50 years old. He took
her in a shop. He and his companion
misbehaved her there. The other person
was also about 45 years of age, dark
complexioned having dark spots on his face
with a cut mark on his forehead. She was
asked to come again after eight days. When
on 09.08.2018 she reached there again, she
could not locate the shop and that time she
met two persons whom she disclosed her
plight. They disclosed her the names of
Satyendra Bhati and Gaurav as the persons
who committed wrong with her and assured
her of every help. On the basis of
information provided by them only, she
sent her complaint to the SSP and other
officers
and
these
persons
started
proceedings on her behest on 16.08.2018 in
the court. These persons suggested her the
age of Satyendra Bhati to be 32 years and
age of Gaurav as 23 years. Though initially
she resisted the same but due to sympathy
of those persons she could not resist much
and at the time of statement also, they
compelled her to give statement as per their
version. After that, they eloped and the
applicant could not met them again. Now
through police she came to know that
Satyendra Bhati is not of 50 years of age or
tall or dark complexioned person nor
Gaurav is 45 years old dark, complexioned
person, nor they have any shop of their
own. Satyendra Bhati and Gaurav are
innocent. She gave the affidavit to the SSP
Mathura on 05.01.2019 mentioning the
correct facts but even then the charge sheet
has been filed against Satyendra Bhati and
Gaurav after wrong investigation. Hence,
prayer was made for further investigation
by the police concerned.

8. This application of the applicant
was rejected vide order dated 30.09.2022
828 INDIAN LAW REPORTS ALLAHABAD SERIES
by the Judicial Magistrate, Mathura on the
ground that on the charge sheet against
Satyendra Bhati and Gaurav cognizance
has been taken on 01.05.2019 and the case
is fixed for the appearance of the accused
persons. The charge sheet has been filed on
the basis of evidence collected by the
investigating officer. Hence, the court did
not find any ground for allowing the
application of the applicant and finally
rejected the same.

9. If we go through the concerned
law, it is Section 173 (8) Cr.P.C. which
may be extracted as below:-

Section 173(8) Cr.P.C.

"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)."

10. Thus, from perusal of this section
it is clear that the Magistrate has a right to
order for further investigation.

The
same
view
has
been
expressed by the Apex Court in Luckose
Zachariah @ Zak Appellants Nedumchira
Luke and Others Versus Joseph Joseph
and Others, 2022 LiveLaw (SC) 230,
wherein the Apex Court opined that "it
would also be in the interest of justice that
this power (power of further investigation)
be exercised suo motu by the Magistrate
himself, depending on the facts of each
case. Whether further investigation should
or should not be ordered is within the
discretion of the learned Magistrate who
will exercise such discretion on the facts of
each case and in accordance with law."

11. In para-31 of the judgement Vinay
Tyagi Vs. Irshad Ali @ Deepak & others,
2013 0 AIR (SCW) 220 the Apex Court
observed as under:-

"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
4 All. Pooja Sharma @ Pinkey Giri Vs. State of U.P.
829
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."

12. Thus, the power of 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.

13. In the present case, learned
counsel for the applicant made his
argument by putting the fact before the
court as if the applicant is an accused in the
case but from the perusal of the record, it is
clear that it was the complainant/alleged
victim
only,
who
had
moved
this
application
for
further
investigation
alleging the facts.

14. Learned counsel for the applicant
placed before the court the judgement in
Bikash Ranjan Rout Vs. State through the
Secretary (Home), Government of NCT of
Delhi in Criminal Appeal No. 687 of 2019,
SLP (Criminal) No. 297 of 2015 decided
on 16th April, 2019, wherein it has been
clearly laid down by the Apex Court that if
the cognizance has been taken by the
Magistrate he will have no power to direct
further investigation suo motu. He can
direct the further investigation only if the
investigating agency seeks such directions.
Thus,
both
the
arguments
and
the
judgement placed by the learned counsel
for the applicant before the court are
against his case, wherein not the accused
but the complainant himself had moved for
further investigation. Again the applicant in
the present case is not an accused as argued
by the learned counsel for the applicant
rather she is the complainant in the case,
who had moved the application before the
Magistrate concerned mentioning the facts
that on the telephonic call of a person she
came at Mathura at the indicated place
where she met with a person of 50 years of
age, who was tall and dark. He took in a
shop where he and his companion, who
was about 45 years of age having black
spots on the face and cut mark on the
forehead
and
dark
complexioned
misbehaved with her and she was called
after eight days. Again when she reached
she could not locate the place and she met
two other persons, who disclosed the names
of the persons, who misbehaved her, as
Satyendra Bhati and Gaurav. On the basis
of their suggestion, she named Satyendra
Bhati and Gaurav in the First Information
Report, later on she came to know that on
the basis of appearance and age, suggested
by two unknown persons, the named
persons in the FIR were different persons
and she prayed for further investigation as
he did not want to implicate innocent
persons. The Magistrate finding the facts
and circumstances not acceptable, opined
that after taking cognizance it would not be
proper for the Magistrate to order for
further investigation.

15. Whether this power of further
investigation could be exercised by the
Magistrate after taking the cognizance of
the offence also? judgments Vinay Tyagi
Vs. Irshad Ali @ Deepak & others (supra)
and Luckose Zachariah @ Zak Appellants
830 INDIAN LAW REPORTS ALLAHABAD SERIES
Nedumchira Luke and Others Versus
Joseph Joseph and Others (supra) are
silent about this point. However, in
judgment Bikash Ranjan Rout Versus
State through the Secretary (Home),
Government of NCT of Delhi (supra), the
Apex
Court
specifically
held
that
Magistrate if not satisfied with charge-sheet
may direct further investigation but before
taking cognizance. After taking cognizance
the Magistrate will have no power to
suomoto direct further investigation, it can
be directed if the investigating agency
seeks such direction.

16. Section 173(8) Cr.P.C. also
speaks of the same that nothing in this
section "shall be deemed to preclude
further investigation in respect of an
offence after a report sub-section (2) has
been forwarded to the Magistrate and,
where upon such investigation, the officer
in charge of police station obtains further
evidence, oral or documentary, he shall
further forward to the Magistrate a further
report." Thus, it is clear that the Magistrate
can
exercise
this
power
of
further
investigation on the application of the
investigating officer even if the cognizance
has been taken by the court. The Magistrate
cannot suo moto exercise its power to order
further investigation.

17. In the opinion of the court, in the
case in hand the view taken by the Magistrate
cannot be interfered with, because as per
Section 173 (8) Cr.P.C. and the rule laid
down in Bikash Ranjan Rout (supra) the
Magistrate has no power to order for further
investigation
suo
motu
after
taking
cognizance on charge sheet. He could order
for further investigation in exceptional
circumstances and that too on the prayer of
the Investigating Officer which is not the
position in the present case.

18. However, it will always be
available to the Magistrate to take recourse
to the provision of Section 319 Cr.P.C. if
any
material
is
disclosed
during
examination of the witnesses during trial.

19. Hence, in the opinion of the court,
there is no ground to interfere with the
order passed by the Magistrate concerned.
The application having no merits is liable
to b

20. The application under Section 482
Cr.P.C. is hereby dismissed.
----------
(2023) 4 ILRA 830
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application U/S 482. No. 43085 of 2022

Nanhe & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ram Shiromani Yadav

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections -364, 302, 201, Power conferred
under Section 311 Cr.P.C. - should be
invoked by the court only to meet the
ends of justice - power is to be exercised
only for strong and valid reasons and it
should be exercised with great caution
and circumspection - power under this
provision shall not be exercised if the
court is of the view that the application