# Rajesh Malik & Anr v. State of U.P. & Anr

- **Citation:** (2019) 3 ILRA 124
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-02
- **Case number:** Criminal Misc. Application No. 29058 of 2019
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-malik-anr-v-state-of-u-p-anr-44651
- **Pages:** 13

## Headnote

A. Criminal Law- Criminal Procedure Code,
1973 - Sections 173(2), 173 (8), 190(1)(b) -
Final Report submitted by the prosecution,
after conducting investigation u/s 173 (8) of
the Code of Criminal Procedure, 1973, can
only be considered by the court along with
the Police Report / Chargesheet filed u/s
173 (2) of the Cr.Pc, at the stage of framing
of Charge.

The investigating agency is empowered to
conduct further investigation in any criminal
case, according to the need thereof and the
only rider applicable upon such authority of
investigating agency is that the concerned
court should be apprised with the requirement
of further investigation.

There
is
sufficient
hiatus
between
the
submission of charge sheet u/s 173(2) Cr.P.C.
and the subsequent filing of the report
regarding further investigation u/s 173(8)
Cr.P.C. The court while deciding upon the
point of framing of the charge shall naturally
look into the material furnished by prosecution
and made available before it which includes
the report regarding further investigation u/s
173(8) Cr.P.C. also.

The adjudication on the disputed factual
aspects and issues involved in the matter falls
within the domain of concerned court below,
which may properly evaluate the materials
available in case diary as well as the outcome
of both the reports submitted u/s 173(2) and
173(8) of Cr.P.C. at the stage of framing of
the charge.

Even in the cases where a final report is
submitted in favour of accused at the very
outset or the cases where the police may
submit a charge sheet and again submit a
final
report
on
the
basis
of
further
investigation made by it, in all such cases if
the Magistrate at the stage of taking
cognizance itself forms the opinion on the
collective consideration of both the reports
that the material available constitutes an
offence, he can very well take cognizance of
the
offence
u/s
190(1)(b)
Cr.P.C.,
notwithstanding the contrary opinion of the
police expressed in the final report. (Para
11,13,15)

Criminal Application rejected. (E-3)

List of Cases cited: -

## Text

_Characters 0–39,959 of 44,863. This is a partial read: ask again with offset=39959 for what follows._

124 INDIAN LAW REPORTS ALLAHABAD SERIES
suicide note with such profusely elaborate
details. The entire emotional catharsis has
been vented out in the last words which
were penned out by the deceased and
which are in the nature of a tell-tale story.
How he got trapped in the situation and
how
the
accused
were
constantly
subjecting
him
to
a
blackmailing
emotional torture, the narration of the
suicide notes furnishes all such material
and this Court finds that the accused must
face trial and be called upon to answer the
charge. Submission of charge sheet in a
matter like this cannot be said to be
unjustified therefore. This certainly does
not appear to be a case in which the venue
of judicial probe should be shutdown and
foreclosed or where this Court should feel
inclined to scuttle the prosecution of the
accused at the very threshold even before
it sets on. Whether such kind of highly
immoral
and
culpably
incriminating
conduct of the accused was in ordinary
circumstances sufficient to drive a man of
normal sensitivities and self respect to
commit suicide and thereby amount to
instigation and abetment or not, may be
adequately adjudicated upon only through
a proper trial and finding in that regard
must be returned by the trial court which
possesses
primary
jurisdiction
to
pronounce judicially on these aspects of
the case.

11. The submissions made by the
applicants' learned counsel call for
adjudication on pure questions of fact
which may be adequately adjudicated
upon only by the trial court and while
doing so even the submissions made on
points of law can also be more
appropriately gone into by the trial court
in this case. This Court does not deem it
proper, and therefore cannot be persuaded
to have a pre-trial before the actual trial
begins. A more elaborate discussion of
various facts and circumstances, as they
emerge from the allegations made against
the accused, is being purposely avoided
by the Court for the reason, lest the same
might cause any prejudice to either side
during trial. But it shall suffice to observe
that the perusal of the F.I.R. and the
material collected by the Investigating
Officer and specially the suicide note of
the deceased on the basis of which the
charge sheet has been submitted makes
out a prima facie case against the accused
at this stage and there appear to be
sufficient ground for proceeding against
the accused. I do not find any justification
to quash the charge sheet or the
proceedings against the applicants arising
out of them as the case does not fall in
any of the categories recognized by the
Apex Court which may justify their
quashing.

12. The prayer for quashing the
same is refused as I do not see any abuse
of the court's process either.

13. The application therefore stands
dismissed.
----------
(2019)11ILR A124

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2019

BEFORE
THE HON'BLEKARUNA NAND BAJPAYEE, J.

Criminal Misc. Application No. 29058 of 2019
u/s 482 Cr.P.C.

Rajesh Malik & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel
for
the
Applicants:
3 All. Rajesh Malik & Anr. Vs. State of U.P. & Anr.
125
Sri Pankaj Kumar Gupta, Sri Anoop
Trivedi

Counsel for the Opposite Parties:
A.G.A., Sri Ajatshatru Pandey, Sri G.S.
Chaturvedi.

A. Criminal Law- Criminal Procedure Code,
1973 - Sections 173(2), 173 (8), 190(1)(b) -
Final Report submitted by the prosecution,
after conducting investigation u/s 173 (8) of
the Code of Criminal Procedure, 1973, can
only be considered by the court along with
the Police Report / Chargesheet filed u/s
173 (2) of the Cr.Pc, at the stage of framing
of Charge.

The investigating agency is empowered to
conduct further investigation in any criminal
case, according to the need thereof and the
only rider applicable upon such authority of
investigating agency is that the concerned
court should be apprised with the requirement
of further investigation.

There
is
sufficient
hiatus
between
the
submission of charge sheet u/s 173(2) Cr.P.C.
and the subsequent filing of the report
regarding further investigation u/s 173(8)
Cr.P.C. The court while deciding upon the
point of framing of the charge shall naturally
look into the material furnished by prosecution
and made available before it which includes
the report regarding further investigation u/s
173(8) Cr.P.C. also.

The adjudication on the disputed factual
aspects and issues involved in the matter falls
within the domain of concerned court below,
which may properly evaluate the materials
available in case diary as well as the outcome
of both the reports submitted u/s 173(2) and
173(8) of Cr.P.C. at the stage of framing of
the charge.

Even in the cases where a final report is
submitted in favour of accused at the very
outset or the cases where the police may
submit a charge sheet and again submit a
final
report
on
the
basis
of
further
investigation made by it, in all such cases if
the Magistrate at the stage of taking
cognizance itself forms the opinion on the
collective consideration of both the reports
that the material available constitutes an
offence, he can very well take cognizance of
the
offence
u/s
190(1)(b)
Cr.P.C.,
notwithstanding the contrary opinion of the
police expressed in the final report. (Para
11,13,15)

Criminal Application rejected. (E-3)

List of Cases cited: -

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

2. Dharmatma Singh Vs. Harminder Singh &
Ors., 2011 (6) SCC 102
(Delivered by Hon'ble Karuna Nand
Bajpayee, J. )

1. Supplementary affidavit filed on
behalf of applicants as well as power filed
today
by
Shri
Ajatshatru
Pandey,
Advocate on behalf of opposite party no.2
are taken on record.

2. The applicants Rajesh Malik and
Randeep Waraich have invoked inherent
jurisdiction of this Court u/s 482 of
Cr.P.C. for quashing of impugned charge
sheet dated 03.9.2018, cognizance order
dated 08.10.2018 passed by the Chief
Judicial Magistrate, Gautam Budh Nagar
as well as entire proceedings in Criminal
Case No.2009 of 2019 (State vs. Rajesh
Malik and others) arising out of Case
Crime No.1201 of 2018, u/s 406, 420,
467, 468, 471 and 34 I.P.C., Police
Station-Sector 20 Noida, District-Gautam
Budh Nagar.

3. In nutshell the controversy
involved in the present matter is that
opposite party no.2 Amit Gupta along
with Sanjay Rastogi, Paramjit Gandhi and
PTC Mouldings Pvt. Ltd. lodged an F.I.R.
126 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 22.7.2018 against Rajesh Malik,
Randeep Waraich and M/s Cornoustie
Management (India) Pvt. Ltd. with the
allegations of cheating forgery and fraud
and conspiracy by stating that the accused
persons have cheated them for an amount
of almost Rs.5,36,89,000/- (Five crore
thirty six lakh eighty nine thousand only)
by dishonestly enticing and selling them
(complainants)
non-existent
plots
in
Noida. It has been alleged in the F.I.R.
that in the year 2011-12, Rajesh Malik
and
Randeep
Waraich
represented
themselves to be the Director of M/s
Cornoustie Management (India) Pvt. Ltd.
It was made to appear by these persons
that Cornoustie was the sole legal heir of
several plots/land in Sectors-96, 97 and
98 in Noida which were being developed
by a company known as Unitech Group
as a part of its large project known as
Unitech Grande. These persons further
made to appear that they received these
plots from Unitech for valid consideration
and were therefore in position to further
sell those plots to third parties. It was
further
made
to
appear
to
the
complainants that Unitech Hi Tech
Developers Ltd. had allotted several plots
to Carnoustie including plot Nos.D3, D4,
D5, D6 and D7 in Sectors 96, 97 and 98
in Noida, in respect of which the site
plans were shown to the complainants by
pointing out the location of the plots, on
the basis of which the complainants found
these plots to be contiguous and well
situated. It has also been alleged in the
F.I.R. that in order to deceive the
complainants, the accused Rajesh Malik
and Randeep Waraich made continuous
representations to make the complainants
believe that they were the sole owners of
these plots and would enter into formal
documentation to transfer ownership to
the successful purchasers. Upon such
fraudulent and dishonest representation of
facts, the complainants made payments of
huge amounts on different dates by way
of cheque/RTGS, total of which comes to
the tune of Rs.9,14,78,000/-. The F.I.R.
further discloses the amount, date and
mode of total 13 different payments made
in the year 2012 and 2013 through bank
transactions. It is further alleged in the
F.I.R. that Sanjay Rastogi purchased two
plots being D6 and D7 and the seller
signed one agreement for plot No.D7 but
dillydallied signing of another agreement
for plot No.D6. It has been further alleged
in
the F.I.R. that M/s Cornoustie
Management (India) Pvt. Ltd. with a
dishonest intention to perpetuate fraud
and cause loss to the complainant,
executed as many as seven documents in
the form of agreement to sale, irrevocable
letter of authority, indemnity/undertaking,
allotment letter etc. in favour of Amit
Gupta and Sanjay Rastogi. It has been
further submitted that the complainants
have now learnt that the representations
and claims of these persons were not only
false but were false to the knowledge of
Rajesh Malik and Randeep Waraich at the
time of making these representations and
claims and hence, the object of cheating is
clear. It is further alleged in the F.I.R. that
these
persons
began
to
delay
the
identification of plots and completing the
documentation in favour of complainants
on one pretext or other and ultimately
refused to complete the allocation process
and to give possession of these plots to
the representative complainants. It is
further alleged that accused persons
began stating that they were having talks
with Unitech for early release of plots,
despite representing themselves as sole
owner at the initial stage of negotiations
in the year 2011-12. It is further alleged
that the complainants apprehended that
3 All. Rajesh Malik & Anr. Vs. State of U.P. & Anr.
127
there was some collusion with the
accused
persons
and
the
Unitech
Company
and
as
such,
when
the
complainants started asking for refund of
their hard earned money along with
interest together with compensation, from
the accused persons, they started avoiding
their calls, and in the year 2017 Rajesh
Malik refused to return money and
threatened the complainants that he would
in turn embroil them and their families
into false cases and legal prosecutions.
The present F.I.R. dated 22.7.2018
containing the aforesaid allegations was
registered as Case Crime no.1201 of 2018
u/s 406, 409, 417, 419, 420, 467, 468,
471, 474, 34 and 120-B I.P.C. at Police
Station-Noida,
Sector-20,
DistrictGautam Budh Nagar.

4. The record reveals that the local
police conducted investigation of crime in
question and after recording statements
u/s 161 Cr.P.C. of various persons,
supposed to be acquainted with the facts
of
the
case,
and
after
collecting
documents/material etc, submitted the
charge sheet dated 3.9.2018 against both
the applicants Rajesh Malik, Randeep
Waraich
as
well
as
against
M/s
Cornoustie Management (India) Pvt. Ltd.,
upon which the concerned court below
took cognizance of the offence vide order
dated 08.10.2018 and the criminal case
was registered in the court below as
Criminal Case No.2009 of 2019 (State vs.
Rajesh Malik). There is nothing on record
to show as to when summons were issued
against the applicants and another coaccused but record reveals that the report
dated 25.3.2019 was submitted by the
Additional Superintendent of Police,
Crime,
Bulandshahr
before
S.S.P.,
Bulandshahr stating various reasons to
conduct further investigation in the matter
u/s 173 (8) of Code of Criminal
Procedure. The record further reveals that
on
25.6.2019,
the
complainant
approached the concerned court below i.e.
A.C.J.M.-III,
Gautam
Budh
Nagar
seeking issuance of non bailable warrants
against the accused persons, upon which
the concerned court below observed in the
order-sheet dated 25.6.2019 that the
accused
Rajesh
Malik
had
moved
application before the court below to
provide charge sheet and case diary for
the purposes of further investigation,
whereupon
appropriate
order
dated
04.5.2019 was passed. The Court below
also
observed
in
the
order
dated
25.6.2019 that the bailable warrants of
Rs.20,000/-
were
continuing
against
accused Rajesh Malik and Randeep
Waraich and though service report thereof
has not been returned but because of the
fact that application of the accused Rajesh
Malik has already been heard, it is
presumed that accused Rajesh Malik had
complete knowledge of the proceedings
of criminal case, despite which he has not
appeared before the court. With such
observations, the court of A.C.J.M.-III,
Gautam Budh Nagar issued non bailable
warrants against accused Rajesh Malik
and
issued
bailable
warrants
of
Rs.20,000/- against accused Randeep
Waraich and fixed next date 18.7.2019.
The record further reveals that on
5.7.2019 a supplementary report u/s
173(8) of Cr.P.C. was submitted by the
Station House officer under instructions
of higher authorities which was taken on
record and the next date was fixed as
18.7.2019. It is also born out from perusal
of record that the opposite party no.2
preferred Criminal Misc. writ Petition
No.13732 of 2019 before the Division
Bench of this Court against the order of
further investigation in the crime in
128 INDIAN LAW REPORTS ALLAHABAD SERIES
question, which was dismissed vide order
dated 17.7.2019. With such factual
backdrop this criminal application has
come
up
before
this
Court
for
adjudication upon the reliefs pressed by
the applicants.

5. Heard Shri Anoop Trivedi,
learned Senior Advocate appearing for
applicants, Shri G.S. Chaturvedi, learned
Senior Advocate appearing for opposite
party
no.2
and
learned
Additional
Government Advocate for the State.

6. Main submission raised by
applicants' counsel is that though in the
initial investigation the charge-sheet was
submitted against the applicants but on
further investigation the inference drawn
by the Investigating Officer was in favour
of applicants that no offence against the
applicants is made out. This report
regarding further investigation has not
been considered or taken into account so
far by the Magistrate. According to
counsel for the applicants, the material
collected through further investigation
and its resultant report are relevant
documents to decide whether cognizance
in the matter should have been taken or
not, and therefore, the court should have
once again reconsidered its decision
whereby it had taken cognizance of the
matter and should have dropped the
proceedings in view of favourable report
submitted by the Investigating Officer
who conducted further investigation into
the
case.
According
to
applicants'
counsel,
if
the
subsequent
further
investigation contains material favourable
to the accused or if the subsequent
Investigating
Officer
has
drawn
favourable inference, there is no good
reason
to
continue
the
criminal
proceedings going on against the accused.
Further submission is that one company
Unitech was given a licence to develop a
plotted colony. The layout was sanctioned
by the Development Authority in favour
of Unitech. Unitech allotted these plots to
Carnoustie Management Private Limited
company in 2007. According to the
agreement executed in favour of the
aforesaid company the plots were further
transferred to certain persons including
the informant/opposite party no.2. This
took place in the year 2012 but the
possession was not given to the buyers by
the Unitech. Multiple persons therefore
felt aggrieved by the same and the matter
was taken up to the Supreme Court.
Certain aggrieved persons who had
formed an association had also preferred
an application in the Supreme Court. The
Hon'ble Supreme Court passed an order
on 6.4.2017 which would show that in the
Supreme Court, Unitech had given the
undertaking that it shall not disturb any of
the rights of the members of association.
Thus the interim application got disposed
of by the Apex Court in view of the
undertaking
given
regarding
the
protection of the rights of the aggrieved.
But later on F.I.R. in this regard was also
brought against the applicants' company
and applicants, who are the directors of
the company. Submission is that therefore
the F.I.R. is an overreach and is not
tenable and is premature.

7.

Learned
Senior
Counsel
appearing for first informant-opposite
party no.2 has in rebuttal submitted that
so far as the result of the further
investigation is concerned, the law in that
regard is that after being submitted in the
Court the same would form part of the
record and as in the present case the
charge has not yet been framed the
material so collected may be considered
3 All. Rajesh Malik & Anr. Vs. State of U.P. & Anr.
129
at the stage of framing of the charge. The
mere fact that some favourable inference
was drawn by the investigating officer in
the subsequent further investigation will
not efface the material collected earlier on
the basis of which the charge-sheet was
submitted nor the subsequent report by
itself shall preside upon the liquidation of
the earlier charge-sheet. The eventual
impact and consequence of the material
collected subsequently and also the
inference drawn by the subsequent
Investigating
Officer
may
be
duly
considered by the Court at appropriate
stage during the proceedings and may
also be used by the applicants as the law
might permit. But it shall not vitiate either
the process of taking cognizance in the
matter or the proceedings of summoning
which has been done on the basis of
material which existed on that particular
point of time when the cognizance was
taken and summons were issued. Senior
counsel appearing for the opposite party
no.2 has further submitted that the
respondents had paid the money to
Carnoustie company and not to Unitech
company
and
surprisingly
enough
subsequent to the said payment of money
to the Carnoustie company for the
purpose of allotment of plots, Unitech
company
purchased
the
shares
of
Carnoustie on the valuation of Rs.51
crores, despite the fact that initially those
shares were valued for a meager amount
of Rs.1 lakh only. Submission is that this
internal factual aspect speaks loud about
an unholy nexus in between Carnoustie
company
and
Unitech
Company.
Submission is that if opportunity of trial
is
given,
aforesaid
facts
may
be
confirmed
and
substantiated
by
documents. It was vehemently contended
that the opposite party was given the
assurance that Carnoustie was in actual
possession of the plots and was in a
position to hand it over to the opposite
party. It was only after having been duped
by this misleading assurance that a lot of
money
was
handed
over
to
the
Carnoustie. But subsequently, it was
found that those plots did not exist as
promised and were not identifiable and
the assurance in this regard was nothing
except a ruse and a rank bluff and
therefore not only the offence of cheating
is made out but the dishonest intention is
apparent on the face of record from the
very outset of the transaction. So far as
the Supreme Court litigation is concerned,
according to Senior Counsel, the opposite
party no.2 was never the party in that
litigation and was not a member of that
association which was party in the Apex
Court
litigation.
It
has
also
been
submitted that even the submission raised
on behalf of applicants regarding the
undertaking given by the Unitech in the
said proceeding that took place in Apex
Court, would in fact go to lend to a very
great extent a kind of recognition to the
genuineness to the claim of the opposite
party and the same is not at all
incompatible with the allegation made by
the first informant and shall hardly go to
help or exonerate the accused-applicants
from their liability or for being hands in
gloves with Unitech. Even otherwise
aforesaid proceedings referred to by the
defence side would relate to the civil
rights of the parties involved and would
not at all absolve the accused from the
criminal liability with regard to the
offences which they have committed and
with regard to which the charge sheet
against them has been submitted in the
Court.
Deception,
fraud,
dishonest
inducement, dishonest concealment of
true facts and thereby causing wrongful
loss and making wrongful gains, all these
130 INDIAN LAW REPORTS ALLAHABAD SERIES
aspects are writ large from the very outset
and the bare perusal of the F.I.R. would
reveal the sinister design which actuated
the entire criminal transaction, as a result
of which the first informant and the other
aggrieved persons have suffered huge
economic losses and the accused must be
tried and punished for the criminal
liability which accrues to them. The civil
rights and liabilities are decided on the
preponderance of probabilities while the
criminal charge has to be proved beyond
reasonable doubt and the proceedings
with regard to both of them can
simultaneously go together and are not
mutually
exclusive
to
each
other.
According to counsel this is certainly not
a case which may be said to be essentially
civil in nature or where the alleged
offences are not made out from the F.I.R.
or where it may be said that deliberately a
criminal complexion has been lent to an
otherwise dispute of pure civil nature.

8. Learned A.G.A. while supporting
the stand taken by the opposite party
No.2, has submitted that such a dispute of
factual nature raised by the applicants for
the purpose of quashing of charge sheet
as well as entire proceeding is not liable
to be considered by this Court considering
the stage of criminal proceeding at which
they are pending and such factual
controversy
should
be
left
for
adjudication by the concerned court
below
at
an
appropriate
stage
of
proceeding and as such, no interference is
required by this Court.

9. In the light of rival submissions
of the parties this Court has the occasion
to peruse the record which discloses that
there are two different reports of
investigation conducted in the crime in
question which are part of record of the
concerned court below, out of which one
report submitted u/s 173(2) Cr.P.C. is
against
the
applicants
disclosing
commission of offences by them and
another report dated 15.6.2019 is of
further investigation submitted u/s 173(8)
Cr.P.C., which according to the claim of
applicants, is in their favour. An extract
or a part of the case diary relating to the
said report dated 15.6.2019 has been
placed before this court by means of
supplementary
affidavit.
Before
proceeding further in the matter, it would
be appropriate to consider as to what is
the position of law with regard to status
and scope of reports submitted by the
investigating Officer u/s 173(2) and
Section 173 (8) of Cr.P.C. In this regard,
we may find the procedure provided
under the Code of Criminal Procedure,
1973,
according
to
which
after
completion of regular investigation, if the
Investigating
Officer
comes
to
the
conclusion
that
certain
cognizable
offences are made out against some
accused persons, he is obliged to prepare
a report u/s 173(2) Cr.P.C. and to forward
it along with case diary containing the
material in support thereof to the
concerned
Magisterial
court
having
jurisdiction in the matter, upon which the
concerned Magisterial court applies its
mind and finds out as to whether any
offence is made out or not. If the police
report so submitted and the material
collected by investigation discloses that
the offence is made out, the cognizance of
such offence is taken u/s 190(1)(b)
Cr.P.C. and the proceeding is registered
for further course of action. In due course
issuance of process follows against the
accused persons, who are prima facie
found to have committed the offences and
who are to be called upon to face the trial.
There are other optional modes also
3 All. Rajesh Malik & Anr. Vs. State of U.P. & Anr.
131
available to the concerned Magesterial
court while considering report u/s 173(2)
Cr.P.C. but those other modes are not
relevant in the present controversy and
need not be discussed.

10. On the other hand, Section
173(8) Cr.P.C. provides authority to the
Investigating Agency to conduct further
investigation in any criminal case, as and
when such situation arises and to submit
report of such further investigation before
the concerned court. For ready reference
Section-173(8) of Cr.P.C. is quoted herein
below :

"173(8)- 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)."

11. There is no dispute with the
position of law that on the strength of
Section
173(8)
of
Cr.P.C.,
the
investigating agency is empowered to
conduct further investigation in any
criminal case, according to the need
thereof and the only rider applicable upon
such authority of investigating agency is
that the concerned court should be
apprised with the requirement of further
investigation in criminal case and the
Investigating Officer should desirably
take permission from the concerned court
to conduct further investigation. It is
needless to give reference to the case laws
in this regard, as this position of law is
being
consistently
followed by
the
Hon'ble Supreme Court as well as this
Court. What is material in this regard is
the status of both the reports u/s 173(2)
and 173(8) of Cr.P.C. as well as the scope
and stage of consideration by the
concerned court upon such reports. For
this purpose, it would be useful to refer
the observations made by the Hon'ble
Supreme Court in the case of Vinay
Tyagi Versus Irshad Ali @ Deepak &
Ors reported in 2013 (5) SCC 762,
wherein the Hon'ble Supreme Court
extensively dealt with the term 'further
investigation/reinvestigation/fresh
investigation/de-novo investigation' and
discussed catena of earlier judgements of
Hon'ble
Supreme
Court.
Regarding
consideration of further report u/s 173(8)
of Cr.P.C., the Hon'ble Supreme Court
observed as follows :

"41. 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
132 INDIAN LAW REPORTS ALLAHABAD SERIES
options afore-noticed. 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
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.

42. Both these reports have to
be read conjointly and it is the cumulative
effect of the reports and the documents
annexed thereto to which the Court would
be expected to apply its mind to determine
whether there exist grounds to presume
that the accused has committed the
offence. If the answer is in the negative,
on the basis of these reports, the Court
shall
discharge
an
accused
in
compliance with the provisions of
Section 227 of the Code.

12. In another judgement of
Hon'ble Supreme Court in the case of
Dharmatma Singh Versus Harminder
Singh & Ors. Reported in 2011 (6) SCC
102 observations similar to Vinay Tyagi's
case (supra) were reiterated, which are
being usefully quoted herein below:

"15. A reading of provisions of
sub-section (2) of Section 173, Cr.P.C.
would show that as soon as the
investigation is completed, the officer in
charge of the police station is required to
forward
the
police
report
to
the
Magistrate empowered to take cognizance
of the offence stating inter alia whether
an
offence
appears
to
have
been
committed and if so, by whom. Subsection (8) of Section 173 further provides
that where upon further investigation, the
officer in charge of the police station
obtains
further
evidence,
oral
or
documentary, he shall also forward to the
Magistrate a further report regarding
such evidence and the provisions of subsection (2) of Section 173, Cr.P.C., 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). Thus, the report under sub-section (2)
of
Section
173
after
the
initial
investigation as well as the further report
under sub-section (8) of Section 173 after
further investigation constitute "police
report" and have to be forwarded to the
Magistrate empowered to take cognizance
of the offence.

16. It will also be clear from
Section 190 (b) of the Cr.P.C. that it is the
Magistrate, who has the power to take
cognizance of any offence upon a "police
report" of such facts which constitute an
offence. Thus, when a police report is
forwarded to the Magistrate either under
sub-section (2) or under sub-section (8) of
Section 173, Cr.P.C., it is for the
Magistrate to apply his mind to the police
report and take a view whether to take
cognizance of an offence or not to take
cognizance of offence against an accused
person.

17. It follows that where the
police report forwarded to the Magistrate
3 All. Rajesh Malik & Anr. Vs. State of U.P. & Anr.
133
under Section 173 (2) of the Cr.P.C.
states that a person has committed an
offence, but after investigation the further
report under Section 173 (8) of the
Cr.P.C. states that the person has not
committed the offence, it is for the
Magistrate to form an opinion whether
the facts, set out in the two reports, make
out an offence committed by the person.
This interpretation has given by this
Court in Abhinandan Jha & Ors. v.
Dinesh Mishra [AIR 1968 SC 117] to the
provisions of Section 173 and Section 190
of the Criminal Procedure Code, 1898,
which were the same as in the Criminal
Procedure Code, 1973.

18. In Abhinandan Jha (supra),
para 15 at page 122 of the AIR this Court
observed:

"... The police, after such
investigation, may submit a charge-sheet,
or, again submit a final report, depending
upon the further investigation made by
them. If ultimately, the Magistrate forms
the opinion that the facts, set out in the
final report, constitute an offence, he can
take cognizance of the offence, under
Section 190(1)(b), notwithstanding the
contrary opinion of the police, expressed
in the final report."

..............................

..........................................

20. In the facts of the present
case, the police in its report submitted to
the Judicial Magistrate, First Class,
Ludhiana, on 02.02.2006 had filed two
challans, one against the appellant, his
father Mohan Singh and Bhupinder Singh
stating that they had committed offences
under Sections 452, 323, 326, 506 read
with Section 34 of the IPC and the other
challan against the respondent Nos. 1 and
2 and some others stating that they had
committed offences under Sections 342,
323, 324, 148 IPC.

21. Pursuant to permission
granted by the learned Magistrate on
27.07.2006 for further investigation, a
further report has been made by the
Superintendent
of
Police,
City-II,
Ludhiana, stating that respondent no.1
for his self-defence had caused injuries to
the appellant and others and hence the
cross-case against the respondent no.1 is
required to be cancelled. This further
report has to be forwarded to the learned
Magistrate and as has been held by this
Court in Abhinandan Jha (supra) and
Mrs. Rupan Deol Bajaj (supra) it was for
the learned Magistrate to apply judicial
mind to the facts stated in the reports
submitted under sub-sections (2) and (8)
respectively of Section 173, Cr.P.C., and
to form an opinion whether to take
cognizance or not to take cognizance
against
the
respondent
no.1
after
considering the objections, if any, of the
complainant, namely, the appellant."

13. Now coming to the factual
situation of the present case it appears
that it is not a case in which the material
collected through further investigation or
the report based thereupon u/s 173(8)
Cr.P.C. was available before the court
below at the time when it took cognizance
of the offences on the basis of the charge
sheet submitted u/s 173(2) Cr.P.C. earlier.
The report u/s 173(8) Cr.P.C. has been
admittedly
submitted
in
the
court
subsequently much later. The Court could
have adverted its mind only on the
material which was made available before
it. If the charge sheet and the case diary
contained enough material to justify
taking of the cognizance and thereupon
summoning
the
accused,
there
is
134 INDIAN LAW REPORTS ALLAHABAD SERIES
absolutely no reason to find fault in the
same. The allegations, as have been made
against
the
accused-applicants,
have
already been set forth earlier in this order
and it is not difficult to see that primafacie offences are well made out against
the accused-applicants on the basis of the
F.I.R. itself. The act of taking cognizance
and summoning the accused upon the
material which was furnished before the
court does not suffer from any flaw. The
submission of the counsel that even if the
report
of
further
investigation
was
submitted at some later point of time
subsequently, the court was still obliged
to once again sit upon judgement
regarding the act of taking cognizance
and should have given a relook to its
decision regarding the summoning of the
accused, does not appear to be a very
tenable argument. The statutory course
provided in the Criminal Procedure Code
has to be followed as has been prescribed.
In the circumstances of the case there is
hardly any occasion to put the clock back.
In fact the Courts dealing with criminal
matters have no authority to review or
recall the orders of import or substance. It
is
only
Section-362
of
Criminal
Procedure Code which contemplates such
a possibility but the same is confined to a
very limited class of circumstances. The
act of taking cognizance and summoning
the accused and the order in that regard as
has been done in the present case does not
contain any clerical or arithmetic error on
the basis of which the same could have
been altered or reviewed. There is
sufficient hiatus between the submission
of charge sheet u/s 173(2) Cr.P.C. and the
subsequent filing of the report regarding
further investigation u/s 173(8) Cr.P.C.
The stage to frame the charge is yet to be
arrived at and the accused shall have all
the opportunity of being heard at that
stage. The court while deciding upon the
point of framing of the charge shall
naturally look into the material furnished
by prosecution and made available before
it which includes the report regarding
further investigation u/s 173(8) Cr.P.C.
also. Both such reports are now available
before the concerned court below and it is
needless to observe that the concerned
court is obliged to consider both the
reports at an appropriate stage of the
proceedings of criminal case in question,
in accordance with the scheme of Code of
Criminal Procedure and there is no reason
to apprehend otherwise. It has been
observed by Hon'ble Apex Court in
paragraph no.42 of its decision given in
the case of Vinay Tyagi (supra) that
both these reports shall be read conjointly
and shall be adverted to by the court and
it shall apply its mind to them in order to
determine whether there exists grounds to
presume that the accused has committed
the offence or not. If the Court would find
the answer in negative on the basis of the
material, it may proceed to discharge the
accused
in
compliance
with
the
provisions of Section-227 of the Code. It
shall be for the court below to look into
those aspects and to come to its own
independent conclusion. As such, the
submissions raised by the applicants'
counsel
seeking
the
quashing
of
proceedings as well as the charge sheet in
exercise of inherent jurisdiction merely
on the ground of filing of a purportedly
favourable further report by investigating
agency does not appear to be a sound plea
so as to be entertained by this Court. The
adjudication on the disputed factual
aspects and issues involved in the matter
falls within the domain of concerned
court below, which may properly evaluate
the materials available in case diary as
well as the outcome of both the reports
3 All. Rajesh Malik & Anr. Vs. State of U.P. & Anr.
135
submitted u/s 173(2) and 173(8) of
Cr.P.C. at the stage of framing of the
charge. This Court while exercising its
inherent jurisdiction does not deem it
appropriate to step into the shoes of the
trial court and usurp that jurisdiction. It
shall be a judicial overreach which this
Court does not see any reason to indulge
into. This Court also does not want to
enter into any detailed discussion about
the merits of the case and make
observations in that regard, lest the same
may go to prejudice either side or may go
to adversely prejudice the mind of the
lower court this way or that way. Suffice
it to observe that so far as the criminal
proceedings presently going on against
the applicants based upon the charge
sheet submitted earlier are concerned,
they are just the logical legal sequel
which
followed
the
act
of
taking
cognizance of the offence and are
consequential in nature following the act
of thereafter summoning the accused on
the basis of material contained in the case
diary which was available at that point of
time and are perfectly within the four
corners of law and there is no good reason
to quash the same at this stage.

14. So far as the submission on
behalf of applicants regarding the order
dated 06.04.2017 passed by the Hon'ble
Supreme Court in Civil Appeal Nos.88148816 of 2016 is concerned, the factum of
membership of opposite party no.2 in the
Association which was party in the Apex
Court litigation, has been seriously
disputed and it is not born out from the
available record of the present case as to
whether the opposite party no.2 was
actually the party in the application filed
by the Association of UG Noida Villa
Owners through its President Sumer Sarin
in the said civil appeal (Annexure No.7 to
the paper-book).