# Rajnesh Rai & Ors v. State of U.P. & Anr

- **Citation:** (2026) 4 ILRA 11
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-09
- **Case number:** Application U/S 528 BNSS. No. 6617 of 2026
- **Bench:** Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajnesh-rai-ors-v-state-of-u-p-anr-54364
- **Pages:** 5

## Text

4 All. Rajnesh Rai & Ors. Vs. State of U.P. & Anr.
11
(2026) 4 ILRA 11
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.04.2026

BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Application U/S 528 BNSS. No. 6617 of 2026

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

Issue for Consideration
Matter pertains to whether the Investigating Officer was legally justified in submitting a subsequent charge
sheet implicating the applicants, who had already been exonerated in the earlier charge sheet upon conclusion
of investigation, without obtaining prior permission of competent Magistrate/Court for conducting further
investigation as contemplated u/s 193(9) of Bharatiya Nagarik Suraksha Sanhita, 2023.

Headnotes
Bharatiya Nagarik Suraksha Sanhita, 2023 - ss. 528, 193(9) - Bharatiya Nyaya Sanhita, 2023 - s.
110, 191(2), 191(3), 115(2), 352, 351(2), 324(4) - Further investigation - Power of
Investigating Officer - Requirement of permission of Court - Commencement of trial - Scope -
The instant matter arose from an application filed u/s 528 of BNSS, 2023, whereby the
applicants challenged the criminal proceedings arising out of an FIR registered for offences
under various sections of BNS, 2023 - Initially, several persons, including the applicants, were
named as accused in the FIR - Upon investigation, the Investigating Officer submitted the first
charge sheet dated 10.01.2025 only against two co-accused persons and specifically recorded
that the investigation with respect to the applicants and other unnamed accused had concluded
- On the basis of the said charge sheet, cognizance was taken by the Magistrate and the
applicants stood exonerated - Subsequently, a another charge sheet was submitted on
14.08.2025, wherein the applicants were implicated on the basis of same facts and evidence,
and cognizance was again taken against them - Aggrieved by such subsequent implication, the
applicants approached the High Court contending that the Investigating Officer could not have
conducted further investigation and filed a supplementary charge sheet against persons already
exonerated without obtaining prior permission of competent Court as required u/s 193(9) of
BNSS.
Held: The distinction of provisions as mentioned u/s 193(9) of BNSS is crystal clear that the court which is
empowered for granting permission to concerned Investigating Officer for conducting further investigation is
the court who took the cognizance of offence and is in way to try the matter - The wording mentioned as that
the court 'trying the case' is not qualifying as provided in the provisions 'during the trial' and as such the
distinction between 'trying the case' and 'during the trial' is one and the same and the stand taken up by
learned counsel for opposite party no. 2 is not sustainable in the eye of law - Thus, it is the trite law that
irregularity of procedure will not vitiate the entire commencement of the matter, accordingly, instant
application u/s 528 BNSS allowed - The order will not preclude the Investigating Officer for taking fresh action
permissible as per law. [Paras 13 to 15] (E-13)

Case Law Cited
Pramod Kumar and others v. State of U.P. and others passed in Criminal Appeal No. Nil of 2026 arising
out of SLP (Criminal) No. 350 of 2024 - referred to
12 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Acts
Bharatiya Nagarik Suraksha Sanhita, 2023; Bharatiya Nyaya Sanhita, 2023.

List of Keywords
Application u/s 528 BNSS; BNSS, 2023; BNS, 2023; Criminal proceedings; Cognizance of offence; Charge
Sheet; Investigating Officer; Further investigation; FIR; Exonerated; Implication of accused; Named accused;
Unnamed persons; Non-bailable warrant; Recall of warrant; s. 193(9) BNSS; Permission of court; Court trying
the case; Commencement of trial; Procedural irregularity; Further inquiry; Oral evidence; Documentary
evidence; Report of Police Officer; Investigation pending; Cognizance taken; Set aside; Application allowed;
Preclude the concerned Investigating Officer; Fresh action as per law.

Case Arising From
ORIGINAL JURISDICTION: Application u/s 528 BNSS No. - 6617 of 2026

From Judgment and Order dated 08.09.2025 passed in the Case no. 6998 of 2024 arising out of Case Crime
No. 419 of 2024 by the Chief Judicial Magistrate, Jhansi

Appearances for Parties
Adv. for the Applicant(s):
Deepak Dubey

Advs. for the Opposite Party(s):
Dharmendra Kumar Dwivedi, G.A., Mridul Tripathi

(Delivered by Hon'ble Saurabh Srivastava, J.)

1. Heard Sri Deepak Dubey, learned counsel for applicants, Sri Pawan Srivastava, learned
AGA for State and Sri P.K.Tripathi holding brief of Sri Dharmendra Kumar Dwivedi, learned
counsel for opposite party no. 2.

2. Through instant application, applicants are challenging entire proceeding of Case no. 6998
of 2024 arising out of Case Crime no. 419 of 2024 in pursuance to sections 110, 191(2), 191(3),
115(2), 352, 351(2), 324(4) BNS pending before learned Chief Judicial Magistrate, Jhansi along
with charge sheet no. 12A of 2025 preferred by concerned Investigating Officer on dated 14.8.2025
whereupon cognizance of offence has been taken up by learned court concerned on dated 8.9.2025.

3. Learned counsel for the applicants submitted that initially 12 named persons along with 20
unknown persons were implicated as accused at the time of lodging FIR at Case Crime no. 491 of
2024 at the behest of opposite party no. 2, wherein name of the applicants were mentioned at serial
nos. 5, 6, 7, and 10. The implication of all the accused in the cognizable offences culminated into
conduction of inquiry by concerned Investigating Officer who preferred charge sheet on dated
10.1.2025 against two co-accused and also intimated that inquiry has now been concluded and over
in respect of the applicants along with 20 unnamed persons but at the same time, it is also
mentioned in the charge sheet dated 10.1.2025 that the investigation is still continuing in respect of
other co-accused, whereupon cognizance of offence has been taken up by learned Additional Chief
Judicial Magistrate, Jhansi vide order dated 13.1.2025 by way of summoning only two co-accused
namely Satyendra Yadav and Rakesh Yadav.
4 All. Rajnesh Rai & Ors. Vs. State of U.P. & Anr.
13

4. Learned counsel for the applicants sought attention of the Court over the second paragraph
of the order dated 13.1.2025 through which cognizance of offence has been taken up against two
co-accused against whom charge sheet was filed namely Satyendra Yadav and Rakesh Yadav and
specific explanation has been called from concerned Investigating Officer who exonerated name of
the applicants and the matter has been directed to be registered as Misc. Case for seeking recall of
the non-bailable warrants. Thereafter, Non-Bailable Warrant issued against the applicants has
already been recalled vide order dated 27.1.2025 passed by learned Additional Chief Judicial
Magistrate, Court no. 1, Jhansi. The certified copy of the order dated 27.1.2025, although not filed
but provided during course of the argument and being the court of record, it is taken on record,
through which it is transpired that Non-Bailable Warrant issued against the applicants has already
been recalled.

5. After submission of the charge sheet 10.1.2025, whereupon cognizance of offence has been
taken up vide order dated 13.1.2025, another charge sheet no. 12A has been preferred on dated
14.8.2025 since there was crystal clear disclosure of the pendency of the investigation at the time of
preferring first charge sheet. Learned counsel for the applicants submitted that while preferring
second set of charge sheet, all the applicants have been implicated and main accused have been
exonerated whereupon cognizance has been taken up vide order dated 8.9.2025 without considering
the order dated 13.1.2025 and order dated 27.1.2025.

6. As legal submission, learned counsel for applicants took reliance of Section 193(9) BNSS
wherein specific provision is available that further investigation during trial may be conducted with
the permission of the court trying the case and the same shall be completed within a period of 90
days which may be extended with the permission of the court itself. In the instant matter, it has
been submitted by learned counsel for the applicants that once the name of all the applicants have
been exonerated while preferring first set of charge sheet whereupon cognizance of offence has
been taken up and implicated co-accused have been summoned, on similar set of evidence and facts
concerned Investigating Officer committed patent error of law which is apparent on face of record,
by way of implicating all the applicants in second set of charge sheet without mentioning any
permission sought from learned concerned court itself. For substantiating his arguments, learned
counsel for the applicants also demonstrated certain facts which has been received in questionnaire
that at no point of time, any application has ever been preferred by concerned Investigating Officer
for seeking permission of learned concerned court for conducting further investigation. On above
mentioned grounds, the entire proceeding of Case no. 6998 of 2024 arising out of Case Crime no.
419 of 2024 has been sought to be quashed and set aside, since there is hardly any provision
provided in favour of the Investigating Officer for conduction of further investigation, especially in
respect of those who have already been exonerated at the time of preferring first set of charge sheet
whereupon cognizance of offence has been taken up by learned court concerned and again
implicating same persons in second set of charge sheet without seeking any proper permission from
learned court for investigating further against those who have already been exonerated.

7. For substantiating his arguments, learned counsel for applicants also relied upon judgment
dated 4.2.2026 rendered by Hon'ble Supreme Court in case of Pramod Kumar and others vs. State
of U.P. and others passed in Criminal Appeal no. nil of 2026 arising out of SLP (Criminal) no. 350
of 2024 wherein it has been held that power to direct further investigation in a case rests solely at
14 INDIAN LAW REPORTS ALLAHABAD SERIES
the discretion of the Magistrate/Court concerned. In the event, the police/ investigating agency is of
the opinion that further investigation is necessary in any particular case to cull out complete facts
and truth in the case, it is binding upon them to file an appropriate application before the
Magistrate/Court, without directing an order for further investigation by themselves.

8. Sri P.K.Tripathi, learned counsel appearing on behalf of opposite party no. 2 vehemently
opposed the prayer as made through instant application and rebutted the entire stand taken up by
learned counsel for the applicants. While controverting the derivation of the legal proposition as
derived by learned counsel for the applicants, Sri P.K.Tripathi submitted that provisions for seeking
permission for conducting further inquiry is mandatory as per the statute when the trial is
proceeding, in the instant matter, the trial is still to be proceeded and as such provisions of Section
193(9) BNSS shall not be applicable and will not give any benefit to the applicants, moreover once
the investigation was pending and during course of investigation, implication of the applicants was
found, they were implicated at the time of preferring second set of charge sheet whereupon
cognizance of offence has been taken up by learned court concerned, which is justified.

9. Sri Pawan Srivastava, learned AGA appearing for State also supported the entire action
performed by concerned Investigating Officer and justified the order passed by learned concerned
court which impugned the instant application and seconded the arguments as made by Sri
P.K.Tripathi, learned counsel for opposite party no. 2.

10. A precise query has been made before learned counsel appearing for opposite party no. 2
in respect of "commencement of trial" and in the most fair and candid manner, it has been replied
by the learned counsel for opposite party no. 2 that the commencement of trial in the instant matter
is yet to be initiated since it is the stage where the charges have not been framed and only the
cognizance has been taken up by learned concerned court.

11. After having the rival contentions raised by learned counsels for the parties, this Court
observes that commencement of trial starts from the date when cognizance of offence is taken over
the charge sheet submitted after conclusion of investigation carried out over the FIR lodged at the
behest of informant. Insofar as commencement of trial in the complaint case is concerned, the same
starts from the date when accused is summoned on the basis of averments made in the complaint as
well as statements recorded under section 200 Cr.P.C./section 223(1) BNSS.

12. By and large the entire arguments so made by learned counsel for the applicants which has
been rebutted by learned counsel for the opposite party no. 2 as well as learned AGA is based upon
the provisions available under Section 193(9) of BNSS. For ready reference same provision is
reproduced herein below:

"Section 193(9)- Report of Police Officer on Completion of Investigation- Nothing in this
section shall be deemed to preclude further investigation in respect of an offence after a report
under sub-section (3) 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 as the
State Government may, by rules, provide; and the provisions of sub-sections (3) to (8) shall, as far
4 All. Damini Vs. State of U.P. & Anr.
15
as may be, apply in relation to such report or reports as they apply in relation to a report forwarded
under sub-section (3):Provided that further investigation during the trial may be conducted with the
permission of the Court trying the case and the same shall be completed within a period of ninety
days which may be extended with the permission of the Court."

13. By fine scrutiny of the provisions of Section 193(9) BNSS, two things are apparently
mentioned which are as under:

(i) further investigation during the trial ...

(ii) permission of the court trying the case...

The distinction of the provisions as mentioned under Section 193(9) of BNSS is crystal clear
that the court which is empowered for granting permission to concerned Investigating Officer for
conducting further investigation is the court who took the cognizance of offence and is in way to
try the matter. The wording mentioned in (ii) as mentioned above that the court 'trying the case' is
not qualifying the above mentioned wording provided in the provisions 'during the trial' and as such
the distinction between 'trying the case' and 'during the trial' is one and the same and the stand
taken up by learned counsel for opposite party no. 2 is not sustainable in the eye of law.

14. In view of above mentioned facts and circumstances, it is the trite law that irregularity of
the procedure will not vitiate the entire commencement of the matter which is in shape of Case no.
6998 of 2024 arising out of Case Crime no. 419 of 2024 and as such charge sheet dated 14.8.2025
preferred in Case Crime no. 491 of 2024 specifically in respect of the applicants as well as order
dated 8.9.2025 passed by learned Additional Chief Judicial Magistrate, Jhansi specifically in case
of the applicants are hereby set aside. The instant application u/s 528 BNSS stands allowed
accordingly.

15. However, this order will not preclude the concerned Investigating Officer for taking fresh
action permissible as per law.
----------
(2026) 4 ILRA 15
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.04.2026

BEFORE

THE HON'BLE ABDUL SHAHID, J.

Application U/S 529 BNSS. No. 4251 of 2025

Damini ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Issue for Consideration