# Rakesh Kumar Awasthi & Ors v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 1513
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-08
- **Case number:** Matter Under Article 227 No. 11211 of 2023
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-awasthi-ors-v-state-of-u-p-anr-51535
- **Pages:** 4

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Sections 156(3) &
173(8) - Constitution of India,1950 -
Article 227- Power of Magistrate to Order
Further Investigation - Petitioners challenged
the order dated 12.07.2023 by Metropolitan
Magistrate, Kanpur Nagar, rejecting a final police
report and directing further investigation in
Misc. Case No. 1124/2023, arguing no protest
petition was filed and the Magistrate lacked
power post-cognizance under Section 156(3).
The application, captioned as 'narazgi yachika'
under Section 173(8), was treated as a protest
petition.
Court
held
that
Section
173(8)
empowers
police
to
conduct
further
investigation post-report, and Magistrates can
order such investigation under Section 156(3)
read with Section 173(8) until trial commences,
as per Vinubhai Haribhai Malaviya Vs St. of
Gujarat, (2019) 17 SCC 1. Magistrate's options
upon receiving a police report include accepting
it, dropping proceedings, or directing further
investigation (Minu Kumari Vs St. of Bihar,
(2006) 4 SCC 359). No statutory bar restricts
this power, and Article 21 mandates ensuring
fair investigation. Order upheld as within
jurisdiction; petition dismissed for lack of merit.
(Paras 12-21)

Petition Dismissed.

Case Law Cited:

## Text

3 All. Rakesh Kumar Awasthi & Ors. Vs. State of U.P. & Anr.
1513

17. The writ petition devoid of merits
and is, accordingly, dismissed.
----------
(2024) 3 ILRA 1513
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.02.2024

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Matter Under Article 227 No. 11211 of 2023

Rakesh Kumar Awasthi & Ors.
 ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Bal Ram Gupta

Counsel for the Respondent:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 156(3) &
173(8) - Constitution of India,1950 -
Article 227- Power of Magistrate to Order
Further Investigation - Petitioners challenged
the order dated 12.07.2023 by Metropolitan
Magistrate, Kanpur Nagar, rejecting a final police
report and directing further investigation in
Misc. Case No. 1124/2023, arguing no protest
petition was filed and the Magistrate lacked
power post-cognizance under Section 156(3).
The application, captioned as 'narazgi yachika'
under Section 173(8), was treated as a protest
petition.
Court
held
that
Section
173(8)
empowers
police
to
conduct
further
investigation post-report, and Magistrates can
order such investigation under Section 156(3)
read with Section 173(8) until trial commences,
as per Vinubhai Haribhai Malaviya Vs St. of
Gujarat, (2019) 17 SCC 1. Magistrate's options
upon receiving a police report include accepting
it, dropping proceedings, or directing further
investigation (Minu Kumari Vs St. of Bihar,
(2006) 4 SCC 359). No statutory bar restricts
this power, and Article 21 mandates ensuring
fair investigation. Order upheld as within
jurisdiction; petition dismissed for lack of merit.
(Paras 12-21)

Petition Dismissed.

Case Law Cited:

1. Vinubhai Haribhai Malaviya Vs St. of Guj.,
(2019) 17 SCC 1 (Para 13)

2. Minu Kumari Vs St. of Bihar, (2006) 4 SCC
359 (Paras 14, 15)

3. Vinay Tyagi Vs Irshad Ali, (2013) 5 SCC 762
(Para 15)

4. Hemant Dhasmana Vs CBI, (2001) 7 SCC 536
(Paras 16, 17)

5. Union Public Service Commission Vs S.
Papaiah, (1997) 7 SCC 614 (Para 17)

6. Bhagwant Singh Vs Commissioner of Police,
(1985) 2 SCC 537 (Para 17)

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Bal Ram Gupta, learned
counsel for the petitioners and Sri Pankaj
Saxena, learned Additional Government
Advocate-I
appearing
for
the
Staterespondent.

2. The present petition has been filed
seeking to assail the order dated 12.07.2023
passed by the Metropolitan Magistrate,
Court No.9, Kanpur Nagar in Misc. Case
No.1124 of 2023 (Syed Tariq Umar Vs.
Rakesh
Kumar Awasthi
and
others),
whereby the final report submitted by the
police has been rejected and a direction has
been issued for further investigation.

3. The principal ground urged to
assail the aforesaid order is that no protest
1514 INDIAN LAW REPORTS ALLAHABAD SERIES
petition was filed by the informant before
the concerned Magistrate and despite the
same, the order impugned has been passed.

4. It is further sought to be contended
that the power to order investigation by the
police under Section 156(3) of the Code of
Criminal Procedure, 19731 CrPC can only
be invoked by the Magistrate before he
takes cognizance of the offence under
Section 190(1)(a), and such a direction
could not have been issued in exercise of
powers under Section 173(8), wherein the
investigating
officer
alone
has
been
authorized to conduct further investigation.

5. Learned AGA has controverted the
submissions made by the counsel for the
petitioners by pointing out that the
miscellaneous application filed by the
informant, upon which the order impugned
has been passed by the Magistrate, was
captioned as 'narazgi yachika', under
Section 173(8) CrPC, wherein a prayer had
been made to reject the final report and
direct further investigation.

6. It is submitted that the aforesaid
application is clearly in the nature of a
'protest petition', filed under Section
173(8) CrPC, wherein the Magistrate is
fully
empowered
to
direct
further
investigation, and the order impugned
cannot be faulted with on this ground.

7.

Rival
contentions
fall
for
consideration.

8. The statutory scheme under the
CrPC contains a clear demarcation between
the powers of the police to investigate and
the jurisdiction of criminal courts in
inquiries, followed by the procedure once
the trial begins.

9. The expression 'investigation' has
been defined under Section 2(h) CrPC, as
including all the proceedings under the
Code for the purpose of collecting evidence
by a police officer, and otherwise by any
person authorized by a Magistrate in this
behalf, and also pertains to a stage before
the trial commences. The investigation
which may ultimately lead to a police
report is an investigation conducted by the
police, and may be ordered in an inquiry
made by a Magistrate himself in a
'complaint case'.

10. The Code of Criminal Procedure,
1898, did not contain a provision under
which the police were empowered to
conduct a further investigation in respect of
an offence after a police report under
Section 173 had been forwarded to the
Magistrate.

11. Taking notice of the difficulties
arising as a result thereof, the Law
Commission in its 41st report made a
recommendation with regard to reopening
of investigation, in the following terms:-

"14.23.
Reopening
of
investigation.- A report under Section 173
is normally the end of the investigation.
Sometimes, however, the police officer
after submitting the report under Section
173 comes upon evidence bearing on the
guilt or innocence of the accused. We
should have thought that the police officer
can collect that evidence and send it to the
magistrate concerned. It appears, however,
that courts have sometimes taken the
narrow view that once a final report under
Section 173 has been sent, the police
cannot touch the case again and cannot reopen the investigation. This view places a
hindrance in the way of the investigating
agency, which can be very unfair to the
3 All. Rakesh Kumar Awasthi & Ors. Vs. State of U.P. & Anr.
1515
prosecution and, for that matter, even to the
accused. It should be made clear in Section
173 that the competent police officer can
examine such evidence and send a report to
the magistrate. Copies concerning the fresh
material must of course be furnished to the
accused."

12. Sub-section (8) of Section 173, as
introduced in the Code of Criminal
Procedure, 1973, gives power to the police
to further investigate an offence even after
a police report has been forwarded to the
Magistrate. This power continues until the
trial can be said to commence in a criminal
case.

13. The question as to whether the
Magistrate has the power to order further
investigation, after a police report has been
forwarded to him under Section 173 was
considered
in
Vinubhai
Haribhai
Malaviya and others Vs. State of Gujarat
and another2 and it was held that the
Magistrate's power under Section 156(3)
CrPC is very wide, and in order to ensure
that a 'proper investigation' takes place in
the sense of a fair and just investigation by
the police, Article 21 of the Constitution of
India mandates that all powers necessary,
which may also be incidental or implied,
are available to the Magistrate to ensure a
proper investigation which, would include
an order for further investigation after a
report is received by him under Section
173(2), and which power would continue to
enure in the Magistrate at all stages of the
criminal proceedings until the trial itself
commences.

14. The powers that are vested in
Magistrate upon filing a report in terms of
Section 173(2)(i), were explained in the
decision of Minu Kumari Vs. State of
Bihar3, wherein it was held that when a
report is filed before a Magistrate, he may
either: (i) accept the report and take
cognizance of the offences and issue
process; or (ii) may disagree with the report
and drop the proceedings; or (iii) may
direct further investigation under Section
156(3) and require the police to make a
further report.

15. In the case of Vinay Tyagi Vs.
Irshad Ali @ Deepak and others4, after
referring to the decision in the case of Minu
Kumari (supra), it was held that the court of
Magistrate has a clear power to direct
further investigation when a report is filed
under Section 173(2), and may also
exercise such powers with the aid of
Section 156(3) CrPC.

16. Reference was also made to the
decision in Hemant Dhasmana Vs. CBI5,
where the court had held that although
Section 173(8) does not, in specific terms,
mention about the powers of the Court to
order further investigation, the power of the
police to conduct further investigation
envisaged therein can be triggered into
motion at the instance of the Court.

17. The judgment in Hemant
Dhasmana (supra) has made specific
reference to the judgments in Union Public
Service Commission Vs. S. Papaiah and
others6,
and
Bhagwant
Singh
Vs.
Commissioner of Police7, to conclude that
the Magistrate could pass an order for
further investigation.

18. In terms of the aforesaid decisions
it can be concluded that the scheme of the
Code nor any specific provision therein
bars exercise of jurisdiction by the
Magistrate to order further investigation.
The language of Section 173(2) is not to be
construed in restricted manner so as to
1516 INDIAN LAW REPORTS ALLAHABAD SERIES
deprive the Magistrate of such powers,
particularly, in view of the provisions under
Section 156(3), and the language of Section
173(8) itself. The power of the Magistrate
to direct further investigation, is, in fact, to
be read into language of Section 173(8)
CrPC.

19. The question as to whether after a
charge-sheet has been filed by the police,
the Magistrate has power to order further
investigation, and if so, upto what stage of
a criminal proceeding, is therefore no
longer res integra, in view of the
authoritative pronouncements, wherein it
has been held that the power to order for
further investigation after a police report
has been forwarded under Section 173(2),
would continue to enure in the Magistrate
at all stages of the criminal proceedings
until a trial itself commences.

20. The legal position with regard to
the power of the Magistrate to order further
investigation
exercising
powers
under
Section 156(3) read with Section 173(8),
being well settled, the order impugned
dated
12.07.2023
passed
by
the
Metropolitan
Magistrate,
Court
No.9,
Kanpur Nagar in Misc. Case No.1124 of
2023, in terms of which the final report
submitted by police has been rejected, and
a direction has been issued for further
investigation, cannot be faulted on the
ground of lack of jurisdiction.

21. The petition lacks merit and is
accordingly dismissed.
----------
(2024) 3 ILRA 1516
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.03.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Capital Case No. 19 of 2022
connected with
Capital Cases No. 2 of 2023
 &
Capital Reference No. 14 of 2022

Mohd. Shakeel ...Appellant
Versus
State ...Respondent

Counsel for the Appellant:
Sri Apul Misra, Sri Sukhvir Singh

Counsel for the Respondent:
G.A., Ms. Mayuri Mehrotra, Ms. Archana Singh

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 374(2) - Appeal
against
conviction
,
Section
366
-
Sentence of death to be submitted by
Court of Session for confirmation , Capital
punishment - Murder - Arms possession -
Indian Penal Code, 1860 - Sections
302/34, Arms Act, 1959 - Section 25 & 27
- Circumstantial Evidence - Extra-Judicial
Confession - Recovery - Last-seen theory -
Motive
-
In
case
of
circumstantial
evidence the chain of circumstances has
to be proved in such a manner which leads
to the conclusion that the accused and
none else is responsible for the offence
alleged against him - Chain has to be
completed in all respect.
(Para - 46)

(B)
Indian
Evidence
Act,
1872
-
Circumstantial evidence - Panchsheel of
the
proof
of
a
case
based
on
circumstantial evidence - circumstances
from which the conclusion of guilt is to be
drawn should be fully established - facts
so established should be consistent only
with the hypothesis of the guilt of the
accused - circumstances should be of a
conclusive nature and tendency - should
exclude every possible hypothesis except
the one to be proved - must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion