# Ram Sajan Verma v. State of U.P. & Ors

- **Citation:** (2022) 4 ILRA 310
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-30
- **Case number:** Application U/S 482 No. 8634 of 2021
- **Bench:** Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sajan-verma-v-state-of-u-p-ors-47606
- **Pages:** 18

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code, 1860 - Section 409-quashing
of
impugned
order-embezzlement
of
public money-re-investigation-FIR lodged
by first informant in his official capacity as
a public servant-After submission of final
report, protest petition filed by first
informant-Concerned magistrate rejected
the final report and directed for reinvestigation-this order challenged by one
of the accused and was ultimately set
aside by revisional court, matter was
remanded with a direction to concerned
Magistrate to pass fresh order-thereafter,
first informant showing his agreement
with final report filed an affidavit and the
same was accepted, which order was
challenged by first informant himself by
means
of
criminal
revision
wherein
impugned order has been passed-no
estoppel can be pleaded by accused
against
first
informant-Concerned
Magistrate
in
complete
ignorance
of
4 All. Ram Sajan Verma Vs. State of U.P. & Ors.
311
Section 190 Cr.P.C. to see that offence
complained of which is cognizable and
non-bailable offence is duly investigated,
accepted the consent of first informant
showing his agreement with the police
report which otherwise he was not
competent to give-More so, the sanction
from
competent
authority
would
be
required to take cognizance and no such
sanction had been obtained in respect of
the officer-Thus, concerned magistrate
committed
a
jurisdictional
error-first
informant brought to the notice this
mistake
to
the
Revisional
court
by
himself-Revisional court rightly allowed
the revision-quashing of impugned order
is refused and the same may be further
investigated by a different Investigating
Officer.(Para 1 to 41)

B. Criminal Law - Code of Criminal
Procedure, 1973 -Section 197 -seeks to
protect
an
officer
from
unnecessary
harassment, who is accused of an offence
committed while acting or purporting to
act in the discharge of his official duties
and, thus, prohibits the court from taking
cognizance of such offence except with
the previous sanction of the competent
authority. Public servants
have been
treated as a special category in order to
protect them from malicious or vexatious
prosecution. the yardstick to be followed
is to form a prima facie view whether the
act of omission for which the accused was
charged had a reasonable connection with
the discharge of his duties.(Para 37)

The application is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,903 of 61,227. This is a partial read: ask again with offset=39903 for what follows._

310 INDIAN LAW REPORTS ALLAHABAD SERIES
and the other is convicted, then it will
create an anamalous position in law and is
likely to shake the confidence of the people
in the administration of justice. Justice is
not only to be done but also seem to be
done. Therefore, I am clearly of opinion
that as has been held in the case of Pritam
Singh v. State of Punjab. (S) AIR 1956 SC
415, the principle of stare decisis will apply
in the present case and the applicant's
conviction cannot be sustained."

12. After going through the judgements
relied by learned counsel for the applicant, it
is very much clear that Court has held that
considering the testimony of witnesses, if one
accused is acquitted, no criminal proceeding
can be sustained against co-accused on the
same set of witnesses and in the present case
too, there is no separate witness and on the
basis of testimony of same prosecution
witnesses, main accused was acquitted by the
court below, Whenever there is no prospect of
the case ending in conviction, valuable time
of court should not be wasted for holding trial
only for the purpose of completing the
procedure to pronounce the conclusion on
future date. Therefore, criminal proceeding
cannot be permitted to continue against the
applicant.

13. Therefore, under such facts and
circumstances of the case as well as law laid
down by the Apex Court, criminal proceeding
against the applicants in Criminal Case No.
141 of 2019 (State of U.P. Vs. Anand Deep
Dubey and others), arising out of Case Crime
No. 372 of 2016, under Section 364-A/34
IPC, Police Station Lambhuwa, District
Sultanpur cannot be sustained and is hereby
quashed.

14.

With
the
aforesaid
observation/direction, this petition under
Section 482 Cr.PC. is allowed.

15. Office is directed to communicate
this order to the trial court concerned for
necessary action and compliance.
----------
(2022)04ILR A310
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.07.2021

BEFORE

THE HON'BLE RAJEEV MISRA, J.

Application U/S 482 No. 8634 of 2021

Ram Sajan Verma ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Sheshadri Trivedi, Sri Gopal Swarup
Chaturvedi, (Senior Adv.), Sri Satish Trivedi
(Senior Adv.), Neetu Patel

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code, 1860 - Section 409-quashing
of
impugned
order-embezzlement
of
public money-re-investigation-FIR lodged
by first informant in his official capacity as
a public servant-After submission of final
report, protest petition filed by first
informant-Concerned magistrate rejected
the final report and directed for reinvestigation-this order challenged by one
of the accused and was ultimately set
aside by revisional court, matter was
remanded with a direction to concerned
Magistrate to pass fresh order-thereafter,
first informant showing his agreement
with final report filed an affidavit and the
same was accepted, which order was
challenged by first informant himself by
means
of
criminal
revision
wherein
impugned order has been passed-no
estoppel can be pleaded by accused
against
first
informant-Concerned
Magistrate
in
complete
ignorance
of
4 All. Ram Sajan Verma Vs. State of U.P. & Ors.
311
Section 190 Cr.P.C. to see that offence
complained of which is cognizable and
non-bailable offence is duly investigated,
accepted the consent of first informant
showing his agreement with the police
report which otherwise he was not
competent to give-More so, the sanction
from
competent
authority
would
be
required to take cognizance and no such
sanction had been obtained in respect of
the officer-Thus, concerned magistrate
committed
a
jurisdictional
error-first
informant brought to the notice this
mistake
to
the
Revisional
court
by
himself-Revisional court rightly allowed
the revision-quashing of impugned order
is refused and the same may be further
investigated by a different Investigating
Officer.(Para 1 to 41)

B. Criminal Law - Code of Criminal
Procedure, 1973 -Section 197 -seeks to
protect
an
officer
from
unnecessary
harassment, who is accused of an offence
committed while acting or purporting to
act in the discharge of his official duties
and, thus, prohibits the court from taking
cognizance of such offence except with
the previous sanction of the competent
authority. Public servants
have been
treated as a special category in order to
protect them from malicious or vexatious
prosecution. the yardstick to be followed
is to form a prima facie view whether the
act of omission for which the accused was
charged had a reasonable connection with
the discharge of his duties.(Para 37)

The application is dismissed. (E-6)

List of Cases cited:
1. M/s India Caret Pvt. Ltd. Vs St. of Karn. &
ors..(1989) AIR SC 885

2. Gangadhar Janardan Mahtre Vs St. of Mah.
(2005) SCC Crl. 404

3. Minoo Kumari Vs St. of Bih. (2006) 4 SCC
359

4. Sanjay Bansal & ors. Vs Jawahar Lal Bats &
ors. (2007) 59 SCC 1050
5. Vishnu Kumar Tiwari Vs St. of U.P. & anr.
(2019) 8 SCC 27

6. Bhagwant Singh Vs Commr. of Police (1985)
2 SCC 537: 1985 SCC(Cri) 267 : AIR 1985 SC
1285

7. Chandra Babu @ Moses Vs St. Inspr. of Police
& ors.. (2015) 8 SCC 774

8. Vinay Tyagi Vs Irshad Ali (2013) 5 SCC 762:
(2013) 4 SCC Cri. 557

9. Reeta Nag Vs St. of W. B. (2009) 9 SCC 129:
(2009) 3 SCC Cri 1051

10. Ram Naresh Prasad Vs St. of Jharkhand
(2009) 11 SCC 299: (2009) 3 SCC Cri 1336

11. Randhir Singh Rana Vs St. of (Delhi Admn.)
(1997) 1 SCC 361

12. Municipal Corp. of Delhi Vs Jagsish Lal &
anr. (1969) 3 SCC 389

13. National Small Industries Corp. Ltd. Vs St.
(NCT of Delhi) & ors. (2009) 1 SCC 407

14. Indra Devi Vs St. of Raj. & anr. ( 2021) 3
RCR Cri. 621

(Delivered by Hon'ble Rajeev Misra, J.)

1. Heard Mr. Satish Trivedi alongwith
Mr. G. S. Chaturvedi, learned Senior
Counsel assisted by Mr. Sheshadri Trivedi,
learned counsel for applicant and learned
A.G.A. for State.

2. Perused the record.

3. Present application under Section
482 Cr.P.C. has been filed challenging
order dated 17.02.2021, passed by Sessions
Judge, Maharajganj, in Criminal Revision
No. 8 of 2021 (Bhanu Pratap Singh Vs.
State of U.P. and others), whereby aforesaid
revision
preferred
by
first
informant/opposite party-2 against order
312 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 25.10.2019, by which Chief Judicial
Magistrate, Maharajganj, accepted final
report no.20 of 2015, dated 17.2.2015
(submitted in Case Crime No. 1223 of 2014
under Section 409 I.P.C, P.S. Kotwali,
District-Maharajganj), has been set aside
and matter has been remanded to concerned
Magistrate to pass a fresh order on
aforesaid final report in the light of
observations made in above mentioned
order of Revisional Court.

4. Record shows that an F.I.R. dated
26.8.2014,
was
lodged
by
first
informant/opposite party-2, Bhanu Pratap
Singh, which was registered as Case Crime
No. 1223 of 2014, under Section 409 I.P.C,
P.S. Kotwali, District-Maharajganj. In the
aforesaid F.I.R., three persons namely, R. S.
Verma (the then Executive Engineer),
Pateshwari Prasad Singh (contractor) and
Smt. Asha Singh (contractor) have been
nominated as named accused.

5. In brief, as per prosecution story as
unfolded in F.I.R., it is alleged that F.I.R.
has been lodged in compliance of letter
dated
6.8.2014
issued
by
State
Government. The F.I.R. further states that
accused
persons
are
guilty
of
embezzlement of public money to the tune
of Rs. 26,82,300/-.

6. Subsequent to aforesaid F.I.R.,
Investigating
Officer
proceeded
with
statutory investigation of above mentioned
case crime number in terms of Chapter XII
Cr.P.C. After completion of investigation,
Investigating Officer submitted a police
report under Section 173 (2) Cr.P.C. (final
report no.20 of 2015 dated 17.02.2015) on
the grounds that F.I.R. has been lodged
without obtaining permission of Law
Department, Government of U.P., no
sanction as required under Section 197
Cr.P.C. has been obtained. As such,
proceedings of above mentioned case crime
number cannot continue. F.I.R. has been
lodged on account of prejudice and ill-will
and therefore, proceedings are being
terminated by submitting a final report.

7. Upon submission of above noted
final report, concerned Magistrate issued
notice to first informant/opposite party-2.
Thereafter, first informant/opposite party-2
filed an application dated 18.05.2015, in
terms of Regulation 122 (3) of Police
Regulations stating therein that final report
dated
17.02.2015,
be
rejected
and
directions
be
issued
for
further
investigation.

8.

Concerned
Magistrate
upon
examination of record concluded that
Investigating Officer has not investigated
the crime in question according to law. As
such investigation so conducted becomes
suspicious
and
doubtful. Accordingly,
concerned Magistrate, vide order dated
19.02.2016, rejected final report dated
17.02.2015,
with
a
direction
to
Superintendent of Police, Maharajganj to
appoint a new Investigating Officer for reinvestigation of above mentioned case
crime number.

9. Feeling aggrieved by above noted
order dated 19.02.2016, one of the named
accused
namely
Smt.
Asha
Singh
(contractor) filed Criminal Revision No. 25
of 2016 (Smt. Asha Singh Vs, State of U.P.
and others) before District and Sessions
Judge, Maharajganj. Same was allowed
vide order 06.08.2016, passed by Sessions
Judge,
Maharajganj.
Revisional
Court
concluded that concerned Magistrate could
not have passed an order of fresh
investigation, but only re-investigation.
Accordingly, it remanded the matter before
4 All. Ram Sajan Verma Vs. State of U.P. & Ors.
313
concerned Magistrate with direction to pass
fresh order in the light of observations
contained in above order of revisional
court.

10. Subsequent to order dated
06.08.2016, first informant opposite party-2
appeared before concerned Magistrate and
filed a protest petition dated 11.06.2019,
(Annexure 7 to the affidavit) against final
report dated 17.02.2015.

11. Thereafter, on 17.08.2019, first
informant/opposite
party-2
filed
an
affidavit
dated
17.08.2019,
before
concerned Magistrate (Annexure 8 to the
affidavit filed in support of present
application) stating therein that he is
satisfied with the final report dated
17.02.2015 and therefore, he does not wish
to contest the case. An endorsement to that
effect was also made by him on 11.06.2019

12. In view of above, concerned
Magistrate, vide order date 25.10.2019,
accepted the affidavit dated 17.08.2019,
filed by first informant/opposite party-2.
Consequently,
final
report
dated
17.02.2015, was also accepted at the risk of
first informant/opposite party-2.

13. The Court is astonished as to how
Magistrate could have proceeded to pass
the order dated 25.10.2019, whereby he
virtually accepted the consent of opposite
party showing his agreement with final
report which otherwise opposite party-2
was not competent to give. Concerned
Magistrate in exercise of jurisdiction under
Section 190 Cr.P.C. was required to
examine that offence complained of, which
is a conizable, non-bailable offence has
been duly investigated or not. This aspect
shall be further dealt with in later part of
this judgement.

14. Contrary to the stand taken by
first informant/opposite party-2 before
concerned
Magistrate,
first
informant/opposite
party-2,
thereafter
challenged order dated 25.10.2019, passed
by Magistrate (whereby final report no. 20
of 2015 dated 17.02.2015 was accepted)
before
District
and
Sessions
Judge,
Maharajganj by filing Criminal Revision
No. 8 of 2021 (Bhanu Pratap Singh Vs.
State of U.P. and two others). Record
shows that one of the named accused
namely
Pateshwari
Prasad
Singh
(contractor) was not impleaded as an
opposite
party
in
aforesaid
criminal
revision.

15. Notices were issued on aforesaid
revision by revisional court to the two
accused, who were impleaded as opposite
parties therein. Revisional Court, thereafter,
vide
judgement
and
order
dated
17.02.2021, allowed above noted criminal
revision and remanded the matter before
concerned Magistrate with a direction to
pass fresh order on the final report dated
17.02.2015, submitted by Investigating
Officer, in the light of observations made in
the order aforesaid.

16. Perusal of order dated 17.02.2021,
goes to show that court below examined
allegations
made
in
F.I.R.
dated
26.08.2014, and also the material on
record.
Thereafter,
Revisional
Court
referred to the following judgements:

1. M/s India Caret Pvt. Ltd Vs.
State of Karnatk and others, AIR 1989 SC
885

2. Gangadhar Janardan Mahtre
vs. State of Maharastra (2005) SCC
Criminal 404

3. Minoo Kumari Vs. State of
Bihar (2006)4 SCC 359
314 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Sanjay Bansal and othrs Vs.
Jawahar Lal Bats and others 2007 (59) SCC
1050

After
noticing
aforesaid
judgements court below held that upon
submission of a police report ( under
Section 173 (2) Cr.P.C.) which in this case
was a final report, concerned Magistrate
has following four options:

1. Magistrate can accept the
police report.

2. Magistrate can disagree with
the police report and take cognizance on
the basis of material appended alongwith
police report under Section 190 (1) (b)
Cr.P.C.

3. Magistrate can direct police for
further investigation under Section 156 (3)
Cr.P.C.

4. Magistrate can treat the protest
petition submitted against police report as a
complaint and thereby take cognizance
under Section 190 (1) (a) Cr.P.C.

17. Having taken note of Case Law on
the
point
and
Section
190
Cr.P.C.,
Revisional Court proceeded to examine the
veracity of order dated 25.10.2019. Upon
consideration, court below held that F.I.R.
dated 26.08.2014, was lodged by first
informant/opposite party-2 herein namely
Bhanu Pratap Singh in compliance of letter
dated 06.08.2014, issued by Deepak
Singhal, Principal Secretary, Government
of U.P. As such, F.I.R. dated 24.09.2019,
was lodged by first informant (who was at
that time working as Executive Engineer)
as a public servant and not in his private
capacity.

18. Revisional Court further held that
after submission of protest petition by first
informant/opposite party-2 against final
report
dated
17.02.2015,
Magistrate
examined the matter. Concerned Magistrate
specifically
enquired
from
first
informant/opposite party-2 as to whether
protest
petition
dated
11.06.2019,
(Annexure 7 to the affidavit) was filed by
first informant/opposite party-2 in his
personal
capacity
or
on
behalf
of
Department
of
Irrigation.
First
informant/opposite party-2 categorically
submitted before Magistrate that same has
been filed on behalf of Department of
Irrigation as an embezzlement of Rs. 26.82
Lacs is involved.

19. On the basis of above, court
below
concluded
that
first
informant/opposite party-2 had lodged
F.I.R. not in his personal capacity but as a
public servant. Protest petition dated
11.06.2019, was filed on the direction of
Department of Irrigation. However, without
obtaining
written
permission
from
Department of Irrigation/Government of
U.P.
to
file
an
affidavit
disclosing
agreement
with
final
report,
first
informant/opposite party-2 has himself
filed subsequent affidavit dated 17.08.2019,
stating
therein
that
as
first
informant/opposite party-2 is satisfied with
the police report (final report no. 20 of
2015 dated 17.02.2015), therefore, he does
not wish to contest the case any longer. As
such, matter be decided in light of
aforesaid. Revisional Court thus came to
the conclusion that first informant/opposite
party-2 has no right or authority to herself
file the application dated 17.08.2019.

20. In view of above, court below
allowed criminal revision filed by first
informant/opposite party-2 vide order dated
17.02.2021,
whereby
order
dated
25.10.2019, passed by Chief Judicial
Magistrate, Maharajganj, in F. R. No. 497
of 2015 (accepting final report no. 20 of
2015 dated 17.02.2015) was set aside and
4 All. Ram Sajan Verma Vs. State of U.P. & Ors.
315
matter
was
remanded
to
concenred
Magistrate to pass fresh order on the final
report so submitted in accordance with law
after hearing State Government/Department
of Irrigation .

21. Thus, feeling aggrieved by order
dated 17.02.2021, one of the named
accused namely R. S. Verma (the then
Executive Engineer) has now approached
this Court by means of present application
under Section 482 Cr.P.C.

22. Mr. Satish Trivedi, learned Senior
Advocate alongwith Mr. G. S. Chatruvedi,
learned Senior Counsel assisted by Mr.
Sheshadri Trivedi, learned counsel for
applicant submits that order impugned in
present application is manifestly illegal and
without jurisdiction. Consequently, same is
liable to be quashed by this Court. It is then
contended
that
once
first
informant/opposite party-2 had filed an
affidavit dated 17.08.2019, wherein he had
categorically stated that he is satisfied with
the police report (final report no.20 of 2015
dated 17.02.2015) and on basis thereof,
Chief Judicial Magistrate, Maharajganj,
passed order dated 25.10.2019, accepting
final
report,
consequently,
first
informant/opposite party-2 was estopped
from challenging order dated 25.10.2019,
by filing a Criminal Revision. It is also
contended by learned Senior Counsel
appearing for applicant that admittedly
present criminal proceedings have been
initiated against applicant for certain acts
which are alleged to have been committed
in discharge of his official duty. Since no
prior sanction was obtained in terms of
Section 197 Cr.P.C. before lodging the
F.I.R., no illegality was committed by
Investigating Officer in submitting police
report (final report no.20 of 2015 dated
17.02.2015) by taking above also as a
ground for submitting the same. Till today,
no sanction in terms of Section 197 Cr.P.C.
has been granted by competent authority
for prosecution of applicant. Therefore no
criminal proceedings pursuant to order of
remand passed by Revisional Court, by
means
of
impugned
order
dated
17.02.2021, can be allowed to continue.
Revisional Court while passing impugned
order has completely ignored aforesaid
aspect, which has vitiated the impugned
order. On the cumulative strength of
aforesaid submissions, it is vehemently
urged
that
impugned
order
dated
17.02.2021, passed by court below cannot
be sustained and therefore, liable to be
quashed by this Court.

23. Per contra learned A.G.A. has
opposed this application. Learned A.G.A.
has invited attention of Court to the
impugned order dated 17.02.2021. On the
basis of same, it is urged by learned
A.G.A. that court below has exercised it's
jurisdiction under Section 397 Cr.P.C.
with due diligence. Court below has
neither committed any jurisdictional error
nor has exercised it's jurisdiction with
material
irregularity,
as
such
no
interference is warranted by this Court.
Court below has categorically recorded
that protest petition dated 11.06.2019,
(Annexure 7 to the affidavit) was filed by
first informant/opposite party-2 on behalf
of Department of Irrigation, Government
of U.P. and not in his personal capacity.
The Magistrate had duly ascertained
aforesaid fact as is evident from order
dated 06.01.2016, passed by Magistrate.
On the aforesaid premise, learned A.G.A.
contends that informant/opposite party-2
could not have taken a summer-sault and
filed the subsequent affidavit dated
17.08.2019, (Annexure-8 to the affidavit).
The prosecution of applicant and two
316 INDIAN LAW REPORTS ALLAHABAD SERIES
others was set in motion with the lodging
of F.I.R. dated 26.08.2014, by first
informant/opposite party-2, pursuant to
letter dated 06.08.2014, issued by Mr.
Deepak Singhal, Principal Secretary,
Government of U.P. Lucknow. As such,
aforesaid F.I.R. was lodged by first
informant/opposite party-2 in compliance
of order of higher authority which he was
bound
to
comply
as
first
informant/opposite party-2 was working
as Executive Engineer and under the
control of Principal Secretary Department
of Irrigation. As such F.I.R. was lodged
by first informant in his official capacity
and not in his personal capacity. In the
absence of any written permission from
State
Government/Department
of
Irrigation, Govt. of U.P., not to challenge
the final report dated 17.02.2015, first
informant/opposite party-2 had no right
or authority to file the subsequent
affidavit dated 17.08.2019 himself. In the
submission of learned A.G.A. above
mentioned affidavit dated 17.08.2019, is
void ab-initio and therefore could not
have been considered by Magistrate. As
such, no illegality has been committed by
court below in allowing the revision.
Consequently,
present
application
is
liable to be dismissed.

24. Having heard learned counsel for
applicant, learned A.G.A. for State and
upon perusal of record, the Court finds that
following issues arise for determination in
present application.

i. What is the procedure, which
shall be followed by Magistrate upon
submission of a police report under Section
173 (2) Cr.P.C.

ii.
The
concept
of
reinvestigation/further
investigation
with
reference to Section 173 (8) Cr.P.C.

iii. Whether estoppel can be
pleaded against informant/opposite party-2
in the facts and circumstances of the case.

iiv. Whether sanction as required
under Section 197 Cr.P.C. is to be
necessarily granted/obtained before lodging
of F.I.R. or same has to be granted
/obtained before taking cognizance, by
court concerned.

(v) Whether order impunged in
present application is liable to be quashed.

25. Taking the first issue first, the
Court finds that same is no longer resintegra and stands concluded by the
judgement of Apex Court in Vishnu
Kumar Tiwari Vs. State of U.P. and
another (2019) 8SCC 27, wherein Court
after considering the entire gamut of Case
Law on the point has observed as follows
in paragraphs 20, 21 and 27, which are
reproduced herein-under:

20. In Gangadhar Janardan
Mhatre v. State of Maharashtra, this
Court reiterated that Magistrate can,
faced with a final report, independently
apply his mind to the facts emerging from
investigation and take cognizance under
Section 190 (1)(b), and in this regard, is
not bound to follow the procedure under
Sections 200 and 202 of the Code for
taking
cognizance
under
Section
190(1)(b). It was, however, open to the
Magistrate to do so.

21. In regard to the filing of
protest petition by the informant who filed
the First Information Report, it is
important
to
notice
the
following
discussion by this Court:

"6. There is no provision in the
Code to file a protest petition by the
informant
who
lodged
the
first
information report. But this has been the
practice. Absence of a provision in the
4 All. Ram Sajan Verma Vs. State of U.P. & Ors.
317
Code relating to filing of a protest petition
has been considered. This Court in
Bhagwant Singh v. Commr. of Police
[(1985) 2 SCC 537:1985 SCC (Cri) 267 :
AIR 1985 SC 1285] stressed on the
desirability of intimation being given to
the informant when a report made under
Section 173(2) is under consideration. The
Court held as follows: (SCC p. 542, para
4) 4 (2004) 7 SCC 768 "There can,
therefore, be no doubt that when, on a
consideration of the report made by the
officer in charge of a police station under
sub-section (2)(i) of Section 173, the
Magistrate
is
not
inclined
to
take
cognizance of the offence and issue
process, the informant must be given an
opportunity of being heard so that he can
make his submissions to persuade the
Magistrate to take cognizance of the
offence and issue process. We are
accordingly of the view that in a case
where the Magistrate to whom a report is
forwarded under sub-section (2)(i) of
Section 173 decides not to take cognizance
of the offence and to drop the proceeding
or takes the view that there is no sufficient
ground for proceeding against some of the
persons mentioned in the first information
report, the Magistrate must give notice to
the informant and provide him an
opportunity to be heard at the time of
consideration of the report."

9. When a report forwarded by
the police to the Magistrate under Section
173(2)(i) is placed before him several
situations arise. The report may conclude
that an offence appears to have been
committed by a particular person or
persons and in such a case, the Magistrate
may either (1) accept the report and take
cognizance of the offence and issue
process, or (2) may disagree with the
report and drop the proceeding, or (3) may
direct further investigation under Section
156(3) and require the police to make a
further report. The report may on the
other hand state that according to the
police, no offence appears to have been
committed. When such a report is placed
before the Magistrate he has again option
of adopting one of the three courses open
i.e. (1) he may accept the report and drop
the proceeding; or (2) he may disagree
with the report and take the view that
there is sufficient ground for further
proceeding, take cognizance of the offence
and issue process; or (3) he may direct
further investigation to be made by the
police under Section 156(3). The position
is, therefore, now well settled that upon
receipt of a police report under Section
173(2) a Magistrate is entitled to take
cognizance of an offence under Section
190(1)(b) of the Code even if the police
report is to the effect that no case is made
out against the accused. The Magistrate
can take into account the statements of the
witnesses examined by the police during
the investigation and take cognizance of
the offence complained of and order the
issue of process to the accused. Section
190(1)(b) does not lay down that a
Magistrate can take cognizance of an
offence only if the investigating officer
gives an opinion that the investigation has
made out a case against the accused. The
Magistrate can ignore the conclusion
arrived at by the investigating officer and
independently apply his mind to the facts
emerging from the investigation and take
cognizance of the case, if he thinks fit,
exercise
his
powers
under
Section
190(1)(b) and direct the issue of process to
the accused. The Magistrate is not bound
in such a situation to follow the procedure
laid down in Sections 200 and 202 of the
Code for taking cognizance of a case
under Section 190(1)(a) though it is open
to him to act under Section 200 or Section
318 INDIAN LAW REPORTS ALLAHABAD SERIES
202 also. [See India Carat (P) Ltd. v. State
of Karnataka [(1989) 2 SCC 132 : 1989
SCC (Cri) 306 : AIR 1989 SC 885] .] The
informant is not prejudicially affected
when the Magistrate decides to take
cognizance and to proceed with the case.
But where the Magistrate decides that
sufficient ground does not subsist for
proceeding
further
and
drops
the
proceeding or takes the view that there is
material for proceeding against some and
there are insufficient grounds in respect of
others, the informant would certainly be
prejudiced as the first information report
lodged
becomes
wholly
or
partially
ineffective. Therefore, this Court indicated
in Bhagwant Singh case [(1985) 2 SCC
537 : 1985 SCC (Cri) 267 : AIR 1985 SC
1285] that where the Magistrate decides
not to take cognizance and to drop the
proceeding or takes a view that there is no
sufficient ground for proceeding against
some of the persons mentioned in the first
information
report,
notice
to
the
informant and grant of opportunity of
being heard in the matter becomes
mandatory. As indicated above, there is no
provision in the Code for issue of a notice
in that regard." (Emphasis supplied)

27. It is undoubtedly true that
before a Magistrate proceeds to accept a
final report under Section 173 and
exonerate the accused, it is incumbent
upon the Magistrate to apply his mind to
the contents of the protest petition and
arrive at a conclusion thereafter. While
the Investigating Officer may rest content
by producing the final report, which,
according to him, is the culmination of his
efforts, the duty of the Magistrate is not
one limited to readily accepting the final
report. It is incumbent upon him to go
through the materials, and after hearing
the complainant and considering the
contents of the protest petition, finally
decide the future course of action to be,
whether to continue with the matter or to
bring the curtains down."

26. In view of aforesaid authoritative
pronouncement of Apex Court, it cannot be
said that concerned Magistrate had no
jurisdiction to reject the police report. and
direct for further investigation.

27. Learned A.G.A. contends that
unfortunately,
in
present
case
the
Magistrate, while passing order dated
19.2.2016, directed for re-investigation.
Consequently, this order dated 19.2.2016,
came to be challenged by one of the
accused namely Asha Singh (contractor) on
the
ground
that
Magistrate
had
no
jurisdiction
to
direct
re-investigation.
Revisional Court by means of order dated
6.8.2016, allowed the revision and directed
the Magistrate to pass a fresh order on the
final report dated 17.2.2015. Subsequently,
vide order dated 17.02.2021, passed by
revisional court, which has been impugned
in present application, court below again
directed concerned Magistrate to pass fresh
order on final report no. 20 of 2015 dated
17.02.2015. Once, the order of Magistrate
dated 25.10.2019, was set aside, court
below could have itself directed for further
investigation as the tenor of the term reinvestigation has now to be construed as
further investigation.

28. The issue that arises for
consideration in the context of above is
regarding meaning of the terms "further
investigation" and "re-investigation". This
issue need not detain this Court as it now
stands settled by Apex Court in Chandra
Babu @ Moses Vs. State Inspector of
Police and others, reported in 2015 (8)
SCC 774, wherein Court considered the
earlier judgement in Vinay Tyagi Vs. Irshad
4 All. Ram Sajan Verma Vs. State of U.P. & Ors.
319
Ali @ Deepak and others, (2013) 5 SCC,
762 and held as under in paragraphs 16, 17,
18, 19, 20 and 21:-

"16. We have referred to the
aforesaid authorities to reiterate the legal
position that a Magistrate can disagree
with the police report and take cognizance
and issue process and summons to the
accused. Thus, the Magistrate has the
jurisdiction
to
ignore
the
opinion
expressed by the investigating officer and
independently apply his mind to the facts
that have emerged from the investigation.

17. Having stated thus, we may
presently proceed to deal with the facet of
law where the Magistrate disagrees with
the
report
and
on
applying
his
independent mind feels, that there has to
be a further investigation and under that
circumstance what he is precisely required
to do. In this regard, we may usefully refer
to a notable passage from a three-Judge
Bench decision in Bhagwant Singh
v.Commr. of Police[(1985) 2 SCC 537 :
1985 SCC (Cri) 267] , which is to the
following effect:

"4.
Now,
when
the
report
forwarded by the officer in charge of a
police station to the Magistrate under subsection (2)(i) of Section 173 comes up for
consideration by the Magistrate, one of
two different situations may arise. The
report may conclude that an offence
appears to have been committed by a
particular person or persons and in such a
case, the Magistrate may do one of three
things:

(1) he may accept the report and
take cognizance of the offence and issue
process, or (2) he may disagree with the
report and drop the proceeding, or (3) he
may direct further investigation under
sub-section (3) of Section 156 and require
the police to make a further report.

The report may on the other
hand state that, in the opinion of the
police, no offence appears to have been
committed and where such a report has
been made, the Magistrate again has an
option to adopt one of three courses: (1)
he may accept the report and drop the
proceeding, or (2) he may disagree with
the report and taking the view that there is
sufficient ground for proceeding further,
take cognizance of the offence and issue
process, or (3) he may direct further
investigation to be made by the police
under sub-section (3) of Section 156.
Where, in either of these two situations,
the Magistrate decides to take cognizance
of the offence and to issue process, the
informant is not prejudicially affected nor
is the injured or in case of death, any
relative
of
the
deceased
aggrieved,
because cognizance of the offence is taken
by the Magistrate and it is decided by the
Magistrate that the case shall proceed. But
if the Magistrate decides that there is no
sufficient ground for proceeding further
and drops the proceeding or takes the view
that though there is sufficient ground for
proceeding against some, there is no
sufficient ground for proceeding against
others mentioned in the first information
report, the informant would certainly be
prejudiced because the first information
report lodged by him would have failed of
its purpose, wholly or in part. Moreover,
when the interest of the informant in
prompt and effective action being taken on
the first information report lodged by him
is clearly recognised by the provisions
contained in sub-section (2) of Section
154, sub-section (2) of Section 157 and
sub-section (2)(ii) of Section 173, it must
be presumed that the informant would
equally be interested in seeing that the
Magistrate takes cognizance of the offence
and issues process, because that would be
320 INDIAN LAW REPORTS ALLAHABAD SERIES
culmination of the first information report
lodged by him. There can, therefore, be no
doubt that when, on a consideration of the
report made by the officer in charge of a
police station under sub-section (2)(i) of
Section 173, the Magistrate is not inclined
to take cognizance of the offence and
issue process, the informant must be given
an opportunity of being heard so that he
can make his submissions to persuade the
Magistrate to take cognizance of the
offence and issue process.

We are accordingly of the view
that in a case where the Magistrate to
whom a report is forwarded under subsection (2)(i) of Section 173 decides not to
take cognizance of the offence and to drop
the proceeding or takes the view that there
is no sufficient ground for proceeding
against some of the persons mentioned in
the
first
information
report,
the
Magistrate must give notice to the
informant and provide him an opportunity
to be heard at the time of consideration of
the report. It was urged before us on
behalf of the respondents that if in such a
case notice is required to be given to the
informant, it might result in unnecessary
delay on account of the difficulty of
effecting service of the notice on the
informant. But we do not think this can be
regarded as a valid objection against the
view we are taking, because in any case
the action taken by the police on the first
information
report
has
to
be
communicated to the informant and a
copy of the report has to be supplied to
him under sub-section (2)(i) of Section
173 and if that be so, we do not see any
reason why it should be difficult to serve
notice of the consideration of the report
on the informant.

Moreover, in any event, the
difficulty of service of notice on the
informant cannot possibly provide any
justification for depriving the informant of
the opportunity of being heard at the time
when the report is considered by the
Magistrate."

18.
Relying
on
the
said
paragraph, a two-Judge Bench in Vinay
Tyagi v. Irshad Ali [(2013) 5 SCC 762 :
(2013) 4 SCC (Cri) 557] , has opined thus:

"37. In some judgments of this
Court, a view has been advanced,
[amongst others in Reeta Nag v. State of
W.B.[(2009) 9 SCC 129 : (2009) 3 SCC
(Cri) 1051] , Ram Naresh Prasad v State
of Jharkhand [(2009) 11 SCC 299 : (2009)
3 SCC (Cri) 1336] and Randhir Singh
Rana v. State (Delhi Admn.) [(1997) 1
SCC 361] ] that a Magistrate cannot suo
motu direct further investigation under
Section 173(8) of the Code or direct
reinvestigation into a case on account of
the bar contained in Section 167(2) of the
Code, and that a Magistrate could direct
filing of a charge-sheet where the police
submits a report that no case had been
made out for sending up an accused for
trial. The gist of the view taken in these
cases is that a Magistrate cannot direct
reinvestigation and cannot suo motu
direct further investigation.

38. However, having given our
considered thought to the principles stated
in these judgments, we are of the view that
the Magistrate before whom a report
under Section 173(2) of the Code is filed,
is empowered in law to direct ''further
investigation' and require the police to
submit a further or a supplementary
report. A three-Judge Bench of this Court
in Bhagwant Singh has, in no uncertain
terms,
stated
that
principle,
as
aforenoticed.

39. The contrary view taken by
the Court in Reeta Nag and Randhir
Singh do not consider the view of this
Court expressed in Bhagwant Singh.
4 All. Ram Sajan Verma Vs. State of U.P. & Ors.
321

The decision of the Court in
Bhagwant Singh in regard to the issue in
hand cannot be termed as an obiter. The
ambit and scope of the power of a
Magistrate in terms of Section 173 of the
Code was squarely debated before that
Court
and
the
three-Judge
Bench
concluded as aforenoticed. Similar views
having been taken by different Benches of
this Court while following Bhagwant
Singh , are thus squarely in line with the
doctrine of precedent. To some extent, the
view expressed in Reeta Nag ,Ram Naresh
and
Randhir
Singh,
besides
being
different on facts, would have to be
examined in light of the principle of stare
decisis."

And eventually the Division
Bench ruled:

"40.
Having
analysed
the
provisions of the Code and the various
judgments as aforeindicated, we would
state the following conclusions in regard
to the powers of a Magistrate in terms of
Section 173(2) read with Section 173(8)
and Section 156(3) of the Code:

40.1. The Magistrate has no
power to direct ''reinvestigation' or ''fresh
investigation' (de novo) in the case
initiated on the basis of a police report.

40.2. A Magistrate has the power
to direct ''further investigation' after filing
of a police report in terms of Section
173(6) of the Code.

40.3. The view expressed in subpara 40.2 above is in conformity with the
principle of law stated in Bhagwant Singh
case by a three-Judge Bench and thus in
conformity with the doctrine of precedent.

40.4. Neither the scheme of the
Code nor any specific provision therein
bars exercise of such jurisdiction by the
Magistrate. The language of Section
173(2) cannot be construed so restrictively
as to deprive the Magistrate of such
powers
particularly
in
face
of
the
provisions of Section 156(3) and the
language of Section 173(8) itself. In fact,
such power would have to be read into the
language of Section 173(8).

40.5. The Code is a procedural
document,
thus,
it
must
receive
a
construction which would advance the
cause of justice and legislative object
sought to be achieved. It does not stand to
reason that the legislature provided power
of further investigation to the police even
after filing a report, but intended to curtail
the power of the court to the extent that
even where the facts of the case and the
ends of justice demand, the court can still
not direct the investigating agency to
conduct further investigation which it
could do on its own."

19. We have reproduced the
conclusion in extenso as we are disposed
to think that the High Court has fallen
into error in its appreciation of the order
passed by the learned Chief Judicial
Magistrate. It has to be construed in the
light of the eventual direction.