# Shakuntala Devi v. Banwari Lal AIR

- **Citation:** (2001) 2 ILRA 70
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shakuntala-devi-v-banwari-lal-air-39747
- **Pages:** 6

## Text

70 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
ground for delay and rightly condoned the
same. The discretion of the Revisional
Court condoning delay therefore cannot
be
interfered
with
in
exercise
of
jurisdiction under Article 226 of the
Constitution.

8. Lastly it was contended that case
had already abated and therefore the
separate applications for substitution and
for setting aside abatement would have
been moved, but only one application was
moved. This contention has also no force.
It was held by this Court in case of Smt.
Shakuntala Devi Vs. Banwari Lal AIR
1977 All. 551 that the application for
substitution
can
be
treated
as
an
application for setting aside the abatement
and for bringing on record heirs and legal
representatives
of
the
deceased
respondent. It was further held in the said
case that separate and formal application
under Section 5 of Limitation Act is also
not necessary. Court can decide whether
delay deserves to be condoned on facts
stated on affidavit in the application for
setting
aside
abatement.
Therefore
separate applications were not required.

9. Lastly it was also contended by
learned counsel for the petitioners that
since no specific prayer for setting aside
abatement and substitution was made the
Revisional
Court
wrongly
allowed
application. Reliance was also placed on
case of Apex Court decision in Shre Jain
Swetamber
Terapanthi
vid(S)
Vs.
Phundan Singh and Others, J.T. 1999(1)
SC 380. The above case is not applicable
to the facts of the present case as in the
said case it was held that relief should be
granted on pleadings of parties and no
relief in interlocutory proceeding should
be granted beyond the scope of the suit.
The above case was totally on different
point.

10. In view of above discussions and
observations I find that there is no scope
for interference in the impugned order in
the exercise of jurisdiction under Article
226 of the Constitution.

The writ petition having no force and
is liable to dismissed.

The writ petition is accordingly
dismissed.
Petition Dismissed.

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2All] Surendra Nath Singh alias Bharat Singh V. State of U.P. and another

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By the Court

1. Heard learned counsel for the
applicant and Sri Girdhar Nath, learned
counsel for the Central Bureau of
Investigation.

2. By this petition the applicant has
sought
for
quashing
of
the
order
summoning him and 14 others on the
basis of a charge-sheet submitted by the
Central
Bureau
of
Investigation
(hereinafter referred to as 'CBI') before
the Special Court (CBI) at Lucknow.

3. The contention raised by the
learned counsel for the applicant is that
CBI was authorised to investigate this
case after the charge-sheet were submitted
by the local police before the Chief
Judicial Magistrate, Varanasi and that
court having taken cognisance in the
matter for the purposes of commitment of
the case alone is entitled to proceed with
the CBI charge-sheet. CBI was entrusted
with the investigation by the State of U.P.
There were two cross versions. One of
these versions is now pending before the
court
at
Varanasi.
The
contention,
therefore, is that CBI is not authorised to
submit
independently
a
charge-sheet
before designated CBI Court the chargesheet ought to have been submitted by
CBI Before the same court which was
seized of the cases.

4. Sri Girdhar Nath, learned counsel
for CBI has challenged the above
submission on the ground that CBI is an
independent investigating body. It derives
its authority to investigate any offence in
the entire Indian territory from the Delhi
Special Police Establishment Act, 1946.
Notification by the Government of U.P.
was made under Section 6 of that Act and
according to him, therefore, CBI is
competent to prefer its own forum after
concluding the investigation. He has also
placed reliance upon Annexure '5' to his
counter affidavit, which is a general
notification by the State with regard to
submission of charge-sheets by CBI in
designated CBI Courts at Lucknow and
Dehradun. This notification is dated
August 24, 2000. On the strength of these
notifications, therefore, he submits clearly
that CBI is right in submitting charge
sheet at designated court at Lucknow and
the summons issued by that court on that
charge-sheet cannot be interfered with by
this Court.
72 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
5.

Before
embarking
upon
adjudication of these contentions, it shall
be relevant to refer to few facts, which
have a bearing upon the result of this
application. An incident had occurred on
13.11.1998 and in that incident both sides
had lodged their FIRs on 12.02.1198 local
police had submitted charge-sheet in one
of those FIRs in the court of the Chief
Judicial Magistrate, Varanasi against the
appellant and others. The case was
entrusted on an intervention by a Minister
of State of Government of U.P., Sri
Virendra Singh to C.B. C.I.D. C.B. C.I.D.
took over the investigation on 09.03.1998,
in all probability with the permission of
the court. No charge sheet was submitted
by C.B. C.I.D. However, when bail
application of one of the co-accused,
Sushil Kumar Singh came up before this
Court, Hon'ble P.K. Jain (J) was of the
opinion that in the course of investigation
by C.B. C.I.D. the witnesses had changed
the weapons. Danda, Lathi, Bhala were
introduced and only three accused were
found to have used the firearms in the
incident.
Considering
all
these
developments and improvements during
C.B. C.I.D. investigation, he found it
expedient in the interest of justice that the
investigation
be
done
by
some
independent
agency
like
CBI.
In
pursuance to this direction buy this Court
the
State Government entrusted the
investigation of the offence to CBI. The
above said order was passed by Hon'ble
P.K. Jain, J on 17.09.1998. CBI submitted
its charge-sheet before designated CBI
Court at Lucknow on 30th August, 2000.

6. The question that is to be gone
into in this application is whether the
notification by the State Government
directing CBI to take up the investigation
amounts to a fresh investigation or simply
a further investigation in accordance with
the provisions of Section 173(8) Cr.P.C.
Contrary
to
the
submission,
the
suggestion of the learned counsel for CBI
is that it shall amount to a fresh
investigation and CBI is competent to
prosecute these accused before its own
designated court. In that regard he has
cited before this Court two judgements of
the Apex Court, one 1999 SCC(Crl) 397
(M. Krishna Vs. State of Karnataka) and
1999 SCC (Crl.) 393 (Rajendra Kumar
Sitaram Pande Vs. Uttam and another).

7. So far as first case cited in this
connection is concerned in my opinion
this case has absolutely no application to
the facts of the present case. This case
before the Apex Court was for quashing
of the subsequent F.I.R., which pertained
to the period of offence commencing from
01.08.1978
and
culminated
on
25.07.1995. Before this investigation was
taken up, investigation was already
conducted for the period commencing
from 01.08.1978 to 24.08.1989. Thus,
apparently the subsequent FIR against
that very accused was for a much larger
period that the first FIR and therefore the
Apex Court was of the opinion that the
subsequent FIR cannot be quashed.
However, it had observed that "we would
make it clear that the investigating
authority will certainly look into the
earlier proceedings and the result of
investigation
thereunder
and
the
submission of a 'B' Form which was duly
accepted by the competent court while
investigating into the present proceedings
as well as the observations made by us in
this judgement". This observation by the
Apex Court, by implication means that
the subsequent investigation by and large
for the period which was subject matter of
the first investigation on a different FIR
2All] Surendra Nath Singh alias Bharat Singh V. State of U.P. and another

was nothing but a reinvestigation. The
Apex Court did not agree to quash the
subsequent FIR because it had taken into
its periphery period from 1989 onwards
upto 1995. Thus, clearly the subject
matter of the petition before the Apex
Court and its judgement was based
absolutely on different considerations in
wholly different context. It has no bearing
whatsoever
on
the
facts
and
circumstances of the present case. No
quashing of subsequent FIR or charge
sheet is sought by applicants. They only
desire this summoning order based on
CBI charge sheet be quashed against
them.

8. As earlier observed, the question
in issue in this application hinges on the
resolution of the question whether, after
submission of a charge-sheet by the local
police and after taking of cognisance by
the concerned court on that charge-sheet
any investigation conducted by any
agency, may it be C.B. CID or CBI would
amount to fresh investigation or an
investigation
called
'further
investigation', as contemplated by the
provisions of Section 173(8), Cr.P.C.

9. So far as the second case cited by
the learned counsel for CBI is concerned,
in my opinion it too has no application.
This is a case, which pertains to territorial
jurisdiction to try the case by a
Magistrate. The High Court in this case
had quashed the compliant on the ground
that the Magistrate taking cognisance was
not having territorial jurisdiction over the
place of offence. The Apex Court was of
the view that a 1st Class Magistrate has
power to take cognisance of any offence
whether committed in his jurisdiction or
not. Therefore, it had unsettled the High
Court's judgement as reported in 2000
SCC
(Crl)
847
(Trisuns
Chemical
Industry Vs. Rajesh Agarwal & others).

10. The other case that is cited by
Sri
Girdhar
Nath
relates
to
an
interlocutory order. According to him,
order directing issuance of process is not
an interlocutory order and therefore
amenable to Revisional jurisdiction. He
thereby contends that this application
under Section 482, Cr.P.C. is not
maintainable.
No doubt the learned
counsel for the applicant could have
preferred a revision also, but merely
because
they
have
preferred
an
application under Section 482, Cr.P.C., it
cannot be gainsaid that this Court is
precluded
from
entering
into
the
controversy in exercise of its power under
Section 482, Cr.P.C. These technicalities
should not come in the way if this Court
in deciding this application. The question
raised before this Court is of general
importance it can be gone by the Court
under this jurisdiction also. The issue,
therefore, is decided accordingly.

11. Except Section 173, Cr.P.C.
there is no provision in the Code of
Criminal Procedure under which any
investigating agency can submit a chargesheet. Section 154 Cr.P.C. empowers the
police to register a case and investigate
the same. Even CBI also registers a case
and investigate the same under Section
154, Cr.P.C. Section 173(8) Cr.P.C. is of
some importance in the facts of this case.
It reads thus, "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
74 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
forward to the Magistrate a further report
or reports regarding such evidence in the
form prescribed and the provisions of subsection(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)." Subsection (2) marks the culmination of an
investigation in the nature of submission
of a charge-sheet by the police or any
other agency. In the present case, as
earlier pointed out a charge-sheet was
already submitted after conclusion of the
investigation by the local police and
cognisance was taken by the Court. In
between re-investigation was handed over
to C.B. C.I.D. by the Government of the
State. Investigation was taken over with
permission of the court. It is not known
whether C.B. C.I.D. has submitted any
charge-sheet in the case or not, but the
order of Hon'ble P.K. Jain, J., referred to
above clearly refers to the conflict
between the result of the investigation by
the civil police and CB CID and that
necessitated
re-investigation/further
investigation by CBI.

12. The only procedural law under
which any investigating agency, whether
it is CBI or local police or any other
special agency of the State can investigate
a case is the Code of Criminal Procedure,
1973. There is no other procedural law
which entitles any investigating agency to
proceed with the investigation of an
offence. Therefore, this submission of a
second report on the conclusion of an
investigation by CBI cannot be treated a
fresh investigation. Re-investigation is not
known to Code of Criminal Procedure. It
recognises only further investigation once
a charge sheet has been submitted, by any
agency, in court. If it is not a fresh report
then this cannot be submitted before the
special courts meant for trial of the cases
investigated by CBI. The notifications
dated November 10,1998 and March
26,1999 have been persuade by me and I
do not find any authorisation to CBI to
submit the charge-sheet before its special
courts in such cases. When it was pointed
out to the learned counsel for CBI, he
specifically referred to Annexure '5' to
his counter affidavit, which is a general
power conferred on CBI to submit a
charge-sheet before the special courts
constitute
for
the
trials
of
its
investigations. Learned counsel for CBI
wants this Court to read this power
flowing from earlier notifications in
league with this general notification for
CBI. I am at a loss to suggest that I am
not in agreement with the contention
advanced on behalf of CBI. This is a
general notification for the cases, which
were exclusively investigated by CBI and
no charge-sheet by any other agency was
submitted before it started investigation.
In the present case the set of facts are
quite different. We cannot loose sight of
the fact nor we can close our eyes to the
situation that these very offences, which
were at a later stage investigated by CBI,
were already taken cognisance of by a
court of law on a charge-sheet submitted
by the local police. In the result, it cannot
be said that these investigations are first
investigations and CBI is competent to
present its charge-sheet before its own
special courts. In my opinion, CBI had to
submit its reports after conclusion of its
investigation to the Government of the
State, which was competent to forward it
to the court, which had already taken
cognisance of these offences before CBI
was
called
upon
to
take
up
the
investigation by State Government. Two
proceedings at two different courts for the
same offence between the same parties in
2All] S.K. Gangwar V. The Secretary, Board of High School & Intermediate and others

not permissible in law. They have to be
tried at one place C.J.M., Varanasi having
taken cognisance first is entitled to
proceed with the matter and the trial and
therefore report submitted by CBI is
required to be transferred to CJM court at
Varanasi since it shall be simply a report
under Section 173(8), Cr.P.C.

13. All the witness in the case
belong to Varanasi and the accused also
are all hailing from this very district. In
the circumstances, it will be highly
expedient to have this trial conducted at
Varanasi.

14. It will also be another question
whether the trial should proceed on the
basis of the local police challani report or
the report submitted by CBI. As earlier
stated, that the report submitted by CBI in
my opinion is clearly a supplementary
report in accordance with the provision of
Section 173(8) Cr.P.C., it shall be open
for the court concerned to look into it and
if anything new is there, it can frame
charges in accordance with it treating it as
a supplementary report. If some new
accused are also introduced in the report
of CBI, the court can take cognisance
against them as well. It shall be called
supplementary charge sheet and will be
received in accordance with law in
Varanasi Court.

15. In the result, the prayer that the
summoning order be quashed cannot be
entertained. However, in the interest of
justice the charge sheet submitted by CBI
at its special court at Lucknow stand
transferred to the court of Chief Judicial
Magistrate, Varanasi before whom the
earlier
charge-sheet
is
pending
for
commitment.
Special
Judge
(CBI),
Lucknow is directed to send this charge
sheet to the court of CJM, Varanasi as
soon as a copy of this order is received by
it.
With the above direction, this application
is disposed of finally.
Application Disposed of.

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