# Shiv Prasad & Ors v. State Of U.P. & Ors - **Citation:** (2016) 3 ILRA 52 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-02-29 - **Bench:** Ajai Lamba, Aditya Nath Mittal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-prasad-ors-v-state-of-u-p-ors-43481 - **Pages:** 5 ## Headnote Criminal Procedure Code, 1973 - Sections 467, 468, 471, 504, 506 I.P.C. - Writ of certiorari for quashing F.I.R. - Disputed questions of fact relating to execution and contents of Will - Scope of investigation under Chapter XII Cr.P.C. - Power of High Court - Investigation cannot be substituted by judicial determination on affidavits - Duty of investigating agency to conduct fair, impartial and comprehensive investigation including the version of the accused - Petition dismissed with directions for fair investigation. The petitioners want this Court to assume the role of the investigating officer and record a finding on various aspects of the case, including the legality of the Will and its contents. We have taken note of the fact that there are seriously disputed questions of facts. Investigation is required to be conducted under Chapter XII of the Code of Criminal Procedure by the investigating agency. Evidence cannot be taken by way of affidavits and counter affidavits to record a finding that offence has not been committed. (Paras 4, 5) Held: (Para 10-15) Investigation is required to be conducted in context of an incident/transaction and not by merely accepting the version given in the First Information Report by the first informant. In case the petitioners / accused have some material that can be translated into legal evidence to establish that they have not committed the offence, the said material would surely be relevant in context of the incident / transaction to be investigated. In case all the aspects of the issue/incident are not investigated, there is a chance of miscarriage of justice and implication of wrong persons as accused. Going by the law referred to above, the investigating officer is directed to investigate the incident, also while taking into account the documents referred to by the petitioners in this petition. We also direct that investigation be conducted with the aid and assistance of an officer from the Revenue Department. With the above observations/directions, the petition is dismissed, because there are seriously disputed questions of facts. Case Law discussed: ## Text 52 INDIAN LAW REPORTS ALLAHABAD SERIES --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 29.02.2016 BEFORE THE HON'BLE AJAI LAMBA, J. THE HON'BLE ADITYA NATH MITTAL, J. Misc. Bench No.- 4082 of 2016 Shiv Prasad & Ors. ...Petitioners Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioners: Mukesh Kumar Tewari Counsel for the Respondents: Govt. Advocate Criminal Procedure Code, 1973 - Sections 467, 468, 471, 504, 506 I.P.C. - Writ of certiorari for quashing F.I.R. - Disputed questions of fact relating to execution and contents of Will - Scope of investigation under Chapter XII Cr.P.C. - Power of High Court - Investigation cannot be substituted by judicial determination on affidavits - Duty of investigating agency to conduct fair, impartial and comprehensive investigation including the version of the accused - Petition dismissed with directions for fair investigation. The petitioners want this Court to assume the role of the investigating officer and record a finding on various aspects of the case, including the legality of the Will and its contents. We have taken note of the fact that there are seriously disputed questions of facts. Investigation is required to be conducted under Chapter XII of the Code of Criminal Procedure by the investigating agency. Evidence cannot be taken by way of affidavits and counter affidavits to record a finding that offence has not been committed. (Paras 4, 5) Held: (Para 10-15) Investigation is required to be conducted in context of an incident/transaction and not by merely accepting the version given in the First Information Report by the first informant. In case the petitioners / accused have some material that can be translated into legal evidence to establish that they have not committed the offence, the said material would surely be relevant in context of the incident / transaction to be investigated. In case all the aspects of the issue/incident are not investigated, there is a chance of miscarriage of justice and implication of wrong persons as accused. Going by the law referred to above, the investigating officer is directed to investigate the incident, also while taking into account the documents referred to by the petitioners in this petition. We also direct that investigation be conducted with the aid and assistance of an officer from the Revenue Department. With the above observations/directions, the petition is dismissed, because there are seriously disputed questions of facts. Case Law discussed: 1. State of Uttar Pradesh v. Bhagwant Kishore Joshi, AIR 1964 SC 221 Para 17 - It has been stated that "Investigation, in substance, means collection of evidence relating to the commission of the 3 All. Shiv Prasad & Ors. Vs. State of U.P. & Ors. 53 offence" and that the essential duty of the investigating officer is to collect all material necessary for establishing the accusation against the offender. (Referred and extracted in para 9) 2. Vinay Tyagi v. Irshad Ali @ Deepak and others, (2013) 5 SCC 762Para 48 - It has been held that a "fair and proper investigation" must be unbiased, honest, just and in accordance with law and that the emphasis of a fair investigation is to bring out the truth of the case before the court of competent jurisdiction. (Referred and extracted in para 9) 3. Madhuri Devi v. State of U.P. and others, Writ Petition Misc. Bench No. 7590 of 2015Paras 11 to 17, 35, 36 and 39 - The judgment defines "investigation", "offence" and "cognizable offence" and records that although an accused has no right of hearing, a duty is cast on the investigating agency to conduct a fair and impartial investigation and to investigate relevant information even if brought by the accused. (Quoted and relied upon in paras 9-10). (Delivered by Hon'ble Ajai Lamba, J. & Hon'ble Aditya Nath Mittal, J.) 1. The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report bearing Case Crime No.79 of 2015 under sections 467, 468, 471, 504, 506 Indian Penal Code, Police Station Ram Nagar, District Barabanki. 2. The issue is in regard to a Will allegedly executed by one Badki. The Will Deed Badki refers to the fact that the executor has one son and two daughters. 3. Contention of learned counsel for petitioners is to the contrary, that Badki had no son. In this regard, learned counsel for petitioners has referred to various documents, including Family Register. 4. Be that as it may, learned counsel for petitioners wants this Court to assume the role of the investigating officer and record a finding on various aspects of the case, including the legality of the Will and its contents. 5. We have taken note of the fact that there are seriously disputed questions of facts, including the facts above noticed. Investigation is required to be conducted under Chapter XII of the Code of Criminal Procedure by the investigating agency. Evidence cannot be taken by way of affidavits and counter affidavits to record a finding that offence has not been committed. 6. Learned counsel for the petitioners has argued that the petitioners have clinching evidence to establish that the petitioners have not committed an offence, however the investigating agency is only taking the case of the complainant into account. The petitioners are being harassed, although they have not committed any offence. Process of law is being abused. Manifest injustice would be caused if all the aspects of the case are not investigated, including the version of the petitioners. 7. We have considered the contention of learned counsel for the petitioners. Counsel for the State has argued that investigation is going on . 54 INDIAN LAW REPORTS ALLAHABAD SERIES 8. This Court is required to consider whether the aspect of thecase projected by the petitioners/accused is also required to be investigated by the investigating agency, or only the case projected by the complainant? 9. Investigation has been defined by a Division Bench of this Court, of which one of us (Ajai Lamba, J) was a Member, in Writ Petition Misc. Bench No. 7590 of 2015; Madhuri Devi versus State of U.P. and others in the following terms: "11. "Investigation" and "Offence" have been defined as under. 12. "Investigation" is a term defined under Section 2 (h) of the CrPC in the following terms: "(h)"investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;" 13. The dictionary meaning of investigation as per The New Lexicon Webster's Dictionary of the English Language is "an examination for the purpose of discovering information about something". 14. As per Oxford Advanced Learner's Dictionary of Current English, investigation is "an official examination of the facts about a situation, crime, etc". 15. "Investigate" has been defined in Oxford Dictionary (supra) as, "to carefully examine the facts of a situation, an event, a crime etc to find out the truth about it or how it happened." 16. "Offence" has been defined under Section 2(n) of the CrPC in the following terms: "(n)"offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, 1871 (1 of 1871 );" 17. "Cognizable Offence" has been defined in Section 2(c) CrPC asunder: "(c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;" 35. The Hon'ble Supreme Court of India in AIR 1964 SC 221, State of Uttar Pradesh vs. Bhagwant Kishore Joshi at para 17 ( relevant portion) of the judgement has said as follows:- "17............................Investigation, in substance, means collection of evidence relating to the commission of the offence. The Investigating Officer is, for this purpose, entitled to question persons who, in this opinion, are able to throw light on the offence which has been committed and is likewise entitled to question the 3 All. Shiv Prasad & Ors. Vs. State of U.P. & Ors. 55 suspect and is entitled to reduce the statements of persons questioned by him to writing. He is also entitled to search the place of the offence and to search other places with the object of seizing articles connected with the offence. No doubt, for this purpose he has to proceed to the spot where the offence was committed and do various other things. But the main object of investigation being to bring home the offence to the offender the essential part of the duties of an investigating officer in this connection is, apart from arresting the offender, to collect all material necessary for establishing the accusation against the offender. Merely making some preliminary enquire upon receipt of information from an anonymous source or a source of doubtful reliability for checking up the correctness of the information does not amount to collection of evidence and so cannot be regarded as investigation............" [Emphasis supplied by us] 36. In the same context, a reference may also be made to para 48 of judgment rendered by the Hon'ble Supreme Court in Vinay Tyagi Vs. Irshad Ali @ Deepak and others, (2013) 5 SCC 762:- "48. What ultimately is the aim or significance of the expression "fair and proper investigation" in criminal jurisprudence? It has a twin purpose ; Firstly, the investigation must be unbiased, honest, just and in accordance with law ; secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the court of law to interfere with the investigation, much less quash the same, or transfer it to another agency. Bringing out the truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair, tainted investigation or cases of false implication. Thus, it is inevitable for a court of law to pass a specific order as to the fate of the investigation, which in its opinion is unfair, tainted and in violation of the settled principles of investigative canons." [Emphasis supplied by us] 39. In the considered opinion of the court, although an accused would have no right of hearing, however, a duty is cast on the investigating agency to conduct fair and impartial investigation. If the investigator receives relevant information in regard to the facts of a case under investigation, be it from the complainant informant, a witness or even the accused, a duty is cast on the said investigating officer to investigate that aspect. In case the investigation is select and one sided, the truth cannot be unearthed. If facts or some evidence/material is brought to the notice of the investigator, on consideration of which it can be demonstrated that the accused is not connected with commission of the crime, surely in such cases, the investigating agency would be obliged to investigate that aspect, in the interest of fair play and purity of administration of criminal justice. For this purpose, the information given by the accused cannot be ignored on the analogy that he has no right to be heard." 56 INDIAN LAW REPORTS ALLAHABAD SERIES 10. From the above extracted portion of the judgment, it is evident that investigation is required to be conducted in context of an incident/transaction and not by merely accepting the version given in the First Information Report by the first informant. 11. We are conscious of the fact that the petitioners have been accused of committing an offence. This however would not mean that the case set up by the complainant is to be accepted as such. In case the petitioners / accused have some material that can be translated into legal evidence to establish that they have not committed the offence, the said material would surely be relevant in context of the incident / transaction to be investigated. 12. In case all the aspects of the issue/incident are not investigated, there is a chance of miscarriage of justice and implication of wrong persons as accused. 13. Going by the law referred to above, the investigating officer is directed to investigate the incident, also while taking into account the documents referred to by the petitioners in this petition. The petitioners shall further be at liberty to supplement their case by way of sending any other documents so as to clarify the issue, to the investigating officer. 14. We also direct that investigation be conducted with the aid and assistance of an officer from the Revenue Department. 15. With the above observations/directions, the petition is dismissed, because there are seriously disputed questions of facts. 16. Let a copy of this order be conveyed to the Superintendent of Police, Barabanki. ---------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 29.02.2016 BEFORE THE HON'BLE AMRESHWAR PRATAP SAHI, J. THE HON'BLE ATTAU RAHMAN MASOODI, J. Misc. Bench No.- 4154 of 2016 Aadil Murtaza ...Petitioner Versus Union Of India & Ors. ...Respondents Counsel for the Petitioner: Dr. Manoj Kumar Dubey, Subhash Chandra Ojha Counsel for the Respondents: A.S.G