# Singh v. Collector, Etah and others - **Citation:** (2002) 2 ILRA 547 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2002-07-08 - **Case number:** Civil Misc. Writ Petition No. 25780 of 2002 - **Bench:** M. Katju, D.R. Chaudhary - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/singh-v-collector-etah-and-others-40014 - **Pages:** 2 ## Headnote Constitution of India, Article 226- Section 173 (2)- Re-investigation of case- payment to order passed u/s 156 (3) investion completed final report submitted- Magistrate has no power to specify the name and rank of particular officer for fresh investigation. Held- Para 4 and 5 Submission made by the learned counsel are loaded with substance in K. Chandra Shekhar etc. versus State of Kerala and others, 1998 (37) ACC, 136 Hon'ble Supreme Court has held that even after submission of police report under 173 (2) of the Code of Criminal Procedure on completion of investigation, the police has a right of 'further investigation under sub section (8) thereof ' but not ' fresh investigation' or re-investigation'. Further investigation is therefore in the continuation of earlier investigation and not a fresh investigation or reinvestigation to be started ab intitio wiping out the earlier investigation altogether. The direction given by the learned Magistrate to re-investigate' the case therefore cannot be sustained in law. The order passed by the learned Magistrate is also not sustainable due to the reason that he has directed a officer to re-investigate the case. In Hemant Dhasmana Versus Central Bureau of investigation and another 2001 (43) ACC, 570 at page 575 it has been laid down by the Apex Court that it is not within the province of the Magistrate while exercising the power under Section 173 (8) of the Code of Criminal Procedure to specify any particular officer to conduct such investigation, not even to suggest the rank of the officer who should conduct such investigation. Case law discussed: 1998 (37) ACC 136 2001 (43)ACC 570 ## Text http://www.allahabadhighcourt.nic.in 2 All] Rakesh Shukla V. District Magistrate, Allahabad and others 547 15.10 Accordingly, in the result without expressing our opinion on merits of the accusations made against the appellants that they had committed the murder of PW 4 or that they are Gangster within the meaning of the Gangster Act, we cancel the bails granted to them pursuant to the Court's order dated 22.2.1991, forfeit the bail bonds and discharge the sureties furnished. 16. Question no. (iii) is answered accordingly. 17. We clarify that if they are in jail in connection with any criminal case, then they shall remain therein during pendency of their criminal appeal no. 282 of 1991 in this Court, or if they have been granted bail, then they shall be taken into custody and sent to jail. 18. This application is allowed. 19. Let a copy of this order be sent forthwith by the office to the Chief Judicial Magistrate, Hathras to ensure compliance of our directions by him and all concerned. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 8.7.2002 BEFORE THE HON'BLE M. KATJU, J. THE HON'BLE D.R. CHAUDHARY, J. Civil Misc. Writ Petition No. 25780 of 2002 Rakesh Shukla ...Petitioner Versus District Magistrate, Allahabad and another ...Respondent Counsel for the Petitioner: Sri R.K. Yadav Counsel for the Respondents: Sri Vivekanand Srivastava S.C. Constitution of India, Article 226- Recovery Proceeding- Petitioner operated theka- not deposited the money- recovery proceeding challenged mode of realisation as arrears of land revenue- not permissible in view of decision reported in 1985 ACJ 615- even then High Court can declined to exercise its power under Article 226 if the law and equity is not in his favour. Held. Para 2 In the present case even assuming that the law has been violated because the recovery could not be made as arrears of land revenue yet there is no equity in favour of the petitioner. The petitioner has not disputed his liability to pay the amount in question. He really wants to delay payment. It is well known that civil suits take years and years to decide. Hence this is not a fit case for exercising our writ jurisdiction under Article 226 of the Constitution of India. Case law discussed: 1985 ACJ 615 (Delivered by Hon'ble M. Katju, J.) 1. The petitioner took a Theka in respect of which the impugned recovery has been issued. The petitioner has not disputed that he has operated the Theka but he is not paying the Theka money. He is challenging the recovery certificate on the ground that the recovery could not be made as arrears of land revenue and he has relied upon a decision of this Court reported in 1985 ACJ 615 Raj Bahadur Singh Vs. Collector, Etah and others. 2. In our opinion this is not a fait case for exercise of our discretion under Article 226. Writ is a discretionary http://www.allahabadhighcourt.nic.in INDIAN LAW REPORTS ALLAHABAD SERIES [2002 548 remedy, and in a writ petition the petitioner must satisfy the court that not only the law has been violated but equity is also in his favour. If the petitioner only shows that the law has been violated, but there is no equity in his favour, a writ will not be issued. In the present case even assuming that the law has been violated because the recovery could not be made as arrears of land revenue yet there is no equity in favour of the petitioner. The petitioner has not disputed his liability to pay the amount in question. He really wants to delay payment. It is well known that civil suits take years and years to decide. Hence this is not a fit case for exercising our writ jurisdiction under Article 226 of the Constitution of India. 3. The writ petition is dismissed. --------- ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 9.7.2002 BEFORE THE HON'BLE S.R. SINGH, J. THE HON'BLE (MRS.) M. CHAUDHARY, J. Criminal Misc. Writ Petition No. 5348 of 2001 Virendra Singh ...Petitioner Versus State of U.P. and another ...Respondent Counsel for the Petitioner: Sri Dilip Kumar Sri Rajiv Gupta Counsel for the Respondents: Sri G.C. Saxena S.C. Constitution of India, Article 226- Section 173 (2)- Re-investigation of case- payment to order passed u/s 156 (3) investion completed final report submitted- Magistrate has no power to specify the name and rank of particular officer for fresh investigation. Held- Para 4 and 5 Submission made by the learned counsel are loaded with substance in K. Chandra Shekhar etc. versus State of Kerala and others, 1998 (37) ACC, 136 Hon'ble Supreme Court has held that even after submission of police report under 173 (2) of the Code of Criminal Procedure on completion of investigation, the police has a right of 'further investigation under sub section (8) thereof ' but not ' fresh investigation' or re-investigation'. Further investigation is therefore in the continuation of earlier investigation and not a fresh investigation or reinvestigation to be started ab intitio wiping out the earlier investigation altogether. The direction given by the learned Magistrate to re-investigate' the case therefore cannot be sustained in law. The order passed by the learned Magistrate is also not sustainable due to the reason that he has directed a officer to re-investigate the case. In Hemant Dhasmana Versus Central Bureau of investigation and another 2001 (43) ACC, 570 at page 575 it has been laid down by the Apex Court that it is not within the province of the Magistrate while exercising the power under Section 173 (8) of the Code of Criminal Procedure to specify any particular officer to conduct such investigation, not even to suggest the rank of the officer who should conduct such investigation. Case law discussed: 1998 (37) ACC 136 2001 (43)ACC 570 (Delivered by Hon'ble (Mrs.) Mithlesh Chaudhary, J.) 1. Heard Sri Dilip Kumar, learned counsel for the petitioner, the learned