# Smt. Leena Katiyar v. State of U.P. and others

- **Citation:** (2008) 3 ILRA 689
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-11
- **Case number:** Criminal Misc. Writ Petition No. 18016 of 2007
- **Bench:** Vinod Prasad, Ajai Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-leena-katiyar-v-state-of-u-p-and-others-41121
- **Pages:** 7

## Headnote

Constitution of India, Article 226-Writ of
Mandamus-seeking
direction
to
the
authorities concerned to submit charge
sheet against individuals-sole dominion
of authorities-interference of Court not
required-informant
can
approach
to
investigation officer writ petition heldmisconceived.

Held: Para 9

Yet another facts which way heavily
against grant of relief sought by the
petitioner in this writ petition is that the
offences are being further investigated.
It is now well settled by a catena of
decisions by this court as well as by the
apex court that courts can not interfere
in
already
progressing
investigation.
Informant petitioner call seek redressal
of
her
grievances
before
the
investigating officer conducting further
investigation but, under Article 226 of
The Constitution, we are not inclined to
690 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
interfere in the already progressing
investigation specially when the relief
sought in this petition is beyond the
scope of writ power.
Case Law discussed:
AIR 2004 SC 536, AIR 2004 SC 1890, AIR
2000 SC 740, AIR 1998 SC 3148, AIR 1955 SC
196, AIR 1968 SC 117, AIR 2007 SC 351, AIR
1980 SC 326, AIR 1963 SC 447, AIR 1970 SC
786, AIR 1972 SC 484, AIR 1945 P.C. 18

## Text

3 All] Smt. Leena Katiyar V. State of U.P. and others
689
revisional jurisdiction conferred by some
Act and in fact the appellate jurisdiction
was conferred by a Government Order
and not by an Act. Thus the reason for
holding the Special Appeal maintainable
in the case before the Division Bench was
that the appellate power was exercised by
the Commissioner under the Government
Order dated 03.07.1990 and not under an
Act. In the present case, the appellate
power had been exercised by the
Commissioner under Rule 28 of U.P.
Scheduled
Commodities
Distribution
Order, 2004 which had been framed under
Section 3 of the Essential Commodities
Act, 1955. Thus the appellate power
exercised by the Commissioner in the
present case referable to an appellate
power conferred under an Act. Thus
according to the ratio of the Division
Bench in the case of Ram Dhyan Singh
(Supra), the present appeal is not
maintainable under chapter VIII Rule 5 of
the Rules of the Court. The Special
Appeal having been filed against a
judgment of learned Single Judge arising
out of a writ petition in which appellate
order passed by the Commissioner was
challenged which appellate order was
passed in exercise of appellate jurisdiction
under an Act is not maintainable under
Chapter VIII Rule 5 of the Rules of the
Court.

8. Special Appeal is dismissed as not
maintainable.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2008

BEFORE
THE HON'BLE VINOD PRASAD, J.
THE HON'BLE AJAI KUMAR SINGH, J.

Criminal Misc. Writ Petition No. 18016 of
2007

Smt. Leena Katiyar

...Petitioner
Versus.
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Prem Prakash
Sri A.N. Srivastava
Km. Akanksha Srivastava
Sri Murlidhar

Counsel for the Respondents:
Sri V.P. Srivastava
Sri Lav Srivastava
Sri Jag Narayan

Constitution of India, Article 226-Writ of
Mandamus-seeking
direction
to
the
authorities concerned to submit charge
sheet against individuals-sole dominion
of authorities-interference of Court not
required-informant
can
approach
to
investigation officer writ petition heldmisconceived.

Held: Para 9

Yet another facts which way heavily
against grant of relief sought by the
petitioner in this writ petition is that the
offences are being further investigated.
It is now well settled by a catena of
decisions by this court as well as by the
apex court that courts can not interfere
in
already
progressing
investigation.
Informant petitioner call seek redressal
of
her
grievances
before
the
investigating officer conducting further
investigation but, under Article 226 of
The Constitution, we are not inclined to
690 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
interfere in the already progressing
investigation specially when the relief
sought in this petition is beyond the
scope of writ power.
Case Law discussed:
AIR 2004 SC 536, AIR 2004 SC 1890, AIR
2000 SC 740, AIR 1998 SC 3148, AIR 1955 SC
196, AIR 1968 SC 117, AIR 2007 SC 351, AIR
1980 SC 326, AIR 1963 SC 447, AIR 1970 SC
786, AIR 1972 SC 484, AIR 1945 P.C. 18

(Delivered by Hon'ble Vinod Prasad, J.)

1. Smt. Leena Katiyar Informant of
crime number 467 of 2007, under sections
364A, 302,201, IPC, Police station
Kotwali Fatehgarh. District Farrukhabad
has
invoked
our
extra
ordinary
jurisdiction, under Article 226 of The
Constitution Of India, with the prayers to
issue a writ of mandamus commanding
respondents no.1 to 8 to submit charge
sheet against Sunil Katheria and Haplu,
respondents no.9 and 10 in the aforesaid
crime number, relating to SST No. 40 of
2007, pending before Special Judge,
(DAA), Farrukhabad. Second prayer
made is to issue a writ of mandamus
commanding the aforesaid respondents 1
to 8 to send the tapes and CDs recorded
between 22.4.2007 and 1.5.2007 by the
Superintendent of Police and Additional
Superintendent of Police for sound
spectrography to voice recording experts.
Another payer is to issue a writ of
mandamus
commanding
those
very
respondents to record voice sample of the
accused persons through Special Judge
(DAA), Farrukhabad for being compared
and
examined
through
sound
Spectrography from the taps and CDS
mentioned above.

2. Relevant facts are that the son of
the informant Madhusudan @ Madhu is
allegated to have been kidnapped and
murdered for ransom by the accused
persons who are eight in number
including respondents no. 9 and 10. Police
investigated the offence and to decipher
the
crime
resorted
to
electronic
surveillances
to
tap
the
phone
conversations between informant and
accused persons and also inter-se between
them. After completion of investigation
the police submitted the charge sheet
against
the
accused
for
the
aforementioned offences on the basis of
which SST No. 40 of 2007 was registered
in the court of Special Judge (DAA).
Farrukhabad which is still pending.

3. Father of one of the accused
Happy @ Shivam, who now has been
declared to be a Juvenile, rued false
implication of his minor son and, being a
person of SC/ST caste, approached SC/ST
Commission
who
recommended
for
further investigation and·on such a
recommendation Director General Of
Police and other Higher Police officers
ordered for further investigation by
Special Enquiry Cell. The investigating
officer
of
Special
Enquiry
Cell
approached the court of Special Judge
(DAA)
Farrukhabad.
Seeking
his
approval for further investigation and the
court approved the same vide it's order
dated 30.5.2007 and therefore further
investigation in the crime is ongoing
under section 173 (8) Cr.P.C. It is
important to note that order for further
investigation has been challenged by the
informant petitioner in connected writ
petition no. 7318 of 2008 Smt. Leena
Katiyar versus State of U.P. and others
which is being disposed off to day itself
by passing a separate order for the sake of
convenience. Since the police did not
charge sheet respondents no. 9 and 10
3 All] Smt. Leena Katiyar V. State of U.P. and others
691
Sunil Katheria and Haplu hence informant
has filed the present writ petition.

4. We have heard Sri Murlidhar
learned Senior counsel as well as Sri A.N.
Srivastava in support of this writ petition
and Sri V.P. Srivastava, learned Senior
counsel assisted by Sri Lav Srivastava and
learned AGA in opposition and have gone
through the averments made in this writ
petition.

5. From the record it is not disputed
that the civil police after investigation has
submitted
charge
sheet
against
the
accused persons except respondents no. 9
and 10. Informant is aggrieved by non
charge sheeting of aforesaid respondents.
This can now been done only under
section 173(8) Cr.P.C. as there is no other
provision in the Code of Criminal
Procedure for the same. Special Judge
(DAA) has also taken the cognizance of
the offences and had summoned the
charge sheeted accused excluding those
two respondents. The only sections under
Cr.P.C. now left with the court to add
accused in the trial is section 319 Cr.P.C.,
after some evidence of commission of
offence is brought on record during trial
by the prosecution witnesses recorded
during the trial. But for the aforesaid
section there is no other provision to
add/any person as an accused in the case.
See Vidyadharan vs. State of Kerala,
AIR 2004 SC 536; Moley and another
vs. State of Kerala AIR 2004 SC 1890;
Gangula Ashok vs. State of A.P., AIR
2000 SC 740; Ranjit Singh vs. State of
Punjab AIR 1998 SC 3148.

6. For the police only section 173(8)
Cr.P.C. can be resorted to add an accused.
The dichotomy of the whole situation lies
in filing of two writ petitions with
contradictory reliefs. In the instant writ
petition petitioner informant has prayed
for addition of accused which can be done
only under section 173(8) Cr.P.C. through
further investigation as the charge sheet
has already been laid in court by the local
police and, on the other hand, in the
connected writ petition 7318 of 2007 the
same petitioner has prayed for quashing
of order for further investigation. Thus the
prayer made in the two writ petitions run
counter to each other in as much as if,
either of the writ petition is allowed the
other writ petition will automatically
become infractuous. Since we have taken
a view in the other writ petition that
further investigation can not be quashed
therefore we are of the opinion that the
petitioner for the relief sought in the
present
writ
petition
can
convince
investigating
officer
making
further
investigation for the relief prayed in the
instant writ petition.

7. There is yet another aspect for us
for not granting relief sought in this
petition and that is that the prayer made in
this writ petition is beyond the domain of
writ power of this court. Under Article
226 of the Constitution this court can not
direct submission of charge sheet against
an individual anointing him with the
status of an accused and snatching his
liberty away. Whether a person is to be
charge sheeted or not, on the facts of each
case for alleged offence or offences, is the
sole domain of the officer in charge of
police station concerned under section
173 (2) Cr.P.C. He can not delegate that
power. No doubt investigation of offence/
offences can be done by any officer
subordinate to that officer in charge of
police station concerned but the final
opinion under section 173 (2) Cr.P.C. or
under section 169 Cr.P.C. has to be that of
692 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the officer in charges of the police station
concerned. This aspect of the matter no
longer remains res integra and has been
dealt exhaustively by the apex court in the
case of H.N. Rishbud and Inder Singh v.
The State of Delhi :AIR 1955 SC 196
where in the apex Court has held as
under:-

"Thus, under the Code investigation
consists generally of the following steps:
(1)
Proceeding
to
the
spot,
(2)
Ascertainment
of
the
facts
and
circumstances of the case, (3) Discovery
and arrest of the suspected offender, (4)
Collection of evidence relating to the
commission of the offence which may
consist of (a) the examination of various
persons (including the accused) and the
reduction of their statements into writing,
if the officer thinks fit, (b) the search of
places or seizure, of things considered
necessary for the investigation and to be
produced at the trial, and (5) Formation
of the opinion as to whether on the
material collected there is a case to place
the accused before a Magistrate for trial
and if so taking the necessary steps for the
same by the filing of a charge-sheet under
Section 173.
The scheme of the Code also shows
that while it is permissible for an officer
in charge of a police station to depute
some subordinate officer to conduct some
of these steps in the investigation, the
responsibility for everyone of these steps
is that of the person in the situation of the
officer in charge of the police station, it
having been clearly provided in Section
168 that when a subordinate officer
makes an investigation he should report
the result to the officer in charge of the
police station. It is also clear that the
final step in the investigation, viz., the
formation of the opinion as to whether
or not there is a case to place the
accused on trial is to be that of the
officer in charge of the police station.
There
is
no
provision
permitting
delegation thereof but only a provision
entitling superior officers to supervise or
participate under Section 551."

8. Thus what is unambiguously clear
is that for sending a person or trial or not,
the opinion has to be that of the officer in
charge of the police station concerned and
of no body else. Resultantly the courts
also can not direct for submission of
charge sheet against an individual as the
aforementioned passage oust the power of
the court also to direct officer in charge of
a police station to send an accused for
trial by submitting a charge sheet against
him. In this connection we may also refer
the view of the apex court in the case of
Abhinandan Jha and Ors. v. Dinesh
Mishra: AIR 1968 SC 117 where in the
apex court has observed thus:-

"If the report is of the action taken
under Section 169, then the Magistrate
may agree with the report and close the
proceedings. If he disagrees with the
report, he can give directions to the police
under Section 156(3) to make a further
investigation. If the police, after further
investigation submits a charge-sheet, the
Magistrate may follow the procedure
where the charge-sheet under Section 170
is filed: but if the police are still of the
opinion that there was no sufficient
evidence
against
the
accused,
the
Magistrate may or may not agree with it.
Where he agrees, the case against the
accused is closed. Where he disagrees
and forms an opinion that the facts
mentioned in the report constitute an
offence, he can take cognizance under
Section 190(1)(c). But the Magistrate
3 All] Smt. Leena Katiyar V. State of U.P. and others
693
cannot direct the police to submit a
charge-sheet, because the submission of
the report depends entirely upon the
opinion formed by the police and not on
the opinion of the Magistrate. If the
Magistrate disagrees with the report of
the police he can take cognizance of the
offence under Section 190(1)(a) or (c),
but, he cannot compel the police to form
a particular opinion on investigation and
submit a report according to such
opinion.
This
judgement
shows
the
importance of the opinion to be formed
by the officer in charge of the police
station. The opinion of the officer in
charge of the police station is the basis of
the report. Even a competent Magistrate
cannot compel the concerned police
officer to form a particular opinion. The
formation of the opinion of the police on
the
material
collected
during
the
investigation as to whether judicial
scrutiny is warranted or not is entirely
left to the officer in charge of the police
station. There is no provision in the Code
empowering a Magistrate to compel the
police to form a particular opinion. This
Court observed that, although the
Magistrate may have certain supervisory
powers under the Code, it cannot be said
that when the police submits a report
that no case has been made out for
sending the accused for trial, it is open to
the Magistrate to direct the police to file
a charge-sheet. The formation of the
said opinion, by the officer in charge of
the police station, has been held to be a
final step in the investigation, and that
final step has to be taken only by the
officer in charge of the police station
and by no other authority."

(Emphasis on under line portion)

9. Yet another facts which way
heavily against grant of relief sought by
the petitioner in this writ petition is that
the
offences
are
being
further
investigated. It is now well settled by a
catena of decisions by this court as well as
by the apex court that courts can not
interfere
in
already
progressing
investigation. Informant petitioner call
seek redressal of her grievances before the
investigating officer conducting further
investigation but, under Article 226 of
The Constitution, we are not inclined to
interfere in the already progressing
investigation specially when the relief
sought in this petition is beyond the scope
of writ power. Supreme court has held in
the case of Shashikant versus Central
Bureau Of Investigation: AIR 2007 SC
351 as under:-

"28. The First Respondent is a
statutory authority. It has a statutory duty
to carry out investigation in accordance
with law. Ordinarily, it is not within the
province of the court to direct the
investigative
agency
to
carry
out
investigation in a particular manner. A
writ court ordinarily again would not
interfere with the functioning of an
investigative agency. Only in exceptional
cases, it may do so. No such case has
been made out by the appellant herein.
The nature of relief prayed for in the
writ petition also is beyond the domain of
a writ court save and except, as indicated
herein before, an exceptional case is
made out."

10. Further in the case of State of
Bihar v. J.A.C. Saldanna. AIR 1980 SC
326 : it has been held by the apex court as
under:-
694 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
"There is a clear-cut and well
demarcated sphere of activity in the field
of crime detection and crime punishment.
Investigation of an offence is the field
exclusively reserved for the executive
through the police department, the
superintendence over which vests in the
State Government. The executive which is
charged with a duty to keep vigilance
over law and order situation is all obliged
to prevent crime and if an offence is
alleged to have been committed it is its
bounden duty to investigate into the
offence and bring the offender to book.
Once it investigates and finds an offence
having been committed it is its duty to
collect evidence for the purpose of
proving the offence. Once that is
completed and the investigating Officer
submits report to the Court requesting the
Court to take cognizance of the offence
under S. 190 of the Code its duty comes to
an end On a cognizance of the offence
being taken by the Court the police
function of investigation comes to an end
subject to the provision contained in
S.173
(8),
there
commences
the
adjudicatory function of the judiciary to
determine whether an offence has been
committed and if so, whether by the
person or persons charged with the crime
by the police in its report to the Court,
and to award adequate punishment
according to law for the offence proved to
the satisfaction of the Court. There is thus
a well defined and well demarcated
function in the field of crime detection
and its subsequent adjudication between
the police and the Magistrate".

11. Supreme court has expressed the
same view in the case of State of West
Bengal v. S.N. Basak, AIR 1963 SC 447
: wherein it was held:-

"The powers of investigation into
cognizable offences are contained in Ch.
XIV of the Code of Criminal Procedure.
S. 154 which is in that Chapter deals with
information in cognizable offences and
S.156
with
investigation
into
such
offences and under these Section the
police
has
the
statutory
right
to
investigate into the circumstances of any
alleged
cognizable
offence
without
authority from a Magistrate and this
statutory
power
of
the
police
to
investigate cannot be interfered with by
the exercise of power under S. 439 or
under the inherent power of the Court
under S.561A of the Criminal Procedure
Code".

12. Some other judgements of the
apex court countenancing the same view
are S.N. Sharma v. Bipen Kumar
Tewari AIR 1970 SC 786 ; Hazari Lal
Gupta v. Rameshwar Prasad AIR 1972
SC 484. Here we recollect that decades
ago Privy Council in the case of Emperor
v. Khawaja Nazir Ahmad, AIR 1945
PC 18 has held as under:-

"Just as it is essential that every one
accused of a crime should have free
access to a Court of justice so that he may
be duly as acquitted if found not guilty of
the offence with which he is charged, so it
is of the utmost importance that the
judiciary should not interfere with the
police in matters which are within their
providence and into which the law
imposes upon them the duty of enquiry. In
India as has been shown there is a
statutory right on the part of the police to
investigate the circumstances of are
alleged
cognizable
crime
without
requiring an, authority from the judicial
authorities, and it would, as their
Lordships think, be an unfortunate result
3 All] Mahesh Chandra Dwivedi V. State of U.P. and another
695
if it should be held possible to interfere
with those statutory rights by an exercise
of the inherent jurisdiction of the Court.
The functions of the judiciary and the
police
are
complementary
not
overlapping and the combination of
individual liberty with a due observance
of law and order is only to be obtained by
leaving each to exercise its own function,
always, of course, subject to the right of
the Court to intervene in an appropriate
case when moved under S.491, Criminal
P.C., to give directions in the nature of
habeas corpus. In such a case as the
present, however, the Court's functions
begin when a charge is preferred before it
and not until then."

13. For the reasons above, we don't
find any merit in this writ petition as the
reliefs prayed for can not be allowed and
hence we dismiss the writ petition as
merit less.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.07.2008

BEFORE
THE HON'BLE M.K. MITTAL, J.

Criminal Revision No. 3228 of 2007

Maheswh Chandra Dwivedi ...Revisionist
Versus
State of U.P. and another ...Respondents

Counsel for the Revisionist:
Sri. K.M. Asthana

Counsel for the Revisionist:
Sri. Bal Mukund
Smt. Arti Singh
A.G.A.

Code of Criminal Procedure-Section 125Maintenance claimed by wife-divorced
by mutual consent-even after divorce her
status as wife continued till remarriagerejection of claim for enhancement of
maintenance
or
the
ground
of
compromise before family court about
not
claiming
maintenance-held-being
against public policy hit by Section 23 of
Indian Contract Act-illegal-consequential
direction issued.

Held: Para 10

In view of this position, I come to the
conclusion that even if there was any
divorce by mutual agreement and the
husband Mahesh Chandra Dwivedi had
made
lumpsum
payment
to
Smt
Manorama, she was not debarred from
claiming maintenance under Section125
Cr.P.C. In the circumstances, the order
passed under Section 125 Cr.P.C. on
12.4.1994 and the enhancement order
passed on 26.7.1996 can not be said to
be illegal or without jurisdiction. Learned
Judge, family court, who rejected he
application filed by Smt Manorama for
enhancement
was
not
justified
in
rejecting that application on the ground
that parties had compromised in Civil
Suit and Smt Manorama had agreed not
to claim any maintenance in future.
Case law discussed:
(1995) 5 SCC 299, (2000) 3 SCC 180, (1987) 2
Hindu LR 334 (Kerala High Court), 2004,
Crl.L.J., 3690, (Punjab & Haryana High Court).

(Delivered by Hon'ble M.K.Mittal, J.)

1. Criminal Revision No. 1145 of
2005 has been filed by Smt. Manorama
for setting aside the order dated 18.1.2005
passed by Principal Judge, Family Court,
Kanpur Nagar, in Misc. Case No. 33 of
2002 whereby he rejected the application
filed by Smt. Manorama under Section
127 Cr.P.C. for enhancement of the
maintenance
amount
awarded
under
Section 125 Cr.P.C. by order dated
12.4.1994 @ Rs.200/-per month and
earlier enhanced to Rs.300/- by order