# Smt. Rashmi Sundrani v. State of U.P. & Ors

- **Citation:** (2024) 12 ILRA 174
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-13
- **Case number:** Matters Under Article 227 No. 7549 of 2022
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rashmi-sundrani-v-state-of-u-p-ors-51195
- **Pages:** 30

## Headnote

Sri Aman Kumar, Sri Ayush Mishra, Sri
Chandra Shekhar Dwivedi, G.A., Sri Gaurav
Tiwari, sri Prabha Shanker Mishra, Sri Udai
Chandani

Criminal
Law-The
Code
of
Criminal
Procedure, 1973 - Section 173 & 190 - The
investigating agency has ample power with
12 All. Smt. Rashmi Sundrani Vs. State of U.P. & Ors.
175
regard to the further investigation into a
criminal case, even after the cognizance was
taken in the matter and till the framing of the
charges in the matter---Once the Magistrate has
taken cognizance in the matter it is not open for
him to direct the matter to be treated as a
complaint case. The material collected during
the further investigation is the material available
before the Magistrate for the offence of which
the cognizance has already been taken by the
Magistrate, which can be considered for
summoning of the other accused persons as
well if the Magistrate is satisfied that there is
sufficient material against them and also at the
time of framing of charges against the accused
persons---The Magistrate is not bound by the
conclusions drawn by the Investigating Agency
in its report under Section 173(2) or 173(8).
Therefore, subsequent supplementary reports
submitted under garb of further investigation by
the Investigation Agency can be considered as a
material available before the Magistrate and
once the cognizance which was taken on the
basis of the initial report submitted by the
Investigation Agency, Magistrate cannot direct
the matter to be treated as a complaint case---
Impugned order directing the matter to be
treated as a complaint case is hereby set aside
and quashed. (Para 42 & 45) (E-15)

List of Cases cited:

## Text

_Characters 0–39,899 of 103,136. This is a partial read: ask again with offset=39899 for what follows._

174 INDIAN LAW REPORTS ALLAHABAD SERIES
wishes of its real owner, i.e. opposite party
no. 2 Vikas. Proceeding u/s 145 Cr.P.C. is
initiated
as
interim
measure
for
maintaining peace till decision of right and
title relating to subject matter. In present
competent court had already decided the
ownership right and title of respondent no.-
2 (Vikas) over disputed property. As
discussed above claim of revisionist over
disputed property is proved ba seless and
without any right. Therefore he had no
right to assert any claim over disputed
property.

8. Apart from it, record reveals
that after obtaining report and considering
facts and circumstance relating to the
matter
in
question,
and
also
after
application of mind, the SDM, Bansi had
come to conclusion that there is no
likelihood of breach of peace in respect
disputed property. This finding of the court
below is based on facts , before the Court
below and appears to be proper and
correct. Such finding cannot be interfered
with in exercise of revisional jurisdiction.
In
absence
of
any
likelihood
or
apprehension of breach of peace, the court
below was perfectly justified in dropping
and ending the proceedings under section
145 Cr.P.C. by the impugned order. There
is no illegality, impropriety or error in the
impugned
order
that
may
require
interference through exercise of revisional
jurisdictional."

17. In the present case also the
disputed land was purchased by mother of
respondent nos.2 to 5 through registered
sale deed and the names of respondent
nos.2 to 5 have already been recorded in
the revenue record. The petitioners have
failed to prove their ownership or title in
respect of the disputed property. The
petitioners have no right or claim in respect
of disputed property in absence of any
registered sale deed in their favour. Both
the courts below after considering the
evidence and materials which are available
on record, has rightly passed the orders in
favour of private respondents and there is
no illegality in any manner.

18. No ground for interference is made
out. The matter under Article 227 of the
Constitution of India is devoid of merit and
is liable to be dismissed.

19.
The
petition
is
dismissed,
accordingly.

20. Interim order, if any, stands
discharged.
----------
(2024) 12 ILRA 174
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2024
BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Matters Under Article 227 No. 7549 of 2022
Connected with
Application U/S 482 No. 29958 of 2019

Smt. Rashmi Sundrani ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Mohd. Aslam Azhar Khan, Sri Rajeev
Ratan Shukla, Sri R.P. Chauhan (Sr.
Advocate)

Counsel for the Respondents:
Sri Aman Kumar, Sri Ayush Mishra, Sri
Chandra Shekhar Dwivedi, G.A., Sri Gaurav
Tiwari, sri Prabha Shanker Mishra, Sri Udai
Chandani

Criminal
Law-The
Code
of
Criminal
Procedure, 1973 - Section 173 & 190 - The
investigating agency has ample power with
12 All. Smt. Rashmi Sundrani Vs. State of U.P. & Ors.
175
regard to the further investigation into a
criminal case, even after the cognizance was
taken in the matter and till the framing of the
charges in the matter---Once the Magistrate has
taken cognizance in the matter it is not open for
him to direct the matter to be treated as a
complaint case. The material collected during
the further investigation is the material available
before the Magistrate for the offence of which
the cognizance has already been taken by the
Magistrate, which can be considered for
summoning of the other accused persons as
well if the Magistrate is satisfied that there is
sufficient material against them and also at the
time of framing of charges against the accused
persons---The Magistrate is not bound by the
conclusions drawn by the Investigating Agency
in its report under Section 173(2) or 173(8).
Therefore, subsequent supplementary reports
submitted under garb of further investigation by
the Investigation Agency can be considered as a
material available before the Magistrate and
once the cognizance which was taken on the
basis of the initial report submitted by the
Investigation Agency, Magistrate cannot direct
the matter to be treated as a complaint case---
Impugned order directing the matter to be
treated as a complaint case is hereby set aside
and quashed. (Para 42 & 45) (E-15)

List of Cases cited:

1. Ram Lal Narang Vs St. (Delhi Administration)
: (1979) 2 SCC 322

2. St. of Bihar & anr.Vs J.A.C. Saldanha & ors.:
(1980) 1 SCC 554

3. K.Chandrashekhar Vs St. of Kerala : (1998) 5
SCC 223

4. Vinay Tyagi Vs Irshad Ali @ Deepak & ors. :
(2013) 5 SCC 762

5. Anant Thanur Karmuse Vs St. of Mah. : 2023
(5) SCC 802

6. Bohatie Devi (Dead) through LRs Vs St. of
U.P. : AIRONLINE 2023 SC 362

7. St. through Central Bureau of Investigation
Vs Hemendra Reddy & anr.: 2023 SCC OnLine
SC 515
8. Sri Bhagwan Samardha Sreepada Vallabha
Venkata Vishwanandha Maharaj, 1999 (5) SCC
740

9. Criminal Misc. Writ Petition No. 11257 of
2023 (Smt. Preety Verma Vs St. of U.P. & ors.

10. Application under Section 482 Cr.P.C. No.
1784 of 2013 (Babu Lal Jaiswal & ors.Vs St. of
U.P. & anr.

11. Vinubhai Haribhai Malaviya & ors. Vs St. of
Guj. & anr.2020 (3) JIC 192 (SC)

12. Bikash Ranjan Rout Vs State Goverment of
N.C.T. of Delhi, (2019 (108) ACC 327

13. Athul Rao Vs St. of Karn. & anr., (2019)1
SCC (Cri) 594

14. Sonu Gupta Vs Deepak Gupta & ors., (2015)
3 SCC 424

15. Luckose Zacharia @ Zak Nedumchira Luke &
ors.Vs Joseph Joseph & ors., 2022 (120) ACC
299

(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. Heard Sri R.P. Chauhan, learned
Senior Advocate and Sri Rajeev Ratan
Shukla, learned Senior Advocate assisted
by Sri Mohd. Aslam Azhar Khan, learned
counsels for the applicant, Sri Gaurav
Tiwari, learned counsel for the opposite
party nos.2 and Sri Sandeep Choudhary,
learned A.G.A. for the State.

2. The petition under Article 227 has
been filed by petitioner seeking quashing of
the impugned order dated 03.08.2022 in
Criminal Revision No. 145 of 2021 (Smt.
Rashmi Sundrani vs. State of U.P. and
Others)
arising
out
of
order
dated
27.11.2019 and subsequent order dated
20.02.2020 passed by the Special Chief
Judicial Magistrate.
176 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The aforesaid application under
Section 482 Cr.P.C. has been filed by the
complainant seeking quashing of the order
dated 09.04.2019, passed by Special Chief
Judicial Magistrate, Allahabad in Criminal
Case No. 139 of 2016 (State vs. Mukesh
Kumar Singh & Others) arising out of Case
Crime No. 369 of 2015 under Sections 419,
420, 467, 468, 504, 506 I.P.C., P.S.-
Colonel Ganj, Allahabad, whereby the
learned Magistrate has directed the matter
to be treated as a complaint case on protest
petition filed by the applicant against the
final order dated 21.03.2018 submitted by
the Investigation Agency.

4. Since the facts of both the matters
are common as both the cases are arising
out of the same F.I.R., therefore, the entire
facts and circumstances are being taken
from the petition under Article 227 filed by
the petitioner- Smt. Rashmi Sundrani.

5. The brief facts of the case are that
an F.I.R. being F.I.R. No. 0369 of 2015
was lodged by the respondent no. 2 on
21.05.2015 against Mukesh Kumar Singh,
Rashmi Sundrani, S.K. Sundrani and
Sanjeev Trivedi, alleging therein that he
was a businessman situated at Allahabad.
The accused no.1, Mukesh Kumar Singh,
approached him and said that he is having
some connection with the Jan Jagran
Samiti, which helps in the distribution and
preparation of the Mid Day Meal in
different schools and on persuasion of said
Mukesh Kumar Singh, the informant had
gone to Raipur, where an agreement dated
29.12.2012 was executed between the Jan
Jagran Samiti represented through the
petitioner herein and said Mukesh Kumar
Singh as well as the informant, Hari
Kishan. Thereupon, they further executed
some Memorandum of Understanding and
also opened various bank accounts and they
started jointly supplying the materials after
an agreement with the District Basic
Education Officer, Allahabad. Thereupon
some dispute arose between the parties
with regard to siphoning of the amounts,
received from the District Basic Education
Officer, Allahabad.

6. The allegations with regard to
siphoning of amount is against the
petitioner as well as one S.K. Sundarani
and Sanjeev Trivedi. Being aggrieved, the
informant Hari Kishan has lodged the
F.I.R. being Case Crime No. 369 of 2015.
Aggrieved by the registration of the said
F.I.R., the petitioner as well as one Sudesh
Kumar Sundarani approached this Court by
filing Criminal Miscellaneous Writ Petition
No. 24754 of 2015 and interim protection
was granted to the petitioner as well as the
said Sudesh Kumar Sundrani during the
investigation
of
the
case.
Similarly,
Mukesh Kumar Singh has also approached
by filing Criminal Miscellaneous Writ
Petition No. 25927 of 2015 and he was also
granted interim protection vide order dated
28.10.2015, till the submission of the report
under Section 173(2) Cr.PC. Subsequent
thereto, after concluding the investigation
the charge-sheet was filed against the
petitioner as well as the said Mukesh
Kumar Singh and so far as other two
persons are concerned further investigation
was kept pending.

7. The first charge-sheet was filed on
01.01.2016 and after filing of the chargesheet, the cognizance was taken against the
petitioner and Mukesh Kumar Singh, by the
Magistrate vide order dated 28.01.2016 and
after concluding the further investigation
against the remaining two accused, namely
S.K. Sundrani and Sanjeev Dwivedi, a
Closure Report dated 02.02.2017 was filed,
which was protested by the respondent
12 All. Smt. Rashmi Sundrani Vs. State of U.P. & Ors.
177
no.2/informant vide his protest application
dated 20.04.2017, which was disposed of
by the trial court and the said closure report
against the two of the accused person,
namely Sudesh Kumar Sundarani, was
rejected and matter was directed to be
further investigated vide order dated
19.07.2017.

8.
With
regard
to
the
further
investigation,
as
directed
by
learned
Magistrate vide order dated 19.07.2017.
The informant has approached this Court
by filing Criminal Miscellaneous Writ
Petition No. 1974 of 2018, wherein the
respondent no.9/Sudesh Kumar Sundrani,
appeared before this Court and this Court
directed the further investigation to be
carried out and the respondent no.9 therein,
Sri Sudesh Kumar Sundrani, was directed
to cooperate with the investigation vide
order dated 08.02.2018. Subsequently, on
21.03.2018 the Investigation Officer has
submitted a final report negating the entire
allegations in the F.I.R. against all the
accused persons. Against this Final Report/
Closure Report dated 21.03.2018, the
respondent/informant herein has again filed
a protest petition on 18.06.2018 and
therefore vide dated 09.04.2019 the trial
court has rejected the said Closure Report
dated 21.03.2018 and directed the matter to
be treated as a complaint case against
which an Application under section 482 no.
29958 of 2019, which is a connected matter
to the instant writ petition was filed by the
informant/Harikishan, wherein vide order
dated 05.08.2019, the following order was
passed:

"Upon a First Information Report
being lodged as Criminal Case no. 369 of
2015 investigation followed and while
chargesheets
were
submitted
against
Rashmi Sundrani and Mukesh Kumar
Singh, a final report was submitted vis-avis S.K. Sundari and Sanjay Dwivedi.

Thereafter, the Magistrate took
congnizance of the case and framed
charges against the Rashmi Sundrani and
Mukesh Kumar Singh. However, when a
protest petition was filed with regard to the
final report, the Magistrate has now treated
the whole case as a complaint case.

It has been reported that Mukesh
Kumar Singh has died.

Learned counsel for the applicant
submitted that when once the cognizance
was taken against Rashmi Sundarani and
Mukesh Kumar Singh this step of treating
the whole case as a complaint case could
not have been taken by the Magistrate.

There appears to be substance in
the submission made by the learned
counsel for the Applicant.

Issue notice to the respondents
no. 2 to 4.

The respondents may file their
counter affidavits within four weeks.
Rejoinder affidavit, if any, may be filed
within two weeks, thereafter.

List on the date indicated in the
notice.

It is directed that so far as it has
been ordered that the case against the
Rashmi Sundrani shall also be treated as a
complaint case, the impugned order dated
9.4.2019 shall remain stayed.

This case shall not be treated as
tied up or part heard to this case."

9. Therefore, from the aforesaid order
it is clear that this Court has directed that
so far as the order dated 09.04.2019 with
regard to a direction treating it as a
complaint case against the petitioner herein
shall remain stayed, meaning thereby, this
Court has directed that the charge-sheet and
the cognizance taken against the petitioner
herein shall remain effective and the trial
178 INDIAN LAW REPORTS ALLAHABAD SERIES
court shall proceed against the petitioner
herein. In the mean time, it has been
reported that the said Mukesh Kumar Singh
has died. In terms of the aforesaid order
05.08.2019, passed by this Court, the trial
court has passed an order on 27.11.2019,
whereby
it
was
directed
that
the
proceedings against the accused petitioner,
Rashmi
Sundrani,
shall
continue.
Subsequent thereto, against the order dated
27.11.2019, the petitioner has filed a recall
application, which was rejected vide order
dated 20.02.2020 by the Special Chief
Judicial Magistrate, with the following
observation:

"IN THE COURT OF SPECIAL
CHIEF
JUDICIAL
MAGISTRATE,
ALLAHABAD,

Harikishan Vs. Mukesh Kumar
Singh Other 20.02.2020-

File is fixed for order. Heard
parties on application dated both the
2/12/19 and objection on previous date
applicant/ accused No. 2 has filed recall
application for recall of order Hated
27/11/19
on
the
ground
that
the
complainant/informant has filed the protest
petition to include the extraneous matters is
such that the protest application has seen
treated as complaint case no 1916 of
2016by order dated 9/4/19 which has been
challenged before hon'ble High Court
under sec 482 CrPC to allege that the
charge has been framed against accused no
2 in which the Hon'ble High Court has
stayed the order dated 9/4/19on alleging
the framing of charge from complainant the
magistrate has to power to treat the
complaint against that accused against
whom charge is framed but no iny order
has been passed to proceed the criminal
case no 139/16 and still pending before
Hon'ble High Court while no charge is
framed and arrest having stayed in Cri RIT
no. 24749 OF 2015 While the police report
has been submitted, closure report 3/s 169
CrPC power to as such the court has only
summon the alleged accused by executing
power under sec 190(1)(b)of CrPC to
reject the police closure report u/s 169, but
this court did not reject the closure report
dated 21/03/18 and has proceeded the
prior order of the closure report by order
dated 27/11/19, which is not sustainable in
eye of law. The applicant has also stated
what alleged accused no 2 has already
appeared through her counsel after the
court has taken cognizance and has locus
to raise the objection.

The
complainant
has
filed
objection that the alleged accused no 2 has
neither appeared nor has applied for bail,
hence has no locus of being heard.
application dated 2/12/19 has been filed
only
to
delay
the
proceeding
and
application is liable to be rejected.

Heard and perused the record.
since order, dated 27/11/19 of this court is
passed in compliance of order of Hon'ble
High Court dated 05/08/19 in application
U/S
482
No.
29958
of
2019.
In
abovementioned order the Hon'ble High
Court has merely stayed the order dated
9/4/19 and there is no specific order stay
for proceedings against accused no. 2. of
entire Moreover the accused no 2 has not
appeared in person before court and the
application
through
counsel
is
not
maintainable.

Hence the recall application is
liable to be rejected.Issue previos process.
Put up on 20/03/2020 for appearance.

SPECIAL
CHIEF
JUDICIAL
MAGISTRATE ALLAHABAD"

10. Against the aforesaid order dated
27.11.2019 as well as against the order
dated 20.02.2022, the petitioner herein had
12 All. Smt. Rashmi Sundrani Vs. State of U.P. & Ors.
179
filed a Criminal Revision Petition No. 145
of 2021 (Rashmi Sundarani vs. State of
U.P.), which was also rejected vide order
dated
03.08.2022,
by
the Additional
Sessions Judge, Court No. 13, Allahabad.
Against the orders dated 27.11.2019,
20.02.2022 & 03.08.2022 the instant writ
petition has been filed by the petitioner.

11. While entertaining the petition,
this Court vide order dated 12.10.2022, has
passed the following order, whereby the
interim protection was granted to the
petitioner
which
was
subsequently
extended on 10.11.2022:

Shri Udai Chandani, learned
counsel for the respondent no.2 filed short
counter affidavit today itself, taken on
record.

Connect
this
petition
with
Application u/s 482 No.29958 of 2019
(Hari Kishan vs State of U.P. and 3 others).

After
hearing
the
rival
submissions the Court has gathered an
impression that the issue involved in the
present controversy is with regard to
Section 173(8) Cr.P.C., its applicability
and modalities, which requires deeper
judicial scrutiny.

Shri I.K. Chaturvedi, learned
Senior Advocate assisted by Shri R.R.
Shukla and Mohd. Aslam Azhar Khan are
directed to file detailed counter affidavit in
Application u/s 482 No.29958 of 2019.

Shri Uday Chandani, learned
counsel for respondent no.2 may also file
detailed counter affidavit in this case
within a week (if any). Ten days thereafter
is granted to file rejoinder affidavit.

Put up as fresh on 3rd November
2022 along with record of Application u/s
482 No.29958 of 2019 (Hari Kishan vs
State of U.P. and 3 others) before
appropriate Court.

In the larger interest of justice
where there is serious judicial issue is
involved, the interest of the applicant
should also be protected for time being and
accordingly till next of listing coercive
action against the applicant shall not be
given effect.

A mutual understanding has been
arrived between the learned counsel for the
parties that none of the advocates would
seek unreasonable adjournment on the next
date.

12. Against the order dated dated
12.10.2022, a Special Leave Petition No.
3050-3051 of 2023, was filed by the
informant/ Hari Kishan, before the Apex
Court, which was disposed of vide order
30.08.2024, in the following terms :

"The Special Leave Petitions
have been preferred against the interim
orders dated 12.10.2022 and 12.01.2023
passed by the High Court whereby the
interim protection granted on 12.10.2022
has been extended till the next date of
listing. The interim order provides for not
taking
any
coercive
action
against
respondent No.2-Rashmi Sundrani.

The submission of learned senior
counsel appearing for the petitioner is that
the respondent No.2--Rashmi Sundrani has
been declared to be a proclaimed offender
and as such is not entitled to any such
protection.

Learned
senior
counsel
Sri
S.R.Singh appearing for the State of U.P.
has pointed out that there are orders dated
16.08.2022 and 09.09.2022 wherein the
Special
Chief
Judicial
Magistrate,
Allahabad had noted that the respondent
No.2- Rashmi Sundrani has already been
declared to be a proclaimed offender. The
declaration of the respondent No.2-Rashmi
180 INDIAN LAW REPORTS ALLAHABAD SERIES
Sundrani
as
proclaimed
offender
is
disputed by her counsel.

Without going into the merits of
the matter as the petition is directed
against the interim orders extending the
interim
protection
we
consider
it
appropriate to dispose of the petition with
the direction that the interim protection
granted by the High Court shall continue
for the limited period if any, stipulated by
the
High
Court
provided
that
the
Respondent
No.2-
Rashmi
Sundrani
cooperates and appears before the Court.

It will be open for the respondent
No.2-
Rashmi
Sundrani
to
move
appropriate application if for some reason
she is unable to attend the proceedings and
the same may be considered in accordance
with law by the concerned Court.

The High Court is free to proceed
and decide the pending petitions under
Article 227 of the Constitution of India and
section 482 of Cr.P.C. most expeditiously
in accordance with law.

With the above observations, the
Special Leave Petitions are disposed of.

Pending application (s) shall
stand disposed of."

13. Learned Senior Counsel appearing
for
the
petitioner
submits
that
the
agreement dated 29.12.2012, is a forged
document, on the basis of which the said
Mukesh Kumar Singh and the informant in
the instant case has also executed some
Memorandum of Understanding between
themselves with other two persons namely
Om Prakash Gupta and Shankar Lal.
Shankar Lal was the brother of the
informant, wherein they have settled how
the supply of the Mid Day Meal is to be
done and how they will get benefit out of
the said supply. In the said Memorandum
of Understanding, dated 08.04.2013 neither
the petitioner nor the other accused persons
were the party. The informant in collusion
with the said Mukesh Kumar Singh and
others have also got fabricated or forged a
document with regard to the renewal of the
registration of the said Jan Jagran Samiti at
the address of Allahabad. Thereafter, they
have conducted the business and in conduct
of such business, the petitioner had no
control or any share in the said business
and had no connection with the said
business. Subsequent thereto, a dispute
arose between the said Mukesh Kumar
Singh, the informant and the other two
persons,
who
had
executed
the
Memorandum of Understanding. Being
aggrieved by the same, the, informant had
lodged an F.I.R. being Case Crime No. 537
of 2013 against one Mukesh Kumar Singh,
who
was
ultimately
charge-sheeted.
Subsequent to the registration of the F.I.R.
against the said Mukesh Kumar Singh, the
informant has also lodged a Complaint
Case No. 7479 of 2014, which was rejected
for want of prosecution as there being no
sufficient evidence against the accused
persons, vide order dated 26.11.2016.
Subsequently, by concealing the aforesaid
facts of registration of the initial F.I.R.
against Mukesh Kumar Singh and lodging
of the complaint Case No. 7479 of 2014
and its rejection dated 26.11.2016, the
instant F.I.R. has been lodged.

14. Learned counsel for the petitioner
submits the applicant herein has no
connection with any of the dealing with
said Mukesh Kumar Singh, his brother and
one Om Prakash and the agreement dated
29.12.2012 is a forged document, for which
an F.I.R. being Case Crime No. 1514 of
2018 has also been lodged by the petitioner
herein against Hari Kishan, Om Prakash
and Shankar Lal. Therefore, learned
counsel for the applicant submits that since
the
Final
Report
has
already
been
12 All. Smt. Rashmi Sundrani Vs. State of U.P. & Ors.
181
submitted, it is not open for the learned
Magistrate to proceed in the case on the
basis of the earlier report submitted by the
police against the petitioner herein.

15. Per Contra, learned counsel for
the opposite party no.2 supporting the
allegations made in the F.I.R. submits that
after agreement dated 29.12.2012, which
was executed by the petitioner herein, the
respondent no. 2 has invested huge amount
in the business, of which a certain
percentage was to be given to the petitioner
but the said Mukesh Kumar Singh in
collusion with the petitioner as well as the
other accused persons have siphoned away
the amount, which was to be shared by all
the persons concerned, namely Om Prakash
and his brother Shankar Lal. Thereby, they
have defrauded the informant and in the
initial charge-sheet sufficient evidence was
found against the petitioner herein, and
once the cognizance has been taken against
the petitioner, the clock cannot be set back
and the scope of further investigation was
limited only with regard to the Closure
Report filed against the two accused
persons,
namely
S.K
Sundarani
and
Sanjeev Trivedi. Therefore, subsequent
further investigation was limited with
regard to only those two persons because
the charge-sheet was already filed against
the petitioner and said Mukesh Kumar
Singh, for which cognizance was already
taken and in view of the order dated
05.08.2019 of this Court, the trial court was
directed to proceed against the petitioner
herein without being affected by the order
09.04.2019. In view thereof the trial is
already proceeding against the petitioner
herein and subsequently on an application
under Section 319 Cr.P.C. filed by the
respondent no.2, the other co-accused
persons, namely S.K. Sundarani and
Sanjeev Trivedi has also been summoned
vide order dated 07.06.2024.

16. Learned counsel for the opposite
party no.2 submits that since the scope of
the further investigation was very limited
with regard to the investigation against the
other co-accused persons, namely S.K.
Sundrani and Sanjeev Trivedi, it was not
open for the Investigation Agency to file a
Closure Report against all the accused
persons, against whom the cognizance was
already taken and trial in the matter has
already been proceeded in accordance with
law in pursuance of the order dated
05.08.2019 passed by this Court in
Application u/S 482 Cr.P.C.

17. The sole question involved in the
instant
proceedings
is
whether
the
Magistrate,
who
has
already
taken
cognizance against some of the accused
persons on the basis of earlier report can
direct the case to be proceeded as
complaint case, against those accused
persons as well on the basis of subsequent
police report?

18. To appreciate the controversy
involved in the case, it would be relevant to
take note of the provisions of Sections 173
and 190 of Cr.P.C., which are being
reproduced herein:

"173. Report of Police Officer on
Completion
of
Investigation-(1)Every
investigation under this Chapter shall be
completed without unnecessary delay.[(1A) The investigation in relation to [an
offence under sections 376, 376A, 376AB,
376B, 376C, section 376D, section 376DA,
section 376DB or section 376E of the
Indian Penal Code shall be completed
within two months.] [Inserted by the Code
of Criminal Procedure (Amendment) Act,
182 INDIAN LAW REPORTS ALLAHABAD SERIES
2008 (5 of 2009), Section 16 (a).] from the
date on which the information was
recorded by the officer-in-charge of the
police station.]

As soon as it is completed, the
officer-in-charge of the police station shall
forward to a Magistrate empowered to take
cognizance of the offence on a police
report, a report in the form prescribed by
the State Government, stating -

(a) the names of the parties;

(b) the nature of the information;

(c) he names of the persons who
appear
to
be
acquainted
with
the
circumstances of the case;

(d) whether any offence appears
to have been committed and, if so, by
whom;

(e) whether the accused has been
arrested;

(f) whether he has been released
on his bond and, if so, whether with or
without sureties;

(g)
whether
he
has
been
forwarded in custody under section 170.

(h) [ Whether the report of
medical examination of the woman has
been attached where investigation relates
to an offence under [Sections 376, 376A,
376AB,
376B,
376C,
376D,
376DA,
376DB] [Inserted by the Code of Criminal
Procedure (Amendment) Act, 2008 (5 of
2009), Section 16 (b).]] [or section 376E of
the Indian Penal Code of the Indian Penal
Code, 1860.] [Substituted for the words "or
376D of the Indian Penal Code" by
Criminal Law (Amendment) Act, 2013]

(ii)
The
officer
shall
also
communicate, in such manner as may be
prescribed by the State Government, the
action taken by him, to the person, if any,
by whom the information relating to the
commission of the offence was first given.

190. Cognizance of offences by
Magistrates.- (I) Subject to the provisions
of this Chapter, any Magistrate of the first
class, and any Magistrate of the second
class specially empowered in this behalf
under sub-section (2), may take cognizance
of any offence -

(a) upon receiving a complaint of
facts which constitute such offence.

(b) upon a police report of such
facts;

(c) upon information received
from any person other than a police officer,
or upon his own knowledge, that such
offence has been committed.

(2) The Chief Judicial Magistrate
may empower any Magistrate of the second
class to take cognizance under sub-section
(1) of such offences as are within his
competence to inquire into or try."

19. Section 173(1) of the Code
provides that every investigation under this
chapter
shall
be
completed
by
the
investigation agency without unnecessary
delay. Section 173(2) of the Code, provides
that as soon as the investigation is
completed, the officer in-charge of the
concerned police station is obliged to
submit the police report to the Magistrate in
a prescribed format. It further mandates the
officer in-charge of the police station to
inform the action taken by him to the
informant of the said case. Section 173(3)
of the Code, provides that wherever the
superior officer of the police station has
been appointed, the report shall be
submitted through that officer and the
pending orders of Magistrate, the such
officer is competent to direct the officer incharge of the police station to make further
investigation in the matter. Sub-section (5)
of Section 173 of the Code provides that
the documents which should be forwarded
to the Magistrate alongwith the report
under Section 173(2) of the Code. Section
173(7) of the Code mandates that the
12 All. Smt. Rashmi Sundrani Vs. State of U.P. & Ors.
183
copies of the report and the documents be
provided to the accused. Sub-section (8) of
Section 173 of the Code provides that
nothing in this section shall preclude
further investigation in respect of an
offence after a report under sub-section (2)
of Section 173 is forwarded to the
Magistrate,
and
if
on
such
further
investigation, if the officer in-charge of the
police station obtains further evidence, oral
or documents, he shall forward the same to
the Magistrate along with a further report
regarding such evidence in the prescribed
format. There is nothing in Sub-section (8)
of Section 173 of the Code, which
mandates that before taking up the further
investigation in the matter, the officer incharge or the investigation officer is
obliged to seek any permission from the
Magistrate. Rather, it recognises the right
of the investigation agency to conduct the
further investigation in the matter and
collect further evidence and forward it to
the learned Magistrate. Section 190 of the
Code provides how the Magistrate shall
take cognizance of any offences. He can
take the cognizance of the matter on
receiving a complaint of facts which
constitute such offences or upon a police
report of such acts or upon information
received from any person other than the
police officer or upon his own knowledge
that such offence shall be committed.
Therefore, there is nothing in Section 190
or 173(8) of the Code, which limits the
powers of the investigation agency with
regard to further investigation in the matter.

20. In Ram Lal Narang vs. State
(Delhi Administration) : (1979) 2 SCC
322, the Apex Court has noted all the
previous judgements including those of
different High Courts and has considered
the diverse views taken by the different
High Courts and has also noted the
developments
and
inclusion
of
new
provisions as Section 173(8) in the
Criminal Procedure Code, 1973, on the
basis of the 41st report of the Law
Commission. The Law Commission, in its
41st report, has recognized the well settled
position and recommended that the right of
the police to make further investigation
should be statutorily affirmed in following
words:

"14.23. A report under Section
173
is
normally
the
end
of
the
investigation. Sometimes, however, the
police officer after submitting the report
under Section 173 comes upon evidence
bearing on the guilt or innocence of the
accused. We should have thought that the
police officer can collect that evidence and
send it to the Magistrate concerned. It
appears, however, that Courts have
sometimes taken the narrow view that
once a final report under Section 173 has
been sent, the police cannot touch the case
again
and
cannot
re-open
the
investigation.
This
view
places
a
hindrance in the way of the investigating
agency, which can be very unfair to the
prosecution and, for that matter, even to
the accused. It should be made clear in
Section 173 that the competent police
officer can examine such evidence and
send a report to the Magistrate. Copies
concerning the fresh material must of
course be furnished to the accused."
(emphasis supplied)

21. On the basis of the aforesaid report
of the Law Commission, in the Code
(Cr.P.C. 1973), the aforesaid report was
implemented and Section 173(8), was
introduced, which provides as under:

"173(8). Nothing in this section
shall be deemed to preclude further
184 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation in respect of an offence after
a report under sub- section (2) has been
forwarded to the Magistrate and, where
upon such investigation,under sub-section
(2) the officer in charge of the police
station obtains further evidence, oral or
documentary, he shall forward to the
Magistrate a further report or reports
regarding such evidence in the form
prescribed; and the provisions of sub-
sections (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)."

22. In Paragraph '15', '20' and '21' of
the aforesaid judgement in Ram Lal
Narang (supra), the Hon'ble Apex Court
has observed as under:

"15. The police thus had the
statutory right and duty to "register" every
information relating to the commission of a
cognizable offence. The police also had the
statutory right and duty to investigate the
facts and circumstances of the case where
the commission of a cognizable offence
was suspected and to submit the report of
such investigation to the Magistrate
having jurisdiction to take cognizance of
the offence upon a police report. These
statutory rights and duties of the police
were not circumscribed by any power of
superintendence or interference in the
Magistrate; nor was any sanction required
from a Magistrate to empower the Police
to investigate into a cognizable offence.
This position in law was well-established.
In King Emperor v. Khwaja Nazir Ahmad
[AIR 1945 PC 18 : 71 IA 203 : 46 Cri LJ
413] the Privy Council observed as
follows:

"Just as it is essential that
everyone accused of a crime should have
free access to a Court of justice, so that he
may be duly 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
province and into which the law imposes on
them the duty of inquiry. In India, as has
been shown, there is a statutory right on
the part of the police to investigate the
circumstances of an alleged cognizable
crime without requiring any authority from
the judicial authorities, and it would, as
Their Lordships think, be an unfortunate
result if it should be held possible to
interfere with those statutory rules 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 Courts to intervene in an appropriate
case when moved under Section 491 of the
Criminal
Procedure
Code
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 ... In
the present case, the police have under
Sections 154 and 156 of the Criminal
Procedure Code, a statutory right to
investigate a cognizable offence without
requiring the sanction of the Court ...."

Ordinarily, the right and duty of
the police would end with the submission of
a report under Section 173(1) CrPC upon
receipt of which it was up to the Magistrate
to take or not to take cognizance of the
offence. There was no provision in the 1898
Code prescribing the procedure to be
followed by the police, where, after the
submission of a report under Section
173(1) CrPC and after the Magistrate had
12 All. Smt. Rashmi Sundrani Vs. State of U.P. & Ors.
185
taken cognizance of the offence, fresh facts
came to light which required further
investigation. There was, of course, no
express provision prohibiting the police
from launching upon an investigation into
the fresh facts coming to light after the
submission of the report under Section
173(1) or after the Magistrate had taken
cognizance of the offence. As we shall
presently point out, it was generally
thought by many High Courts, though
doubted by a few, that the police were not
barred from further investigation by the
circumstance that a report under Section
173(1) had already been submitted and a
Magistrate had already taken cognizance
of the offence.

20. Anyone acquainted with the
day-to-day working of the criminal courts
will be alive to the practical necessity of
the police possessing the power to make
further
investigation
and
submit
a
supplemental report. It is in the interests
of both the prosecution and the defence
that the police should have such power. It
is easy to visualise a case where fresh
material may come to light which would
implicate persons not previously accused
or absolve persons already accused. When
it comes to the notice of the investigating
agency that a person already accused of an
offence has a good alibi, is it not the duty of
that agency to investigate the genuineness
of the plea of alibi and submit a report to
the Magistrate? After all the investigating
agency has greater resources at its
command
than
a
private
individual.
Similarly, where the involvement of persons
who are not already accused comes to the
notice of the investigating agency, the
investigating agency cannot keep quiet and
refuse to investigate the fresh information.
It is their duty to investigate and submit a
report
to
the
Magistrate
upon
the
involvement of the other persons. In either
case, it is for the Magistrate to decide upon
his future course of action depending upon
the stage at which the case is before him. If
he has already taken cognizance of the
offence, but has not proceeded with the
enquiry or trial, he may direct the issue of
process to persons freshly discovered to be
involved and deal with all the accused in a
single enquiry or trial. If the case of which
he has previously taken cognizance has
already proceeded to some extent, he may
take fresh cognizance of the offence
disclosed against the newly involved
accused and proceed with the case as a
separate case. What action a Magistrate is
to take in accordance with the provisions of
the CrPC in such situations is a matter best
left to the discretion of the Magistrate. The
criticism that a further investigation by
the
police
would
trench
upon
the
proceeding before the court is really not of
very great substance, since whatever the
police may do, the final discretion in
regard to further action is with the
Magistrate.