# Sunil & Ors v. State of U.P. & Anr

- **Citation:** (2023) 2 ILRA 742
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-13
- **Case number:** Application U/S 482. No. 21765 of 2022
- **Bench:** Mrs. Sadhna Rani (Thakur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-ors-v-state-of-u-p-anr-49738
- **Pages:** 7

## Headnote

Criminal Law- Code of Criminal Procedure,
1973-
Section
173(8)-
Further
Investigation- In respect of an offence
where a police report under sub section
(2) has been filed, the officer in charge of
the police station can make further
investigation and when there is clear
provision that the police officer can do a
further investigation, the argument of the
learned counsel for the applicants that
without order of the Magistrate the police
can not do a further investigation is
against law. While there is clear provision
under section 173(8) of Cr.P.C. that the
officer in-charge of the police station shall
not be deemed to be precluded from
further investigation, where he obtains
further evidence, oral or documentary, he
shall forward to the Magistrate further
report or reports regarding such evidence
in the form prescribed -The conclusion
recorded by the trial court is not preceded
by the discussion of the evidence recorded
by the first Investigating Officer and the
statements recorded by the last and third
Investigating Officer.

As the investigating agency has been conferred
with the power to conduct further investigation
u/s 173(8) of the Code, there is no requirement
under law for the investigating officer to seek
prior permission of the Magistrate before
conducting further investigation.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 173(8) - The
trial court has not even recorded its prima
facie satisfaction regarding the grounds of
summoning the accused. The final report
filed by the first Investigating Officer is
not even mentioned in the order. Thus, in
compliance of the finding of the judgment
in Luckose Zachariah @ Zak Nedumchira
Luke and others (supra), the Magistrate
concerned has not read conjointly both,
the final report and the charge sheet, to
determine that there is prima facie ground
for
believing
that
the
accused
has
committed the offence-Both the final
report and the charge sheet filed in same
case need to be read conjointly, to
determine if there exists a prima facie
ground for summoning or not summoning
the accused persons.

Settled law that where the investigating agency
files a police report/ Chargesheet u/s 173(2)
CrPc as well as a Final report after conducting
further investigation, then it is incumbent upon
the Magistrate to consider both the reports
conjointly before summoning the accused. (Para
15, 16, 18, 24, 25)

Criminal Application allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

742 INDIAN LAW REPORTS ALLAHABAD SERIES
dexterity nor precedential profusion is needed
to come to the realistic conclusion that he who
is under the control of the court or is in the
physical hold of an officer with coercive power
is in custody for the purpose of Section 439.
The word is of elastic semantics but its core
meaning is that the law has taken control of the
person. The equivocatory quibblings and hideand-seek niceties sometimes heard in court that
the police have taken a man into informal
custody but not arrested him, have detained him
for interrogation but not taken him into formal
custody and other like terminological dubieties
are unfair evasions of the straightforwardness of
the law.

15. Since the expression "custody"
though used in various provisions of the Code,
including Section 439, has not been defined in
the Code, it has to be understood in the setting
in which it is used and the provisions contained
in Section 437 which relate to jurisdiction of the
Magistrate to release an accused on bail under
certain
circumstances
which
can
be
characterised as "in custody" in a generic sense.
The expression "custody" as used in Section
439, must be taken to be a compendious
expression referring to the events on the
happening of which the Magistrate can
entertain a bail petition of an accused. Section
437 envisages, inter alia, that the Magistrate
may release an accused on bail, if such accused
appears before the Magistrate. There cannot be
any doubt that such appearance before the
Magistrate must be physical appearance and the
consequential surrender to the jurisdiction of the
court of the Magistrate.

16. In Black's Law Dictionary by
Henry Campbell Black, MA (6th Edn.), the
expression "custody" has been explained in the
following manner:

"The term is very elastic and may
mean
actual
imprisonment
or
physical
detention.... Within statute requiring that
petitioner be ''in custody' to be entitled to federal
habeas corpus relief does not necessarily mean
actual physical detention in jail or prison but
rather is synonymous with restraint of liberty. ...
Accordingly, persons on probation or parole or
released on bail or on own recognizance have
been held to be ''in custody' for purposes of
habeas corpus proceedings.""

23. From the above authorities it is clear
that for maintaining an application for bail the
accused has to be in custody. The filing of a bail
application through lawyer is not sufficient
personal presence of the applicant in Court and
the Court cannot proceed to hear and decide the
same if he is not physically / personally present
before it.

The situation is different in case of
anticipatory bail filed under Section 438
Cr.P.C. as the same lies on an apprehension
of arrest.

24. Thus from the above discussion and
in view of the law on the issue, no case for
interference is made out. The order impugned
dated 07.12.2022 is a just, proper and legal
order calling for no interference. The present
application under section 482 Cr.P.C. is devoid
of any merit and is thus dismissed.
----------
(2023) 2 ILRA 742
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2023

BEFORE

THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

Application U/S 482. No. 21765 of 2022

Sunil & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Sheshadri Trivedi
2 All. Sunil & Ors. Vs. State of U.P. & Anr.
743
Counsel for the Opposite Parties:
G.A., Sri Ghanshyam Das Mishra

Criminal Law- Code of Criminal Procedure,
1973-
Section
173(8)-
Further
Investigation- In respect of an offence
where a police report under sub section
(2) has been filed, the officer in charge of
the police station can make further
investigation and when there is clear
provision that the police officer can do a
further investigation, the argument of the
learned counsel for the applicants that
without order of the Magistrate the police
can not do a further investigation is
against law. While there is clear provision
under section 173(8) of Cr.P.C. that the
officer in-charge of the police station shall
not be deemed to be precluded from
further investigation, where he obtains
further evidence, oral or documentary, he
shall forward to the Magistrate further
report or reports regarding such evidence
in the form prescribed -The conclusion
recorded by the trial court is not preceded
by the discussion of the evidence recorded
by the first Investigating Officer and the
statements recorded by the last and third
Investigating Officer.

As the investigating agency has been conferred
with the power to conduct further investigation
u/s 173(8) of the Code, there is no requirement
under law for the investigating officer to seek
prior permission of the Magistrate before
conducting further investigation.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 173(8) - The
trial court has not even recorded its prima
facie satisfaction regarding the grounds of
summoning the accused. The final report
filed by the first Investigating Officer is
not even mentioned in the order. Thus, in
compliance of the finding of the judgment
in Luckose Zachariah @ Zak Nedumchira
Luke and others (supra), the Magistrate
concerned has not read conjointly both,
the final report and the charge sheet, to
determine that there is prima facie ground
for
believing
that
the
accused
has
committed the offence-Both the final
report and the charge sheet filed in same
case need to be read conjointly, to
determine if there exists a prima facie
ground for summoning or not summoning
the accused persons.

Settled law that where the investigating agency
files a police report/ Chargesheet u/s 173(2)
CrPc as well as a Final report after conducting
further investigation, then it is incumbent upon
the Magistrate to consider both the reports
conjointly before summoning the accused. (Para
15, 16, 18, 24, 25)

Criminal Application allowed. (E-3)

Case Law/ Judgements relied upon:-

1. Vinay Tyagi Vs Irshad Ali @ Deepak, (2013)
AIR SCW 220

2. Luckose Zachariah @ Zak Nedumchira Luke &
ors. Vs Joseph Joseph & ors. in Crl. Appeal No.
256 of 2022 (SC)

3. Ed. - Investigating agency to seek prior
approval of Magistrate before conducting further
investigation, see Vinubhai Haribhai Malaviya Vs
St. of Guj. AIR 2019 SC 5233, para 49.

(Delivered by Hon'ble Mrs. Sadhna Rani
(Thakur), J.)

1. Heard learned counsel for the
applicants, learned counsel of the opp.
Party no. 2 and perused the record.

2. By means of this application under
section 482 CrP.C. the applicant seeks to
invoke the inherent jurisdiction of this
court to quash the summoning order dated
18.4.2022 passed by learned Chief Judicial
Magistrate, Bareilly in case no. 5136 of
2022, State of U.P. Vs. Ram Mohan
Sharma
and
others,
the
impugned
chargesheet/ police report under section
173(2) Cr.P.C. dated 10.10.2021 arising out
of case crime no. 76 of 2021, under
sections 420, 467, 468, 471, 447, 386, 120-
744 INDIAN LAW REPORTS ALLAHABAD SERIES
B I.P.C. police station Prem Nagar, District
Bareilly as well as entire proceeding of
case no. 5136 of 2022 pending before
C.J.M. Bareilly.

3. Vide summoning order dated
18.4.2022
C.J.M.
Bareilly
summoned
above three applicants along with other co
accused persons to face trial under sections
420, 467, 468, 471, 447, 386, 120-B I.P.C.

4. Learned counsel for the applicants
submits
that
on
11.2.2021
a
first
information
report
was
lodged
by
Abhaychand Kankan against 19 named
accused persons under sections 420, 467,
468, 471, 447, 386, 120-B I.P.C. alleging
all the named accused persons including
the applicants to be bhumafias that they
were misappropriating the land belonging
to
Kunwar
Daya
Shankar
Edward
Memorial Intermediate College, Bareilly by
making forged sale deed. They were also
giving threats to the college staff and
demanding ransom also. While on the basis
of the donation papers this land was
donated to the college for making hostel for
the students in the year 1920 by some rich
persons of Bareilly City, in the name of the
college, which is mentioned in the revenue
record till date.

5. Previously Sub Inspector Pradeep
Kumar vide final report no. 41 /21 dated
12.3.2021 closed the investigation in the
present matter. On this final report, the
court took cognizance also. When the first
informant came to know about this final
report, an application was made before the
Additional Director General of Police,
(Addl. D.G.P.) Zone Bareilly for further
investigation by police of some other police
station. Who made an order for further
investigation under section 173(8) Cr.P.C.
for further investigation to be done by
Crime
Branch
Moradabad.
Further
investigation was started by Inspector
Sanjeev Kumar. He received necessary
documents from the court and submitted 8
papers of supplementary case diary but due
to his personal grievance, the investigation
was transferred by Circle Officer crime
branch, Moradabad to Mahesh Babu
Sharma, the then Sub Inspector Crime
Branch, Moradabad, who after receiving
the necessary documents, going through the
whole case diary and other documents,
after recording the statements of the
witnesses
filed
charge
sheet
dated
10.10.2021 against 16 accused persons
including the above three applicants to face
trial under sections 420, 467, 468, 471,
447, 386, 120-B I.P.C.

6. After receiving the charge sheet,
the trial court passed the impugned
summoning order dated 18.4.2022 and
summoned the present applicants and rest
co accused persons to face trial under the
above mentioned sections.

7. The arguments of the learned
counsel for the applicants are of three fold;
(i) that the dispute was purely civil, so the
FIR under criminal sections was not
maintainable, (ii) when the final report was
submitted by the first Investigating Officer
then without the orders by the Magistrate,
no further investigation could be done and
(iii) when there were final report and
charge sheet both before the Magistrate
concerned, he was under obligation to
consider the both documents before passing
the
impugned
cognizance
order/
summoning order.

8. It is claimed that the Magistrate
concerned neither considered the final
report and discussed the previous evidence
on record nor recorded his prima facie
2 All. Sunil & Ors. Vs. State of U.P. & Anr.
745
satisfaction to summon the accused persons
including the present applicants, nor
discussed the supplementary case diary or
the charge sheet filed by the later Circle
Officer, hence, the prayer is made to quash
the summoning order, charge sheet and the
entire proceedings of the aforesaid case.

9. Learned counsel for the opp. party
no. 2 submitted that apart from civil cases
the applicants, accused persons have some
criminal litigation also. They are giving
threats to officials/ officers of the college /
school and are trying to misappropriate and
sell the property of the college/ school.
They are demanding ransom from them.
They have also executed forged sale deeds
regarding
the
property
of
the
college/school. Now they are trying to take
forcible possession over the property in
dispute, hence, apart from civil liability the
applicants are also criminally liable for the
acts done by them.

10. It is further argued by the learned
counsel for the opposite party that so far as
the question of further investigation is
concerned, the opening lines of section
176(8) of the CR.P.C. itself authorize the
officer in charge of the police station to
make further investigation.

11. Learned counsel for the opp. Party
also argued that apart from the present
three applicants and five other co accused
persons also moved an application under
section 482 Cr.P.C. with the same prayer
that has been rejected by this court.

12. This argument is replied by the
learned counsel for the applicants that there
is no parity of the rejection order.

13. If we go through the FIR, the opp.
party no. 2 has alleged the applicants to be
bhumafias who have misappropriated the
properties of various persons and now by
executing forged sale deed they are trying
usurp the property of the college/school,
which is still in the name of the
college/school, for the hostel of the
children given in donation by some wealthy
persons of Bareilly city. It has also been
alleged that revenue record regarding the
disputed property has been manipulated by
the applicants and co accused persons and
on the basis of forged sale deed they are
giving threats to dispossess the school
authorities from the dispute land. They are
demanding
ransom
in
this
regard.
Admittedly civil suits are pending between
the parties

14. In the opinion of the court, all the
above mentioned acts impose criminal
liability upon the persons who committed
the
same.
Admittedly,
the
first
Investigating Officer had filed a final report
in this matter. It is alleged by the opp. party
no. 2 that the final report was filed on the
ground that the dispute is purely civil. The
said final report is not before the court.
Whatever the ground may be of filing the
final report, it is admitted fact that the final
report was submitted and it was only on the
application of the opp. party no. 2 the
official of the school that the Additional
Director General of Police, (Addl. D.G.P.)
Zone Bareilly under section 173(8) Cr.P.C.
made order for further investigation.

15. So far as the argument of the
learned counsel for the applicants that
without order of the Magistrate, no further
investigation can be done is concerned,
section 173 (8) of the Cr.P.C. is apposite to
mention here;

Section
173
(8)
Cr.P.C.:-
Nothing in this section shall be deemed to
746 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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)."

16. It has categorically mentioned in
the sub section (8) of Section 173 Cr.P.C.
above that in respect of an offence where a
police report under sub section (2) has been
filed, the officer in charge of the police
station can make further investigation and
when there is clear provision that the police
officer can do a further investigation, the
argument of the learned counsel for the
applicants that without order of the
Magistrate the police can not do a further
investigation is against law. Otherwise, also
in judgment Vinay Tyagi Vs. Irshad Ali
alias Deepak, (2013) AIR SCW 220, the
Apex
Court
defined
the
word
'investigation'.
''Initial
investigation',
''further
investigation'
and
''re
investigation', it was made clear by the
Apex Court that 'further investigation' is
where the Investigating Officer obtains
further oral or documentary evidence after
the final report has been filed before the
court in terms of section 173 (8) of the
Cr.P.C. It is the continuation of a previous
investigation and therefore, is understood
and described as a ''further investigation'.
The scope of such investigation is restricted
to the discovery of further oral and
documentary evidence. Its purpose is to
bring the true facts before the court even if
they are discovered at a subsequent stage to
the primary investigation. The further
investigation does not have the affect of
wiping out directly or impliedly the initial
investigation
conducted
by
the
Investigating agency. This is a kind of
continuation of previous investigation'.

17. It is further opined by the Apex
court that in the case of ''fresh investigation'
're investigation' or ''denovo investigation',
there has to be a definite order of the court.
The order of the court ambiguously should
state
as
to
whether
the
previous
investigation, for reasons to be recorded is
incapable of being acted upon. It was held
by the Apex court that the ''fresh
investigation', 're investigation' or 'denovo
investigation' can be ordered by the higher
judiciary only and the cases where such
directions can be issued are few and far
between. Though the Apex Court has held
that the Magistrate has power to direct
further investigation after filing of a police
report but the power of the police cannot be
said to be restricted.

18. While there is clear provision
under section 173(8) of Cr.P.C. that the
officer in-charge of the police station shall
not be deemed to be precluded from further
investigation, where he obtains further
evidence, oral or documentary, he shall
forward to the Magistrate further report or
reports regarding such evidence in the form
prescribed, thus, the arguments of the
learned counsel for the applicants against
this provision fail.

19. It is further argued by the learned
counsel for the applicants that before filing
of chargesheet dated 10.10.2021 the court
had already taken cognizance on the final
report on 25.3.2021. A misc. case no. 82 of
2021 was registered issuing notice to Opp.
2 All. Sunil & Ors. Vs. State of U.P. & Anr.
747
Party no. 2. This version of the applicants'
counsel shows that after receiving final
report only notices were issued to opp.
Party no. 2 and issuing notice to the first
informant cannot be said of taking
cognizance on final report. Thus, the
argument of the applicants' counsel that
after taking cognizance on final report
charge sheet could not be filed, fails.

20. So far as the last argument of the
learned counsel for the applicants is
concerned that at the time of taking
cognizance/ passing summoning order, the
court
concerned
had
to
take
into
consideration final report and charge sheet
both, which is not done by the court
concerned. This argument advanced by the
learned counsel for the applicants has
substance.

21. Admittedly, in the present case
final report was submitted by Sub Inspector
Pradeep Kumar on 12.3.2021 and after
further investigation charge sheet was
submitted by other Investigating Officer
Mahesh Babu Sharma, Crime Branch,
Moradabad on 10.10.2021. In judgment
Vinay Tyagi Vs. Irshad Ali ( Supra), the
Apex Court held that

"the further investigation whether
ordered by the Magistrate or done by the
police on his own accord may lead to filing
of
a
supplementary
report.
Such
supplementary report shall be dealt with as
a part of primary report. Further in para
graph 32 the Apex Court held that "both
these reports have to be read conjointly and
it is the cumulative effect of the reports and
the documents annexed thereto to which
the court would be expected to apply its
mind to determine whether there exist
grounds to presume that the accused has
committed the offence. If the answer is in
the negative, on the basis of these reports,
the court shall discharge an accused in
compliance with the provisions of section
227 of the code.

Following the same view, the
Apex Court in judgment of Luckose
Zachariah @ Zak Nedumchira Luke and
others Vs. Joseph Joseph and others in
Criminal Appeal No. 256 of 2022 vide
judgment dated 18.2.2022, held that "the
positive and negative reports submitted
under sub sections (2) and (8) of section
173 Cr.P.C. respectively must be read
conjointly to determine if there is prima
facie ground for believing that the accused
has committed the offence. The reports do
not have a separate existence."

22. In the case in hands the first
Investigating
Officer
Pradeep
Kumar
submitted final report on 12.3.2021, thus
prima
facie
no
case
involving
the
commission of the offence was established,
but
after
further
investigation
the
Investigating Officer Mahesh Babu Sharma
vide order dated 10.10.2021 filed charge
sheet on the basis of evidence on the
record, finding the applicants and co
accused persons prima facie guilty of
committing offence under sections 420,
467, 468, 471, 447, 386, 120-B I.P.C.

23. Admittedly, previously the notice
was issued by the Magistrate on the final
report, thus, no cognizance was taken on
final report till date of filing charge sheet.
By the impugned order dated 18.4.2022 the
trial court took cognizance against the
present applicants and other co accused
persons by summoning them to face trial
under sections 420, 467, 468, 471, 447,
386, 120-B I.P.C.

24. If we go through the impugned
order dated 18.4.2022 passed by the Chief
748 INDIAN LAW REPORTS ALLAHABAD SERIES
Judicial Magistrate, Bareilly, it is a cryptic
order. The conclusion recorded by the trial
court is not preceded by the discussion of
the
evidence
recorded
by
the
first
Investigating Officer and the statements
recorded by the last and third Investigating
Officer. The trial court has not even
recorded
its
prima
facie
satisfaction
regarding the grounds of summoning the
accused. The final report filed by the first
Investigating Officer is not even mentioned
in the order. Thus, in compliance of the
finding of the judgment in Luckose
Zachariah @ Zak Nedumchira Luke and
others (supra), the Magistrate concerned
has not read conjointly both, the final
report and the charge sheet, to determine
that there is prima facie ground for
believing that the accused has committed
the offence.

25. Thus, where the arguments of the
learned counsel for the applicants that the
dispute is mere civil or that the police officer
had no right, without an order of the
Magistrate, to make further investigation
have no force, the court is convinced with the
argument of the applicants' counsel that both
the final report and the charge sheet filed in
same case need to be read conjointly, to
determine if there exists a prima facie ground
for summoning or not summoning the
accused persons, C.J.M. Bareilly has not read
both final report and the charge sheet
conjointly to reach at the conclusion. It is
explicitly
clear
that
the
impugned
cognizance/ summoning order passed by
C.J.M. Bareilly is a cryptic order wherein the
officer has not followed the mandate of law
laid down by the Apex Court in the various
judgments discussed above. The impugned
order dated 18.4.2022 being against the
mandate of law is hereby set aside. The trial
court
is
directed
to
pass
a
fresh
summoning/cognizance order following the
law laid down above.

26. Application u/s 482 Cr.P.C. is
allowed to the above extent.
----------
(2023) 2 ILRA 748
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.01.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Criminal Appeal No. 221 of 1988

Munna @ Om Prakash ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Subodh
Kumar
Shukla,
Ashok
Kumar
Verma, R.P. Pandey

Counsel for the Respondent:
G.A.

Criminal
Law-
Indian
Evidence
Act,
1872- Section 3- Case of circumstantial
evidence- The apex court in various
decisions has held that the nature,
character and essential proof required in
a
criminal
case,
which
rests
on
circumstantial evidence alone, are (i)
the
circumstances
from
which
the
conclusion of guilt is to be drawn should
be fully established; and (ii) the facts so
established should be consistent only
with the hypothesis of the guilt of the
accused.

Settled
law that in a case resting
on
circumstantial evidence it is incumbent upon the
prosecution to prove and link each of the
circumstances in a single chain which leads to
the only inescapable conclusion of the guilt of
the deceased.