# Uday Rajgarhia v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 742
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-01
- **Case number:** Criminal Misc. Writ Petition No. 6543 of 2023
- **Bench:** Anjani Kumar Mishra, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uday-rajgarhia-v-state-of-u-p-ors-50564
- **Pages:** 5

## Headnote

Law-Constitution
of
India,1950-Article 226-Criminal Procedure
Code,1973-Section 173(8)- three separate
FIRs were lodged by the petitioners
against accused/respondent Nos. 5 and 6.
The
respective
investigations
were
conducted
and
charge
sheets
were
submitted before the Competent Court,
cognizance was taken and charges were
framed. After the commencement of trial,
the petitioners have been summoned and
examined as prosecution witnesses- At
this stage, during the pendency of the
trial, the petitioners/first informants have
been served with the notice under Section
160 Cr.P.C. to appear personally before
the
respondent
no.4
to
get
their
statement recorded before the Special
Investigating Agency (SIT) under Section
161 Cr.P.C. directing further investigation-
The petitioners, being aggrieved, have
challenged the said order particularly on
the ground that No Formal Permission was
sought by the Investigating Agency from
the
Learned
Trial
Court
for
further
investigation-The said order has neither
been informed nor intimated to the
Learned
Trial
Court-
order
directing
further investigation at this belated stage
shall benefit the accused/respondent Nos.
5
and
6
causing
prejudice
to
the
petitioners-Held, the police has unfettered
power
of
investigation
and
such
investigation can continue even after the
charge sheet has been filed under section
173 (8) Cr.P.C. and cognizance has been
taken thereon. No formal permission of
the Magistrate is required for carrying out
further
investigation
even
thereafter.
(Para 1 to 21)

The petition is dismissed. (E-6)

List of Cases cited:

## Text

742 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 8 ILRA 742
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2023

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Criminal Misc. Writ Petition No. 6543 of 2023
with
Criminal Misc. Writ Petition No. 5214 of 2023
&
Criminal Misc. Writ Petition No. 6664 of 2023

Uday Rajgarhia ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajeet Singh, Sri Sageer Ahmed (Sr.
Advocate)

Counsel for the Respondents:
G.A., Sri Vinod Kumar Srivastava, Sri V.P.
Srivastava(Sr. Advocate)

A.
Criminal
Law-Constitution
of
India,1950-Article 226-Criminal Procedure
Code,1973-Section 173(8)- three separate
FIRs were lodged by the petitioners
against accused/respondent Nos. 5 and 6.
The
respective
investigations
were
conducted
and
charge
sheets
were
submitted before the Competent Court,
cognizance was taken and charges were
framed. After the commencement of trial,
the petitioners have been summoned and
examined as prosecution witnesses- At
this stage, during the pendency of the
trial, the petitioners/first informants have
been served with the notice under Section
160 Cr.P.C. to appear personally before
the
respondent
no.4
to
get
their
statement recorded before the Special
Investigating Agency (SIT) under Section
161 Cr.P.C. directing further investigation-
The petitioners, being aggrieved, have
challenged the said order particularly on
the ground that No Formal Permission was
sought by the Investigating Agency from
the
Learned
Trial
Court
for
further
investigation-The said order has neither
been informed nor intimated to the
Learned
Trial
Court-
order
directing
further investigation at this belated stage
shall benefit the accused/respondent Nos.
5
and
6
causing
prejudice
to
the
petitioners-Held, the police has unfettered
power
of
investigation
and
such
investigation can continue even after the
charge sheet has been filed under section
173 (8) Cr.P.C. and cognizance has been
taken thereon. No formal permission of
the Magistrate is required for carrying out
further
investigation
even
thereafter.
(Para 1 to 21)

The petition is dismissed. (E-6)

List of Cases cited:

1. Vinubhai Haribhai Malaviya Vs St. of Guj.
(2019) 17 SCC 1

2. St. thru CBI Vs Hemendhra Reddy & anr.
(2023) SCC Online SC 55

3. Anant Thanur Karmuse Vs St. of Mah. & ors.
(2023) 5 SCC 802

4. Subodh Kumar Jain @ Subodh Jain Vs St. of
U.P. & ors. CRLP No. 6555 of 2021

5. Nirmal Singh Kahlon Vs St. of Pun. reported
in (2009) SCC 44

(Delivered by Hon'ble Ms. Nand Prabha
Shukla, J.)

1. Heard Sri Sageer Ahmed, learned
Senior Advocate assisted by Sri Ajeet
Singh, learned counsel for the petitioners
and Sri V.P. Srivastava, learned Senior
Advocate assisted by Sri Vinod Kumar
Srivastava,
learned
counsel
for
the
respondent No. 5 and 6 and learned A.G.A.
for the State.

2. The petitioners are the first
informants
of
their
respective
First
8 All. Uday Rajgarhia Vs. State of U.P. & Ors.
743
Information Report and have challenged
the order dated 27.02.2023 (common in all
three writ petitions) passed by respondent
No.2. Hence, all the three aforesaid writ
petitions have been clubbed together and
are being decided by a common order.

3. The petitioners/first informants
have approached the Hon'ble High Court
seeking quashing of the impugned order
dated
27.02.2023
directing
further
investigation under Section 173(8) Cr.P.C.
being
conducted
by
the
Special
Investigating Team (SIT), ostensibly on the
basis of fresh inputs received.

4. The details of the three case crime
numbers are as follows :

Sl.
No.
Crimin
al Misc.
Writ
Petition
No.
Cas
e
Cri
me
No.
Under
Sectio
ns
Poli
ce
Stat
ion
Dist
rict
Cas
e
No.
Co
mm
on
Imp
ugn
ed
orde
r
date
d
1.
5214 of
2023
28
of
202
1
Shai
lend
ra
Aga
rwal
(info
rma
nt)
419,
420,
467,
468,
471,
406,
506
IPC
Bhel
pur
Vara
nasi
890
3 of
201
7
27.0
2.20
23
2.
6543 of
2023
698
of
202
0
Udai
Rajg
arhi
a
(info
rma
nt)
419,
420,
467,
468,
471,
406,
409
and
506
IPC
Shiv
pur
Vara
nasi
800
6 of
202
1
27.0
2.20
23
3.
6664 of
2023
41
of
202
3
Ana
nd
Prak
ash
(info
rma
nt)
419,
420,
467,
468,
471,
406,
506
IPC
Sigr
a
Vara
nasi
876
3 of
202
1
27.0
2.20
23

5. The brief facts of the case are that :
the petitioners/first informants individually
invested huge amount (in crores) in the
business of coal (Mining and Trading
Company)
PT
Suryansh
Total
Indo
Resources (STR), Indonesia, run and
managed by accused/respondent Nos. 5 and
6. After a lapse of certain period, the
petitioners demanded back their invested
amount, profits earned as well as the Bank
Guarantees but the same were not returned.
Rather they were told that the said Bank
Guarantees are forged.

6. Thus, three separate FIRs were
lodged
by
the
petitioners
against
accused/respondent Nos. 5 and 6. The
respective investigations were conducted
and charge sheets were submitted before
the Competent Court, cognizance was
taken and charges were framed. After the
commencement of trial, the petitioners
have been summoned and examined as
prosecution witnesses.

7. At this stage, during the pendency
of the trial, the petitioners/first informants
have been served with the notice under
Section 160 Cr.P.C. to appear personally
before the respondent no.4 to get their
statement recorded before the Special
Investigating Agency (SIT) under Section
161 Cr.P.C. pursuant to the order dated
27.02.2023
directing
further
investigation.
744 INDIAN LAW REPORTS ALLAHABAD SERIES

8. The petitioners, being aggrieved,
have challenged the said order particularly
on the ground that No Formal Permission
was sought by the Investigating Agency
from the Learned Trial Court for further
investigation. The said order has neither
been informed nor intimated to the Learned
Trial Court. It has further been pleaded that
the order directing further investigation at
this
belated
stage
shall
benefit
the
accused/respondent Nos. 5 and 6 causing
prejudice to the petitioners.

9. Per contra, learned A.G.A. for the
State
and
counsels
for
the
accused/respondents have opposed the
aforesaid prayer and asserted that the
Police
has
ample
power
to
further
investigate the matter by virtue of Section
173(8) Cr.P.C. There is no mandatory
requirement to seek leave of the Court even
if charge sheet has been submitted and
cognizance being taken.

10. Upon hearing the contentions
raised by the counsel for the parties and
upon perusal of record, it cannot be denied
that the Police has unfettered powers of
investigation which can continue even after
the charge sheet has been submitted and
cognizance thereon has been taken, in case,
further material comes to light. It is always
open to the investigating agency to file a
supplementary report or charge sheet as
may be required within statutory powers of
the investigating agency.

11. In Nirmal Singh Kahlon v. State
of Punjab reported in (2009) SCC 44, this
Court held as follows:

" An order of further investigation in
terms of Section 173(8)of the Codeby the
State
in
exercise
of
its
jurisdiction
underSection
36thereof
stands
on
a
different footing. The power of the
investigating officer to make further
investigation in exercise of its statutory
jurisdiction underSection 173(8)of the
Code and at the instance of the State having
regard
toSection
36thereof
read
withSection 3of the Police Act, 1861
should
be
considered
in
different
contexts.Section 173(8)of the Code is an
enabling provision. Only when cognizance
of an offence is taken, the learned
Magistrate may have some say. But, the
restriction imposed by judicial legislation is
merely for the purpose of upholding the
independence and impartiality of the
judiciary. It is one thing to say that the
court will have supervisory jurisdiction to
ensure a fair investigation, as has been
observed by a Bench of this Court inSakiri
Vasu v. State of Uttar Pradesh and
Others[(2008) 2 SCC 409], correctness
whereof is open to question, but it is
another thing to say that the investigating
officer will have no jurisdiction whatsoever
to make any further investigation without
the express permission of the Magistrate."

12. In the context of the arguments
raised at the bar, it is relevant to refer
Section 3 of The Police Act, 1861, which
reads as under :

"Superintendence
in
the
State
Government - The Superintendence of the
Police throughout a general police district
shall vest in and shall be exercised by the
State ` Government to which such district is
subordinate and except as authorized under
the provisions of this Act, no person, officer
or Court shall be empowered by the State
Government to supersede or control any
police functioning."

13. Even by virtue of Section 36
Cr.P.C., the State Police has ample power to
8 All. Uday Rajgarhia Vs. State of U.P. & Ors.
745
investigate a crime to its satisfaction.
Relevant portion of Section 36 Cr.P.C.
reads as follows :

" Powers of superior officers of
police - Police officers superior in rank to
an officer in charge of a police station may
exercise the same powers, throughout the
local area to which they are appointed, as
may be exercised by such officer within the
limits of his station."

14. Considering the aforesaid facts
and circumstances, the Hon'ble Supreme
Court while giving interpretation to the
provisions of Section 173(8) Cr.P.C. in the
light of "fair and proper investigation" has
culled
out
certain
paradigms/canons
emphasizing that investigation must be
unbiased, honest, just and in accordance
with law. The entire emphasis on a fair
investigation is to bring out the truth of the
case before the Court of competent
jurisdiction and repel the very basis of an
unfair and tainted investigation or cases of
false implication. Even Article 21 of the
Constitution of India demands fair and just
investigation.

15. This Court in Criminal Misc.
Writ Petition No. 6555 of 2021 (Subodh
Kumar Jain @ Subodh Jain vs. State of
U.P. and others) has already decided the
issue with the observation that further
investigation can be resorted to even after
filing of a charge sheet and that no prior
permission of the Magistrate is required for
the said purpose. Relevant portion of the
aforesaid judgment, it is extracted below :

" The provisions of law provides that
nothing precludes further investigation in
respect of an offence after a report under
Section173 (2) Cr.P.C. has been forwarded
to the Magistrate. It also provides that in
case such further investigation is made and
some evidence oral or documentary is
obtained, a further or supplementary report
shall be made to the Magistrate concerned
in the manner prescribed and that the
provisions of Sections 2 to 6 shall apply to
such supplementary, additional or further
report. In this connection, the position of
law has been settled in the case of State of
A.P. Vs. A.S. Peter, 2008 AIR SCW 637.
This judgment has held -

" Indisputably, the law does not
mandate taking of prior permission from
the Magistrate for further investigation.
Carrying out of a further investigation even
after filing of the charge sheet is a statutory
right of the police."

This law as it stands is that according
to the language of Section 173 (8), it is
implicit that a Police Officer can suo motu
make further investigations in cognizable
cases. Otherwise also, under Section 156
(1), he can carry on further investigation
and in non cognizable cases, once the order
of 156 (1) has been passed by the
Magistrate, he cannot do so."

16. The Apex Court in Vinubhai
Haribhai Malaviya Vs. State of Gujarat
(2019) 17 SCC 1 has considered the
powers of the Magistrate and has held that
the power of the police to further
investigate the offence continues right till
the stage the trial commences, subject of
course to Magistrate's nod.

17. Recently, the Hon'ble Supreme
Court has reiterated its observations in
State
through
Central
Bureau
of
Investigation vs. Hemendhra Reddy and
another, 2023 SCC Online SC 55 and also
observed in Anant Thanur Karmuse v.
State of Maharashtra and others, (2023)
5 SCC 802.
746 INDIAN LAW REPORTS ALLAHABAD SERIES

"We are conscious of the fact though a
satisfaction of want of proper, fair,
impartial
and
effective
investigation
eroding its credence and reliability is the
precondition for a direction for further
investigation or reinvestigation, submission
of a charge sheet ipso facto, or the
pendency of the trial can by no means, be a
prohibitive impediment. The contextual
facts and the attendant circumstances have
to be singularly evaluated and analyzed to
decide
the
needfulness
of
further
investigation or re-investigation to unravel
the truth and mete out justice to the parties.
The prime concern and the endeavour of
the Court of law should be to secure justice
on the basis of true facts which ought to be
unearthed through a committed, resolved
and a competent investigating agency."

18. The case in hand pertains to a
cognizable offence, and, therefore, we are
constrained to hold that submissions made
by counsel for the petitioner are without
substance.

19. The police has unfettered power
of investigation and such investigation can
continue even after the charge sheet has
been filed under section 173 (8) Cr.P.C. and
cognizance has been taken thereon. No
formal permission of the Magistrate is
required
for
carrying
out
further
investigation even thereafter.

20. Accordingly, for the reasons stated
above and since the submissions of counsel
for the petitioners are found to be without
substance, the writ petition fails and is
liable to be dismissed.

21.

The
writ
petition
stands
dismissed.
----------
(2023) 8 ILRA 746
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.07.2023

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE VIVEK KUMAR SINGH, J.

Writ-A No. 7938 of 2023

Rajesh Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sudarshan Singh

Counsel for the Respondents:
G.A., C.S.C.

A.
Criminal
Law-Constitution
of
India,1950-Article
226
-
U.P.
Cow
Slaughter (Prevention) Act, 1955-Sections
3/5A/8 -Animal Cruelty Act,1960 -
Section 11 - maintainability of- Pick-up,
registered in the name of the petitioner,
was seized as it was found transporting
cows-Proceedings under Section 5A(7) of
the U.P. Prevention of Cow Slaughter Act,
1955 were drawn based on the reports of
the Superintendent of Police and Deputy
Inspector After hearing the parties, the
vehicle was confiscated in favour of the
State- Sub-section 7 reveals that the
District
Magistrate/Commissioner
of
Police has been authorized to deal with
proceedings of confiscation and release of
a vehicle-No appeal or revision is provided
against such order-However, in view of
Section 11 which provides that where the
Act of relevant rules in context of search,
acquisition,
disposal
and
seizure
are
silent, the relevant provisions of Code of
Criminal Procedure shall apply-The order
impugned would, therefore, be revisable
under
Section
of
Code
of
Criminal
Procedure- The writ petition is, therefore,
dismissed as not maintainable granting
liberty to the petitioner to file revision
against the order impugned for redressal
of his grievances.(Para 1 to 11)