# Vinod Kumar & Ors v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 455
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-23
- **Case number:** Application U/S 482 Cr.P.C. No. 12352 of 2004
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-ors-v-state-of-u-p-ors-46897
- **Pages:** 12

## Headnote

Criminal Procedure Code (2 of 1974) ,
S.173(8) - Re-investigation - Power of
're-investigation' is not available to the
Magistrate & can be exercised only by a
superior Court and that too on the basis
of some material - power of further
investigation should be exercised based
upon some material and it cannot be
based on whims and fancies of an
authority - re-investigation is not at all
permissible at the behest of a new
authority without there being anything
on record to have suggested that there is
a valid ground for re-investigation (Para
18)
456 INDIAN LAW REPORTS ALLAHABAD SERIES
Opposite party filed application u/s 156(3)
Cr.P.C.
alleging
forgery
-
matter
investigated
by
police
-
final
report
submitted - Magistrate accepted final report
- No protest petition filed - Subsequently
application filed by Anti-Corruption Bureau
seeking permission to ''re-investigate' - no
reasons were mentioned in the application
except stating that some new facts have
come to the knowledge which required reinvestigation - application allowed by the
Magistrate as offence was grave in nature -
Held - impugned order wholly illegal,
arbitrary and contrary to mandate of
Section 173 (8) of the CrPC on both the
counts i.e. lack of power for directing reinvestigation; secondly, lack of any material
ground before it leading to passing of the
said order (Para 3, 19)

Allowed

List of Cases cited:-

## Text

_Characters 0–39,814 of 40,722. This is a partial read: ask again with offset=39814 for what follows._

3 All. Vinod Kumar & Ors. Vs. State of U.P. & Ors.
455
conviction by both the Courts below hereby
stood quashed, in view of the mutual
understanding, divorce and compromise
between the husband and wife. The Three
Judges' Full Bench of the Bombay High
Court in the case of Maya Sanjay
Khandare (Supra), has affirmed the said
decision
of
the
Division
Bench
by
observing that the ratio of the decision in
Kiran T. Ingale (supra) has to be
understood in the context that inherent
powers under Section 482 of the Code
can be exercised for quashing criminal
proceedings at any stage especially those
arising out of a matrimonial disputes.
(Emphasis added)

45. Accordingly, while relying upon the
law laid down by the Three Judges' Full
Bench of the Apex Court in the case of Gian
Singh (Supra) and the Division Bench
judgment of the Bombay High Court in the
case of Kiran Tulshiram Ingale (Supra)
and considering the peculiar facts and
circumstances of the present case, this Court,
in exercise of its inherent power under
Section 482 Cr.P.C., allows the present
application and quashes the criminal case
arising out of Case Crime No. 93/2012, under
Sections 498-A, 323, 504 I.P.C. as also under
Sections 3/4 D.P. Act, Police Thana, District
Ghaziabad, on the basis of compromise so
entered into between the parties.

46. Consequently, the judgment of
conviction and order of sentence dated 2nd
December, 2017 passed by the Additional
Chief Judicial Magistrate, Court No. 8,
Ghaziabad, convicting the applicants under
Sections 323, 498-A I.P.C. as also under
Section 4 D.P. Act, is set aside. The appeal
preferred by the accused-applicants against
the aforesaid judgment and order is rendered
infructuous and shall be declared so by the
appellate Court.

47. There shall be no order as to costs.

48. It is also clarified that the joint
affidavit filed on behalf of the applicants and
opposite party no.2 has been misplaced
during the course of dictation. Therefore, a
copy of the same has been called for from the
learned counsel for the applicants and the
same has also been got verified from the
learned counsel for opposite party no.2 and
the learned A.G.A. for the State to be kept on
record. The same shall be treated as original.
----------
(2021)03ILR A455
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.02.2021

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Application U/S 482 Cr.P.C. No. 12352 of 2004

Vinod Kumar & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Sri D.K. Tripathi

Counsel for the Opposite Parties:
A.G.A.

Criminal Procedure Code (2 of 1974) ,
S.173(8) - Re-investigation - Power of
're-investigation' is not available to the
Magistrate & can be exercised only by a
superior Court and that too on the basis
of some material - power of further
investigation should be exercised based
upon some material and it cannot be
based on whims and fancies of an
authority - re-investigation is not at all
permissible at the behest of a new
authority without there being anything
on record to have suggested that there is
a valid ground for re-investigation (Para
18)
456 INDIAN LAW REPORTS ALLAHABAD SERIES
Opposite party filed application u/s 156(3)
Cr.P.C.
alleging
forgery
-
matter
investigated
by
police
-
final
report
submitted - Magistrate accepted final report
- No protest petition filed - Subsequently
application filed by Anti-Corruption Bureau
seeking permission to ''re-investigate' - no
reasons were mentioned in the application
except stating that some new facts have
come to the knowledge which required reinvestigation - application allowed by the
Magistrate as offence was grave in nature -
Held - impugned order wholly illegal,
arbitrary and contrary to mandate of
Section 173 (8) of the CrPC on both the
counts i.e. lack of power for directing reinvestigation; secondly, lack of any material
ground before it leading to passing of the
said order (Para 3, 19)

Allowed

List of Cases cited:-

1. Vinay Tyagi Vs Irshad Ali @ Deepak & Ors
2012 LawSuit(SC) 845

2. K. Chandrasekhar etc. Vs The State of Kerala
& Ors 1998(4) Supreme 374

3. State of Raj Vs Aruna Devi & Ors (1995) 1
SCC 1

4. Amrutbhai Shambhubhai Patel Vs Sumanbhai
Kantibhai Patel & Ors (2017) 4 SCC 177

5. Vinubhai Haribhai Malviya & Ors Vs State of
Gujrat & Ors (2019) 17 SCC 1

6. Athul Rao Vs State of Karnataka (2018) 14
SCC 298

7. Bikash Ranjan Rout Vs State (NCT of Delhi)
(2019) 5 SCC 542

8. Reeta Nag Vs State of West Bengal (2009) 9
SCC 129

9. Babubhai Vs State of Gujarat (2010) 12 SCC
254

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Shri D.K. Tripathi, learned
counsel for the applicants and Shri Manoj
Kumar Dwivedi, learned AGA for the State
and perused the record.

2. Counsel for the applicants argues
that the present application has been filed
challenging the order dated 14.10.2004
whereby the Additional Chief Judicial
Magistrate, Jaunpur in case crime no.C1/2002, under Sections 419 and 420 IPC
has allowed the application filed by the
Anti-Corruption
Bureau,
Varanasi
permitting them to re-investigate the
matter.

3. The facts in brief are that the
opposite party no.2 filed an application
under Section 156(3) Cr.P.C. alleging the
forgery committed upon him by the
applicants. The matter was investigated by
the police authority and a final report was
submitted under Section 173(2) Cr.P.C. on
10.01.2003
before
the
Magistrate
concerned. The Magistrate vide its order
dated 01.07.2003 has accepted the said
final report, which is placed on record as
Annexure-5. Subsequent to the acceptance
of the final report, an application dated
13.10.2004
was
filed
by
the
AntiCorruption
Bureau
before
the
court
concerned stating that in terms of the
investigation completed by the police
authority a final report was filed, which has
been accepted by the court below, however,
the State authorities on the basis of some
new facts which had come to its knowledge
wants to re-investigate the matter and thus
requested that the said authority be
permitted to ''re-investigate' the matter in
exercise of power under Section 173(8)
Cr.P.C.. The said application was allowed
by the Magistrate concerned vide its order
dated
14.10.2004
recording
that
an
application
has
been
filed
for
re-
3 All. Vinod Kumar & Ors. Vs. State of U.P. & Ors.
457
investigation and as the offence is grave in
nature, the permission is granted.

4. Counsel for the applicant argues
that although the law is very well settled on
the question of reinvestigation and argues
that although in the interest of justice when
the matter is pending before the Magistrate,
he has the authority to permit further
investigation, re-investigation cannot be
done by the Magistrate moreso after the
acceptance of the final report, as has been
done in the present case. He further argues
that the police authority had investigated
the matter at the earlier instance and had
filed the final report, thus, a new agency
namely Anti-Corruption Bureau had no
authority to file an application seeking
permission to re-investigate the matter and
thus the order suffers from arbitrariness on
that ground also.

5. Counsel for the applicant further
argues that once the final report is accepted
by the Magistrate, he becomes functus
officio and coupled with the fact that there
was no protest petition on record, it was
only the higher/superior Court which could
have directed for further investigation and
in any event the re-investigation could not
have been directed but only by the Superior
Court.
He
further
argues
that
the
application was filed seeking permission
for re-investigation at the instance of third
party who has no concern with either the
informant or the police authority and has
merely stated that he is the power-ofattorney holder of opposite party no.2
without
producing
any
record
to
substantiate the averments thus, the order is
liable to be set aside.

6. Counsel for the applicant has
placed reliance upon the judgments of the
Supreme Court in the cas of Vinay Tyagi
Vs. Irshad Ali @ Deepak and Others
[2012
LawSuit(SC)
845],
K.
Chandrasekhar etc. Vs. The State of
Kerala & Others [1998(4) Supreme 374]
in support of his submissions.

7. Counsel for the applicant has
drawn my attention to the relevant
paragraphs of the aforesaid judgments to
argue that Cr.P.C. is very clear in terms of
the power conferred upon the Magistrate
which has been lucidly explained by the
Supreme Court in judgments cited above.

8. Learned AGA on the other hand
argues that there is no error in the order
passed by the court concerned inasmuch as
the intent of the Court is to find out the
truth and thus, if any material comes before
the Court, the Court is not powerless to
direct re-investigation/further investigation
as has been done in the present case. He
argues that the authority namely AntiCorruption Bureau is also a wing of State
Police Authority and thus, the argument of
the learned counsel for the applicant that it
is a different agency deserves to be
rejected. He further argues that the
application in question clearly indicates
that there was sufficient material for the
Anti-Corruption Bureau to request for
permission
to
carry
out
further
investigation/re-investigation, which cannot
be faulted with.

9. Learned AGA has placed reliance
upon the judgments of Supreme Court in
the case of State of Rajasthan Vs. Aruna
Devi and Others [(1995) 1 SCC 1],
Amrutbhai
Shambhubhai
Patel
Vs.
Sumanbhai Kantibhai Patel & Others
[(2017) 4 SCC 177], Vinubhai Haribhai
Malviya and Others Vs. State of Gujrat
and another [(2019) 17 SCC 1] in support
of his submissions.
458 INDIAN LAW REPORTS ALLAHABAD SERIES

10. In the light of the arguments
advanced and the pleadings on the record
what is to be considered by this Court is as
to whether the re-investigation could have
been directed by the Additional Chief
Judicial Magistrate, Jaunpur as has been
done by means of the impugned order.

11. The question regarding scope of
Section 173 (8) of the CrPC as has been
considered very lucidly by the Supreme
Court in the case of Vinubhai Haribhai
Malaviya and others Vs. State of Gujarat
and another, (2020) 3 Supreme Court
Case (Cri) 228 wherein the Supreme Court
considered the entire scheme of the CrPC
and noticed the Law Commission's Report
whereafter Section 173 CrPC was amended
to include Section 173 (8) under the CrPC.
The
Supreme
Court
emphasised
the
requirement of a fair and speedy trial, right
to just and fair trial is a facet of Article 21
of the Constitution of India although in the
said case Supreme Court was considering
the question of further investigation by the
Magistrate after the police report has been
forwarded to him under Section 173 CrPC
and in the light of the said questions before
the Court, it held as under:

"20. With the introduction of
Section 173(8) in the CrPC, the police
department has been armed with the
power to further investigate an offence
even after a police report has been
forwarded to the Magistrate. Quite
obviously, this power continues until the
trial can be said to commence in a
criminal case. The vexed question before
us is as to whether the Magistrate can
order further investigation after a police
report has been forwarded to him under
Section 173?"

"22. What is recognised by this
decision is that in the circumstance that
the Magistrate does not agree with the
police report, he may order further
investigation - which is done in his
capacity as a supervisory authority in
relation to investigation carried out by
the police."

"25. It is thus clear that the
Magistrate's power under Section 156(3)
of the CrPC is very wide, for it is this
judicial authority that must be satisfied
that a proper investigation by the police
takes place. To ensure that a "proper
investigation" takes place in the sense of
a fair and just investigation by the police
- which such Magistrate is to supervise -
Article 21 of the Constitution of India
mandates that all powers necessary,
which may also be incidental or implied,
are available to the Magistrate to ensure
a proper investigation which, without
doubt, would include the ordering of
further investigation after a report is
received by him under Section 173(2);
and which power would continue to
enure in such Magistrate at all stages of
the criminal proceedings until the trial
itself commences. Indeed, even textually,
the "investigation" referred to in Section
156(1) of the CrPC would, as per the
definition
of
"investigation"
under
Section 2(h), include all proceedings for
collection of evidence conducted by a
police officer; which would undoubtedly
include proceedings by way of further
investigation under Section 173(8) of the
CrPC."

"39. Paragraph 39 of the
judgment then referred to the "inquiry"
stage of a criminal case as follows:

"39. Section 2(g) CrPC and the
case laws referred to above, therefore,
clearly envisage inquiry before the actual
commencement of the trial, and is an act
conducted
under
CrPC
by
the
Magistrate or the court. The word
3 All. Vinod Kumar & Ors. Vs. State of U.P. & Ors.
459
"inquiry" is, therefore, not any inquiry
relating to the investigation of the case
by the investigating agency but is an
inquiry after the case is brought to the
notice of the court on the filing of the
charge-sheet. The court can thereafter
proceed to make inquiries and it is for
this reason that an inquiry has been
given to mean something other than the
actual trial."

A clear distinction between
"inquiry" and "trial" was thereafter set
out in paragraph 54 as follows:

"54. In our opinion, the stage of
inquiry
does
not
contemplate
any
evidence in its strict legal sense, nor
could the legislature have contemplated
this inasmuch as the stage for evidence
has not yet arrived. The only material
that the court has before it is the
material collected by the prosecution and
the court at this stage prima facie can
apply its mind to find out as to whether a
person, who can be an accused, has been
erroneously
omitted
from
being
arraigned or has been deliberately
excluded by the prosecuting agencies.
This is all the more necessary in order to
ensure that the investigating and the
prosecuting agencies have acted fairly in
bringing before the court those persons
who deserve to be tried and to prevent
any person from being deliberately
shielded when they ought to have been
tried. This is necessary to usher faith in
the judicial system whereby the court
should be empowered to exercise such
powers even at the stage of inquiry and it
is for this reason that the legislature has
consciously used separate terms, namely,
inquiry or trial in Section 319 CrPC."

40.
Despite
the
aforesaid
judgments, some discordant notes were
sounded in three recent judgments. In
Amrutbhai
Shambubhai
Patel
v.
Sumanbhai Kantibai Patel (2017) 4 SCC
177, on the facts in that case, the
Appellant/Informant therein sought a
direction under Section 173(8) from the
Trial Court for further investigation by
the police long after charges were
framed against the Respondents at the
culminating stages of the trial. The
Court in its ultimate conclusion was
correct, in that, once the trial begins with
the framing of charges, the stage of
investigation or inquiry into the offence
is over, as a result of which no further
investigation into the offence should be
ordered. But instead of resting its
judgment on this simple fact, this Court
from paragraphs 29 to 34 resuscitated
some of the earlier judgments of this
Court, in which a view was taken that no
further investigation could be ordered by
the Magistrate in cases where, after
cognizance is taken, the accused had
appeared in pursuance of process being
issued.
In
particular,
Devarapalli
Lakshminarayana Reddy (supra) was
strongly relied upon by the Court. We
have already seen how this judgment
was rendered without adverting to the
definition of "investigation" in Section
2(h) of the CrPC, and cannot therefore
be relied upon as laying down the law on
this
aspect
correctly.
The
Court
therefore concluded:

"49. On an overall survey of the
pronouncements of this Court on the
scope and purport of Section 173(8) of
the Code and the consistent trend of
explication thereof, we are thus disposed
to hold that though the investigating
agency concerned has been invested with
the
power
to
undertake
further
investigation desirably after informing
the court thereof, before which it had
submitted its report and obtaining its
approval, no such power is available
460 INDIAN LAW REPORTS ALLAHABAD SERIES
therefor to the learned Magistrate after
cognizance has been taken on the basis of
the earlier report, process has been
issued and the accused has entered
appearance in response thereto. At that
stage, neither the learned Magistrate suo
motu nor on an application filed by the
complainant/informant
can
direct
further investigation. Such a course
would be open only on the request of the
investigating agency and that too, in
circumstances
warranting
further
investigation on the detection of material
evidence only to secure fair investigation
and trial, the life purpose of the
adjudication in hand.

50. The unamended and the
amended sub-section (8) of Section 173
of the Code if read in juxtaposition,
would overwhelmingly attest that by the
latter, the investigating agency/officer
alone has been authorised to conduct
further investigation without limiting the
stage
of
the
proceedings
relatable
thereto. This power qua the investigating
agency/officer
is
thus
legislatively
intended to be available at any stage of
the proceedings. The recommendation of
the Law Commission in its 41st Report
which
manifestly
heralded
the
amendment, significantly had limited its
proposal to the empowerment of the
investigating agency alone.

51.
In
contradistinction,
Sections 156, 190, 200, 202 and 204
CrPC clearly outline the powers of the
Magistrate and the courses open for him
to chart in the matter of directing
investigation,
taking
of
cognizance,
framing of charge, etc. Though the
Magistrate has the power to direct
investigation under Section 156(3) at the
pre-cognizance stage even after a chargesheet or a closure report is submitted,
once cognizance is taken and the accused
person appears pursuant thereto, he
would be bereft of any competence to
direct further investigation either suo
motu or acting on the request or prayer
of
the
complainant/informant.
The
direction
for
investigation
by
the
Magistrate under Section 202, while
dealing with a complaint, though is at a
post-cognizance stage, it is in the nature
of an inquiry to derive satisfaction as to
whether the proceedings initiated ought
to be furthered or not. Such a direction
for investigation is not in the nature of
further investigation, as contemplated
under Section 173(8) of the Code. If the
power of the Magistrate, in such a
scheme envisaged by CrPC to order
further investigation even after the
cognizance is taken, the accused persons
appear
and
charge
is
framed,
is
acknowledged or approved, the same
would be discordant with the state of
law, as enunciated by this Court and also
the relevant layout of CrPC adumbrated
hereinabove. Additionally had it been
the intention of the legislature to invest
such a power, in our estimate, Section
173(8) CrPC would have been worded
accordingly to accommodate and ordain
the same having regard to the backdrop
of the incorporation thereof. In a way, in
view of the three options open to the
Magistrate, after a report is submitted
by the police on completion of the
investigation, as has been amongst
authoritatively enumerated in Bhagwant
Singh [Bhagwant Singh v. Commr. of
Police, (1985) 2 SCC 537 : 1985 SCC
(Cri) 267] , the Magistrate, in both the
contingencies, namely; when he takes
cognizance of the offence or discharges
the accused, would be committed to a
course,
whereafter
though
the
investigating agency may for good
reasons inform him and seek his
3 All. Vinod Kumar & Ors. Vs. State of U.P. & Ors.
461
permission
to
conduct
further
investigation,
he
suo
motu
cannot
embark upon such a step or take that
initiative on the request or prayer made
by the complainant/informant. Not only
such power to the Magistrate to direct
further investigation suo motu or on the
request
or
prayer
of
the
complainant/informant after cognizance
is taken and the accused person appears,
pursuant to the process, issued or is
discharged is incompatible with the
statutory design and dispensation, it
would
even
otherwise
render
the
provisions of Sections 311 and 319 CrPC,
whereunder
any
witness
can
be
summoned by a court and a person can
be issued notice to stand trial at any
stage,
in
a
way
redundant.
Axiomatically,
thus
the
impugned
decision annulling the direction of the
learned
Magistrate
for
further
investigation is unexceptional and does
not
merit
any
interference.
Even
otherwise on facts, having regard to the
progression of the developments in the
trial, and more particularly, the delay on
the part of the informant in making the
request for further investigation, it was
otherwise not entertainable as has been
rightly held by the High Court."

12.

The
Supreme
Court
has
specifically
held
that
the
case
of
Amrutbhai
Shambubhai
Patel
Vs.
Shambhubhai Patel Vs. Sumanbhai
Kantibhai Patel, (2017) 4 SCC 177,
Athul Rao Vs. State of Karnataka,
(2018) 14 SCC 298 and Bikash Ranjan
Rout vs. State (NCT of Delhi), (2019) 5
SCC 542 does not lay down the correct
law. Supreme Court specifically overruled
all judgments in the case of Reeta Nag
Vs. State of West Bengal, (2009) 9 SCC
129.

13. As regards the question of
distinction between further investigation,
the Supreme Court referred to the earlier
judgment of the Supreme Court in the case
of Babubhai Vs. State of Gujarat, (2010)
12 SCC 254.

14. The other specific judgment of the
Supreme Court considering the question of
power of ''re-investigation' is the case of
Vinay Tyagi Vs. Irshad Ali @ Deepak &
otheres, 2012 LawSuit(SC) 845 wherein
the Supreme Court specifically dealt with
the question of powers of a Magistrate for
''further investigation' and ''re-investigation'
and held as under:

"15. ''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). This power is vested with the
Executive. It is the continuation of a
previous investigation and, therefore, is
understood and described as a ''further
investigation'.
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. It is commonly described
as
''supplementary
report'.
''Supplementary report' would be the
correct expression as the subsequent
investigation is meant and intended to
supplement the primary investigation
conducted by the empowered police
officer. Another significant feature of
further investigation is that it does not
have the effect of wiping out directly or
impliedly
the
initial
investigation
conducted by the investigating agency.
462 INDIAN LAW REPORTS ALLAHABAD SERIES
This is a kind of continuation of the
previous investigation. The basis is
discovery of fresh evidence and in
continuation of the same offence and
chain of events relating to the same
occurrence incidental thereto. In other
words, it has to be understood in
complete
contradistinction
to
a
''reinvestigation', ''fresh' or ''de novo'
investigation.

16. However, in the case of a
''fresh investigation', ''reinvestigation' or
''de novo investigation' there has to be a
definite order of the court. The order of
the Court unambiguously should state as
to whether the previous investigation, for
reasons to be recorded, is incapable of
being
acted
upon.
Neither
the
Investigating agency nor the Magistrate
has any power to order or conduct
''fresh investigation'. This is primarily
for the reason that it would be opposed
to the scheme of the Code. It is essential
that even an order of ''fresh'/'de novo'
investigation passed by the higher
judiciary should always be coupled with
a specific direction as to the fate of the
investigation already conducted. The
cases where such direction can be issued
are few and far between. This is based
upon a fundamental principle of our
criminal jurisprudence which is that it is
the right of a suspect or an accused to
have a just and fair investigation and
trial. This principle flows from the
constitutional mandate contained in
Articles 21 and 22 of the Constitution of
India. Where the investigation ex facie is
unfair, tainted, mala fide and smacks of
foul play, the courts would set aside such
an investigation and direct fresh or de
novo investigation and, if necessary, even
by another independent investigating
agency. As already noticed, this is a
power of wide plenitude and, therefore,
has to be exercised sparingly. The
principle of rarest of rare cases would
squarely apply to such cases. Unless the
unfairness of the investigation is such
that it pricks the judicial conscience of
the Court, the Court should be reluctant
to interfere in such matters to the extent
of
quashing
an
investigation
and
directing a ''fresh investigation'. In the
case of Sidhartha Vashisht v. State (NCT
of Delhi) [(2010) 6 SCC 1], the Court
stated
that
it
is
not
only
the
responsibility of the investigating agency,
but also that of the courts to ensure that
investigation is fair and does not in any
way
hamper
the
freedom
of
an
individual except in accordance with
law. An equally enforceable canon of the
criminal law is that high responsibility
lies upon the investigating agency not to
conduct an investigation in a tainted or
unfair manner. The investigation should
not prima facie be indicative of a biased
mind and every effort should be made to
bring the guilty to law as nobody stands
above law de hors his position and
influence in the society. The maxim
contra veritatem lex nunquam aliquid
permittit applies to exercise of powers by
the courts while granting approval or
declining to accept the report. In the case
of Gudalure M.J. Cherian & Ors. v.
Union of India & Ors. [(1992) 1 SCC
397], this Court stated the principle that
in cases where charge-sheets have been
filed after completion of investigation
and request is made belatedly to reopen
the
investigation,
such
investigation
being entrusted to a specialized agency
would normally be declined by the court
of
competent
jurisdiction
but
nevertheless in a given situation to do
justice between the parties and to instil
confidence in public mind, it may
become necessary to pass such orders.
3 All. Vinod Kumar & Ors. Vs. State of U.P. & Ors.
463
Further, in the case of R.S. Sodhi,
Advocate v. State of U.P. [1994 SCC
Supp. (1) 142], where allegations were
made against a police officer, the Court
ordered
the
investigation
to
be
transferred to CBI with an intent to
maintain credibility of investigation,
public confidence and in the interest of
justice. Ordinarily, the courts would not
exercise
such
jurisdiction
but
the
expression ''ordinarily' means normally
and it is used where there can be an
exception. It means in the large majority
of cases but not invariably. ''Ordinarily'
excludes extra- ordinary or special
circumstances. In other words, if special
circumstances exist, the court may
exercise its jurisdiction to direct ''fresh
investigation' and even transfer cases to
courts of higher jurisdiction which may
pass such directions.

18. Next question that comes up for
consideration of this Court is whether
the empowered Magistrate has the
jurisdiction
to
direct
''further
investigation' or ''fresh investigation'. As
far as the latter is concerned, the law
declared by this Court consistently is
that the learned Magistrate has no
jurisdiction to direct ''fresh' or ''de
novo' investigation. However, once the
report is filed, the Magistrate has
jurisdiction to accept the report or reject
the same right at the threshold. Even
after accepting the report, it has the
jurisdiction to discharge the accused or
frame the charge and put him to trial.
But there are no provisions in the Code
which
empower
the
Magistrate
to
disturb the status of an accused pending
investigation or when report is, filed to
wipe out the report and its effects in law.
Reference in this regard can be made to
K. Chandrasekhar v. State of Kerala
[(1998) 5 SCC 223]; Ramachandran v. R.
Udhayakumar [(2008) 5 SCC 413],
Nirmal Singh Kahlon v State of Punjab
& Ors. [(2009) 1 SCC 441]; Mithabhai
Pashabhai Patel & Ors. v. State of
Gujarat [(2009) 6 SCC 332]; and
Babubhai v. State of Gujarat [(2010) 12
SCC 254].

15. The Supreme Court finally
recorded as under:

30.
Having
analysed
the
provisions of the Code and the various
judgments as afore-indicated, we would
state the following conclusions in regard
to the powers of a magistrate in terms of
Section 173(2) read with Section 173(8)
and Section 156(3) of the Code :

1. The Magistrate has no power
to direct ''reinvestigation' or ''fresh
investigation' (de novo) in the case
initiated on the basis of a police report.

2. A Magistrate has the power
to direct ''further investigation' after
filing of a police report in terms of
Section 173(6) of the Code.

3. The view expressed in (2)
above is in conformity with the principle
of law stated in Bhagwant Singh's case
(supra) by a three Judge Bench and thus
in conformity with the doctrine of
precedence.

4. Neither the scheme of the
Code nor any specific provision therein
bars exercise of such jurisdiction by the
Magistrate. The language of Section
173(2)
cannot
be
construed
so
restrictively as to deprive the Magistrate
of such powers particularly in face of the
provisions of Section 156(3) and the
language of Section 173(8) itself. In fact,
such power would have to be read into
the language of Section 173(8).

5. The Code is a procedural
document, thus, it must receive a
464 INDIAN LAW REPORTS ALLAHABAD SERIES
construction which would advance the
cause of justice and legislative object
sought to be achieved. It does not stand
to reason that the legislature provided
power of further investigation to the
police even after filing a report, but
intended to curtail the power of the
Court to the extent that even where the
facts of the case and the ends of justice
demand, the Court can still not direct
the investigating agency to conduct
further investigation which it could do
on its own.

6. It has been a procedure of
proprietary that the police has to seek
permission of the Court to continue
''further
investigation'
and
file
supplementary
chargesheet.
This
approach has been approved by this
Court in a number of judgments. This as
such would support the view that we are
taking in the present case.

31. Having discussed the scope
of power of the Magistrate under Section
173 of the Code, now we have to examine
the
kind
of
reports
that
are
contemplated under the provisions of the
Code and/or as per the judgments of this
Court. The first and the foremost
document that reaches the jurisdiction of
the Magistrate is the First Information
Report. Then, upon completion of the
investigation, the police are required to
file a report in terms of Section 173(2) of
the Code. It will be appropriate to term
this report as a primary report, as it is
the very foundation of the case of the
prosecution before the Court. It is the
record of the case and the documents
annexed thereto, which are considered
by the Court and then the Court of the
Magistrate is expected to exercise any of
the three options afore-noticed. Out of
the stated options with the Court, the
jurisdiction it would exercise has to be in
strict
consonance
with
the
settled
principles of law. The power of the
magistrate
to
direct
''further
investigation' is a significant power
which has to be exercised sparingly, in
exceptional cases and to achieve the ends
of justice. To provide fair, proper and
unquestionable
investigation
is
the
obligation of the investigating agency
and the Court in its supervisory capacity
is required to ensure the same. Further
investigation conducted under the orders
of the Court, including that of the
Magistrate or by the police of its own
accord and, for valid reasons, would lead
to the filing of a supplementary report.
Such supplementary report shall be dealt
with as part of the primary report. This
is clear from the fact that the provisions
of Sections 173(3) to 173(6) would be
applicable to such reports in terms of
Section 173(8) of the Code.

33. At this stage, we may also
state another well-settled canon of
criminal jurisprudence that the superior
courts have the jurisdiction under
Section 482 of the Code or even Article
226 of the Constitution of India to direct
''further investigation', ''fresh' or ''de
novo'
and
even
''reinvestigation'.
''Fresh', ''de novo', and ''reinvestigation'
are synonymous expressions and their
result in law would be the same. The
superior courts are even vested with the
power of transferring investigation from
one agency to another, provided the ends
of justice so demand such action. Of
course, it is also a settled principle that
this power has to be exercised by the
superior courts very sparingly and with
great circumspection.

35. The power to order/direct
''reinvestigation'
or
''de
novo'
investigation falls in the domain of
higher courts, that too in exceptional
3 All. Vinod Kumar & Ors. Vs. State of U.P. & Ors.
465
cases. If one examines the provisions of
the Code, there is no specific provision
for cancellation of the reports, except
that the investigating agency can file a
closure report (where according to the
investigating agency, no offence is made
out). Even such a report is subject to
acceptance by the learned Magistrate
who, in his wisdom, may or may not
accept such a report. For valid reasons,
the Court may, by declining to accept
such
a
report,
direct
''further
investigation', or even on the basis of the
record of the case and the documents
annexed thereto, summon the accused.

36. The Code does not contain
any provision which deals with the court
competent to direct ''fresh investigation',
the situation in which such investigation
can be conducted, if at all, and finally the
manner in which the report so obtained
shall be dealt with. The superior courts
can direct conduct of a ''fresh'/''de novo'
investigation, but unless it specifically
directs that the report already prepared
or the investigation so far conducted will
not form part of the record of the case,
such report would be deemed to be part
of the record. Once it is part of the
record, the learned Magistrate has no
jurisdiction to exclude the same from the
record of the case. In other words, but
for a specific order by the superior
court, the reports, whether a primary
report or a report upon ''further
investigation' or a report upon ''fresh
investigation', shall have to be construed
and read conjointly. Where there is a
specific order made by the court for
reasons like the investigation being
entirely unfair, tainted, undesirable or
being based upon no truth, the court
would have to specifically direct that the
investigation
or
proceedings
so
conducted shall stand cancelled and will
not form part of the record for
consideration by the Court of competent
jurisdiction."

16. Ultimately, the Supreme Court
answered the question came before it as
under:

"Answer to Question No. 2

No
investigating
agency
is
empowered to conduct a ''fresh', ''de novo'
or ''re-investigation' in relation to the offence
for which it has already filed a report in
terms of Section 173(2) of the Code. It is only
upon the orders of the higher courts
empowered to pass such orders that
aforesaid investigation can be conducted, in
which event the higher courts will have to
pass a specific order with regard to the fate
of the investigation already conducted and
the report so filed before the court of the
learned magistrate."

17. In the light of the judgment as
referred above and facts before this Court
what is now noticed that after the
completion of investigation, a final report
was submitted on 14.1.2003 which was
accepted by the Magistrate on 1.7.2003 and
there was absolutely no protest petition
filed except an application filed at the
behest of Anti-Corruption Bureau wherein
it was specifically requested that they may
be permitted to reinvestigate the matter. In
the said application absolutely no reasons
were mentioned except stating that some
new facts have come to the knowledge
which required re-investigation and thus, it
may be permitted for re-investigation and
the same application was allowed without
even recording any findings as to the
justification for ordering re-investigation
by the impugned order dated 14.10.2004 or
with regards to the fate of earlier
investigation.
466 INDIAN LAW REPORTS ALLAHABAD SERIES

18. In view of the law as recorded
above, it is very well settled that power of
''re-investigation' is not available to the
Magistrate and can be exercised only by a
superior Court. What is also relevant is that
the power of further investigation should
also be exercised based upon some material
and it cannot be based on whims and
fancies of an authority which have not
initially investigated the matter and in any
event, the re-investigation is not at all
permissible that too at the behest of a new
authority without there being anything on
record to have suggested that there is a
valid ground for re-investigation. Needless
to add that re-investigation as held by
Supreme Court can be directed only by a
superior Court that too on the basis of some
material.

19. In view of the facts and law
discussed above, I am of the firm view that
the order dated 14.10.2004 is wholly
illegal, arbitrary and contrary to mandate of
Section 173 (8) of the CrPC on both the
counts i.e. lack of power for directing reinvestigation;
secondly,
lack
of
any
material ground before it leading to passing
of the said order. Accordingly, the
application is allowed and the order dated
14.10.2004 is set aside.
----------
(2021)03ILR A466
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.02.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 Cr.P.C. No. 19093 of 2020

Rekha & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties
Counsel for the Applicants:
Sri Birendra Kaushik

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Power to alter or add
any charge - Application u/s 482 Cr.P.C -
Indian Penal Code: Section 147, 148, 302,
306; Code of Criminal Procedure: Section
216 - The power u/s 216 to alter or add
any charge at any time before the
judgment is pronounced, is exclusive to
the Court and there is no right of any
party to raise a claim in regard to the
same as a matter of right. (Para 11, 17)

The Court can change or alter the charge if
there is defect or something is left out. The test
to be applied is that it must be founded on
material available on record and the principle
that has to be kept in mind is that the charge so
framed by the Magistrate is in accord with
materials produced before him or if subsequent
evidence comes on record. (Para 12, 14, 20)

In the case at hand, the F.I.R. had been lodged
under Sections 147, 148 and 302 IPC and after
investigation the charge-sheet was filed u/s 306
I.P.C.