# Virendra Singh v. State of U.P. and another

- **Citation:** (2002) 2 ILRA 548
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-07-09
- **Case number:** Criminal Misc. Writ Petition No. 5348 of 2001
- **Bench:** S.R. Singh, Mrs.) M. Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-singh-v-state-of-u-p-and-another-40016
- **Pages:** 3

## Headnote

Constitution
of
India,
Article
226-
Section 173 (2)- Re-investigation of
case- payment to order passed u/s 156
(3) investion completed final report
submitted- Magistrate has no power to
specify the name and rank of particular
officer for fresh investigation.

Held- Para 4 and 5

Submission made by the learned counsel
are loaded with substance in K. Chandra
Shekhar etc. versus State of Kerala and
others, 1998 (37) ACC, 136 Hon'ble
Supreme Court has held that even after
submission of police report under 173
(2) of the Code of Criminal Procedure on
completion of investigation, the police
has a right of 'further investigation
under sub section (8) thereof ' but not '
fresh investigation' or re-investigation'.
Further investigation is therefore in the
continuation of earlier investigation and
not
a
fresh
investigation
or
reinvestigation to be started ab intitio
wiping out the earlier investigation
altogether. The direction given by the
learned Magistrate to re-investigate' the
case therefore cannot be sustained in
law.

The
order
passed
by
the
learned
Magistrate is also not sustainable due to
the reason that he has directed a officer
to re-investigate the case. In Hemant
Dhasmana Versus Central Bureau of
investigation and another 2001 (43)
ACC, 570 at page 575 it has been laid
down by the Apex Court that it is not
within the province of the Magistrate
while
exercising
the
power
under
Section 173 (8) of the Code of Criminal
Procedure
to
specify
any
particular
officer to conduct such investigation, not
even to suggest the rank of the officer
who should conduct such investigation.
Case law discussed:
1998 (37) ACC 136
2001 (43)ACC 570

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
548
remedy, and in a writ petition the
petitioner must satisfy the court that not
only the law has been violated but equity
is also in his favour. If the petitioner only
shows that the law has been violated, but
there is no equity in his favour, a writ will
not be issued. In the present case even
assuming that the law has been violated
because the recovery could not be made
as arrears of land revenue yet there is no
equity in favour of the petitioner. The
petitioner has not disputed his liability to
pay the amount in question. He really
wants to delay payment. It is well known
that civil suits take years and years to
decide. Hence this is not a fit case for
exercising our writ jurisdiction under
Article 226 of the Constitution of India.

3. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 9.7.2002

BEFORE
THE HON'BLE S.R. SINGH, J.
THE HON'BLE (MRS.) M. CHAUDHARY, J.

Criminal Misc. Writ Petition No. 5348 of
2001

Virendra Singh

...Petitioner
Versus
State of U.P. and another ...Respondent

Counsel for the Petitioner:
Sri Dilip Kumar
Sri Rajiv Gupta

Counsel for the Respondents:
Sri G.C. Saxena
S.C.

Constitution
of
India,
Article
226-
Section 173 (2)- Re-investigation of
case- payment to order passed u/s 156
(3) investion completed final report
submitted- Magistrate has no power to
specify the name and rank of particular
officer for fresh investigation.

Held- Para 4 and 5

Submission made by the learned counsel
are loaded with substance in K. Chandra
Shekhar etc. versus State of Kerala and
others, 1998 (37) ACC, 136 Hon'ble
Supreme Court has held that even after
submission of police report under 173
(2) of the Code of Criminal Procedure on
completion of investigation, the police
has a right of 'further investigation
under sub section (8) thereof ' but not '
fresh investigation' or re-investigation'.
Further investigation is therefore in the
continuation of earlier investigation and
not
a
fresh
investigation
or
reinvestigation to be started ab intitio
wiping out the earlier investigation
altogether. The direction given by the
learned Magistrate to re-investigate' the
case therefore cannot be sustained in
law.

The
order
passed
by
the
learned
Magistrate is also not sustainable due to
the reason that he has directed a officer
to re-investigate the case. In Hemant
Dhasmana Versus Central Bureau of
investigation and another 2001 (43)
ACC, 570 at page 575 it has been laid
down by the Apex Court that it is not
within the province of the Magistrate
while
exercising
the
power
under
Section 173 (8) of the Code of Criminal
Procedure
to
specify
any
particular
officer to conduct such investigation, not
even to suggest the rank of the officer
who should conduct such investigation.
Case law discussed:
1998 (37) ACC 136
2001 (43)ACC 570

(Delivered by Hon'ble (Mrs.) Mithlesh
Chaudhary, J.)

1. Heard Sri Dilip Kumar, learned
counsel for the petitioner, the learned
http://www.allahabadhighcourt.nic.in
2 All] Virendra Singh V. State of U.P. and another
549
A.G.A. representing the State and Sri
G.C. Saxena, learned counsel representing
respondent no. 2.

2. The writ petition seeks issuance
of a writ in the nature of certiorari
quashing the FIR of case crime no. 18 of
2000 under Section 147, 323, 504 and 506
IPC and Section 3(1)(x) of Scheduled
Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989, Police Station
Nanuta District Saharanpur as well as the
order dated 21.7.2001 passed by the
Additional Chief Judicial Magistrate,
Deobandh, District Saharanpur in case no.
133 of 2001 Sunita V. Virendra and
others. A perusal of the impugned FIR,
prima facie, indicates commission of
cognizable offence and hence we are not
persuaded to quash the same at this stage.

3. So far as quashing of the
impugned order dated 21.7.2001 is
concerned, it would appear that on
application under Section 156 (3) of the
Cr.P.C., learned Magistrate directed the
police to register and investigate the case
under appropriate provision of law. The
police on investigation seems to have
submitted a final report against which
protest
petition
was
filed
by
the
complainant respondent no. 2. Upon
hearing the protest petition, learned
Magistrate passed the impugned order
dated 21.7.2001 thereby directing the
police officer Sheo Ram Yadav to ' reinvestigate ' the case. The impugned order
has been sought to be quashed firstly on
the ground that the re-investigation is not
permissible in law and secondly that it is
vitiated by reason that the learned
Magistrate has specified a particular
officer for 're-investigating' the case.

4. Submissions made by the learned
counsel are loaded with substance. In K.
Chandra Shekhar etc. versus State of
Kerala and others, 1998 (37) ACC, 136
Hon'ble Supreme Court has held that even
after submission of police report under
173 (2) of the Code of Criminal
Procedure on completion of investigation,
the police has a right of 'further
investigation
under
sub
section
(8)
thereof, but not 'fresh investigation' or 'reinvestigation'. Further investigation is,
therefore, in the continuation of earlier
investigation and not a fresh investigation
or re-investigation to be started ab initio
wiping out the earlier investigation
altogether. The direction given by the
learned Magistrate to 're-investigate' the
case therefore cannot be sustained in law.

5. The order passed by the learned
Magistrate is also not sustainable due to
reason that he has directed a particular
officer to re-investigate the case. In
Hemant Dhasmana versus Central Bureau
of Investigation and another, 2001 (43)
ACC, 570 at page 575 it has been laid
down by the Apex Court that it is not
within the province of the Magistrate
while exercising the power under Section
173 (8) of the Code of Criminal
Procedure to specify any particular officer
to conduct such investigation, not even to
suggest the rank of the officer who should
conduct such investigation. We, therefore,
do not find any justification to quash the
impugned FIR at this stage.

6. Accordingly, the writ petition
succeeds and is allowed in part. The
impugned order dated 21.7.2001 passed
by the learned Magistrate is quashed with
a
direction
that
learned
Magistrate
concerned shall pass the order afresh
inaccordance with law.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
550
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.7.2002

BEFORE
THE HON'BLE J.C. GUPTA, J.
THE HON'BLE K.K. MISRA, J.

Criminal Appeal No. 682 of 1987

Jumman Khan and others
...Appellants
(in Jail)
Versus
State of U.P.

 ...Respondent

Counsel for the Appellants:
Sri V.C. Tiwari
Sri A.K. Awasthi
Sri P.N.Misra
Sri R.L. Verma
Sri R.D. Verma
Sri V.C. Tewari.
Sri Satish Trivedi

Counsel for the Respondent:
Sri Amar Saran
A.G.A.

Indian Penal Code- Section 374- Rule of
pleadings of civil law does not apply to
criminal cases. Unlike in a civil case, it is
open to a criminal court to give benefit
to the accused of a plea even if not
stated by him in his statement under
section 313 Cr.P.C. It is not for the
accused to firmly establish his defence
and it is sufficient if he is able to create a
reasonable doubt in the mind of the
court
showing
a
preponderance
of
probability.

Held in para 26

Motive alleged by the prosecution has
not been firmly established, that both
the
witnesses
produced
from
-
prosecution side are highly interested
and inimical and independent persons
though admittedly present at the time of
alleged incident were withheld by the
prosecution and that it is not established
beyond doubt that the incident had
occurred at the place and in the manner
as alleged by the prosecution it would be
hazardous to hold the appellants guilty
of the offences charged for, particularly
when neither the prosecution nor the
defence has been able to show with
certainty how and where the incident
occurred and where persons on both
sides received serious injuries and the
court
is
left
with
guesses
and
conjectures. In these circumstances we
are left with no option but to acquit the
accused persons by giving them the
benefit of doubt.
Case law referred:
AIR 1974 SC 1950
1976 (13) ACC 372
2000 (41) ACC 696

(Delivered by Hon'ble J.C. Gupta, J.)

1. The above named six appellants
have
filed
this appeal
against the
judgement and order dated 3.3.87 in
Sessions Trial No. 714 of 1983 whereby
they have been convicted and sentenced
to imprisonment for life under Section
302/149 IPC, to five years R.I. each under
section 307/149 IPC and one year R.I.
each under Section 148 IPC Sentences are
to run concurrently.

2. The prosecution story in brief is
that all the appellants are resident of
village
Paisa
Khera
police
station
Pawayan district Shahjahanpur. Faiyaz
Khan P.W.1 is also a resident of same
village. It is alleged that election for the
post of delegate of the Co operative
society of Nyaya Panchayat Badehla was
to be held. Faiyaz Khan and accused
Jumman Khan both were candidates in
that election. Jumman Khan pressurized
Faiyaz Khan to withdraw his candidature
in his favour but Faiyaz Khan refused to