# Vishal Tripathi v. State of U.P. & Ors

- **Citation:** (2024) 8 ILRA 561
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-09
- **Case number:** Application U/s 482 No. 6104 of 2024
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishal-tripathi-v-state-of-u-p-ors-52403
- **Pages:** 47

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 323, 325, 427 & 452 - The
Code of Criminal Procedure, 1973 -
Section 173(8) - FIR was lodged on
24.07.2023, date of incident was not
mentioned - As per FIR - At about 10:00
pm, applicant assaulted the informant
and his family members - All members
sustained injuries - During proceedings,
applicant
preferred
application
u/s
173(8) Cr.P.C for reinvestigation - The
grounds are based upon the date of
incident, time of incident, date of medical
examination and date of FIR - The Trial
Court rejected the application, being not
maintainable after filing of charge sheet -
Impugned order challenged - Held, I.O.,
after
due
investigation,
collected
evidence,
examined
various
persons,
recorded statements, thereafter on the
basis of FIR, medical reports of injured,
statements of witnesses of fact, prepared
the charge sheet and submitted - The
discrepancies related to dates and time
would be considered by Trial Court at the
stage of trial, the applicant has no right to
pray
for
reinvestigation
-
Hence,
dismissed (Para 5, 6, 17, 18, 19, 40)

Application dismissed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,903 of 136,814. This is a partial read: ask again with offset=39903 for what follows._

8 All. Vishal Tripahi Vs. State of U.P. & Ors.
561
caused to any person by such act,
the offender shall be liable either to
imprisonment for life, or to such
punishment
as
is
hereinbefore
mentioned.
Attempts by life-convicts.-
When any person offending under this
section
is
under
sentence
of
imprisonment for life, he may, if hurt is
caused, be punished with death.
308. Attempt to commit
culpable homicide-Whoever does
any act with such intention or
knowledge
and
under
such
circumstances that, if he by that act
caused death, he would be guilty of
culpable homicide not amounting to
murder, shall be punished with
imprisonment of either description for
a term which may extend to three
years, or with fine, or with both; and, if
hurt is caused to any person by such
act,
shall
be
punished
with
imprisonment of either description for
a term which may extend to seven
years, or with fine, or with both."

12. The Court is also of the considered
opinion that the charge could be altered during
trial at any time and at any stage before the
judgment is passed. As such, even a charge
under Section 307 is framed, the accused have
still liberty to raise submission that, on basis of
the evidence led before the learned Trial Court,
no offence could be made out under Section
307 IPC.

13. Learned counsel for the applicants
wants this Court to conduct a mini trial at this
stage and to consider the statements recorded
during investigation at length to give an opinion
that in no circumstances, the charge under
Section 307 IPC could be made out. However,
in the given facts, such exercise could not be
undertaken as on the bare perusal of the
statements and considering the nature of the
injuries caused to three injured persons as well
as that the applicants have used firearm also. At
this stage, it could not be held that there is
absolutely no evidence that no offence is made
out under Section 307 IPC. In this regard,
statement of Doctor would also be relevant,
who has supported the supplementary medical
report as referred in impugned order that
injuries were dangerous to life. No document is
on record which could contradict it.

14. In the aforesaid circumstance, I do
not find that there is any illegality in the
impugned order. However, the applicants will
have a liberty to raise all the legally permissible
arguments at the appropriate stage that on the
basis of the evidence, which is still to be led
before the learned Trial Court, no offence is
made out under Section 307 or 308 IPC.

15. Accordingly, application under
Section 482, No.1685 of 2020 is rejected and
order rejecting discharge application is upheld
and consequently other matter under Article
227 bearing No.292 of 2021 is also rejected
since it is against framing of charges i.e. a
consequential order.
----------
(2024) 8 ILRA 561
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.08.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Application U/s 482 No. 6104 of 2024

Vishal Tripathi ...Applicant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicant:
Dinesh Kumar Mishra, Ripu Daman Shahi,
Upendra Kumar Singh
562 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
G.A., Rakesh Dwivedi

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 323, 325, 427 & 452 - The
Code of Criminal Procedure, 1973 -
Section 173(8) - FIR was lodged on
24.07.2023, date of incident was not
mentioned - As per FIR - At about 10:00
pm, applicant assaulted the informant
and his family members - All members
sustained injuries - During proceedings,
applicant
preferred
application
u/s
173(8) Cr.P.C for reinvestigation - The
grounds are based upon the date of
incident, time of incident, date of medical
examination and date of FIR - The Trial
Court rejected the application, being not
maintainable after filing of charge sheet -
Impugned order challenged - Held, I.O.,
after
due
investigation,
collected
evidence,
examined
various
persons,
recorded statements, thereafter on the
basis of FIR, medical reports of injured,
statements of witnesses of fact, prepared
the charge sheet and submitted - The
discrepancies related to dates and time
would be considered by Trial Court at the
stage of trial, the applicant has no right to
pray
for
reinvestigation
-
Hence,
dismissed (Para 5, 6, 17, 18, 19, 40)

Application dismissed. (E-13)

List of Cases cited:

1. Vinubhai Haribhai Malaviya &ors. Vs St. of
Guj. & anr.; (2019) 17 SCC 1

2. Preeti Singh Vs St. of U.P., 2023 SCC OnLine
All 1410

3. Romila Thapar Vs U.O.I., (2018) 10 SCC 75

4.
Kailash
Vijayvargiya
Vs
Rajlakshmi
Chaudhuri, 2023 SCC OnLine SC 569

5. State Vs Hemendhra Reddy, 2023 SCC
OnLine SC 515

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Supplementary affidavit filed by
the learned counsel for the applicant is
taken on record.

2. Heard Sri Dinesh Kumar
Mishra, learned counsel for the applicant,
Sri S.P. Tiwari, learned counsel for the
State and Sri Rakesh Dwivedi, learned
counsel for the opposite party No. 2.

3. Present application has been
filed by the applicant for quashing of
impugned order dated 21.06.2024 passed
by the Additional Sessions Judge/Special
Judge POCSO Act, Ambedkar Nagar (in
short "Trial Court") in S.S.T. No. 66 of
2024 (State vs. Vishal Tripathi and Others),
whereby the Trial Court rejected the
application seeking prayer to direct the
Investigating Officer (I.O.) to conduct reinvestigation/further investigation in the
matter and the applicant has also sought the
prayer to direct for re-investigation/further
investigation.

4. Facts in brief are to the effect
that the FIR No. 0228 of 2023 was lodged
on 24.07.2023 at 13:15 Hours under
Section 147, 323, 325, 427, 452 IPC by the
informant-Pramod Tiwari against Devendra
Tripathi, Vishal Tripahti, Rudra Tripathi,
Aradhana Tripathi and Susheela. Column
No. 3 of the FIR does not indicate date of
the alleged incident.

5. According to FIR, at about
10:00 PM accused-applicant assaulted the
informant, son of the informant, daughter
of the informant.

6. In this incident, informant
Pramod Tiwari, son of the informant
namely Aditya
Tiwari,
wife
of
the
informant namely Sonika Tiwari, daughter
8 All. Vishal Tripahi Vs. State of U.P. & Ors.
563
of the informant namely Manya Tiwari,
sustained injuries.

7. The FIR lodged on 24.07.2023
in regard to the incident says that "vkt jkr
dks 10%00 cts izkFkhZ dks ykBh] M.Ms o Vxkjh] csypd
ls izkFkhZ o izkFkhZ ds yM+ds vkfnR; frokjh ds flj esa
xgjh pksVsa vk;h gS o izkFkhZ ds iq=h ekU;k frokjh ds
gkFk esa ekjus ls gkFk VwV x;k gSA"

8. After lodging of FIR, the
injured/informant
Pramod
Tiwari
was
medically examined at C.H.C.-Jalalpur,
District-Ambedkar Nagar on 24.07.2023 at
02:10 PM and Doctor opined that all the
injuries are simple in nature and can be
caused by hard and blunt object except
Injury No.4. The injuries sustained by Sri
Pramod Tiwari are as under:-

"1-Contusion of size 13cm
x 05.5cm tnt on lateral aspect of Lt.
arm 04cm above from Lt. elbow
joint, color bluish red.
2-Abrated contusion of size
04cm x 01.5cm tnt on 0.5cm below
from injury no. 1, colour reddish.
3-Abrated contusion of size
12cm x 05.5cm tnt on posterior
aspect of Lt. forearm included with
Lt. elbow joint, colour reddish.
4-Tenderness with swelling
tnt on Rt. hand advice x-ray (wrist
joint-AP & Lat.).
5-C O P on Lt. side front of
chest.
6-C O P on Rt. side front of
abdomen."

9. X-ray report dated 25.07.2023
of
injured
Pramod
Tiwari
indicates
following injuries:-

"(i) Fracture lower end of
(Rt.) radius bone & styled process
of (Rt.) ulna bone is seen. No callus
is seen."

10. Injured Sonika Tiwari (wife of
Pramod Tiwari) was medically examined
on 24.07.2023 at 03:19 PM at CHCJalapur, District-Ambedkar Nagar and
Doctor opined that all injuries are simple in
nature and can be caused by hard and blunt
object. Injured Sonika Tiwari sustained
following injuries:-

"1-Contusion
of
size
04.5cm x 03cm tnt on top of skull
13cm above from base of Lt. ear,
colour reddish blue.
2-Contusion of size 03.5cm
x 02cm tnt on Lt. side forehead
02.5cm above from Lt. eyebrow,
colour reddish blue.
3- Abrasion of size 03.5cm
x 0.1cm tnt. on Rt. side of face
02cm below from Rt. lower eyelid,
colour reddish.
4-Contusion of size 10cm x
08cm tnt. on lateral aspect of arm
07cm above from Rt. elbow joint,
colour reddish blue.
5-Contusion of size 02cm x
01.5cm tnt. on dorsal aspect of Rt.
forearm 04cm below from Rt. elbow
joint, colour reddish blue.
6-Contusion of size 10cm x
04.5cm tnt. on Lt. side back of chest
05cm below from lower border of
spin of Lt. scapula, colour reddish
blue.
7-Contusion of size 07cm x
04cm tnt on Rt. side back of chest,
04cm medial from lower end of
scapula, colour reddish blue.
8-Contusion of size 17cm x
08cm tnt on Lt. buttock just below
Lt. iliac crest of Lt. hip, colour
reddish blue.
564 INDIAN LAW REPORTS ALLAHABAD SERIES
9-COP on Lt. thumb.
10-Abrasion of size 01cm x
0.5cm tnt on medial aspect of Lt.
foot 06cm above from base of Lt.
great toe, colour reddish."

11. Injured Aditya Tiwari was
examined on 24.07.2023 at 02:53 PM at
CHC, Jalalpur, District-Ambedkar Nagar
and Doctor has opined that all injuries are
simple in nature and can be caused by hard
and blunt object except injury Nos.1, 3 & 4.
Injured Aditya Tiwari sustained following
injuries:-

"1-Lacerated wound of size
01.5cm x 0.3cm tnt on scalp deep
tnt on Lt. parietal region of skull
06cm above from base of Lt. ear,
serum tnt, advice x-ray.
2-Contusion of size 06cm x
02cm tnt on posterior aspect of lower
end of Rt. arm 04cm above from Rt.
elbow joint colour reddish blue.
3-Tenderness with swelling
tnt. on Rt. elbow joint, advice x-ray.
4-Tenderness with swelling
tnt on Rt. hand advice x-ray.
5- Contusion of size 11cm x
03cm tnt on Rt. side upper back of
chest 03cm lateral from base of
neck colour reddish blue.
6-Contusion of size 06cm x
02cm tnt on Rt. side back of
abdomen 02.5cm above from Rt.
ASIS of hip, colour reddish blue.
7-Abrasion of size 02.5cm x
01cm tnt medial aspect of Lt.
melleolus of Lt. foot colour dark
red.
8-COP on Rt. front of lower
chest."

12. Injured Manya Tiwari was
examined on 24.07.2023 at 02:32 PM at
CHC, Jalalpur, District-Ambedkar Nagar
and Doctor has opined that all injuries are
simple in nature and can be caused by any
hard and blunt object except injury No.1.
Injured Aditya Tiwari sustained following
injuries:-

"1-Tenderness and swelling
tnt. on Lt hand advice x-ray.
2-Tenderness tnt. on Lt.
lower back.
3-COP
on
front
of
abdomen.
4-Contusion of size 07cm x
01.5cm tnt on dorsal aspect of Lt.
hand, colour reddish."

13. X-ray report dated 25.07.2023
of
injured
Manya
Tiwari
indicates
following injuries:-

"(i)
Fracture
2nd,
3rd
metacarpal bones of (Lt.) hand is
seen. No callus is seen."

14. Injured Sonika Tiwari before
the
Investigating
Officer
stated
that
incident took place on 23.07.2023 at about
10:30 PM. This witness also indicated
name of the applicant and according to her
statement on account of blow of hard and
blunt object she sustained injuries and hand
of Manya Tiwari was fractured and Aditya
Tiwari also sustained injury. Statement of
Sonika Tiwari is extracted hereinunder:-

"अवलोकन
बयान
164
सीआरपीसी...............नाम सोनिका निवारी उम्र
45 वर्ष पति प्रमोद तनवासी मथुरा रसूलपुर दारानगर
थाना जलालपुर अम्बेडकरनगर द्वारा सशपथ बयान
तकया तक --- तदनाांक 23.07.23 को समय राि के
10.30 बजे की बाि है मै घर में थी मेरे पडोसी देवेन्द्र
तिवारी तवशाल रुर आराधना सुशीला देवी दरवाजे पर
मुझे गातलया दे रहे थे मैने बरामदे से गाली देने से मना
8 All. Vishal Tripahi Vs. State of U.P. & Ors.
565
तकया िो देवेन्द्र घर में घुस आया। मुझे पकड तलया
बदिमीजी करने लगा। बाकी लोग भी मेरे घर मे लाठी
डन्द्डा लेकर घुस आये मेरा बेटा आतदत्य बाहर आया
बचाने िो उसे भी मारा पीटा ये लोग समझे तक मर गया।
मेरी बेटी मान्द्या का हाथ तवशाल ने िोड तदया। मेरे तसर
पर भी चोट आयी थी। मेरे बेटे को सब्बल से मारा है।
मेरे पति छि पर थे अवाज पर नीचे आये िो सभी लोगो
ने उन्द्हे भी मारा पीटा उनका हाथ टुट गया। 100 नम्बर
पर काल तकया पुतलस आ गयी। पुतलस के आने से
पहले मेरी कार को िोड तदया। चलने लायक नहीं छोडा।
पुतलस ने कोई कायषवाही नही की। देवेन्द्र मेरे दरवाजे के
सामने बेठ जािा है। हमने कई बार मना तकया इसी बाि
पर नाराज होकर हमे मारा पीटा। देवेन्द्र अपराधी है गुण्डा
तकस्म का है जान से मारने की धमकी देिा है और कुछ
नही कहना है। ह० अांग्रेजी में अपठनीय
10.08.2023"

15.

Before
the
Magistrate/competent court of jurisdiction
the injured Manya Tiwari stated that
incident took place on 24.07.2023 at 10:00
PM. This witness also levelled specific
allegations against the applicant. The
statement of Manya Tiwari is extracted
hereinunder:-

"अवलोकन
बयान
164
सीआरपीसी...............नाम मान्या निवारी पुत्री
प्रमोद तिवारी तनवासी मथुरा रसूलपुर दारानगर थाना
जलालपुर अम्बेडकरनगर द्वारा सशपथ बयान तकया तक
24.07.2023 को समय राि के 10 बजे की बाि है
घर में मम्मी पापा भाई और मैं थी मेरे पडोसी देवेन्द्र रोज
हमारे घर के सामने बेठ जािे है और लोगों को बैठा
तलया करिे है उस पर हमे एिराज है क्योंतक मेरी मााँ
तदन में अकेली रहिी है। घटना के दो तदन पहले मेरे
पापा तदल्ली से आये थे देवेन्द्र को बैठाने से मना तकया
था उसी बाि पर 24.07.2023 को घर में देवेन्द्र आ
गये। गातलया देने लगे। गातलया देने से मना तकया िो
मम्मी को पकड तलया। घर वालों को बुला तदया।
तवशाल, रूर, आराधना व सुशीला देवी आ गयी। सभी
लोगों ने मेरी मााँ को मारा पीटा। मेरे पापा भाई और मुझे
भी सभी लोगो ने लाठी डन्द्डे से मारा पीटा। हमारी कार
िोड दी। मेरे बाल तवशाल ने खीच तदये थे धक्का तदया
था मैं िख्ि पर तगरी थी। तवशाल मेरे कपडे फाडने लगा
था मैने बचा तलया था मैने धक्का तदया था िभी तवशाल
ने मेरे हाथ में डन्द्डा मार तदया। पुतलस को मैने काल
तकया पुतलस आ गयी। मामला शाांति कराया। हम अपने
भाई को लेकर अस्पिाल गये थे मैं कक्षा 9 में पढ़िी ह ाँ।
मेरी जन्द्मतितथ 24.04.2008 है और कुछ नहीं
कहना है। ह० अांग्रेजी में अपठनीय 10.08.2023"

16. Taking note of the statement of
Manya Tiwari the I.O. added Section 354-B
read with Section 7/8 of POCSO Act and
submitted the charge sheet.

17. In the aforesaid background of
the case accused-applicant preferred an
application under Section 173(8) Cr.P.C.
praying therein for re-investigation/further
investigation. The grounds seeking prayer
for re-investigation/further investigation, as
appears from the record, are based upon the
date of incident, time of incident, date of
medical examination and date of lodging of
FIR.

18. The Trial Court by the
impugned order dated 21.06.2024 rejected
the application of the accused-applicant and
being aggrieved by the order dated
21.06.2024, present application has been
filed. Relevant portion of the order dated
21.06.2024 reads as under:-

"पत्रावली के अवलोकन से स्पष्ट है तक
तववेचक द्वारा प्रस्िुि मामले की सम्पूर्ष तववेचना
सम्पातदि करिे हुए अतभयुक्त तवशाल तत्रपाठी के तवरुद्ध
पयाषप्त साक्ष्य पािे हुए तदनाक 08.02.2024 को
आरोप-पत्र
धारा-
147,323,325,452,427,354
ख,
भा०दां०सां० व धारा-7/8 पाक्सो एक्ट के अन्द्िगषि
प्रेतर्ि तकया गया है। तजस पर न्द्यायालय द्वारा प्रसांज्ञान
तलया जा चुका है। धारा-173 (8) दं०प्र०सं० यह
प्रातवधान करिी है तक-" इस धारा की कोई बाि
नकसी अपराध के बारे में उपधारा (2) के अधीि
मनिस्ट्रेट को ररपोटट भेि दी िािे के पश्चाि् आगे
566 INDIAN LAW REPORTS ALLAHABAD SERIES
और अन्वेषण को प्रवररि करिे वाली िहीं समझी
िाएगी िथा िहााँ ऐसे अन्वेषण पर पुनलस थािे के
भारसाधक अनधकारी को कोई अनिररक्त मौनिक
या दस्ट्िावेिी साक्ष्य नमले वहााँ वह ऐसे साक्ष्य के
सम्बन्ध में अनिररक्त ररपोटट या ररपोटट मनिस्ट्रेट को
नवनहि प्ररूप में भेिेगा, और उपधारा (2) से (6)
िक के उपबन्ध ऐसी ररपोटट या ररपोटों के बारे में,
िहां िक हो सके, ऐसे लागू होंगे, िैसे वे उपधारा
(2) के अधीि भेिी गई ररपोटट के सम्बन्ध में लागू
होिे हैं।"
प्रस्िुि मामले में तववेचक द्वारा अतभयुक्त के
तवरूद्ध दौरान तववेचना पयाषप्त साक्ष्य पािे हुए आरोपपत्र प्रेतर्ि तकया जा चुका है। प्राथषनापत्र इस स्िर पर
पोर्र्ीय नहीं है। अिः मामले के िथ्यों एवां पररतस्थतियों
को दृतष्टगि रखिे हुए अतभयुक्त तवशाल तत्रपाठी द्वारा
प्रस्िुि प्राथषनापत्र अन्द्िगषि धारा-173 (8) दां०प्र०सां०
पोर्र्ीय न होने के कारर् खाररज तकये जाने योग्य है।
आदेश
प्राथी / अतभयुक्त तवशाल तत्रपाठी द्वारा
प्रस्िुि प्राथषनापत्र अन्द्िगषि धारा-173(8) दां०प्र०सां०
खाररज तकया
जािा है। पत्रावली तदनाांक09.07.2024 को पेश हो।"

19. A perusal of above quoted
portion of the impugned order dated
21.06.2024 indicates that the Trial Court
rejected the application preferred under
Section
173(8)
Cr.P.C.
being
not
maintainable after filing of charge sheet.

20. Impeaching the impugned
order dated 21.06.2024, Sri D.K.Mishra,
learned counsel for the applicant submitted
that as per observation of the Hon'ble Apex
Court, Magistrate is empowered to pass an
order
for
re-investigation/further
investigation in exercise of power under
Section
173(8)
Cr.P.C.
even
after
submission of charge sheet and accordingly
reasoning
given
by
the
Magistrate
concerned while rejecting the application
seeking
re-investigation/further
investigation under Section 173(8) Cr.P.C.
vide
order
dated
21.06.2024
is
unsustainable in the eye of law and
accordingly interference of this Court is
required in the matter.

21. Reliance has been placed by
the learned counsel for the applicant on the
judgment passed by the Hon'ble Apex
Court in the case of Vinubhai Haribhai
Malaviya and Others vs. State of Gujarat
and Another; (2019) 17 SCC 1. Relevant
para(s), referred, of the same are extracted
hereinunder:-

"25. It is thus clear that the
Magistrate's power under Section
156(3) 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 superviseArticle 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) 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
8 All. Vishal Tripahi Vs. State of U.P. & Ors.
567
undoubtedly include proceedings
by way of further investigation
under Section 173(8) CrPC.
26. However, Shri Basant
relied strongly on a three-Judge
Bench
judgment
in Devarapalli
Lakshminarayana
Reddy v. V.
Narayana
Reddy [Devarapalli
Lakshminarayana
Reddy v.V.
Narayana Reddy, (1976) 3 SCC
252 : 1976 SCC (Cri) 380] . This
judgment, while deciding whether
the first proviso to Section 202(1)
CrPC was attracted on the facts of
that case, held : (SCC p. 258, para
17)
"17. Section 156(3) occurs
in
Chapter
XII,
under
the
caption:'Information to the Police
and their powers to investigate';
while Section 202 is in Chapter XV
which
bears
the
heading:'Of
complaints to Magistrates'. The
power to order police investigation
under Section 156(3) is different
from
the
power
to
direct
investigation conferred by Section
202(1). The two operate in distinct
spheres at different stages. The first
is exercisable at the pre-cognizance
stage, the second at the postcognizance
stage
when
the
Magistrate is in seisin of the case.
That is to say in the case of a
complaint
regarding
the
commission
of
a
cognizable
offence, the power under Section
156(3) can be invoked by the
Magistrate before he
takes
cognizance of the offence under
Section 190(1)(a). But if he once
takes such cognizance and embarks
upon the procedure embodied in
Chapter XV, he is not competent to
switch back to the pre-cognizance
stage and avail of Section 156(3). It
may be noted further that an order
made under sub-section (3) of
Section 156, is in the nature of a
peremptory reminder or intimation
to the police to exercise their
plenary powers of investigation
under Section 156(1). Such an
investigation embraces the entire
continuous process which begins
with the collection of evidence
under Section 156 and ends with a
report
or
charge-sheet
under
Section 173. On the other hand,
Section 202 comes in at a stage
when some evidence has been
collected by the Magistrate in
proceedings under Chapter XV, but
the same is deemed insufficient to
take a decision as to the next step
in the prescribed procedure. In
such a situation, the Magistrate is
empowered under Section 202 to
direct,
within
the
limits
circumscribed by that section an
investigation 'for the purpose of
deciding whether or not there is
sufficient ground for proceeding'.
Thus the object of an investigation
under Section 202 is not to initiate
a fresh case on police report but to
assist the Magistrate in completing
proceedings already instituted upon
a complaint before him."
This judgment was then
followed in Tula Ram v. Kishore
Singh [Tula Ram v. Kishore Singh,
(1977) 4 SCC 459 : 1977 SCC
(Cri) 621] at paras 11 and 15.
27. Whereas it is true that
Section 156(3) remains unchanged
even after the 1973 Code has been
brought into force, yet the 1973
Code has one very important
addition, namely, Section 173(8),
568 INDIAN LAW REPORTS ALLAHABAD SERIES
which did not exist under the 1898
Code. As we have noticed earlier in
this judgment, Section 2(h) of the
1973 Criminal Procedure Code
defines "investigation" in the same
terms as the earlier definition
contained in Section 2(l) of the
1898 Criminal Procedure Code
with
this
difference
-
that
"investigation" after the 1973
Code has come into force will now
include all the proceedings under
CrPC for collection of evidence
conducted by a police officer. "All"
would clearly include proceedings
under Section 173(8) as well. Thus,
when Section 156(3) states that a
Magistrate
empowered
under
Section 190 may order "such an
investigation",
such
Magistrate
may
also
order
further
investigation under Section 173(8),
regard being had to the definition
of "investigation" contained in
Section 2(h)."

22. At this stage, it would be
appropriate to take note of some more
para(s) of the judgment passed in the case
of Vinubhai Haribhai Malaviya (Supra),
as the same would indicate that what was
the issue and why the Hon'ble Apex Court
directed to lodge the FIR and investigate
the issue therein. The same are as under:-

"This case arises out of a
first information report (hereinafter
referred to as "FIR") that was
lodged on 22-12-2009. The FIR is by
one Nitinbhai Mangubhai Patel,
power-of-attorney
holder
of
Ramanbhai Bhagubhai Patel and
Shankarbhai Bhagubhai Patel, who
are allegedly residing at "UK or
USA".
The
gravamen
of
the
complaint made in the FIR is that
one Vinubhai Haribhai Malaviya is
blackmailing these two gentlemen
with respect to agricultural land
which is just outside the city of Surat,
Gujarat and which admeasures
about 8296 sq m. The FIR alleges
that
Ramanbhai
Patel
and
Shankarbhai Patel are absolute and
independent owners of this land,
having
obtained
it
from
one
Bhikhabhai Khushalbhai and his
wife Bhikiben Bhikhabhai in the year
1975. The FIR then narrates that
because of a recent price hike of
lands in the city of Surat, the heirs of
Bhikhabhai and Bhikiben together
with Vinubhai Haribhai Malaviya
and Manubhai Kurjibhai Malaviya
have hatched a conspiracy in
collusion with each other, and
published a public notice under the
caption "Beware of Land-grabbers"
in a local newspaper on 7-6-2008.
Sometime
thereafter,
Vinubhai
Haribhai Malaviya then contacted
an
intermediary,
who
in
turn
contacted Nitinbhai Patel (who
lodged the FIR), whereby, according
to
Nitinbhai
Patel,
Vinubhai
Malaviya demanded an amount of Rs
2.5 crores in order to "settle"
disputes in respect of this land. It is
alleged in the said FIR that apart
from attempting to extort money from
the said Nitinbhai Patel, the heirs of
Bhikhabhai and Bhikiben together
with Vinubhai Haribhai Malaviya
and Manubhai Kurjibhai Malaviya
have used a fake and bogus
"Satakhat" and power of attorney in
respect of the said land, and had
tried to grab this land from its lawful
owners Ramanbhai and Shankarbhai
Patel.
8 All. Vishal Tripahi Vs. State of U.P. & Ors.
569
2. The background to the
FIR
is
the
fact
that
one
Khushalbhai
was
the
original
tenant of agricultural land, bearing
Revenue
Survey
No.
342,
admeasuring 2 ac, 2 gunthas,
situated
at
Puna
(Mauje),
Choriyasi (Tal), District Surat.
Khushalbhai died, after which his
son Bhikhabhai became tenant in
his place. Bhikhabhai in turn died
on
23-12-1984
and
his
wife
Bhikiben died on 18-12-1999. A
public notice dated 7-6-2008 was
issued
in Gujarat
Mitra and Gujarat
Darpan
Dainik by the heirs of Bhikhabhai,
stating
that
Ramanbhai
and
Shankarbhai
Patel
are
landgrabbers, and are attempting
to create third-party rights in the
said property. This led to the legal
heirs of Bhikhabhai, through their
power-of-attorney holder, applying
on 12-6-2008 to the Collector,
Nanpura (Surat), to cancel revenue
entries that were made way back in
1976.
3. Pursuant to the filing of
the
FIR,
investigation
was
conducted by the police, which
resulted in a charge-sheet dated
22-4-2010 being submitted to the
Judicial Magistrate (First Class),
Surat. On 23-4-2010, the said
Magistrate took cognizance and
issued summons to the accused
regarding offences under Sections
420, 465, 467, 468, 471, 384 and
511 of the Penal Code, 1860
(hereinafter referred to as "IPC").
Pursuant to the summons, the
accused appeared before the said
Magistrate.
On
10-6-2011,
an
application (Ext. 28) was filed by
Accused
1
Vinubhai
Haribhai
Malaviya for further investigation
under Section 173(8) of the Code of
Criminal
Procedure,
1973
(hereinafter referred to as "CrPC")
and another application (Ext. 29)
for discharge. Likewise, on 14-62011,
applications
for
further
investigation (Ext. 31) and for
discharge (Ext. 32) were filed by
Accused 2 to 6. By an order dated
24-8-2011,
the
Magistrate
dismissed the applications that
were filed for further investigation
(i.e. Exts. 28 and 31), stating that
the facts sought to be placed by the
applicants were in the nature of
evidence of the defence that would
be taken in the trial. Likewise, on
21-10-2011 the learned Magistrate
also
rejected
the
discharge
applications that were made (i.e.
Exts. 29 and 32).
4. Meanwhile,
on
26-72011,
Criminal
Miscellaneous
Application No. 816 of 2011 was
moved
by
Vinubhai
Haribhai
Malaviya and the other accused to
register
an
FIR,
or
for
the
Magistrate to order investigation
under Section 156(3) CrPC into the
facts stated in their applications.
This was rejected by the learned
Magistrate by an order dated 9-92011.
5. Separate
criminal
revision applications were filed
before the Sessions Court, Surat,
being Revision Applications Nos.
376 and 346 of 2011, insofar as the
dismissal by the learned Magistrate
of further investigation and the
order rejecting registration of the
FIR were concerned. Both these
revision applications were decided
570 INDIAN LAW REPORTS ALLAHABAD SERIES
by the learned Second Additional
Sessions Judge, Surat by a common
order dated 10-1-2012. By this
order,
the
learned
Second
Additional Sessions Judge went
into details of facts that were
alleged in the application under
Section 173(8) and found that a
case had been made out for further
investigation. Accordingly, he held:
"As per the abovereferred
discussion, it can be seen that no
effective
investigation
or
discussions have been carried out
in all these respect during the
course of the investigation of the
said offence and further, it is very
noteworthy here that matters for
which the prayers are made in
these revision applications, all
these matters are pertaining to the
complaint of this case. Hence, it is
very much necessary that for the
purpose of carrying out a detailed
and
full
investigation of
this
complaint, all these matters should
also be investigated. But for the
said purpose, it is not necessary
that a separate complaint be
registered
and
thereafter
its
investigation be carried out. But by
covering this investigation also in
the complaint of the present matter,
if
it
is
found
out
in
such
investigation that any offence was
committed,
then
appropriate
criminal
proceedings
can
be
initiated against such person."
6. Pursuant to this order,
the investigation was handed over
to
Investigating
Officer
R.A.
Munshi (hereinafter referred to as
"IO Munshi") on 6-3-2012, who
then
submitted
two
further
investigation reports-one within
three days, dated 9-3-2012 and a
second one dated 10-4-2012, in
which the IO Munshi went into the
facts mentioned in the Section
173(8) CrPC applications that
were filed. On 13-6-2012, the
original
accused
withdrew
[Shantaben v. State
of
Gujarat,
2012 SCC OnLine Guj 6476]
Special Criminal Application No.
727 of 2012 filed in the High Court,
which was filed challenging the
order
by
which
the
learned
Revisional Court had confirmed the
order
rejecting
the
discharge
applications, with liberty to move
an appropriate application for
discharge before the Magistrate.
The High Court heard Criminal
Revision Application No. 44 of
2012
together
with
Criminal
Miscellaneous
Application
No.
1746
of
2012,
and
arrived
[Nitinbhai
Mangubhai
Patel v. State of Gujarat, 2013 SCC
OnLine
Guj
8980]
at
the
conclusion that, as a matter of law,
the Magistrate does not possess
any
power
to
order
further
investigation after a charge-sheet is
filed and cognizance is taken. The
High Court further castigated IO
Munshi, holding that the furnishing
of interim investigation reports, not
through
a
special
Public
Prosecutor
and
not
to
the
Magistrate, but to the Additional
Sessions Judge himself smacks of
mala fides, as if IO Munshi wanted
to oblige and/or favour the accused
persons.
7. The High Court further
found
that
the
two
interim
investigation
reports
virtually
acquitted the accused persons, and
8 All. Vishal Tripahi Vs. State of U.P. & Ors.
571
therefore, the High Court set aside
the judgment of the learned Second
Additional Sessions Judge dated
10-1-2012, and consequently, the
two further interim investigation
reports.
So
far
as
Criminal
Revision Application No. 346 of
2011 (which was disposed of by the
learned Second Additional Sessions
Judge without considering merits,
in light of its order in Criminal
Revision Application No. 376 of
2011) was concerned, the High
Court remanded the same for fresh
consideration
to
the
learned
Second Additional Sessions Judge,
who would then decide as to
whether
an
FIR
should
be
registered,
insofar
as
the
allegations
contained
in
the
applications
for
further
investigation
are
concerned.
Pursuant to the aforesaid remand,
by judgment dated 23-4-2016, the
learned Additional Sessions Judge
has rejected the application under
Section 156(3) CrPC on merits,
against which Special Criminal
Application No. 3085 of 2016 has
been filed and is awaiting disposal.
Several other proceedings that are
pending between the parties have
been pointed out to us, with which
we have no immediate concern in
this case.
8. Shri
Dushyant
Dave,
learned
Senior
Advocate,
appearing
on
behalf
of
the
appellants, has forcefully argued,
placing reliance on a number of
provisions of CrPC, and a number
of our judgments, that the High
Court was wholly incorrect as a
matter of law, in holding that postcognizance a Magistrate would
have no power to order further
investigation into an offence. He
read out in great detail the FIR
dated 22-12-2009, the contents of
the charge-sheet dated 22-4-2010,
and
relied
heavily
on
a
communication
made
by
the
Commissioner of Revenue, Gujarat
to the Collector, Surat dated 15-32011.
According
to
him,
the
contents of this communication
would show that there is no doubt
that further investigation ought to
have been carried out on the facts
of this case, in that, a huge fraud
had been perpetrated on his clients
by land grabbing mafia, and it
would be a travesty of justice if the
learned Second Additional Sessions
Judge's judgment dated 10-1-2012
was not upheld. According to him,
the High Court judgment was
greatly influenced by the fact that :
(1) IO Munshi submitted further
interim investigation reports very
quickly, and (2) had submitted
these reports to the Additional
Sessions Judge instead of the
Magistrate;
resulting
in
the
throwing out of the baby with the
bathwater. He therefore urged us to
uphold the order of the Second
Additional Sessions Judge who
ordered further investigation, as
that would lead to the truth of the
matter in this case.
9. On the other hand, Shri
Basant and Shri Navare, learned
Senior Advocates appearing on
behalf
of
the
respondents,
supported the judgments of the trial
court and the High Court, stating
that there is no doubt that without
filing a cross-FIR, what was sought
to be adduced is evidence which
572 INDIAN LAW REPORTS ALLAHABAD SERIES
may perhaps amount to a defence
in the trial to be conducted, which
would
be
impermissible.
They
emphasised that at no stage had an
application been moved to quash
the proceedings, and obviously, a
belated application made more
than a year after cognizance had
been taken, to obtain by way of
further investigation facts which
were wholly divorced from the FIR
would
be
wholly
outside
the
Magistrate's power under Section
173(8) CrPC. They relied upon
several judgments, and particularly
recent judgments of this Court, in
order to show that post-cognizance
and particularly after summons is
issued to the accused, and the
accused appears pursuant to such
summons, the Magistrate has no
suo motu power, nor can he be
moved by the accused, for further
investigation at this stage of the
proceedings.
10. The question of law that
therefore arises in this case is
whether, after a charge-sheet is
filed by the police, the Magistrate
has the power to order further
investigation, and if so, up to what
stage of a criminal proceeding.
xxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxx
43. We now come to certain
other judgments that were cited
before us. King Emperor v. Khwaja
Nazir
Ahmad [King
Emperor v. Khwaja Nazir Ahmad,
1944 SCC OnLine PC 29 : (194344) 71 IA 203 : AIR 1945 PC 18] ,
was strongly relied upon by Shri
Basant for the proposition that
unlike superior courts, Magistrates
did not possess any inherent power
under
CrPC.
Since
we
have
grounded
the
power
of
the
Magistrate
to
order
further
investigation until charges are
framed under Section 156(3) read
with Section 173(8) CrPC, no
question
as
to
a
Magistrate
exercising any inherent power
under CrPC would arise in this
case.
44.Union of India v. W.N.
Chadha [Union
of
India v. W.N.
Chadha, 1993 Supp (4) SCC 260 :
1993 SCC (Cri) 1171] , is a
judgment which states that the
accused has no right to participate
in the investigation till process is
issued to him, provided there is
strict
compliance
with
the
requirements of fair investigation.
Likewise,
the
judgments
in Nagawwa v. V.S.
Konjalgi [Nagawwa v. V.S.
Konjalgi, (1976) 3 SCC 736 : 1976
SCC
(Cri)
507]
, Prabha
Mathur v. Pramod
Aggarwal [Prabha
Mathur v. Pramod
Aggarwal,
(2008) 9 SCC 469 : (2008) 3 SCC
(Cri)
787]
, Narender
G.
Goel v. State
of
Maharashtra [Narender
G.
Goel v. State
of
Maharashtra,
(2009) 6 SCC 65 : (2009) 2 SCC
(Cri)
933]
and Dinubhai
Boghabhai
Solanki v. State
of
Gujarat [Dinubhai
Boghabhai
Solanki v. State of Gujarat, (2014)
4 SCC 626 : (2014) 2 SCC (Cri)
384] , which state that the accused
has no right to be heard at the
stage of investigation, has very
little to do with the precise question
before us. All these judgments are,
therefore, distinguishable. Further,
8 All. Vishal Tripahi Vs. State of U.P. & Ors.
573
Babubhai v. State of Gujarat
[Babubhai v. State of Gujarat,
(2010) 12 SCC 254 : (2011) 1 SCC
(Cri) 336] , is a judgment which
distinguishes
between
further
investigation and re-investigation,
and holds that a superior court
may,
in
order
to
prevent
miscarriage of criminal justice if it
considers
necessary,
direct
investigation de novo, whereas a
Magistrate's power is limited to
ordering
further
investigation.
Since the present case is not
concerned with re-investigation,
this judgment also cannot take us
much
further.
Likewise,Romila
Thapar v. Union of India [Romila
Thapar v. Union of India, (2018) 10
SCC 753 : (2019) 1 SCC (Cri) 638]
, held that an accused cannot ask to
change an investigating agency, or
to require that an investigation be
done in a particular manner,
including asking for a courtmonitored
investigation.
This
judgment also is far removed from
the question that has been decided
by us in the facts of this case.
45. When we come to the
facts of this case, it is clear that the
FIR dated 22-12-2009 is concerned
with two criminal acts, namely, the
preparing of fake and bogus
"Satakhat" and power of attorney
in respect of the agricultural land
in question, and the demanding of
an amount of Rs 2.5 crores as an
attempt to extort money by the
accused persons. The facts that are
alleged in the application for
further
investigation
are
facts
which pertain to revenue entries
having been made in favour of
Ramanbhai Bhagubhai Patel and
Shankarbhai Bhagubhai Patel, and
how their claim over the same land
is false and bogus. Shri Basant is,
therefore, right in submitting that
the facts alleged in the applications
for further investigation are really
in the nature of a cross-FIR which
has never been registered. In fact,
the
communication
of
the
Commissioner of Revenue, Gujarat
dated 15-3-2011 to the Collector,
Surat-so strongly relied upon by
Shri Dushyant Dave-bears this
out. In this communication, the
learned Commissioner doubts that
a particular order dated 14-4-1976
passed by a revenue authority ever
existed, and that by making an
application in the name of the long
since
deceased
Bhikhabhai
Khushalbhai in 2010, for getting a
copy of Form No. 3 would, prima
facie, amount to a criminal offence.
Further, the learned Commissioner
goes on to state that Bhikiben
(Bhikhabhai's widow), who had
passed away in December 1999,
could not possibly have made an
application in the year 2000; which
shows that her signature is also
prima facie forged. Further, the
said Ramanbhai and Shankarbhai
Patel are at present 48 and 53
years old, and if they could be said
to be in possession of the said
agricultural land since 1934, they
could be said to be in possession at
a time when they were not yet born.
Further, since these two gentlemen
were
abroad
from
the
very
beginning, it is stated that they
could not possibly be farmers
cultivating agricultural land. For
these, and various other reasons,
the Commissioner concluded:
574 INDIAN LAW REPORTS ALLAHABAD SERIES
"Thus, looking to all the
aforesaid particulars, as per the
submission made by the lady
applicant, scam has been made in
respect of her land by creating false
bogus
cases/resolutions/orders
passed
or
by
forging
fake
documents. Submission is made for
initiating
criminal
proceedings
against all those who are involved
in such scam and whether there is
substance in this matter or not?
Thorough inquiry be made in that
connection at your level. Till the
real particulars in this matter are
not becoming clear, it is appearing
necessary
to
stop
the
NA
permission/construction activities.
Therefore, after making necessary
proceedings in that regard, detailed
report
having
basis
of
the
proceedings
done
is
to
be
immediately
submitted
to
the
undersigned
and
periodical
information of the proceedings
done in this matter also be given to
the undersigned."
46.