Allahabad High Court
Yagya Prakash Gangwar vs State Of U.P. And Another on 15 September, 2022
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 86
Case :- APPLICATION U/S 482 No. - 16002 of 2022
Applicant :- Yagya Prakash Gangwar
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Amit Kumar Srivastava
Counsel for Opposite Party :- G.A,Devashish Mitra
Hon'ble Karunesh Singh Pawar,J.
The petition has been filed under Section 482 CrPC for setting aside impugned order dated 20.5.2022 passed by Addl. District & Sessions Judge, IInd, Bareilly in Sessions Trial No.567 of 2021 State versus Yagya Prakash Gangwar, arising out of case crime No.106 of 2021 under sections 306, 406, 323, 504, 506 I.P.C., P.S. Baradari, district Bareilly, whereby the application filed by the informant for further investigation has been allowed and the police has been directed to conduct further investigation.
Heard learned counsel for the petitioner and learned A.G.A. for the State.
Learned counsel for the petitioner submits that Section 173(8) CrPC confers power on the police to conduct further investigation with the approval of the Court. However, after the trial has commenced and the accused has put in appearance, on an application given by the informant, further investigation cannot be ordered. In this context, learned counsel has relied on Amrutbhai Shambhubhai Patel versus Sumanbhai Kantibhai Patel and others AIR 2017 SC 774 (relevant para 47) and a Full Bench judgment dated 16.10.2019 of Supreme Court in Vinubhai Haribhai Malaviya and others versus The State of Gujarat and another passed in Criminal Appeals No.478-479 of 2017 (relevant para 38).
It is submitted on behalf of the petitioner that the judgment in Amrutbhai's case (supra) to the extent it provides that the learned Magistrate suo motu cannot direct further investigation has been overruled in the subsequent judgment in Vinubhai's case (supra) which provides in para 38 of the judgment that the Magistrate before whom a report under Section 173(2) CrPC is filed, is empowered in law to direct further investigation. As regards other aspects, the judgment in Amrutbhai's case (supra) still holds good.
Paragraph 47 of Amrutbhai Shambhubhai Patel's case (supra) is extracted below :
"47. 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 therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and 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 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."
Relevant portion of paragraph 38 of Vinubhai Haribhai Malaviya's case (supra) is reproduced as under :
"38. .................... To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid-
way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361 and Reeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 also stand overruled."
Learned counsel appearing for respondent No.2 has opposed the petition, however, he does not dispute the law laid down by Supreme Court in the cases referred to by learned counsel for the petitioner that after commencement of the trial, further investigation cannot be ordered by the court on an application given by the informant. He has relied on Hasanbhai Valibhai Qureshi versus State of Gujarat and others AIR 2004 SC 2078 in support of his submission.
In the case of Hasanbhai (supra) relied on by the learned counsel for private respondent, it has been provided that it is open for the police to conduct further investigation under Section 173(8) CrPC, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. The judgment does not say that on an application filed on behalf of the informant, the trial court can order for further investigation. Thus, the case law cited by learned counsel is of no relevance as regards the present petition is concerned.
On due consideration to the argument advanced by learned counsel for the parties as well as learned Addl. Government Advocate, perusal of the record and the order dated 20.5.2022 including the case laws referred to above, I am of the considered view that the matter requires remand to the trial court.
Accordingly, the impugned order dated 20.5.2022 (supra) is set aside. The matter is remanded back to the trial court to pass a fresh order in accordance with law, within a period of one month from the date of production of a certified copy of the present order.
The petition is disposed of.
Order Date :- 15.9.2022
kkb.
