Uday Rajgarhia vs State Of U.P. And 5 Others
2023 Latest Caselaw 20031 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:153690-DB
 
AFR
 

 
Reserved on 29.05.2023
 
Delivered on 01.08.2023
 
In Chamber
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 6543 of 2023
 
Petitioner :- Uday Rajgarhia
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Ajeet Singh,Sr. Advocate
 
Counsel for Respondent :- G.A.,Vinod Kumar Srivastava
 
Connected with
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 5214 of 2023
 
Petitioner :- Shailendra Agarwal
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Ajeet Singh,Sr. Advocate
 
Counsel for Respondent :- G.A.,Vinod Kumar Srivastava
 
Connected with
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 6664 of 2023
 

 
Petitioner :- Anand Prakash
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Ajeet Singh,Sr. Advocate
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Anjani Kumar Mishra,J.

Hon'ble Ms. Nand Prabha Shukla,J.

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

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

The petitioners are the first informants of their respective First Information Report and have challenged the order dated 27.02.2023 (common in all three writ petitions) passed by respondent No.2. Hence, all the three aforesaid writ petitions have been clubbed together and are being decided by a common order.

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

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

Sl. No.

Criminal Misc. Writ Petition No.

Case Crime No.

Under Sections

Police Station

District

Case No.

Common Impugned order dated

1.

5214 of 2023

28 of 2021 Shailendra Agarwal (informant)

419, 420, 467, 468, 471, 406, 506 IPC

Bhelpur

Varanasi

8903 of 2017

27.02.2023

2.

6543 of 2023

698 of 2020 Udai Rajgarhia (informant)

419, 420, 467, 468, 471, 406, 409 and 506 IPC

Shivpur

Varanasi

8006 of 2021

27.02.2023

3.

6664 of 2023

41 of 2023 Anand Prakash (informant)

419, 420, 467, 468, 471, 406, 506 IPC

Sigra

Varanasi

8763 of 2021

27.02.2023

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

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

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

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

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

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

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

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

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

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

Even by virtue of Section 36 Cr.P.C., the State Police has ample power to investigate a crime to its satisfaction. Relevant portion of Section 36 Cr.P.C. reads as follows :

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

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

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

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

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

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

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

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

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

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

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

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

The writ petition stands dismissed.

Date : 01.08.2023

Monika