Allahabad High Court
Arpit Jain vs State Of U.P. .And Another on 25 August, 2023
Bench: Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:172030
Court No. - 89
Case :- APPLICATION U/S 482 No. - 31504 of 2023
Applicant :- Arpit Jain
Opposite Party :- State Of U.P. .And Another
Counsel for Applicant :- Nagesh Kumar Dwivedi,Anjani Kumar Rai
Counsel for Opposite Party :- G.A.
Hon'ble Deepak Verma,J.
1. Heard learned counsel for the applicant and learned A.G.A. for the State.
2. The present 482 Cr.P.C. application has been filed to quash the impugned order dated 16.06.2023 passed by the learned Sessions Judge, Lalitpur in Criminal Revision No.69 of 2023 (Viresh Kumar Chaubey vs. State of U.P. & another) and the order dated 11.07.2023 passed by the learned Chief Judicial Magistrate, Lalitpur in Case No.1850 of 2023 (State vs. Arpit Jain) arising out of Case Crime No.941 of 2021, under section 447 I.P.C., Police Station Kotwali, Lalitpur, District Lalitpur, pending in the court of Chief Judicial Magistrate, Lalitpur.
3. Learned counsel for the applicant submits that after submission of charge-sheet and after taking cognizance on police report, informant moved application on 07.04.2023 for further investigation in the case pending before trial court. The learned magistrate rejected the application of the informant on the same date i.e. on 07.04.2023 observing that there is no such provision in the Cr.P.C. to entertain the application and the same was rejected. Opposite party no.2 challenged the order before revisional court and revisional court by order dated 16.06.2023 allowed the revision in view of the Apex Court judgment in Vinubhai Haribhai Malviya and others vs. State of Gujarat and another: (2019) 17 SCC 1 and observed that magistrate has power to order further investigation after cognizance. Magistrate's order of rejection on the point of maintainability after cognizance is not in consonance with the ruling relied on as Hon'ble Supreme Court has held that Magistrate can use his power to pass order of further investigation and he can exercise this power suo moto even at post cognizance stage until trial commences depending on the facts of each case, hence, impugned order is liable to be set aside and accordingly is hereby set aside. Magistrate is directed to pass order afresh in the light of Vinubhai Haribhai Malviya and others vs. State of Gujarat and another (supra). Thereafter applicant has challenged the order dated 16.06.2023. The applicant herein is accused submits that there is no material for further investigation. The Court's order is not in consonance with the provision under section 173(8) and he has placed reliance upon the judgement passed by this Court in Criminal Misc.Writ Petition No.21741 of 2019 (Shoeb vs. State of U.P. & 6 others) decided on 04.12.2019 and Division Bench judgement of this Court in Criminal Misc.Writ Petition No.1430 of 2021 decided on 12.07.2022. Learned counsel for the applicant submits that on the basis of order dated 16.06.2023 passed by learned Sessions Judge, learned Chief Judicial Magistrate applied his judicial mind that investigation is not permissible under law after taken cognizance. Magistrate has limited power to apply his judicial mind. It is purely a matter of civil dispute. Moreover, the investigating officer has not moved any application for conducting further investigation and opposite party no.2 has no locus to move such application. Learned Chief Judicial Magistrate has passed the order exceeding his jurisdiction. The order for further investigation dated 16.06.2023 is bad in the eye of law.
4. Per contra, learned AGA opposed the submission of learned counsel for the applicant.
5. Considered the argument raised by learned counsel for the applicant and perused the record. The order passed on 16.06.2023 by learned magistrate is in pursuance of learned Session Judge passed in Criminal Revision No.69 of 2023. Learned Magistrate without applying his judicial mind rejected the application of opposite party no.2 for further investigation on 07.04.2023. The order dated 07.04.2023 was challenged before revisional court and the revisional court by order dated 16.06.2023 set aside the order passed by learned Magistrate in view of Apex Court judgment in Vinubhai Haribhai Malviya and others vs. State of Gujarat and another: (2019) 17 SCC 1 directed Magistrate to use his power for further investigation. The order dated 16.06.2023 is not challenged before any higher court and order passed on 16.06.2023 has got finality and learned magistrate in pursuance of the order of revisional court issued direction for further investigation. Morever, the Hon'ble Apex Court in Peethambaran vs. State of Kerala & another: Criminal Appeal No.1381 of 2023 (@SLP (Criminal) No.545 of 2020) has held in Para-28 that "In terms of section question, the above discussion makes clear that the District Police Chief, Kottayam could not have ordered further investigation, as that power rests either with the concerned magistrate or with a higher court and not with an investigating agency."
6. In view of the Apex court judgment and observations made above, this Court does not find any ground to interfere. The present Application u/s 482 Cr.P.C. is accordingly, dismissed.
Order Date :- 25.8.2023
SKD
