Allahabad High Court
Himanshu Kumar Singh vs State Of U.P. Thru. Addl. Chief ... on 22 February, 2023
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 27
Case :- APPLICATION U/S 482 No. - 1773 of 2023
Applicant :- Himanshu Kumar Singh
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Civil Sectt. Lko. And Another
Counsel for Applicant :- Ram Singh,Sushil Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
Heard Sri Sushil Kumar Singh, learned counsel for the applicant, Sri Nirmal Kumar Pandey, learned A.G.A. for the State and perused the record.
By means of the instant application, a challenge has been made to the order dated 23-01-2023 passed by the Ist Additional Civil Judge(J.D.)/J.M. Ambedkar Nagar in Crime No. 237 of 2022, under sections 323,504,506,308,324 I.P.C., Police Station-Raje Sultanpur, District-Ambedkar Nagar.
Learned counsel appearing for the applicant contends that initially an F.I.R. was lodged on 01-10-2022 under sections 323,504,506,308,324 I.P.C. and thereafter, the Chargesheet was filed in a very cursory manner on 21-11-2022 by the Investigating Officer and the Magistrate has taken cognizance on 25-11-2022. He submits that the father of the applicant moved an application that the Investigating Officer has not considered the material placed before him and therefore, the further investigation may be done in the aforesaid matter. On the said application, the Additional Director General of Police instructed the Superintendent of Police, District-Ambedkar Nagar to look into the matter and pass appropriate orders. On the abovesaid instructions, the Superintendent of Police, District-Ambedkar Nagar passed an order on 11-01-2023 and transferred the investigation to the Crime Branch and directed for further investigation in the matter. As soon as this order was received by the Investigating Officer of the Crime Branch, he moved an application before the trial court concerned that he may be given the case diary filed by earlier Investigating Officer so that he may go through the same and further investigation can be done. On the aforesaid application, learned Magistrate has passed order on 23-01-2023 whereby the application filed by the Investigating Officer was rejected. Thus, the order dated 23-01-2023 has been under challenged in this application.
Learned counsel appearing for the applicant submits that since the learned Magistrate has passed an order,wherein the application submitted by the Investigating Officer has been rejected though the power envisaged under section 173(8) of Cr.P.C. is peculiar with respect to the further investigation and that provides further investigation with respect to any offence after the report under sub. section 2 of Section 173 of Cr.P.C. has been filed. He added that from perusal of the order impugned, it emerges that as if the Magistrate has precluded the Investigating Officer to go with the further investigation and that is against the law as well as the law laid down by the Hon'ble Apex Court. In support of his contentions, he has placed reliance on a Judgment in the case of Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel and others, reported in (2017) 4 SCC,177 and has referred paragarph no. 48 of the said Judgment,which is extracted hereinunder :-
"The un-amended and the amended sub-section (8) of Section 173 of the Code if read in juxtapositioin, would overwhelmingly, attest that by the latter, the investigating agency/officer alone has been authorized to conduct further investigation without limiting the stage of the proceedings relatable thereto. This power qu the investigating agency/officer is thus legislatively intended to be available at any stage of the proceedings. The recommendation of the Law Commission in its 41st Report which manifesting heralded the amendment, significantly, had limited its proposal to the empowerment of the investigating agency alone."
Referring the aforesaid, he submits that the Hon'ble Apex Court in the aforesaid case has held that the power of the Investigating Agency/Officer is legislatively intended to be available at any stage of proceedings.
He has further placed reliance on another Judgment of the Hon'ble Apex Court rendered in the case of State of Bihar and Another Versus JAC Saldanna and Others, reported in AIR 1980, SCC(326) and has referred paragraph no. 17 of the said case, which is extracted hereinunder :-
"17. The High Court construed the expression 'superintendence' in s. 3 of the Act to mean 'general supervision of the management of the police department and does not vest the State Government with authority to decide what the police alone is authorised to decide'. There is nothing in the Act to indicate such a narrow construction of the word superintendence'. Nothing was pointed out to us to put a narrow construction on this general power of superintendence conferred under the Act on the State Government and there is no justification for limiting the broad spectrum of power comprehended in power of superintendence. Accordingly superintendence would comprehend the power to direct further investigation if the circumstances so warrant and there is nothing in the Code providing to the contrary so as to limit or fetter this power. Sub-s. (8) of s. 173 was pressed into service to show that the power of further investigation after the submission of a report under s. 173(2) would be with the officer in charge of a police station. Sub-s. (8) of s. 173 is not the source of power of the State Government to direct further investigation. Section 173(8) enables an officer in charge of a police station to carry on further investigation even after a report under s. 173(2) is submitted to Court. But if State Government has otherwise power to direct further investigation it is neither curtailed, limited nor denied by s. 173(8), more so, when the State Government directs an officer superior in rank to an officer in charge of police station thereby enjoying all powers of an officer in charge of a police station to further investigate the case. Such a situation would be covered by the combined reading of s. 173(8) with s. 36 of the Code. Such power is claimed as flowing from the power of superintendence over police to direct a police officer to do or not to do a certain thing because at the stage of investigation the power is enjoyed as executive power untrammeled by the judiciary."
Placing the aforesaid, he submits that the Apex Court has reiterated that the power under section 173(8) of Cr.P.C. is absolute for the further investigation with the Investigating Agencies at any stage.
Adding his arguments, he contends that after the order dated 23-01-2023,the Investigating Officer has stopped the further investigation in the matter, under misconception that the learned Magistrate has stopped for any further investigation by way of the order dated 23-01-2023. Since the Superintendent of Police in compliance of the instructions of the Additional Director General of Police has taken a decision to proceed with further investigation and the matter was transferred to the Crime Branch, therefore, the further investigation may not be interfered by the trial court as is the mandate of section 173(8) of Cr.P.C. and the law propounded by the Apex Court.
On the other hand, learned A.G.A. appearing for the State has vehemently opposed the contentions aforesaid and submits that there is no erroneousness or perversity in the order dated 23-01-2023 passed by the learned Ist Additional Civil Judge(J.D.)/Judicial Magistrate,Ambedkar Nagar; as an application was filed by the Investigating Officer for providing him the case diary which was submitted by the earlier Investigating Officer and therefore, only to the abovesaid extent the application has been rejected and further investigation has not been stopped. Thus, there is no unlawfulness in the order passed by the learned Magistrate and therefore, the instant application is liable to be dismissed.
Considering the submissions of learned counsel for the parties and after perusal of the material placed on record, it reveals that earlier the Chargesheet was filed before the trial court wherein the cognizance was taken and thereafter the police authorities/Investigating Agency decided to go for further investigation and the matter was transferred to the Crime Branch.
This court has also noticed the fact that an application has been submitted to the trial court with respect to the fact that the case diary which was submitted by the earlier Investigating Officer may be given to Investigating Officer so that he could go through the same for properly proceed for further investigation in the matter. There is no such provision under Cr.P.C. or any other law with respect to file such an application or the learned trial court is not empowered to return back the case diary filed earlier to the Investigating Officer who is going to proceed with further investigation, and therefore, the instant application submitted by the Investigating Officer was uncalled for and that should have been rejected on this ground alone, but, learned Magistrate while rejecting the aforesaid application, has rejected the application treating as if the same was filed invoking the jurisdiction under section 173(8) of Cr.P.C.
Since, it is settled law that further investigation can go on during the course of the trial proceedings and therefore, once, the Investigating Agency/Authority has decided to go with the further investigation, then the same neither can be stopped nor can be deviated and thus, order dated 23-01-2023 passed by the trial court is modified to the extent that it is open for the Investigating Officer to proceed with the further investigation as per the decision taken by the Superintendent of Police, Ambedkar Nagar.
With the aforesaid observations, the instant application is hereby disposed off.
Order Date :- 22.2.2023
AKS
