Ajit Kumar Gupta vs State Of U.P.And Another
2023 Latest Caselaw 16954 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


					A.F.R.
 
					Neutral Citation No. - 2023:AHC:126526
 
					Reserved on 01.06.2023
 
					Delivered on 14.6.2023
 

 
Case :- APPLICATION U/S 482 No. - 37458 of 2016
 
Applicant :- Ajit Kumar Gupta
 
Opposite Party :- State Of U.P.And Another
 
Counsel for Applicant :- Ashutosh Sharma
 
Counsel for Opposite Party :- G.A.,Rahul Mishra,Sanjay Mishra
 

 
Hon'ble Siddharth,J.

1. This application under Section 482 Cr.P.C. has been filed praying for quashing of the supplementary charge-sheet dated 28.8.2016 and summoning order dated 28.9.2016 in Case Crime No. 203 of 2014, under Sections 420, 467, 468, 471 IPC, Police Station Juhi and District Kanpur Nagar alongwith entire proceedings of the case.

2. An FIR was lodged by opposite party no.2 on 02.6.2014 before police station alleging that she is living in U.S.A. for last 11 years. The applicant, Ajit Kumar Gupta and co-accused, Narendra Kumar Singh and Kanhaiya Gupta, have occupied her house situated in Anandpuri, Transport Nagar, Kanpur, with the help of gangsters . It was further alleged that accused persons have fabricated documents to justify their illegal occupation. Her mother never signed any document in their favour and her signatures have been digitally created. The aforesaid FIR was registered after a letter was sent to the Chief Minister of the State by the opposite party no.2 from United State of America.

3. Learned counsel for the applicant submits that after investigation charge-sheet no. 38/16 dated 27.5.2016 was submitted by the police only against co-accused, Narendra Kumar Singh and the applicant was exonerated. At the behest of co-accused, further investigation was conducted by the police and supplementary charge-sheet No. 38-A/16 dated 28.8.2016 was filed before the Additional Chief Metropolitan Magistrate, Court No.2/Additional Judge, Kanpur Nagar, who took cognizance of the same on 28.9.2016 and summoned the applicant. In the disputed house, co-accused, Narendra Kumar Singh, is in possession on the basis of an agreement to sell dated 31.5.2004 executed by mother of opposite party no.2. The name of the applicant is mentioned in the agreement in block letters without any signature, purportedly as a witness of the agreement. Civil dispute is pending between the mother of the opposite party no.2 and co-accused, Narendra Kumar Singh. In the supplementary charge-sheet, the applicant has been charge-sheeted solely on the basis of the statement of co-accused, Narendra Kumar Singh and supplementary charge-sheet was submitted against him. The court below has summoned the applicant on its basis.

4. Learned counsel for the applicant has submitted that even if it is assumed that the applicant signed the disputed agreement to sell as a witness, even then it is unregistered document written on stamp of Rs.100/- and no title of the property has passed on its basis in favour of the applicant or any of the co-accused. The applicant claims that he has no criminal history.

5. Learned counsel for the applicant has submitted that further investigation in the case was done without any order of Magistrate and supplementary charge-sheet was illegally submitted against the applicant. He has pointed out to the order dated 12.1.2023 passed by this Court wherein a report was called from the Magistrate concerned as to whether any direction for further investigation was given by the court or not. The Chief Metropolitan Magistrate, Kanpur Nagar, has sent report dated 15.4.2023 informing that there is no order found on the record of the case directing further investigation in this case by the Investigating Officer.

6. Learned counsel for the applicant has submitted that filing of supplementary charge-sheet against the applicant on the basis of unauthorized further investigation is bad in law. In the case of Vinay Tyagi Vs. Irshad Ali and others, (2013)5 SCC 762 such a course adopted has been deprecated and it has been held by Apex Court that :

"40. Having analysed the provisions of the Code and the various judgments as afore-indicated, we would state the following conclusions in regard to the powers of a magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code :

40.1. The Magistrate has no power to direct 'reinvestigation' or 'fresh investigation' (de novo) in the case initiated on the basis of a police report.

40.2. A Magistrate has the power to direct 'further investigation' after filing of a police report in terms of Section 173(6) of the Code.

40.3. The view expressed in (2) above is in conformity with the principle of law stated in Bhagwant Singh's case (supra) by a three Judge Bench and thus in conformity with the doctrine of precedence.

40.4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).

40.5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own.

40.6. It has been a procedure of proprietary that the police has to seek permission of the Court to continue 'further investigation' and file supplementary chargesheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case.

(Emphasis supplied)

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49. Now, we may examine another significant aspect which is how the provisions of Section 173(8) have been understood and applied by the courts and investigating agencies. It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct 'further investigation' or file supplementary report with the leave of the Court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct 'further investigation' and file 'supplementary report' with the leave of the court. The courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the Court to conduct 'further investigation' and/or to file a 'supplementary report' will have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code. The doctrine of contemporanea expositio will fully come to the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice that is supported by law should be accepted as part of the interpretative process.

50. Such a view can be supported from two different points of view. Firstly, through the doctrine of precedence, as afore-noticed, since quite often the courts have taken such a view, and, secondly, the investigating agencies which have also so understood and applied the principle. The matters which are understood and implemented as a legal practice and are not opposed to the basic rule of law would be good practice and such interpretation would be permissible with the aid of doctrine of contemporanea expositio. Even otherwise, to seek such leave of the court would meet the ends of justice and also provide adequate safeguard against a suspect/accused."

6A. The case of Vinubhai Haribhai Malviya and others Vs. State of Gujarat and Another, (2019) 17 SCC 1 has also been relied upon by the counsel for the applicant in support of his contention wherein it has been held:

"38. There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. 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."

7. Finally reliance on a recent judgement of Apex Court in the case of Peethambaran Vs. State of Kerela and Another, (Criminal Appeal No.1381 of 2023), has been made wherein it has been held:

"19. The Chief Police Officer of a district is the Superintendent of Police who is an officer of the Indian Police Service. Needless to state, an order from the District Police Chief is not the same as an order issued by the concerned Magistrate. Referring to Vinay Tyagi (supra), this Court in Devendra Nath Singh v. State of Bihar and Ors.9 noted that there is no specific requirement to seek leave of the court for further investigation or to file a supplementary report but investigation agencies, have not only understood it to be so but have also adopted the same as a legal requirement. The doctrine of contemporanea exposito aids such an interpretation of matters which have been long understood and implemented in a particular manner to be accepted into the interpretive process. In other words, the requirement of permission for further investigation or to file a supplementary report is accepted within law and is therefore required to be complied with."

8. It has further been argued that the implication of the applicant on the basis of confession of co-accused, Narendra Kumar Singh, is hit by Section 25 of Evidence Act. Finally reliance on the judgement of of the Apex Court in the case of State of Haryana Vs. Bhajan Lal, 1992 Supp (1) SCC 335 has been made in support of the argument that even if all the allegations made in the FIR and supplementary charge-sheet are taken to be correct, no offence is made out against the appellant."

9. Learned AGA has vehemently opposed the submissions made by learned counsel for the applicant alongwith opposite party no.2.

10. Learned counsel for opposite party no.2 has submitted that no permission is required for further investigation from the Metropolitan Magistrate by the police. He has submitted that the police has unfettered power of investigation and such investigation can continue even after the charge-sheet has been filed under Section 173 (2) Cr.P.C. and cognizance has been taken thereon by the Magistrate. Reliance has been place on the judgement of Apex Court in the case of Rama Chaudhary Vs. State of Bihar, (2009) 6 SCC 346 wherein it has been held that:

"Among other sub-sections, we are very much concerned about sub- section (8) which reads as under:-

"(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."

8) A mere reading of the above provision makes it clear that irrespective of report under sub-section (2) forwarded to the Magistrate, if the officer in-charge of the police station obtains further evidence, it is incumbent on his part to forward the same to the Magistrate with a further report with regard to such evidence in the form prescribed.

9) The above said provision also makes it clear that further investigation is permissible, however, reinvestigation is prohibited. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge-sheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible.

10) From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of police report under sub-section (2) on completion of investigation, the police has a right to "further" investigation under sub-section (8) of Section 173 but not "fresh investigation" or "reinvestigation". The meaning of "Further" is additional; more; or supplemental. "Further" investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. Sub- section (8) of Section 173 clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a "further" report and not fresh report regarding the "further" evidence obtained during such investigation.

11) As observed in Hasanbhai Valibhai Qureshi vs. State of Gujarat and Others, (2004) 5 SCC 347, the prime consideration for further investigation is to arrive at the truth and do real and substantial justice. The hands of investigating agency for further investigation should not be tied down on the ground of mere delay. In other words, the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice.

12) If we consider the above legal principles, the order dated 19.02.2008 of the trial Court summoning the witnesses named in the supplementary charge-sheet cannot be faulted with. It is true that after enquiry and investigation charges were framed on 11.03.2004 and thereafter in the course of trial about 21 witnesses were examined. In the meantime, Police submitted supplementary charge-sheet with certain new materials and on the basis of supplementary charge- sheet, the prosecution filed an application on 12.01.2008 in a pending Sessions Trial No. 63 of 2004 to the trial Court for summoning the persons named in the charge-sheet for their examination as prosecution witnesses. On a careful perusal of the application, the trial Court, by order dated 19.02.2008, allowed the same and has summoned those witnesses named in the supplementary charge-sheet.

13) The law does not mandate taking prior permission from the Magistrate for further investigation. It is settled law that carrying out further investigation even after filing of the charge-sheet is a statutory right of the Police. [vide K. Chandrasekhar vs. State of Kerala and Others, (1998) 5 SCC 223.] The material collected in further investigation cannot be rejected only because it has been filed at the stage of trial. The facts and circumstances show that the trial Court is fully justified to summon witnesses examined in the course of further investigation. It is also clear from Section 231 of the Cr.P.C. that the prosecution is entitled to produce any person as witness even though such person is not named in the earlier charge-sheet. All those relevant aspects have been taken note of by the learned Magistrate while summoning the witnesses based on supplementary charge-sheet. This was correctly appreciated by the High Court by rightly rejecting the revision. We fully agree with the said conclusion."

11. Finally reliance on the judgement in the case of Dharampal Vs. State of Haryana, (2016) 4 SCC 160 has been made by learned counsel for opposite party no.2 as follows"-

17. In this context, we may notice the statutory scheme pertaining to investigation. Section 173 Cr.P.C. empowers the Police Officer conducting investigation to file a report on completion of the investigation with the Magistrate empowered to take cognizance of the offence. Section 173(8) Cr.P.C. empowers the office-in-charge to conduct further investigation even after filing of a report underSection 173(2) Cr.P.C. if he obtains further evidence, oral or documentary. Thus, the power of the Police Officer under Section 173(8) Cr.P.C. is unrestricted. Needless to say, the Magistrate has no power to interfere but it would be appropriate on the part of the investigating officer to inform the Court. It has been so stated in Rama Chaudhary v. State of Bihar4.

18. In Vinay Tyagi v. Irshad Ali5, wherein a two-Judge Bench, after referring to the decision in Bhagwant Singh v. Commr. Of 4 (2009) 6 SCC 346 5 (2013) 5 SCC 762 Police6 has held thus:-

"However, having given our considered thought to the principles stated in these judgments, we are of the view that the Magistrate before whom a report under Section 173(2) of the Code is filed, is empowered in law to direct "further investigation" and require the police to submit a further or a supplementary report. A three-Judge Bench of this Court in Bhagwant Singh has, in no uncertain terms, stated that principle, as aforenoticed."

19. In the said case, the question had arisen whether a Magistrate can direct for re-investigation. While dealing with the said issue, the Court has observed:-

"At this stage, we may also state another well-settled canon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct "further investigation", "fresh" or "de novo" and even "reinvestigation". "Fresh", "de novo" and "reinvestigation" are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection." [Emphasis supplied] And again:-

"Whether the Magistrate should direct "further investigation" or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the higher court of competent jurisdiction would direct "further investigation" or "reinvestigation" as the case may 6 (1985) 2 SCC 537 be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, reinvestigation or even investigation de novo depending on the facts of a given case. It will be the specific order of the court that would determine the nature of investigation."

12. After hearing rival contentions and going through the authorities cited at the bar, this Court finds that in the present case, the first question required to be decided is (I) whether the action of the Investigating Officer of proceeding with further investigation and filing supplementary charge-sheet after once submitting a charge-sheet against co-accused is permissible in law or not. The second question, which is required to be decided is (ii) whether a mere signatory to an agreement to sell can be held liable for the same offence as allegedly committed by the beneficiary of the agreement to sell, the co-accused in this case.

13. Proceeding with the first question, this Court finds that the Apex Court in the case of Vinay Tyagi (Supra) and Peethambaran (Supra) has held that leave of the Magistrate is required to conduct further investigation or to file supplementary report while the judgement of other set of judgements relied by counsel for opposite party no.2 in the cases of Rama Chaudhary (Supra), Hasanbhai Valibbhai Qureshi (Supra), Dharampal (Supra) provide otherwise. The second set of the judgements of the Apex Court mandates that Section 173(8) Cr.P.C. empowers the Investigating Officer to conduct further investigation even after filing of a report under Section 173(2) Cr.P.C. if he obtains further evidence, oral or documentary. No orders are required for further investigation by the Investigating Officer from the Magistrate.

14. This Court finds that the judgements of the Apex Court in the case of Vinay Tyagi (Supra) and Peethambaran (Supra) have not considered the law of the Apex in the case of Rama Chaudhary (Supra). The observation in the judgement of Dharampal (Supra) made by the Apex Court that it would be appropriate for the Investigating Officer to inform the court before proceeding with further investigation as stated in Rama Chaudhary (Supra) is not borne out from the record. The judgement of Vinubhai Haribhai Malviya and others (Supra) cited by learned counsel for the applicant is on a different issue as to whether the Magistrate has discretion to order further investigation even after submission of police report under Section 173(2) Cr.P.C. or not.

15. The power of the Magistrate is not in dispute in the present case to order further investigation. The dispute is whether the Investigating Officer can conduct further investigation without orders of Magistrate or not. A perusal of Section 173 (8) shows that it provides for further investigation by the Investigating Officer after submission of report. It no where provides for prior permission of Magistrate to do so. The Apex Court in the case of Rama Chaudhary (Supra) has relied on the same. In the judgement of Hasanbhai Valibbhai Qureshi (Supra) it has held that the power can be exercised by Investigating Officer to conduct further investigation without any order from the Magistrate. Even otherwise the Apex Court in the case of Vinay Tyagi (Supra) held that it has been a procedure of proprietary that the police has to seek permission of the Court to continue 'further investigation' and file supplementary charge-sheet, which has been approved by Apex Court in a number of judgments. The judgements of both the sets cited at the bar are of Benches of equal strength.

16. In view of the above consideration, the first question raised by learned counsel for the applicant is answered in negative and held that there was no fault on the part of the Investigating Officer to conduct further investigation and file supplementary charge-sheet against the applicant.

17. Now adverting to the second question, this Court finds that a perusal of Section 54 of the Transfer of Property Act, 1882, clearly proves that a contract for the sale of immoveable property is only a contract that sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. Therefore, it is clear that an agreement to sell does not creates any right or title in favour of intending buyer. It is only a document creating right to get another document of sale from seller on fulfilment of terms and conditions specified therein. On the strength of such an agreement, a buyer does not becomes the owner of the property. The ownership remains with the seller. It will be transferred to the buyer only on the execution of the sale deed by the seller. The buyer obtains only right to get sale deed executed in his favour.

18. Admittedly, the applicant is neither the seller nor the buyer of the property in dispute. Co-accused, Narendra Kumar Singh, is the intended purchaser of the property and the applicant is only alleged to be the witness to the agreement to sell allegedly executed by mother of opposite party no.2 in favour of co-accused, Narendra Kumar Singh. A witness of an agreement to sell only testifies to due execution of the document before him by the seller and buyer. This Court further finds that the attesting witness of an agreement to sell or any other document cannot be criminally prosecuted unless there is allegation of conspiracy under Section 120-B IPC. The witness is not necessarily required to know what is contained in the document. He stands witness to due execution of the document before him. In the present case, the applicant claims that only his name has been mentioned in block letters as attesting witness in the disputed agreement to sell. He has not signed the same. He had no interest in the property nor he is in possession over the same. It is the co-accused, who is in possession over the property in dispute and not the applicant. The applicant could have been held liable for the alleged offence only if it was found that he had some interest in the property in disptue and he attested the agreement to sell only to protect his interest. It is not the case here.

19. Hence it is clear that no criminal liability can be attributed to the applicant for allegedly attesting an unregistered agreement to sell allegedly executed by mother of opposite party no.2 in favour of co-accused, Narendra Kumar Singh. The second question framed above is answered accordingly.

20. The Apex Court in the case of Bhajan Lal Vs. State of Haryana (Supra), has clearly laid down the para meters where the proceedings against an accused can be quashed and this case comes within the same.

21. This Court concludes that further investigation conducted against applicant is on the basis of statement of co-accused, Narendra Kumar Singh and submission of supplementary charge-sheet on its basis were in accordance with law, but no offence is made out against the applicant from the allegations of fact on record and the relevant law of execution of agreement to sell. Hence supplementary charge-sheet dated 28.8.2016 and summoning order dated 28.9.2016 are hereby quashed.

22. The application is allowed.

Order Date :- 14.6.2023

Ruchi Agrahari