Allahabad High Court
Hitesh @ Mohit, Thru. His Father ... vs State Of U.P. Thru. Its Secy. Home Deptt. ... on 7 February, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:8067
Court No. - 12
Case :- APPLICATION U/S 528 BNSS No. - 68 of 2025
Applicant :- Hitesh @ Mohit, Thru. His Father Gayaprasad
Opposite Party :- State Of U.P. Thru. Its Secy. Home Deptt. Lko. And Another
Counsel for Applicant :- Sukh Deo Singh,Paritosh Shukla
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Lavania,J.
1. Heard learned counsel for the applicant, Sri Ajay Kumar Srivastava, learned AGA for the State of U.P. and perused the record.
2. By means of this application, the applicant has prayed for the following main relief(s):-
"Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash and set aside the impugned order dated 05/12/2024 passed in Sessions Trial No. 1203/2024, "State. Vs. Sushma Devi & 2 Ors.", by Learned Sessions Judge, Sultanpur, in FIR No. 331/2024, under sections 80(2), 52, 352, 351 (2) BNS and 3/4 Dowry Prohibition Act, P.S. Kotwali Dehat, District Sultanpur, in the interest of justice, as contained in Annexure-1 to this Petition.
Further, the Petitioner prays for a suitable order or direction to investigating agency/appropriate authority for conducting further investigation with respect to FIR No. 331/2024, under sections 80(2), 52, 352, 351 (2) BNS and 3/4 Dowry Prohibition Act, P.S. Kotwali Dehat, District Sultanpur, in light of application no. 6Kha dated 02/12/2024 (Annexure-2) moved by the Petitioner.
In alternate, it is most respectfully prayed that this Hon'ble court may kindly be pleased to direct Learned Sessions Judge, Sultanpur to reconsider the application no. 6Kha dated 02/12/2024 (Annexure-2) moved by the Petitioner seeking further investigation in FIR No. 331/2024, P.S. Kotwali Dehat, District Sultanpur, and further be pleased to stay the proceeding in Sessions Trial No. 1203/2024, 'State Vs Sushma Devi and 2 Others', during the pendency of this Petition before this Hon'ble Court in the interest of justice."
3. The accused-applicant has approached the Sessions Judge, Sultanpur (in short "trial court") by preferring an application under Section 193(9) Bharatiya Nagrik Suraksha Sanhita, 2023 (in short "B.N.S.S.") for the purposes of further investigation in Sessions Trial No. 1203 of 2024 (State vs.Sushma Devi and 2 Others) arising out of FIR No. 331/2024, under Sections 80(2), 52, 352, 351 (2)Bharatiya Nyaya Sanhita, 2023 (in short "B.N.S.") and Section 3/4 Dowry Prohibition Act, P.S. Kotwali Dehat, District Sultanpur.
4. The trial court vide order dated 05.12.2024, impugned herein, has rejected the said application. The relevant portion of the order dated 05.12.2024 is extracted hereunder:-
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???? ?? ???? ?? ??? ?? ???? ??? ????? ?????????? ?? ???????? ?? ???????? ?? ?????????? ?? ?????? ?? ?? ????? ???? ?? ????, ???? ??? ???????? ?? ???? ?? ???? ?? ??? ????? ?? ?????? ?? ??? ????? ???? ?? ???? ?? ??? ????????? ???? ???? ?? ????????? ??? ???? ?? ???? ?? ??? ????????? ???? ???? ?? ???? ????????? ??, ? ?? ???? ?? ???? ????? ?? ????? ??? ???? ??? ???? ?????? ?? ??? ????? ?? ???????? ?????? ?? ?????? ????? ?? ?????? ????? ???? ??, ????? ?????? ?? ??? ????? ?? ???????? ?? ??? ????????? ??? ?? ?? ?? ??? ??? ??? ????? ?? ????????? ???? ??? ??, ?? ??? ?? ???? ????? ?? ?????? ?? ??? ?? ???? ????????? ?? ?????? ????? ?? ?? ???????? ?? ??? ???? ?? ??, ????? ???? ?? ??? ?????? ?? ???? ??????? ????? ?? ??????? ???? ???? ? ???? ??? ?????????? ???? ??? ????? ???? ???? ?? ?????? ??????? ?? ???? ???? ???? ????????? ???? ??? ?? ???? ???
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5. Learned AGA opposed the instant application. He says that the order impugned dated 05.12.2024 is just and proper for the reason that the accused-applicant has no right for further investigation. He further says that CCTV Footage is available with the accused-applicant and the same can be placed on record as defence evidence, as law permits in this regard. He also says that the accused-applicant has no right to get done further investigation in the matter.
6. Learned AGA further says that it is the case in which deceased expired within seven years of marriage and her cause of death is asphyxia due to ante-mortem hanging and the post-mortem report indicates two injuries i.e. (1) Contusion 3x2 cm over Rt. Eye lid with Bluish Black colour cleated blood present Rt. Eye, Lt. Eye congested; and (2) Ligature mark of 21x3 cm above Hyoid & below with gap of 17cm Oblique Placed with Rt. Ear and Lt. Ear 5 cm., as such, the matter would be established before the trial court by the prosecution to the effect that the deceased, as stated by the applicant's counsel, committed suicide or not on account of not having any issue.
7. Considered the aforesaid and perused the record.
8. In order to decide the issue involved in this case, this Court is of the view that the expression "investigation", which is defined in Section 2(1)(j) of B.N.S.S. is required to be taken note of, which reads as under:-
"investigation" includes all the proceedings under this Sanhita for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;"
9. Regarding expression "investigation", it would be appropriate to refer para(s) 53 to 55 of the judgment passed in the case of Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 SCC OnLine SC 569, which are extracted hereinunder:-
"53. The CodevideChapter XII, ranging from Section 154 to Section 176, deals with information to the Police and their power to investigate. Section 154 deals with the information relating to the commission of a cognizable offence and fiats the procedure to be adopted whenprima faciecommission of a cognizable offence is made out. Section 156 authorises a police officer in-charge of a Police station to investigate any cognizable offence without the order of a Magistrate. Sub-section (3) of Section 156 provides for any Magistrate empowered under Section 190 to order an investigation as mentioned in Section 156(1). In cases where a cognizable offence is suspected to have been committed, the officer in-charge of the Police station, after sending a report to the Magistrate empowered to take cognizance of such offence, is entitled under Section 157 to investigate the facts and circumstances of the case and also to take steps for discovery and arrest of the offender. Clauses (a) and (b) of the proviso to sub-section (1) to Section 157 give discretion to the officer in-charge not to investigate a case, when information of such offence is given against any person by name and the case is not of serious nature; or when it appears to the officer in-charge of the Police station that there is no sufficient ground for entering the investigation. In each of the cases mentioned in clauses (a) and (b) to the proviso to sub-section (1) to Section 157, the officer in-charge of the Police station has to file a report giving reasons for not complying with the requirements of sub-section (1) and in a case covered by clause (b) to the proviso, also notify the informant that he will not investigate the case or cause it to be investigated. Section 159 gives power to a Magistrate, on receiving such report of the officer in-charge, to either direct an investigation or if he thinks fit, proceed to hold a preliminary inquiry himself or through a Magistrate subordinate to him, or otherwise dispose of the case in the manner provided by the Code.
54.Sections 160 to 164 deal with the power of the Police to require attendance of witnesses, examination of witnesses, use of such statements in evidence, inducement for recording statement and recording of statements. Section 165 deals with the power of a Police officer to conduct search during investigation in the circumstances mentioned therein.
55. The power under the Code to investigate generally consists of following steps : (a) proceeding to the spot; (b) ascertainment of facts and circumstances of the case; (c) discovery and arrest of the suspected offender; (d) collection of evidence relating to commission of offence, which may consist of examination of various persons, including the person accused, and reduction of the statement into writing if the officer thinks fit; (e) the search of places of seizure of things considered necessary for investigation and to be produced for trial; and (f) formation of opinion as to whether on the material collected there is a case to place the accused before the Magistrate for trial and if so, taking the necessary steps by filing a chargesheet under Section 173."
10. Upon due consideration of the facts of the instant case, indicated above, as also the observations made by the Hon'ble Apex Court in the case, referred above, this Court finds that in the instant case, "further investigation" by the police is not required and the order impugned dated 05.12.2024 passed by the trial court is justified. It is for the following reasons:-
(i) The reasons of committing suicide by the deceased, which are well within the knowledge of the applicant, can be proved by adducing appropriate evidence.
(ii) The plea of 'Alibi' is the plea of defence and the same can be proved/established by the defence by placing appropriate evidence at appropriate stage of trial. (See: Binay Kumar Singhv.State of Bihar[(1997) 1 SCC 283]; Rajendra Singhv.State of U.P.,(2007) 7 SCC 378 and Shaikh Sattarv.State of Maharashtra[(2010) 8 SCC 430] and Strict proof is required for establishing the plea of 'Alibi'. [vide: Dudh Nath Pandey v. State of U.P. (1981) 2 SCC 166 : 1981 SCC (Cri) 379; State of Maharashtra v. Narsingrao Gangaram Pimple (1984) 1 SCC 446 : 1984 SCC (Cri) 109 : AIR 1984 SC 63].
(iii) The accused has no right with regard to "further investigation". (See: Mithabhai Pashabhai Patel v. State of Gujarat, MANU/SC/0858/2009 : 2009:INSC:711 : (2009) 6 SCC 332; Vinay Tyagi versus Irshad Ali., MANU/SC/1101/2012 : 2012:INSC:587 : (2013) 5 SCC 762; Central Bureau of Investigation Versus Hemendhra Reddy & Another. Etc., MANU/SC/0486/2023; Preeti Singh v. State of U.P., 2023 SCC OnLine All 1410; Romila Thapar vs. Union of India, (2018) 10 SCC 75 and State vs. Hemendhra Reddy, 2023 SCC OnLine SC 515).
10. For the reasons aforesaid, this Court finds no force in the present application. It is accordingly dismissed.
Order Date :- 7.2.2025
Arun/-
