[Cites 10, Cited by 0]
Madhya Pradesh High Court
Vinay Mishra vs The State Of Madhya Pradesh on 9 February, 2026
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 9 th OF FEBRUARY, 2026
MISC. CRIMINAL CASE No. 42638 of 2025
VINAY MISHRA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sameer Kumar Shrivastava - Advocate for the petitioner [P-1].
Shri Brijesh Kumar Tyagi - Public Prosecutor for the respondent No.1/State.
Shri Brijendra Singh Gour - Advocate for the respondent [R-2].
ORDER
The present petition under Section 528 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 assails the legality, propriety and correctness of the order dated
30.05.2025 passed in Sessions Trial No. 96/2023 by the learned IIIrd Additional
Sessions Judge, District Bhind, whereby an application purportedly under Section
173(8) of the Code of Criminal Procedure, 1973/193 of BNS has been allowed and
certain additional documents have been directed to be taken on record.
2. The facts, in brief, are that respondent No. 2, who is the father-in-law of
the petitioner, lodged a written complaint on 25.11.2019 alleging that the
petitioner had secured a Government job by committing forgery and by using
fabricated documents. On the basis of the said complaint, FIR No. 309/2020 was
registered at Police Station Umari on 05.09.2020 for offences punishable under
Sections 420, 465, 467, 468 and 471 of the Indian Penal Code. The investigating
agency conducted investigation for nearly two years and ultimately filed a charge-
sheet before the competent Court on 10.06.2022. The final report did not disclose
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that any further investigation was pending. After filing of the charge-sheet,
respondent No. 2 moved an application through the Public Prosecutor seeking to
place certain documents on record. The learned trial Court dismissed the said
application vide order dated 14.03.2023. Aggrieved thereby, respondent No. 2
approached this Hon'ble Court by filing a petition under Section 482 of the Code
of Criminal Procedure. The said petition was disposed of on 12.05.2023 with a
direction to the trial Court to reconsider the application. In compliance of the said
direction, the learned trial Court reconsidered the matter and again dismissed the
application on 18.01.2024. Thereafter, yet another similar application was filed on
08.04.2024 seeking identical relief, which was dismissed as withdrawn on
22.04.2024. Despite repeated dismissals, respondent No. 2 once again filed a
similar application suppressing the material fact that earlier applications seeking
the same relief had already been rejected. The petitioner filed a detailed reply
opposing the same and specifically pointed out the earlier orders. However, the
learned trial Court, without properly appreciating the factual background and the
settled principles governing criminal procedure, allowed the application vide the
impugned order dated 30.05.2025 and directed that the documents be taken on
record.
3. Learned counsel for the petitioner submits that the conduct of respondent
No. 2 in repeatedly filing identical applications amounts to an abuse of the process
of Court. From the order sheets, it is evident that the learned trial Court had
consistently rejected similar attempts. Entertaining and allowing a subsequent
application seeking the very same relief amounts to reviewing earlier judicial
orders, which is impermissible in criminal proceedings in the absence of any
statutory provision enabling such review.
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4. It is further submitted that the role of a complainant in a sessions trial has
been clearly delineated by the Hon'ble Supreme Court in Rekha Murarka v. State
of West Bengal and another, reported in (2020) 2 SCC 474. The Apex Court has
held that the prosecution of a sessions case is to be conducted by the Public
Prosecutor and the complainant cannot assume the role of the Public Prosecutor.
The complainant is only entitled to assist the Public Prosecutor and cannot
independently control the conduct of the prosecution. In the present case, the
record reflects that the learned Public Prosecutor had categorically stated before
the trial Court that he did not have any such documents and was therefore unable
to produce them. On that basis, the application was dismissed. Subsequently, the
same documents were sought to be introduced at the instance of respondent No. 2,
and the Public Prosecutor appears to have acted merely on his instructions. At one
stage, even the Public Prosecutor withdrew the application, as recorded in the
order sheet. This clearly demonstrates that the initiative for filing the application
did not emanate from the investigating agency but from the private complainant.
5. It is also contended that after filing of the charge-sheet on 10.06.2022,
there was no indication that further investigation was pending. All of a sudden, on
10.03.2025, an application under Section 173(8) of the Code of Criminal
Procedure was filed without disclosing any fresh material necessitating further
investigation. The application does not reflect that the investigating agency had
independently examined the genuineness, relevance or admissibility of the
documents sought to be produced. Rather, it appears that the documents were
sought to be brought on record solely at the behest of respondent No. 2. The
learned trial Court failed to examine whether the statutory requirements for further
investigation were satisfied and mechanically allowed the application. It is a
settled principle of criminal jurisprudence that once a Court has passed a judicial
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order, it becomes functus officio in respect of that matter, except as provided
under law. The Code does not confer any power of review upon a criminal court in
respect of its own orders, save in limited circumstances expressly provided. By
allowing a similar application after having earlier rejected identical applications,
the learned trial Court has in effect reviewed its previous orders, which is not
permissible.
6. It has also been urged that respondent No. 2 is embroiled in a
matrimonial dispute with the petitioner and that the criminal proceedings are being
misused as a pressure tactic. The repeated filing of applications seeking identical
relief, despite earlier dismissals, reflects mala fide intent and amounts to
harassment. Moreover, respondent No. 2, being a private individual, had no locus
to invoke Section 173(8) of the Code of Criminal Procedure through the police
after the conclusion of investigation and filing of the charge-sheet. The power to
conduct further investigation is vested in the investigating agency and must be
exercised in accordance with law on the basis of fresh material, and not at the
instance of a private complainant. The learned trial Court failed to consider this
jurisdictional aspect while passing the impugned order.
7. Per contra, learned counsel for the State submits that the present petition
has been filed suppressing material facts. It is contended that after the application
was allowed on 30.05.2025, prosecution witnesses have been examined and the
documents in question were exhibited on 02.09.2025. The present petition has
been filed on 15.09.2025, after the documents have already been exhibited, and in
the statement of respondent No. 2 it is mentioned that all the documents have been
duly exhibited. Thus, it is prayed that present petition be dismissed.
8. Learned counsel for the respondent No.2 vehemently opposed the
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petition and prayed for its rejeciton.
9. In response, learned counsel for the petitioner submits that this Hon'ble
Court has already stayed the operation of the impugned order dated 30.05.2025
vide order dated 07.10.2025. It is reiterated that the impugned order has been
passed without jurisdiction. There is no provision under the Code permitting the
Court to directly take additional documents on record in the absence of a
supplementary charge-sheet. In the present case, no supplementary charge-sheet
has been filed and the application was allowed directly for taking additional
documents on record. It is further submitted that the cross-examination of
respondent No. 2 is still pending and serious prejudice would be caused to the
petitioner if such documents are permitted to remain on record in violation of the
statutory scheme. In view of the aforesaid facts and circumstances, it is submitted
that the impugned order dated 30.05.2025 passed by the learned IIIrd Additional
Sessions Judge, District Bhind, suffers from patent illegality, jurisdictional error
and material irregularity, and is therefore liable to be set aside in the interest of
justice.
10. Heard learend counsel for the parties and perused the record.
11. The principal grievance of the petitioner is that repeated applications
had earlier been rejected and that allowing a subsequent application amounts to
impermissible review of earlier judicial orders. This submission, though attractive
at first blush, does not withstand deeper scrutiny. A criminal court undoubtedly
lacks power of review in the absence of express statutory provision. However, the
impugned order does not amount to a review of a concluded judicial determination
on merits. The earlier orders were passed in a factual context where the Public
Prosecutor had expressed inability to produce the documents. The subsequent
application, however, was moved in the backdrop of the investigating agency
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seeking to bring additional material on record. The source and foundation of the
request thus stand materially altered. When the investigating agency invokes its
statutory authority for further investigation, the Court is required to examine
whether such exercise is bona fide and germane to the issues in trial. Entertaining
such a request does not ipso facto amount to reviewing a prior order; rather, it
constitutes consideration of a fresh cause arising from subsequent developments.
12. The contention that the complainant had no locus to invoke Section
173(8) Cr.P.C. is also misconceived. It is correct that the power of further
investigation vests in the investigating agency and not in a private complainant,
however, there is no legal bar preventing a complainant from bringing relevant
material to the notice of the investigating agency or the Public Prosecutor. The
decisive question is not at whose instance the material surfaced, but whether the
investigating agency has, upon due application of mind, chosen to act in exercise
of its statutory power. The record does not demonstrate that the trial Court
directed the documents to be taken on record independently of the prosecution,
rather, the order reflects judicial satisfaction that the documents were relevant for
proper adjudication. The mere fact that respondent No. 2 may have been
instrumental in supplying the documents does not render the statutory exercise
invalid.
13. The reliance placed by learned counsel for the petitioner upon the
decision of the Hon'ble Supreme Court in Rekha Murarka (supra) , is
distinguishable on facts and in principle. In Rekha Murarka, the Apex Court
delineated the limited role of a complainant in a sessions trial and clarified that the
conduct of prosecution must remain in the hands of the Public Prosecutor. The
judgment was concerned with the extent to which a complainant's counsel may
participate in trial proceedings and whether such participation could transgress
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into assuming control over prosecution. In the present case, the impugned order
does not confer any independent right upon respondent No. 2 to conduct the
prosecution or to examine witnesses. The prosecution continues to be conducted
by the Public Prosecutor. The acceptance of additional material pursuant to further
investigation does not amount to permitting the complainant to usurp the role of
the Public Prosecutor, therefore, the ratio of Rekha Murarka does not advance the
petitioner's case.
14. On the contrary, the settled position of law as expounded by the
Hon'ble Supreme Court in Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762, and
Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347, recognizes the
wide amplitude of the power of further investigation under Section 173(8) Cr.P.C.
It has been consistently held that further investigation can be undertaken even after
the Court has taken cognizance, and that the primary consideration is advancement
of justice and discovery of truth. The Courts have cautioned against adopting a
hyper-technical approach which may impede a fair trial. When tested on this
touchstone, the impugned order cannot be characterized as suffering from
jurisdictional infirmity.
15. The submission that no supplementary charge-sheet was filed also does
not, in the facts of the present case, vitiate the proceedings. The essence of further
investigation lies in collection and placement of additional material before the
Court. Whether such material is formally styled as a "supplementary charge-sheet"
or produced through an application is a matter of procedural form. Unless
prejudice of a grave and irreversible nature is demonstrated, procedural
irregularity by itself would not justify interference under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023. The petitioner has failed to establish
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that he has been deprived of the opportunity to cross-examine the witnesses or to
contest the admissibility and evidentiary value of the documents in accordance
with law. The mere apprehension of prejudice is insufficient.
16. It is also pertinent that, as pointed out by learned counsel for the State,
prosecution witnesses have already been examined and the documents in question
have been exhibited. Though this Court had granted interim stay at a later stage,
the fact remains that the trial has progressed. Interference at this stage, in exercise
of revisional or inherent jurisdiction, is warranted only where there is manifest
illegality or gross miscarriage of justice. No such exceptional circumstance is
made out.
17. In view of the foregoing discussion, this Court is of the considered
opinion that the impugned order dated 30.05.2025 does not suffer from patent
illegality, lack of jurisdiction, or material irregularity warranting interference
under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The learned
trial Court has exercised a discretion vested in it by law to receive additional
material for the just decision of the case. The judgment relied upon by the
petitioner is distinguishable and does not apply to the factual matrix herein.
18. Consequently, the petition fails and is dismissed. Interim orders, if any,
stand vacated.
19. The trial Court shall proceed with the matter expeditiously in
accordance with law, uninfluenced by any observations made herein, which are
confined solely to adjudication of the present petition.
(MILIND RAMESH PHADKE)
JUDGE
ojha
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