Gurdeep Singh And Others ... ... vs State Of Uttarakhand And Another
2023 Latest Caselaw 2148 UK

      HIGH COURT OF UTTARAKHAND
             AT NAINITAL
            C482 Application No. 1163 of 2023

Gurdeep Singh and others                                ... Applicants
                             Vs.
State of Uttarakhand and Another                        ... Respondents


Advocate:    Ms. Anmol Sandhu, Advocate for the applicants
             Mr. Atul Kumar Shah, Deputy Advocate General, for the State.


Hon'ble Sharad Kumar Sharma, J.

Primarily, in the instant C482 Application. The challenge has been given is to the proceedings of Criminal Case No. 2313 of 2023, State Vs. Gurdeep Singh and others, as the same is pending consideration before the Court of Chief Judicial Magistrate, Dehradun.

2. Initially, a Chargesheet No. 2 dated 26.02.2021 was submitted for the offences under Sections 147, 323, 504 & 506 of IPC. It was later on because of the submission of the supplementary Chargesheet that offence under Section 149 of IPC was introduced by the Investigating Officer. As a result thereof, the summoning order has been issued by the Court of Additional Chief Judicial Magistrate, Dehradun, in Criminal Case No. 2313 of 2023, State Vs. Gurdeep Singh and others, trying the present applicants for the offences under Sections 147, 149, 323, 504 & 506 of IPC.

3. There has been a whole set of litigation pertaining to the rival members of the society with regard to the society as it has been registered in the name of "Gurdwara Sri Guru Singh Sabha", but their respective claims arising out of the election, since not being the subject matter in the

instant C482 Application, this Court is not dealing with the impact of earlier litigations by way of Writ Petition and the Special Appeal, preferred inter se between the parties.

4. The learned counsel for the applicants had attempted to draw a fine distinction from the perspective that after the submission of the principal Chargesheet dated 26.02.2021, the Investigating Officer, on his own wisdom, could not have conducted further investigation and later on could have submitted the supplementary Chargesheet on 19.07.2022, thereby introducing an offence triable under Section 149 of IPC, and on that pretext, it is contended by the learned counsel for the applicants that the entire proceedings of the Criminal Case No. 2313 of 2023, State Vs. Gurdeep Singh and others, would stand vitiated.

5. Yesterday, when the matter was taken up, the learned counsel for the applicants had argued, that in the light of the provisions contained under sub-Section (3) of Section 173 of CrPC, which according to him was the exclusive provision for the purposes of conducting a further investigation by the Investigating Officer, "a prior permission from the Magistrate is required". But, on the simpliciter reading of the aforesaid provision of sub Section (8) of Section 173 of CrPC, which is extracted hereunder, in fact, it doesn't, at any stage, contemplate that for the purposes of further investigation, a prior permission from the Magistrate concerned is required.

"Section 173 (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).

6. The learned counsel for the applicants has submitted that addition of an offence under Section 149 of CrPC by virtue of the supplementary Chargesheet, would be bad in the light of the judgment relied on by her, as reported in 2023 (2) Crime SC 378, Pitambaram Vs. State of Kerala and others. The learned counsel for the applicants, in the context of the provisions contained under sub- Section (8) of Section 173 of CrPC, has particularly referred to the contents of para 17 of the said judgment, which is extracted hereunder:-

"17. The above two cases make it amply clear that a magistrate has the power to order further investigation and the cases referred to earlier make clear that fresh investigation/ reinvestigation/ de novo investigation fall into the purview of the jurisdiction of a higher court."

7. But, in its literal connotation, it deals with the powers of the Magistrate to order further investigation which is not barred to be conducted by the Magistrate, but here the question would be as to whether further investigation could at all be conducted by the Investigating Officer himself, on his own in the absence of there being any prior permission being taken from the Magistrate concerned, as it has been argued by the learned counsel for the applicants in the context of the provisions contained under Section 173(8) of CrPC, this judgment of the Hon'ble Apex Court in the case of Pitambaram (supra), as relied by the learned counsel for the applicants, particularly in the context of para 17, as extracted above, doesn't directly deal with the said question

"about the necessity of a prior permission from the Magistrate" for conducting further investigation.

8. Rather, to the contrary, there are catena of judgments which have been rendered by the Hon'ble Apex Court which deal with the issue otherwise, that for the purposes of further investigation by the Investigating Officer, no prior permission is required under Section 173(8) of CrPC. The said aspect was considered by the Hon'ble Apex Court in the judgment as reported in 2008 (2) SCC 383, State of Andhra Pradesh Vs. A.S. Peter, where the Hon'ble Apex Court, particularly in para 9, has dealt with the issue which is extracted hereunder, wherein it has drawn a distinction, that where it is a further investigation which is if at all required in a case, since law does not contemplate a prior permission, the same could still be conducted by the Investigating Officer. But it is only at the stage when reinvestigation is required, the Hon'ble Apex Court has observed, that a prior permission would be necessarily required from the Magistrate concerned.

"9. Indisputably, the law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out of a further investigation even after filing of the chargesheet is a statutory right of the police. A distinction also exists between further investigation and re- investigation. Whereas re-investigation without prior permission is necessarily forbidden, further investigation is not."

9. It has been further observed that as per the mandate contained under Section 173(8) of CrPC, the language of the statute itself doesn't at all mandate that for further investigation, by the Investigating Officer, any prior

permission is required to be taken by the Investigating Officer.

10. The Kerala High Court, had an occasion to deal with the almost similar issue in Criminal Revision Petition No. 536 of 2020, The Vigilance and Anti Corruption Bureau Vs. K. Sasikala and others, where almost a similar argument was extended about the implications of Section 173(8) of CrPC, and based in the light of the judgment rendered by it on the basis of the various judgments rendered by the Hon'ble Apex Court, which have been elaborately dealt with in various paragraphs of the said judgment, which, for the purposes of brevity are not being extracted hereunder, the Court had answered the question particularly in its para 31 and that has been specifically in the context of the judgment of the Hon'ble Apex Court as dealt with by the Hon'ble Apex Court in the matters of A.S. Peter (supra), as referred to hereinabove. The Kerala High Court, ultimately, in para 31, has come to a conclusion that it is not mandatory for the Investigating Officer to seek and obtain a prior permission from the Court for conducting a further investigation under Section 173(8) of CrPC. The relevant para 31 is extracted hereunder:-

"31. The discussion above leads to the conclusion that it is not mandatory for the investigating officer to seek and obtain permission of the court for conducting further investigation under Section 173(8) of the Code. However, as an accepted legal practice, it is always desirable that the investigating officer shall inform the court with regard to the further investigation proposed to be conducted and seek formal permission of the court in that regard. It is a well-accepted Crl.Rev.Pet.No.536 OF 2020 legal practice based on principles of courtesy and propriety."

11. The debated issue about a prior permission to be taken from the Magistrate with regard to conducting of the further investigation was an issue which was dealt with by the Hon'ble Apex Court in a judgment reported in 2019 SCC (17) 1 in the matters of Vinubhai Haribhai Malaviya and others Vs. State of Gujarat and Another, and the Hon'ble Apex Court, in the said judgment of para 29, while drawing its implication from the judgment rendered in 1979 (2) SCC 322, Ram Lal Narang Vs. State (Delhi Admn.) as well as that of judgment, as reported in AIR 1955 SC 196, H.N. Rishbud and another Vs. State of Delhi while extracting para 21 of the said judgment, the Hon'ble Apex Court has observed that there is no provision contained under the Code of Criminal Procedure which expressly or mandatorily requires an implication whereby barring a right of the Investigating Officer to take cognizance and conduct a further investigation. Neither Section 173 nor Section 190 of the CrPC, leads or holds specifically that the power of the Investigating Officer for conducting a further investigation only after exhausting his authority to take a prior permission from the Magistrate concerned. The relevant part of para 29 of Vinubhai Haribhai Malaviya (supra) is extracted hereunder:

"29 Ram Lal Narang v. State (Delhi Admn.).............

20. Anyone acquainted with the day-to-day working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that

agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of CrPC in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceeding before the court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light.

21. As observed by us earlier, there was no provision in CrPC, 1898 which, expressly or by necessary

implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation."

(emphasis supplied)

12. Ultimately, the conclusion which has been drawn by the Hon'ble Apex Court in the aforesaid judgment is that where the police desires to make further investigation, the police could express their regards and respect if needed to the Court by seeking its formal permission to make further investigation. But that expression of regard or giving a prior information to the Court doesn't entail a mandatorily taking a prior permission for conducting the further investigation by the Investigating Officer in the absence of the mandate being provided by the provisions contained under Section 173 of CrPC or under Section 190 of CrPC.

13. Almost a similar view was expressed by the Hon'ble Apex Court in a judgment rendered in 1998 (5) SCC 223, K. Chandrasekhar Vs. State of Kerala and others, which was decided along with other criminal Appeals, wherein the Hon'ble Apex Court in the said judgment in para 24 has dealt with as to what implication would sub Section (2) of Section 173 of CrPC would have with regards

to the further investigation under Section 173(8) of CrPC, but not a fresh investigation or reinvestigation. Para 24 of the said judgment is extracted hereunder:-

"24. From a plain reading of the above Section it is evident that even after submission of police report under Sub-section (2) on completion of investigation, the police has a right of 'further' investigation under Sub-section (8) but not 'fresh investigation' or 're-investigation'. That the Government of Kerala was also conscious of this position is evident from the fact that though initially it stated in the Explanatory Note of their notification dated June 27, 1996 (quoted earlier) that the consent was being withdrawn in public interest to order a 're- investigation' of the case by a special team of State police officers, in the amendatory notification (quoted earlier) it made it clear that they wanted a 'further investigation of the case' instead of 're-investigation of the case'. The dictionary meaning of further' (when used as an adjective) is 'additional'; more; 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. In drawing this conclusion we have also drawn inspiration from the fact that Sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a 'further' report or reports - and not fresh report or reports- regarding the 'further' evidence obtained during such investigation. Once it is accepted - and it has got to be accepted in view of the judgment in Kazi Lhendup Dorji, (supra) - that an Investigation undertaken by CBI pursuant to a consent granted under Section 6 of the Act is to be completed, notwithstanding withdrawal of the consent, and that 'further investigation' is a continuation of such investigation which culminates in a further police report under Sub-section (8) of Section 173, it necessarily means that withdrawal of consent in the instant case would not entitle the State Police, to further investigate into the case. To put it differently, if any further investigation is to be made it is the C.B.I, alone which can do so, for it was entrusted to investigate into the case by the State Government. Therefore, the notification issued withdrawing the consent to enable the State Police to further investigate into the case is patently invalid and unsustainable in law. In view of this finding of ours

we need not go into the questions, whether Section 21 of the General Clauses Act applies to the consent given under Section 6 of the Act and whether consent given for investigating into Crime No. 246/94 was redundant in view of the general consent earlier given by the State of Kerala."

14. The Court has observed that it's only at the stage when reinvestigation is required that a prior permission of the Magistrate concerned is required to be taken by the police officer which would be mandatory, but not for the purposes of conducting further investigation. And it is only exclusively by virtue of a regard, that a police officer 'may' inform the Court or the Magistrate concerned about conducting the further investigation, but that exception carved out in the judgment of K. Chandrasekhar (supra) it does not caste a mandatory duty on the investigating officer to take a prior permission or by the police official as it has been argued by the learned counsel for the applicants in the context of the provisions contained under Section 173 (8) of CrPC.

15. The Hon'ble Apex Court in a judgment as reported in 2009 (6) SCC 346, Rama Chaudhary Vs. State of Bihar, was yet again dealing with the similar aspect of further investigation and in its para 15 to 22 and particularly, the conclusion which has been arrived in at para 22 of the said judgment, which was yet again based upon the judgment of Hasanbhai Valibhai Qureshi Vs. State of Gujarat, as well as the earlier judgment of the Hon'ble Apex Court, in its para 22 on the basis of the judgment of K. Chandrasekhar (supra), and the Hon'ble Apex Court has laid down that it's not a mandate provided under the Code of Criminal Procedure that

even after filing of the chargesheet, it is a statutory duty of the police to take prior permission from the Magistrate concerned for conducting further investigation, and if any such Chargesheet is submitted being a supplementary Chargesheet without taking a prior permission, the same cannot be rejected only because of the fact that it is submitted at a later stage after filing of the chargesheet and the same has been submitted without a prior permission from the Magistrate concerned. Paragraph 16 and 22 are extracted hereunder:-

"16. 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.

17. 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.

18. 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.

19. As observed in Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. MANU/SC/0302/2004 : 2004CriLJ2018 , 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.

20. 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.

21. 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.

22. 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 v. State of Kerala and Ors. MANU/SC/0319/1998 : 1998CriLJ2897 . 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."

16. The Hon'ble Apex Court, in yet another judgment as reported in 2017 (4) SCC 177, Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel and Others, once again was dealing with a correlated

implications of sub Section (8) of Section 173 of CrPC with sub Section (3) of Section 156 of CrPC in a complaint case and the Hon'ble Apex Court in para 21 of the said judgment has observed that the officer in charge of a police station is categorically empowered to conduct a further investigation and lay a supplementary report before the Court for the purposes of assimilating the earlier evidence or the Chargesheet submitted by the Court concerned, and for the said purpose, to submit an extended chargesheet, the permission of the Magistrate concerned is not required, and ultimately, it has concluded that it is no more a res integra that a prior permission of the Magistrate is a condition precedent to conducting a further investigation by the Investigating Officer. Para 21 is extracted hereunder:-

"21. The integration of Sub-Section 8 is axiomatically subsequent to the 41st Report of the Law Commission Report of India conveying its recommendation that after the submission of a final report Under Section 173, a competent police officer, in the event of availability of evidence bearing on the guilt or innocence of the Accused ought to be permitted to examine the same and submit a further report to the Magistrate concerned. This assumes significance, having regard to the language consciously applied to design Section 173(8) in the 1973 Code. Noticeably, though the officer in-charge of a police station, in categorical terms, has been empowered thereby to conduct further investigation and to lay a supplementary report assimilating the evidence, oral or documentary, obtained in course of the said pursuit, no such authorization has been extended to the Magistrate as the Court is seisin of the proceedings. It is, however no longer res integra that a Magistrate, if exigent to do so, to espouse the cause of justice, can trigger further investigation even after a final report is submitted Under Section 173(8). Whether such a power is available suo motu or on the prayer made by the informant, in absence of request by the investigating agency after cognizance has been taken and the trial is in progress after the

Accused has appeared in response to the process issued is the issue seeking scrutiny herein."

17. In yet another judgment rendered by the Hon'ble High Court of Gujarat in the matters of Jashubhai Dhanabhai Barad vs State of Gujarat, which was though yet again based upon the same principle, as it has been dealt with by the Hon'ble Apex Court in the earlier judgments, has observed that for the purposes of further investigation it could be done but exclusively in order to maintain a judicial discipline and a judicial propriety, and thus, it would be proper not mandatory for the police official to approach the Magistrate concerned and seek his formal permission for the second or further investigation if at all required.

18. But, however, in the logic which has been derived from the judgment of the Hon'ble Apex Court, it has been observed that there is no illegality in case if the police official proceeds to conduct the investigation without a prior permission having being taken from the Magistrate concerned, and submission of the subsequent or supplementary Chargesheet would not vitiate the proceeding in itself. The relevant para which has been dealt with by the Hon'ble Gujarat High Court, in its para 8 is not being extracted herein because it is nothing but an extraction of the judgment of the Hon'ble Apex Court, as it has already been dealt with in the above paragraph.

19. This logic of there being no necessity to take a prior permission from the Magistrate concerned for the purposes of conducting further investigation is not required in the instant case, particularly, when the supplementary chargesheet, which has been submitted by the

Investigating Officer on 19.07.2022, has only introduced an offence under Section 149 of IPC which didn't had any direct adverse bearing on the trial of case, which could have effected its merits.

20. So far the facts of the instant case are concerned, particularly when the subsequent Chargesheet dated 19.07.2022 it only introduces an offence under Section 149 of IPC, the provisions contained under IPC, so far they relate to Section 149 of IPC, provide that it is not an independent offence in itself but it is rather a conjoint offence which has to be read in relation to the members who have made a wrongful assembly and who are likely to commit an offence under Section 149 of IPC.

21. The said aspect that since Section 149 of IPC in itself does not create a separate offence, but it only declares a vicarious liability of all the members of the unlawful assembly for the act done with a common object, was dealt by the Hon'ble Apex Court in a judgment as reported in AIR 2018 SC 2472, Vinubhai Ranchhodbhai Patel Vs. Rajivbhai Dudabhai Patel and others, and the Hon'ble Apex Court, while dealing with as to what the impact of introducing the offence under Section 149 of IPC would be, held that it will not create a separate offence in itself, but it is only for the purposes to declare a vicarious liability of the accused persons for their effect of unlawful assembly for the commission of principal offence and that individuality to the offence under Section 149 of IPC has not been provided under law and the said aspect was dealt with by the Hon'ble Apex Court in paragraph 13 and 14 of the said judgment, which are extracted hereunder:-

"13. The judgment in Sessions Case No. 118/1992 commences with an omnibus statement:

In this case against the present Accused, there are charges of offences Under Sections 302, 307, 324, 147, 148, 149, 120B of Indian Penal Code and Section 25(1)(aa) of the Arms Act and Section 135 of the Bombay Police Act, for these offences the charge sheet is filed. Later in the same paragraph it is stated:

Fifteen Accused in the case have remained present before the court, my learned predecessor has on 21/3/1994 below Exh. 1 on charges of offences punishable Under Sections 143, 147, 148, 302 read with 149, 120-b, 307 read with 147, 114, 120-b of the Indian Penal Code and against the Accused Nos. 7, 8 and 11 charges Under Section 27 of the Arms Act, and against all the Accused the offence punishable Under Section 25 of the Indian Telegraphs Act, and for carrying weapons the charges of violation of the Notification by the District Magistrate Amreli, for which against the Accused Nos. 2, 4, 9, 15, 10, 12, 13, 1, 3, 6, 7 and 8 the charges of offence punishable Under Section 135 of the Bombay Police Act, charges were pronounced against the Accused.

It appears from the above that no clear charges appear to have been framed. At any rate, no document is brought to our notice showing the charges framed by the Court in spite of repeated enquiry. It must be remembered that it is a case where three persons died and five persons were injured allegedly in an attack by all the Accused. Causing death to each one of the three persons or causing injury to each one of the five persons is a distinct offence. Similarly, an offence Under Section 307 is a distinct offence specific to a particular victim. The offences Under Sections 147 and 148 are distinct offences. Section 149 Indian Penal Code does not create a separate offence but only declares the vicarious liability of all the members of an unlawful assembly in certain circumstances.

14. It was held by a three-judge bench of this Court in Shambhu Nath Singh and Ors. v. State of Bihar: AIR 1960 SC 725:

Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object.

However, there are benches of a lesser smaller strength2 which have observed that Section 149 creates a specific and distinct offence. In view of the fact that decision in Shambu Nath Singh was decided by a larger bench, the law declared therein must be taken to be declaring the correct legal position. With utmost respect, we may also add that the same is in accord with the settled principles

of the interpretation of the statutes having regard to the language of Section 149 and its context."

22. A very peculiar argument which has been extended by the learned counsel for the applicant, particularly in the context of the judgment which was relied upon by her being subsequent in time, was that the subsequent judgment will have a prevailing effect over the earlier judgment and hence this Court should consider the implications of para 17 of the judgment of Pritambaram (supra) relied upon by the learned counsel for the applicants. This limb of argument of the learned counsel for the applicants is not acceptable by this Court for the reason being that the judgments as reported in AIR 1987 Patna (Full Bench) 191, Amar Singh Yadav and another Vs. Shanti Devi and others, and AIR 1981 Punjab and Haryana 213 Full Bench, M/s Indo Swiss Time Limited, Dundahera Vs. Umrao and others, have laid down the principles that it is not an earlier or a later judgment which will have a prevailing effect but rather it will always be a better judgment which will have a prevailing effect. Para 16 of the judgment Amar Singh Yadav (supra) is extracted hereunder:-

"16. Now the contention strongly urged on behalf of the respondents that the earlier judgment of a co-ordinate Bench is to be mechanically followed and must have preeminence, irrespective of any other consideration, because the latter one has missed notice thereof, does not commend itself to me. When judgments of the superior Courts are of co-equal Benches, and, therefore, a matching authority, then their weight inevitably must be considered by the rational and the logic thereof and not by the mere fortuitous circumstance of the time and date on which they were rendered. Equally, the fact that the subsequent judgment failed to take notice of the earlier one or any presumption that a deviation therefrom could not be intended, cannot possibly be conclusive. Vital

issues, pertaining to the vital questions of the certainty and uniformity of the law, cannot be scuttled by such legal sophistry. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority exist, then both of them cannot be binding on the Courts below. A choice, however difficult it may be, has to be made in such a situation and the date cannot be the guide. However, on principle, it appears to me, that the High Court must in this context follow the judgment, which would appear to lay down the law more elaborately and accurately. The mere incidence of time, whether the judgments of co-equal Benches of the superior Court are earlier or later, and whether the later one missed consideration of the earlier, are matters which appear to me as hardly relevant, and, in any case, not conclusive."

Para 23 of M/s Indo Swiss Time Limited (supra) reads as under:-

"23. Now the contention that the latest judgment of a co-ordinate Bench is to be mechanically followed and must have pre-eminence irrespective of any other consideration does not commend itself to me. When judgments of the superior court are of co-equal benches and therefore of matching authority then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority are extent than both of them cannot be binding on the courts below. Inevitably a choice though a difficult one has to be made in such a situation. On principles of it appears to me that the high Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments of co-equal Benches of the Superior Court are earlier or later is a consideration which appears to me as hardly relevant."

23. In that eventuality, the subsequent judgment, as relied upon by the learned counsel for the applicants as rendered in 2023, will have no impact, particularly when the said judgment has not considered the implications of the earlier judgments of the Hon'ble Apex Court, taking a different view altogether with regard to the effect of sub Section (8) of Section 173 and its mandatory requirement for taking a prior permission from the Magistrate concerned for conducting a further investigation.

24. Ultimately, upon the conclusion of the judgment, the learned counsel for the applicants submits that since, as a consequence of the submission of the Chargesheet on 26.02.2021 and the supplementary Chargesheet on 19.07.2022, the issuance of summoning order by Court of Chief Judicial Magistrate, Dehradun, who has taken cognizance by a summoning order dated 27.03.2023 has been made, which relates to the offences under Sections 147, 149, 323, 504 & 506 of IPC, and since they all relate to the offences, which carry a sentence of less than 7 years, she may be granted the benefit of the judgment as rendered by the Hon'ble Apex Court in the matters of Satender Kumar Antil Vs. Central Bureau of Investigation and Another, as reported in 2022 (10) SCC 51.

25. In that eventuality, while dismissing this C482 Application, it will not cloud the right of the applicants to resort to their remedies provided by the aforesaid judgment of Satender Kumar Antil (supra) by resorting to the proceedings as provided under para 3(e) of the said

judgment which deals with as to how the offences falling under 'A' category.

26. Subject to the aforesaid, the C482 Application is dismissed.

(Sharad Kumar Sharma, J.) 09.08.2023 Mahinder/