Allahabad High Court
Shiv Prakash Saraswat vs State Of U.P. And 7 Others on 27 March, 2023
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?RESERVED In Chamber Case :- CRIMINAL MISC. WRIT PETITION No. - 1161 of 2023 Petitioner :- Shiv Prakash Saraswat Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Mayank,Amit Daga Counsel for Respondent :- G.A.,Arun Kumar Srivastava,Kalyan Sundram Srivastava Hon'ble Anjani Kumar Mishra,J.
Hon'ble Gajendra Kumar,J.
Heard Shri Amit Daga, learned counsel for the petitioner, Shri Arun Kumar Srivastava, learned counsel for the opposite party and learned A.G.A. for the State.
No time has been granted for filing a counter affidavit because the controversy that is being raised is a purely legal controversy.
The instant writ petition has been filed seeking a writ of certiorari for quashing the orders dated 15.12.2022 and 31.12.2022 passed by the respondent no.4, the order dated 09.12.2022 passed by the respondent no.3 as well as the order dated 26.12.2022 passed by the respondent no.2.
The contention of learned counsel for the petitioner is that he lodged an FIR on 24.04.2022 against respondents 7 and 8 for having assaulted him as he was doing pairvi on behalf of his son in a matrimonial dispute, which is wife, the sister of the respondents 7 and 8. The said FIR dated 24.04.2022, gave rise to Case Crime No.440 of 2022, under Sections 323, 504, 506, 308 I.P.C., P.S. Highway, District Mathura.
The police after investigation added Section 308 I.P.C. in the FIR on the basis of the medical reports made available subsequently.
On 20.07.2022, a charge-sheet was filed against two accused under Sections 323, 504, 506, 308 I.P.C.
The Magistrate, on 17.08.2022 took cognizance and issued summons to the respondents. Subsequently, when they failed to appear, bailable warrants were issued against them on 19.09.2022.
It is also submitted that a Criminal Misc. Application U/s 482 No. 35396 of 2022 filed for quashing of the charge-sheet was dismissed vide order dated 03.12.2022.
One Anamika Saraswat, the sister of the respondents 7 and 8 and daughter in law of the petitioner, filed several applications before the police authorities and some inquiry report was obtained. The S.S.P., Agra taking cognizance of a letter of the I.G. on 15.12.2022 directed for further investigation under Section 173(8) Cr.P.C.
After the said order was passed another application was filed by Anamika Saraswat, the sister of the respondents 7 and 8 on 23.12.2022 before the Additional Director General of Police, Zone Agra and the Inspector General of Police seeking transfer of the investigation to some other district.
On this application, the second respondent, on 26.11.2022, directed further investigation with regards to the allegation contained in the application filed by Anamika Saraswat. In compliance of the orders on 31.12.20222, an order was passed, whereby the respondent no.6, Superintendent of Police, Crime Branch, District Mathura was appointed Investigating Officer. It is these orders, which are impugned in this writ petition.
The contention of learned counsel for the petitioner is that further investigation could not have been ordered once a charge-sheet had been filed, whereupon cognizance had already been taken. Any further investigation would be possible only under orders of the Magistrate, who was seized of the matter.
The second contention of learned counsel for the petitioner is that investigation or further investigation cannot be ordered at the instance of the accused in a case. Even if, for the sake of argument, it is taken that the applicant Anamika Saraswat is not an accused, she is definitely acting at the behest of her brothers, the accused and is therefore their proxy. Not only has the applicant, Anamika Saraswat no locus to file the application, the police authorities have committed patent illegality in entertaining her application and have passed orders, thereon, which will only delay the trial. Therefore, this writ petition. The orders impugned have also directed change in the investigation agency.
Learned counsel for the petitioner has also place reliance upon the decision of this Court in Criminal Misc. Writ Petition No.7952 of 2022, Gaaurav Tripathi Vs. State of U.P. And 9 Others, specially paragraph 23, thereof, which reads as follows:-
"23. Having heard the learned counsel for the parties, having perused the record and having carefully examined the ratio laid down in the authorities cited at the Bar, we find that the impugned order dated 17.05.2022 transferring investigation from Gorakhpur Sector to Lucknow Sector of the Vigilance Department is based upon letters of Ministers on the one hand and representation of the accused (respondent no.10) on the other. The order impugned does not disclose any other cogent or valid reason for transferring the investigation. Even from perusal of affidavit of Shri Awanish Kumar Awasthi, this Court finds that it is admitted to the State-Authorities that the orders impugned dated 17.05.2022 and 02.06.2022 have been passed after considering the representation moved by respondent No. 10 (Shri Manoj Kumar Singh). Further stand taken in the affidavit of Shri Awasthi that the reasons for transfer are mentioned in both the said impugned orders, does not stand reflected from the orders impugned as no reason other than political interference and representation of respondent No. 10 has been mentioned in both the said orders."
Learned counsel for the respondents on the other hand has relied upon the decision of this Court in Criminal Misc. Writ Petition No.6555 of 2021, Subodh Kumar Jain @ Subodh Jain Vs. State of U.P. And Others, to submit that further investigation can be resorted to even after filing of a charge-sheet and that no prior permission of the Magistrate is required for the said purpose. He has placed reliance upon the following portion of the judgment, which is extracted below:-
"The provisions of law provides that nothing precludes further investigation in respect of an offence after a report under Section 173 (2) Cr.P.C. has been forwarded to the Magistrate. It also provides that in case such further investigation is made and some evidence oral or documentary is obtained, a further or supplementary report shall be made to the Magistrate concerned in the manner prescribed and that the provisions of Sections 2 to 6 shall apply to such supplementary, additional or further report. In this connection, the position of law has been settled in the case of State of A.P. Vs. A.S. Peter, 2008 AIR SCW 637. This judgement has held -
" 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 charge sheet is a statutory right of the police."
This law as it stands is that according to the language of Section 173 (8), it is implicit that a Police Officer can suo motu make further investigations in cognizable cases. Otherwise also, under Section 156 (1), he can carry on further investigation and in non cognizable cases, once the order of 156 (1) has been passed by the Magistrate, he cannot do so."
He has also relied upon the decision of the Apex Court in AIR Supreme Court, 2019 0 5233, Vinubhai Haribhai Malaviya Vs. State of Gujarat, which is on the same line.
We have considered the submissions made by learned counsel for the parties and perused the record.
It is no doubt true that it has been categorically held that the police possesses the power to carry out further investigation even after submission of the charge-sheet. However, the authorities that have been cited by learned counsel for the respondents do not hold that such further investigation can be carried out at the instance of the accused or by a proxy of the accused. In this regard the judgment cited by learned counsel for the petitioner holds the field. It is the settled legal position that the investigation into an offence cannot be permitted to be dictated by the accused or their proxy.
From the record, it clearly emerges that the orders impugned in the writ petition has been passed at the behest of Anamika Saraswat, the sister of the respondents 7 and 8, the accused in Case Crime No.440 of 2022, P.S. Highway, District Mathura, who has no locus in the matter. In any case, she is acting at the behest or for the accused. Action which cannot be taken at the instance of an accused in a case, cannot be permitted at the instance of one acting for the accused, either.
Accordingly, we allow the writ petition and quash the orders dated 15.12.2022 and 31.12.2022 passed by the respondent no.4, the order dated 09.12.2022 passed by the respondent no.3 as also the order dated 26.12.2022 passed by the respondent no.2.
There shall be no order as to costs.
Order Date :- 27.3.2023 Mayank /RKM