Allahabad High Court
Chandan Pathak vs State Of U.P. Thru. Its Addl. Chief Secy. ... on 14 May, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:28076 Court No. - 12 Case :- APPLICATION U/S 482 No. - 3794 of 2025 Applicant :- Chandan Pathak Opposite Party :- State Of U.P. Thru. Its Addl. Chief Secy. Home Deptt. Lko. And Another Counsel for Applicant :- In Person Counsel for Opposite Party :- G.A. Hon'ble Alok Mathur,J.
1. Heard Sri Chandan Pathak, the petitioner in person and the A.G.A. for the State.
2. It has been submitted by learned counsel for the petitioner that he had lodged an FIR in case crime No.500 of 2023, police station Kotwali Dehat, District Rampur under Sections 384, 392, 427, 504, 506, 67 of Information Technology Act, 2000 on 12th September, 2023 against the opposite parties. The said F.I.R. was lodged after an application was preferred by the petitioner under Section 156 (3) Cr.P.C. After the investigation, the investigation officer submitted the final report on 29.10.2023 against which the petitioner had filed the protest petition. In the said protest petition it was stated that the investigating officer has concluded the investigation without examining either the offence or the persons against whom the allegations have been levelleld by the petitioner and despite the fact that final report was submitted after 49 days of lodging of the FIR and it is only on the last date and only after the what's call by few of the persons that the case diary was filled up and final report submitted in the court. Chief Judicial Magistrate, Balrampur by means of order dated 19.4.2024 had allowed the protest petition and rejected teh final report and accepted the contentions/allegations leveled by the petitioner. It was taken into account that during the investigation the investigating officer had not conducted any investigation nor did he inquire into the said incident nor statement of any witness was taken nor did he visit teh site of occurrence and accordingly he was directed to further investigation into the said matter.
3. It is after passing of the order dated 19.4.2024 that the petitioner moved another application under Section 166A of IPC alleging that the investigating officer had deliberately disobeyed the direction of law to the prejudice of the petitioner and his conduct is such that he is liable to be punished under Section 166A of IPC. It is on the application of the petitioner that the order dated 16.12.2024 has been passed recording the entire sequence of events and further it was recorded that once appropriate orders has been passed for further investigation, therefore, without submission of police report pursuant to such an direction the application under Section 166A of IPC would not be maintainable. It was further noticed that it is only after submission of police report that it can be concluded that the investigation is contrary to the direction of law or any offence under Section 166 A is made out and consequently the same was rejected.
4. Learned counsel for the petitioner submits that the investigating officer had submitted investigation report without conducting any investigation and consequently the same amounts to offence under Section 166 A of the IPC and consequently the Magistrate ought to have registered the complaint and proceeded against the investigating officer under the appropriate provisions of law and by not dong so the trial court has erred in law and accordingly by means of the present petition the order dated 16.12.2024 has been assailed.
5. The only ground raised by the petitioner sit hat as per the protest petition the investigation officer did nothing to conduct fair investigation nor did he examine the facts nor did he visit the place of occurrence and in a most cursory and casual manner submitted final report which amounts to violation of Section 166 A of IPC and consequently there is infirmity in the impugned order.
6. Learned A.G.A., on the other hand, has submitted that the only contention of the petitioners is that the investigating officer has not conducted the investigation as per the ale. He has further submits that there is no mens rea or any malaifde against the petitioner due to which he has misconducted himself while doing the investigation and only because the investigation was not conducted to his satisfaction and also considering the direction of Supreme Court in the case of Sakiri Vasu Vs. State of U.P. and others, AIR 2008 SUPREME COURT 907, orders for further investigation has been made and he has further submitted that the application of the petitioner stood allowed while rejecting the investigation officer for conducting further investigation which is under way and before any final police report has been filed in pursuance of the previous directions of the trial court under Section 166A would not be maintainable and prayed for dismissal of the case.
7. I have heard the rival contentions and perused the record.
8. It is noticed that the petitioner is author of the first information report lodged under Sections 384, 392, 427, 504, 506, 67 of Information Technology Act, 2000 on 12th September, 2023. After the investigation final report was submitted on 29.10.2023 and the same was assailed by the petitioner by filing protest petition where the allegations were levelled against the investigating officer and the allegations pertain to investigation by the investigation officer and also that none of the witnesses or persons were examined and final report was submitted in a most cursory and casual manner to the trial court. The trial court had found the allegations to be correct and accordingly directed for further investigation. It is relevant to point out here that while levelling the said allegations it was incumbent upon the petitioner to have moved application under Section 166A along with his protest petition, in fact, has been moved under Section 166 on 9.5.2025 and directions were issued for further investigation. The further investigation is still under way and it is only during further investigation that it cannot be borne out as to whether the allegations levelled by the petitioner in the FIR are found to be correct or otherwise. Second 166 (a) (b) of IPC reads as under:-
"166 A Public Servant disobeying direction under Law Description Whoever, being a public servant?
knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other, or knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or fails to record1 any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973, in relation to cognizable offence punishable under section 326A, section 326B, section 354, section 354B, section 370, section 370A, section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E or section 509, shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine."
9. There is no allegation that the investigating officer has any malafide intentions towards the petitioner or that he deliberately did not investigate the matter properly. It is further noticed that whenever there are allegations of the nature as levelled by the petitioner the direction of the Supreme Court in the case of Sakiri Vasu Vs. State of U.P. and others, AIR 2008 SUPREME COURT 907 have to be followed and sufficient powers are vested in the Magistrate to direct the investigating officer to conduct the investigation in accordance with law. The relevant directions of Supreme Court in the said case is as follows:-
29. In Union of India vs. Prakash P. Hinduja and another 2003 (6) SCC 195 (vide para 13), it has been observed by this Court that a Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under Section 156(3) Cr.P.C. is satisfied that proper investigation has not been done, or is not being done by the officer-in-charge of the concerned police station, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same (though he should not himself investigate).
30. It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that a proper investigation has not been made by the officer-in-charge of the concerned police station, such aggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer-in-charge of the police station and such superior officer can, if he so wishes, do the investigation vide CBI vs. State of Rajasthan and another 2001 (3) SCC 333 (vide para 11), R.P. Kapur vs. S.P. Singh AIR 1961 SC 1117 etc. Also, the State Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police station vide State of Bihar vs. A.C. Saldanna (supra)."
10. Accordingly, we find that the allegations were to the effect that fair investigation had not been carried out and accordingly appropriate directions were passed on 19.4.2024 for fair investigation. It is not the law to the extent that investigation has to be carried out as per the whims an fancies of the complainant. The police was directed to conduct fair investigation of the alleged offences as per the first information report which had submitted its report to the court. Wherever the complainant is of the view that fair investigation has not been done or conducted that has not been fair for some reason or the other, he may move appropriate application before the trial court who after considering the application has sufficient power to direct the police to conduct proper investigation under Section 173 (8) of Cr.P.C. Accordingly, in the present case also the trial court noticing the fact that investigation has not been conducted properly, had passed order for further investigation on 19.4.2024. Till date the report of the police is still awaited and in the meanwhile, the application under Section 166 A of IPC has been preferred by the petitioner.
11. We have perused the said application and find that the same allegations as were made in the previous application, has also been made in the application under Section 166 A of IPC. The allegations are only to the extent that in a very cursory and casual manner the investigating officer has performed his duties. Though we cannot approve of the manner in which the investigation was done but, on the other hand, we not find that for the nature of allegations levelled by the petitioner any ground is made out for revocation of Section 166A of the IPC. There is no allegation that the investigating officer is intentionally disobeying the orders to the prejudice of any person to conduct any investigation nor was there any direction of any court to conduct investigation in any particular manner and consequently it cannot be said that he had violated any direction of law. To that extent we have also perused the impugned order and find that there is no infirmity in the same in as much as the trial court has also noticed the conduct of the petitioner and also considering the fact that the the fair investigation is still underway. One has to be conscious of the fact that allowing such an application during the investigation may prejudice the investigation also. In the present case, the complainant is pursing his complaint and says that charge sheet should be filed in the court upholding the allegation levelled by him in the complaint but he cannot be permitted to use Section 166A as a tool i this regard. We further notice the fact that in case he is serious about his application under Section 166A we find no reason as to why the same was not filed along with the protest petition and was moved only after passing of the order dated 19.4.2024.
12. Accordingly, the bonafides of the petitioner are also questionable especially looking to the contents of the application under Section 166 of Cr.P.C. and accordingly, we do not find any infirmity in the order.
13. It shall be open for the petitioner, if he so wishes, to move appropriate application in response to final report after the report of the police for further investigation.
14. Subject to the aforesaid directions, the petition stands dismissed.
(Alok Mathur, J.) Order Date :- 14.5.2025 RKM.