Allahabad High Court
Surabhi Srivastava vs State Of U.P. And 3 Others on 5 September, 2023
Bench: Anjani Kumar Mishra, Vivek Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:175169-DB Reserved on 16.08.2023 Delivered on 05.09.2023 Court No. - 43 Case :- CRIMINAL MISC. WRIT PETITION No. - 11329 of 2023 Petitioner :- Surabhi Srivastava Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Jitendra Prasad Mishra Counsel for Respondent :- G.A.,Sanjeev Kumar Singh Hon'ble Anjani Kumar Mishra,J.
Hon'ble Vivek Kumar Singh,J.
1. Heard learned counsel for the petitioner and learned A.G.A. for the State.
2. The writ petition seeks the following relief:-
"I. Issue a writ, order or direction in the nature of mandamus commanding the respondent no.2 and 3 not to re-investigate the case crime no.315 of 2019 under section 419, 420, 467, 468, 471 of I.P.C. Police Station Civil Lines, District Prayagraj."
3. The facts of the case are that a first information report was lodged on 14.08.19 giving rise to Case Crime No. 315 of 2019, under Sections 419, 420, 467, 468, 471 I.P.C., P.S.- Civil Lines, District- Prayagraj.
4. The police after investigation filed a chargesheet on 23.11.2019 against one of the accused namely Dhiraj Srivastava. The chargesheet also stated that the petitioner, co-accused was absconding in which regard legal proceedings would be initiated separately. The chargesheet also mentioned that prima facie the involvement of the petitioner in the alleged crime was indicated. It is lastly mentioned therein that the investigation against the petitioner was still continuing.
5. Counsel for the petitioner has placed reliance upon the parcha dated 26.12.2019 and the supplementary parcha of the same date which is part of the case diary to show that no evidence came to light insofar as the petitioner was concerned and the investigation was closed.
6. On the strength of the above and since the trial against the husband of the petitioner is proceeding wherein the statement of one prosecution witness has been recorded and that at this stage the petitioner received notices for getting her statement recorded, the instant writ petition has been filed.
7. It is therefore the contention of learned counsel for the petitioner that the investigation against her was closed on 26.12.2019 as is stated in the supplementary Parcha of that date. No further investigation therefore could be resorted to.
8. It would be relevant to note that the petitioner has not alleged in the writ petition that any order has been passed by the Magistrate for further investigation. There is also no material on record to show that any report was filed by Investigating Officer, before the Magistrate consequent to what was recorded in the case diary in the supplementary parcha of 26.12.2019.
9. It appears that when the petitioner received notices for appearing for getting her statement recorded. She then filed an application before the Magistrate, where upon a report was called for and was received from the police station concerned that the investigation against petitioner was still continuing.
10. This is sought to be disputed on the basis of what is recorded in the supplementary parcha of 26.12.2019. The submission of learned counsel for the petitioner therefore is that no further investigation or re-investigation could be carried out by the police as is being done in the instant case. For this purpose, reliance has been placed upon the following three judgements.
1. Vinay Tyagi vs. Irshad Ali @ Deepak & Ors., 2013 (5) SCC 762, especially paragraphs 30, 40, 48.
2. Vinubhai Haribhai Malaviya and Ors. Vs. The State of Gujarat and Anr., 2019 (17) SCC 1, especially paragraphs 8, 9, 19, 23, 33, 38
3. Lockose Zachariah @ Zak Appellants Nedumchira Luke and Others Vs. Joseph Joseph and Other, 2022 Live Law (SC) 230, especially paragraph 13.
11. Learned AGA has submitted that the police has unfettered power of investigation. The chargesheet filed in the matter on 26.11.2019 was only against one of the accused, while the investigation against the petitioner was stated to be still pending, ostensibly on account of the fact that the petitioner was absconding.
12. As already noticed herein above, learned counsel for the petitioner has not alleged nor is any such averment to be found in the writ petition that a closure report had been filed by the police insofar as the petitioner is concerned on the basis of what is recorded in the supplementary parcha of 26.12.2019.
13. In our considered opinion, and since there are two documents namely, the chargesheet dated 23.11.2019 as also the report of the police station concerned dated 02.07.2023, which state that the investigation against the petitioner is still pending and since the supplementary Parcha dated 26.12.2019 is not part of any report filed before the Magistrate, the submission of learned counsel for the petitioner that further investigation or re-investigation is going cannot be accepted. It is a clear that the investigation insofar as the petitioner is concerned, is still in progress.
14. The judgements that have been cited deal with the power and jurisdiction of a Magistrate under section 173(2) and section 173(8) of the Criminal Procedure Code.
15. In our considered opinion, the judgements of the Apex Court cited before us are not attracted in the facts and circumstances of the case as noticed above and therefore these judgements have no application to the case at hand.
16. Accordingly and since the chargesheet dated 23.11.2019 stated that the investigation against the petitioner was still continuing and the same has been stated in the police report dated 02.07.2023 and since what is recorded in the supplementary parcha of the case diary dated 26.11.2019 was never part of any report before the Magistrate, it cannot be said that the case at hand is one of the re-investigation or further investigation.
17. We are of the considered opinion that the investigation against petitioner was never closed and is still continuing.
18. Under the circumstances, the writ petition is found to be completely misconceived and is dismissed.
Order Date :- 05.09.2023 Mayank