Allahabad High Court
Yadvendra Saraswat vs State Of U.P. And 6 Others on 20 March, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:50986-DB Court No. - 42 Case :- CRIMINAL MISC. WRIT PETITION No. - 5484 of 2023 Petitioner :- Yadvendra Saraswat Respondent :- State Of U.P. And 6 Others Counsel for petitioner:- Kalyan Sundram Srivastava, Arun Kumar Srivastava Counsel for respondent:- G.A., Amit Daga, Mayank Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Gajendra Kumar,J.
(Order on Crl. Misc. Restoration Application No. 6 of 2023) This is an application praying for recall of the order dated 03.11.2023, by which the writ petition was dismissed for want of prosecution.
Cause shown in the affidavit filed in support of the restoration application is bonafide and the restoration application is allowed. The order dated 03.11.2023 is hereby recalled and the writ petition is restored to its original number.
(Order on writ petition)
1. Heard Shri Kalyan Sundram Srivastava, learned counsel for the petitioner, learned A.G.A. for the State-respondent nos.1 to 3 and Shri Amit Daga, learned counsel for the opposite party Nos.4 to 7.
2. This writ petition has been filed praying to quash the impugned order dated 09.02.2023 passed by respondent No.2 i.e. Senior Superintendent of Police, District Mathura by which he has ordered for further investigation under Section 173 (8) Cr.P.C. in Case Crime No 731 of 2017 under Sections 498-A, 323, 324, 504, 506 IPC and Section 3/4 D.P. Act, Police Station Kotwali, District Mathura along with its consequential action taken pursuant to aforesaid order.
3. The petitioner has lodged an FIR on 26.07.2017 against accused persons including respondent nos.4 to 7, which was registered as Case Crime No.731 of 2017 under Sections 498-A, 323, 324, 504, 506 IPC and Section 3/4 D.P. Act, Police Station Kotwali, District Mathura, alleging therein that he had married her daughter with Govind Saraswat (respondent no.5) on 20.11.2013 according to Hindu Rites and rituals but she was being tortured by her in-laws and their family members on account of non-fulfillment of additional dowry. After registration of the aforesaid first information report, the matter was investigated and finally the Investigating Officer concerned submitted police reports (chargesheet) against respondent No. 4 to 7 under Sections 498-A, 323, 324, 504, 506 IPC and Section 3/4 D.P. Act on 29.01.2018 and 24.04.2018. On the aforesaid chargesheets, the trial court had taken cognizance on 09.05.2018 and the case was initially registered as Criminal Case No. 2335 of 2018, which was subsequently renumbered as Case No.1233 of 2019 (State Vs. Govind Saraswat and others) in Case Crime No.731 of 2017 under Sections 498-A, 323, 324, 504, 506 IPC and Section 3/4 D.P. Act, Police Station Kotwali, District Mathura. Meanwhile, the respondent Nos.4 to 7 had challenged the aforesaid charge sheets in Application u/s 482 No. 21032 of 2018 (Govind Saraswat and others vs. State of U.P. and others) and Application u/s 482 No. 21173 of 2018 (Vishal Saraswat vs. State of U.P. and others), which were disposed of by learned Single Judge of this Court on 08.06.2018 and 12.06.2018 directing the respondent Nos. 4 to 7 to approach the learned trial court for bail.
4. The respondent No. 7 i.e. Vishal Saraswat has filed a discharge application before learned trial court, which was dismissed on 12.11.2019. Against the said order, he had filed a revision, which was also dismissed on 01.12.2019 by the Sessions Judge, Mathura. Thereafter, learned trial court had framed charges on 29.02.2020 against the respondent Nos. 4 to 7 under Sections 498-A, 323, 324, 504, 506 IPC and Section 3/4 D.P. Act. Again they have filed an Application u/s 482 No. 6989 of 2021 (Shiv Prakash Saraswat @ Sunil and 3 other vs. State of U.P. and 2 others) challenging the said order. This Court vide order dated 17.08.2021 had referred the matter to the Allahabad High Court Mediation and Conciliation Centre for an amicable settlement between the parties and stayed the further proceedings of the aforementioned case. No settlement took place between the parties at the Mediation Centre and the case is still pending before this Court for disposal. Thereafter, the respondent No.7 i.e. Shiv Prakash Saraswat had moved an application before respondent No. 2 i.e. Senior Superintendent of Police, Mathura, who had called a report from the Superintendent of Police (City), Mathura and the same was submitted by him on 07.02.2023. After perusal of the said report, the respondent No. 2 vide his order dated 09.02.2023 had directed the respondent No.3 to conduct further investigation under Section 173 (8) Cr.P.C. In compliance thereof, the respondent No. 4 had moved an application dated 27.02.2023 for providing the entire case diary for further investigation, which was allowed by the Court concerned on 28.02.2023, giving rise to the present writ petition.
5. Learned counsel for the petitioner submits that once the charge sheet had been forwarded to the competent court, whereupon cognizance had already been taken, then further investigation could not have been ordered and any further investigation would be possible only under orders of the Magistrate, who was seized of the matter. He further submits that the investigation or further investigation cannot be ordered at the instance of the accused in a case and the respondent No. 4 has no locus to file the application. Even the respondent no.2 has committed patent illegality in entertaining his application and passed the impugned order on 09.02.2023, which will delay the trial of the said case. It is submitted that in the present case, the impugned order of further investigation has been passed after 5 years of lodging the F.I.R. He further submits that the daughter of the petitioner has also filed an application for further investigation in Case Crime No. 440 of 2022 under Sections 323, 504, 506, 308 IPC, Police Station Station Highway, District Mathura, wherein the S.S.P. Agra has directed for further investigation under Section 173 (8) Cr.P.C. The said order was challenged by the accused persons by filing Criminal Misc. Writ Petition No. 1161 of 2023 (Shiv Prakash Saraswat Vs. State of U.P. and 7 others) and this Court vide order dated 27.03.2023 had allowed the writ petition and quashed the orders impugned therein, on the ground that further investigation cannot be ordered on behest of accused or its proxy. He submits that the present matter is squarely covered with judgment of Division Bench of this Court in Shiv Prakash Saraswat (supra). Therefore, the writ petition is liable to be allowed and further investigation in the present case at the behest of respondent No. 4, who is an accused, the same is liable to be quashed.
6. Learned counsel for the petitioner in support of his submission has also placed 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."
11. 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 relevant 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."
12. 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.
13. We have considered the submissions made by learned counsel for the parties and perused the record.
14. It is settled law that the police possesses the power to carry out further investigation even after submission of the charge-sheet. However, the judgements, which 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.
15. From the record, it is apparent that the order impugned has been passed at the behest of respondent No.4, who is the accused in Case Crime No. 731 of 2017, P.S. Kotwali, District Mathura and he has no locus in the matter.
16. For the aforesaid reasons, we allow the writ petition and quash the order dated 09.02.2023 passed by the the respondent No. 2 i.e. Senior Superintendent of Police, Mathura. There shall be no order as to costs.
18. Shri Amit Daga, learned counsel for the opposite party Nos. 4 to 7 submits that the order dated 09.02.2023 has already been complied with and a closure report has also been submitted in the matter.
Order Date :- 20.3.2024 Jaswant