MANU/BH/1413/2011

Equivalent Citation: 2012(3)PLJR239

IN THE HIGH COURT OF PATNA

Criminal Miscellaneous No. 14598 of 2009
Decided On: 20.12.2011
Appellants:Arun Kumar
Vs.
Respondent:State of Bihar
Hon'ble Judges/Coram:
Honourable Mr. Justice Hemant Kumar Srivastava
JUDGMENT
Hemant Kumar Srivastava, J.
1. This petition under Section 482 of the Cr.P.C. has been filed by Arun Kumar, who is
informant in S.K. Puri P.S. Case No. 52 of 2003, for quashing the order dated
10.11.2008 passed by learned Chief Judicial Magistrate, Patna in above stated S.K. Puri
P.S. Case No. 52 of 2003 registered under Sections 120(B), 420, 465, 468 and 471 of
the Indian Penal Code by which and whereunder learned Chief Judicial Magistrate, Patna
allowed further investigation of the above stated S.K. Puri P.S. Case No. 52 of 2003
under Section 173(8) of Criminal Procedure Code against the petitioner.
2. The brief fact of the case is that petitioner gave written report to Officer-in-Charge of
S.K. Puri Police Station on 15.03.2003 alleging therein that Alaknanda Sahkari Grih
Nirman Samati (hereinafter referred to as Society) is a registered Society under Bihar
Co-operative Societies Act, 1935. The aforesaid Society is managed by an elected
management committee and the main object of the said Society is to purchase
residential plots and to distribute the said plots amongst its members through
registered sale deeds. The aforesaid Society purchased several bighas lands in Patna
and before distribution of the said lands, its management committee superseded on
01.01.1988. It is relevant to mention here that on 10.01.1982, accused Gyan Deo
Sharma was Secretary of first management committee. After superannuation of the
above stated management committee, the election for consideration of fresh
management committee was held on 29.11.1999 and at the time of election, accused
Gyan Deo Sharma, in connivance with other accused persons, manufactured antedated
forged membership receipts and share certificates of Society and on the basis of above
stated forged documents, he succeeded to capture the management committee of the
above stated committee and again when the election of management committee was
going to be held, he along with other co-accused persons attempted to take part in the
above stated election on the basis of aforesaid forged documents. On the basis of
aforesaid written report, S.K. Puri P.S. Case No. 52 of 2003 under Sections 465, 468,
471, 420 and 120(B) of the Indian Penal Code was registered against 29 persons
including above stated Gyan Deo Sharma. Police took charge of investigation and
charge-sheet no. 139 of 2007 was submitted against six first information report named
accused persons on 05.07.2007 whereas investigation in respect of the rest accused
persons was kept pending and after supplementary investigation, supplementary
charge-sheet no. 52 of 2008 was submitted against 16 accused persons on 20.03.2008

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whereas again investigation was kept pending in respect of remaining accused persons
and lastly, charge-sheet no. 205 of 2008 was submitted on 21.08.2008 showing in-
sufficient evidence against remaining accused persons whereas higher police officials
directed the Investigating Officer to register a fresh case against the informant as in
course of investigation it was found that in the year 1987, he along with the then
Secretary and co-accused Gyan Deo Sharma executed sale deed in respect of lands of
Society in favour of one minor, namely, Anupma Sharma violating the rules of the
Society. It is relevant to mention here that aforesaid Anupma Sharma is also an accused
of above stated S.K. Puri P.S. Case No. 52 of 2003. Again, vide Memo No. 530 dated
10.09.2008, the Additional Director General of Police, Crime Investigation Department,
Patna directed the Investigating Officer to investigate the matter against the informant
in above stated S.K. Puri P.S. Case No. 52 of 2003 under Section 173(8) of the Criminal
Procedure Code. After the aforesaid direction, the Investigating Officer filed a petition
before the Chief Judicial Magistrate, Patna for seeking permission of court to proceed
for further investigation under Section 173(8) of Criminal Procedure Code. The learned
Chief Judicial Magistrate, Patna vide impugned order dated 10.11.2008 permitted the
Investigating Officer to proceed for further investigation under Section 173(8) of the
Criminal Procedure Code against petitioner. Being aggrieved and dissatisfied with the
impugned order dated 10.11.2008, the petitioner has preferred this criminal
miscellaneous case under Section 482 of the Cr.P.C. before this Court.
3 . The notices were issued to opposite parties by registered post as well as ordinary
process and in due course, counter-affidavit was filed on behalf of the Opposite Party
No. 5 as he was authorized by Deputy Inspector General of Police, C.I.D Co-operative
Vigilance Cell, Bihar, Patna to file counter-affidavit in the present case.
4 . Rejoinder to the above stated counter-affidavit was also filed on behalf of the
petitioner.
5. It is relevant to mention here that I.A. No. 1282 of 2009 dated 30.06.2009 was filed
on behalf of Nain Tara Sharma, Wife of Gyan Deo Sharma, who is accused of S.K. Puri
P.S. Case No. 52 of 2003. Rejoinder to the aforesaid I.A. was filed on behalf of the
petitioner.
6. This Court admitted this petition for detailed hearing and, accordingly, all the parties
were heard by this Court.
7 . The petitioner by filing this criminal miscellaneous petition has challenged the
validity of order dated 10.11.2008 and it is contended by learned counsel appearing for
the petitioner that above stated S.K. Puri P.S. Case No. 52 of 2003 was registered
against first information report named accused persons for fabricating and
manufacturing forged membership receipts and share certificates and for using the
aforesaid fabricated documents in the election of the Society and admittedly, after due
investigation, police submitted charge-sheet against some of the first information report
named accused persons but subsequently, police in connivance with the accused
persons invented new allegation against the informant with a view to help the accused
persons of the above stated case. It is further contended by him that police came with
this story that on 17.12.1987, a sale deed bearing no. 7862 was executed in favour of
one minor girl, namely, Anupma Sharma by the petitioner violating the rules of the
Society but, as a matter of fact, the aforesaid sale deed was executed by co-accused
Gyan Deo Sharma, the then Secretary of the Society in favour of his daughter, namely,
Anupma Sharma and, as a matter of fact, the entire consideration money was paid by
aforesaid Gyan Deo Sharma himself and, therefore, on account of execution of the

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aforesaid sale deed, title was passed in favour of above stated Gyan Deo Sharma and
not in favour of Anupma Sharma who was minor at the relevant time. The aforesaid fact
is evident from Annexure-5 to this petition. It is also contended by him that the
allegation levelled against the petitioner is quite different from the allegation of first
information report of S.K. Puri P.S. Case No. 52 of 2003 because according to allegation
levelled in S.K. Puri P.S. Case No. 52 of 2003, the accused persons of the aforesaid case
prepared forged and ante dated money receipts as well as share certificates and used
the said documents at the time of election whereas the allegation against the petitioner
is in respect of execution of an illegal sale deed. So, the above stated allegation is not
permissible to be investigated in the present case. It is further contended by him that
no doubt, police has power to further investigate the case under Section 173(8) of the
Criminal Procedure Code but this power is restricted to original allegation of the case
and police has no power to add new allegation and continue with the investigation in
the name of further investigation under Section 173(8) of the Criminal Procedure Code.
To substantiate the above stated contention, he referred the decisions reported in
(2009) 6 SSC 346 and (2008) 5 SSC 413. It is further contended by learned counsel for
the petitioner that in both the aforesaid decisions, it has been held that "further" means
"additional, more or supplemental" and further investigation is the continuance of
earlier investigation. It is further contended by him that in a decision reported in
MANU/BH/0350/2004 : (2004) 4 PL JR 37, it has been held by this Court that further
investigation under Section 173(8) of the Criminal Procedure Code is permissible only
when some new evidence with respect to allegation of original first information report
or complicity or involvement of some other accused persons for the offence alleged in
the original first information report comes to light. It is also contended by him that
higher officials directed the concerned Investigating Officer to further investigate the
present case and the aforesaid direction was given by higher officials to concerned
Investigating Officer relying upon T.T. Antoni's case but, as a matter of fact, the
aforesaid decision is not applicable in the present case. It is further contended by him
that in the above stated case it has been held that for the same offence two cases
cannot be registered. It is further contended by him that T.T. Antoni's case has been
considered by Hon'ble Supreme Court in a case reported in MANU/SC/8189/2008 : 2009
CriL J 958 and in the aforesaid case, the Apex Court of this country has held that if
canvas of two first information reports are different, registration of fresh case is
permissible and, therefore, the investigation in respect of a quite different allegation
and offence is not permissible under Section 173(8) of the Criminal Procedure Code. It
is further contended by him that if any different offence, allegedly, has been committed
by the petitioner, the police may register different first information report against the
petitioner but police can never be permitted to investigate a different offence in the
present case taking the aid of Section 173(8) of the Criminal Procedure Code.
8. It is further contended by learned counsel for the petitioner that petitioner had made
several complaints against the Investigating Officer as well as police officials before the
higher officials of police as well as before this Court by filing writ petition and on
account of the aforesaid complaints and cases, one Investigating Officer, namely, Sri
Tulsi Ram was suspended and similarly, one Deputy Superintendent of Police, namely,
Arshad Jaman was departmentally proceeded and furthermore, one Inspector General of
Police, namely, Sri B.S. Jayant was removed from the supervision of the present case
and that is the reason police officials being biased against the petitioner prayed before
the learned Chief Judicial Magistrate, Patna for further investigation with an intent to
falsely implicate the petitioner in the present case.
9. It is further contended by learned counsel for the petitioner that intervener, namely,
Nain Tara Sharma is an accused of the present case and she has no locus standi to

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oppose this petition before this Court.
10. On contrary, learned counsel appearing for intervener, namely, Nain Tara Sharma
submits that it is well settled principle of law that even a third party can interfere in the
proceeding under Section 482 of the Cr.P.C. because the third party is not alien to the
proceedings. It is further contended by him that admittedly, the intervener is a co-
accused in the present case and each and every order being passed in the present case
will have a bearing upon the defence of the intervener. In support of the aforesaid
contention, a decision reported in MANU/SC/0517/2009 : (2009) 6 SCC 346 is referred.
Furthermore, decision of Hon'ble Delhi High Court rendered in Rajiv Gandhi Ekta Samiti
vs. Union of India and another delivered on 23.12.1999 was also referred on behalf of
the intervener.
11. It is further contended by learned counsel for the intervener that present petition is
not maintainable because the petitioner has a remedy under Section 397 of the Cr. P.C.
In support of the aforesaid contention, MANU/MP/0066/1974 : 1975 Cri L J 1637 is
referred on behalf of the intervener.
12. It is further contended on behalf of the intervener that investigating agency has
unfettered right to take further investigation in any case and the same cannot be
curtailed or interfered with by any court. In support of the above stated contention, a
decision reported in MANU/SC/0253/1979 : (1980) 1 SCC 554 is relied upon on behalf
of the intervener. It is further contended by him that it is only the court in which the
charge-sheet is filed which is to deal with all the materials relating to trial of the
accused, including matters falling within the scope of Section 173(8) of the Cr.P.C.
1999 SCC Cri 1984 is relied upon by learned counsel for intervener in support of the
aforesaid contention. It is further contended by him that where investigation is
incomplete, it is impermissible for the High Court to look into the materials, the
acceptability of which is essentially a matter for trial and furthermore, allegations of
mala fides against the informant are inconsequent and cannot be themselves be the
basis for quashing the proceeding. To support the aforesaid contention, a decision
reported in MANU/SC/2264/2005 : (2005) 13 SCC 540 is relied upon and lastly, learned
counsel for intervener relied upon a decision reported in MANU/SC/0365/2001 : (2001)
6 SCC 181 T.T. Antoni and others vs. State of Kerala and others in which it has been
held by Apex Court of this country that there can be no second first information report
and no fresh investigation on receipt of every subsequent information in respect of the
same cognizable offence or same occurrence give rise to one or more cognizable
offences and furthermore, it has been held by the Apex Court of this country in the
above stated decision that Officer-in-Charge of the Police Station has to investigate not
merely the cognizable offence reported in the first information report but also other
connected offences found to have been committed in course of the same transaction or
the same occurrence and filed one or more reports as provided in Section 173 of the
Cr.P.C.
13. It is further contended by learned counsel appearing for intervener that the power
vested under Section 482 of the Cr.P.C. should be exercised by the court in rarest of the
rare cases and in the present case, admittedly, in course of investigation it came to light
that being president of the above stated Society petitioner executed a sale deed in
favour of a minor. So, it is obvious that the aforesaid offence is of same nature and it
cannot be said that the investigating agency has got no power to investigate the above
stated occurrence in the present case. It is further contended by him that petitioner
being president of the aforesaid Society was equally responsible for execution of the
above stated sale deed and he cannot escape from his liability. Learned counsel for

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intervener referred a decision reported in MANU/SC/0747/1997 : A.I.R. 1997 SC 2778.
14. Here, I would like to mention that when this matter had been kept reserved for
pronouncement of the judgment, a mention slip was filed on behalf of the intervener
and it was brought to the notice of the Court that after further investigation, police has
already submitted charge-sheet against the petitioner before the pronouncement of the
judgment in the present case. It is contended by learned counsel for the intervener that
when the police has already submitted charge-sheet against the petitioner after further
investigation, there is no need to interfere into the impugned order and this petition has
already become infructuous. It is further contended by him that it would be proper to
leave the matter upon the trial court after submission of the charge-sheet against the
petitioner. In support of the aforesaid contention, he referred a decision reported in
MANU/SC/0591/2011 : (2011) 6 SCC 102.
15. Having heard the rival contentions of both the parties, I have gone through the
record along with the decisions cited on behalf of the parties.
16. Firstly, I would like to take this question as to whether intervener has got any right
to address this Court in the present proceeding or not. Admittedly, intervener, namely,
Smt. Nain Tara Sharma is an accused in the present case and obviously, any order or
finding passed in the present case shall affect the right of the aforesaid intervener Smt.
Nain Tara Sharma. Moreover, it is well settled principle of law that a third party is not
alien to the proceeding under Section 482 of the Cr.P.C. and if interest of third party is
involved in any proceeding, the third party may address the Court in the said
proceeding. Therefore, I am of the opinion that intervener Smt. Nain Tara Sharma has
every right to address this Court in the present proceeding.
17. It is an admitted position that on the basis of written report of the petitioner, S.K.
Puri P.S. Case No. 52 of 2003 for the offences under Sections 465, 468, 471, 420, 120B
of the Indian Penal Code was registered on 21.03.2003 against accused Gyan Deo
Sharma and several other accused persons. It is further an admitted position that police
submitted first charge-sheet bearing Charge-sheet No. 139 of 2007 against six accused
persons and kept the investigation pending in respect of the remaining accused persons.
Again, it is an admitted position that police submitted supplementary Charge-sheet No.
52 of 2008 against 16 accused persons on 20.03.2008 and again, police kept the
investigation pending in respect of remaining accused persons and lastly, Charge-sheet
No. 205 of 2008 was submitted on 21.08.2008 showing insufficient evidence against
some of the accused persons and in the same charge-sheet higher police officials
directed the Investigating Officer to register a fresh case against the informant because
in course of investigation, it came to light that petitioner along with the then Secretary,
Gyan Deo Sharma (one of the accused of the present case) executed sale deed in favour
of Anupma Sharma (the minor daughter of accused Gyan Deo Sharma) violating the
rules of the Society. It is also an admitted position that again, a D.G.P., Crime
Investigation Department directed the Investigating Officer of the present case to
investigate the above stated matter in the present case under the provision of Section
173(8) of the Cr.P.C.
18. Here, I would like to refer Section 173(8) of the Cr.P.C. which runs as follows :-
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, whereupon 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 provision of

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sub-section (2) to this Section, as far as may be, apply in relation to such report or
reports as they apply in relation to a report forwarded in sub-section (2).
1 9 . It is well-known that an Investigating Officer forwards his report under Section
173(2) of the Cr.P.C. after completion of the investigation but Section 173(8) of the
Cr.P.C. says that an Investigating Officer can take further investigation in respect of an
offence even after submission of his report under Sub-section 2 of Section 173 of the
Cr.P.C, if he obtains further evidence, oral or documentary in respect of the aforesaid
offence.
20. It is, therefore, clear that police has unrestricted power under Section 173(8) of the
Cr.P.C. and the police can further investigate the matter, if police finds some new
materials in respect of the case. No doubt, the police can further investigate the matter
under Section 173(8) of the Cr.P.C. even after filing of the charge-sheet but Section
173(8) of the Cr.P.C. has been enacted with a view to give power to police to bring new
materials before the court in respect of the case which is being investigated by the
police. So, it is clear that Section 173(8) of the Cr.P.C. has been brought to the statute
book to empower the police to bring additional or supplement evidence before the court
even after filing of the charge-sheet. The bare perusal of the aforesaid provision goes to
show that police can further investigate the matter under Section 173(8) of the Cr.P.C.
only with the original allegation and the aforesaid power of the police is restricted in
the sense that police has got no power to add new allegation and continue with the
investigation in the name of further investigation under Section 173(8) of the Cr.P.C.
21. In the present case, the petitioner has lodged S.K. Puri P.S. Case No. 52 of 2003 in
respect of fabrication of forged membership and share certificates and admittedly, after
investigation police submitted three charge-sheets against some of the accused persons.
So far as further investigation of the present case is concerned, the same relates to an
execution of sale deed by petitioner and co-accused Gyan Deo Sharma in favour of one
minor girl, namely, Anupma Sharma who happens to be daughter of co-accused Gyan
Deo Sharma in the year 1987. Therefore, it is apparent from the aforesaid facts that
there are two distinct and different offences and in my view, both the offences cannot
be investigated in one case. Learned counsel for the petitioner rightly submitted that the
allegation levelled against the petitioner is quite different from the allegation of first
information report of S.K. Puri P.S. Case No. 52 of 2003 and, therefore, in view of the
decisions as referred above the police has got no power to add a fresh allegation in the
present first information report and further investigate the matter under Section 173(8)
of the Cr.P.C. and I am of the also opinion that T.T. Antoni's case is not applicable in
the present case because in the aforesaid decision, it has been held that for the same
offence two cases cannot be registered. So far as the present matter is concerned,
obviously, there are two different offences and, therefore, learned counsel for the
petitioner has rightly submitted that the aforesaid two different offences cannot be
investigated in one case.
22. No doubt, during pendency of this matter the police has already submitted charge-
sheet against the petitioner after completing further investigation under Section 173(8)
of the Cr.P.C. but in my view, mere submission of charge-sheet after completion of
investigation under Section 173(8) of the Cr.P.C. does not affect the merit of the
present petition because when the police had got no right to investigate fresh allegation
under Section 173(8) of the Cr.P.C, the entire subsequent development is nothing but
only an abuse of process of the Court. It is not in dispute that normally this Court does
not interfere into the proceeding of trial court after submission of charge-sheet and it is
always left open to the trial court to apply its judicial mind in respect of the submission

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of the charge-sheet but in the present case, the fact is quite different because
admittedly, when Investigating Officer of the present case sought permission from Chief
Judicial Magistrate, Patna to investigate the present case under Section 173(8) of the
Cr.P.C. and Chief Judicial Magistrate, Patna granted permission passing impugned order,
petitioner immediately preferred quashing petition before this Court and during
pendency of the present petition, the police submitted charge-sheet against the
petitioner after completion of the investigation under Section 173(8) of the Cr.P.C. As I
have already stated that when the above stated power of police under Section 173(8) of
the Cr.P.C is under cloud in the present case, the subsequent development cannot
prevent the petitioner to seek relief from this Court and, therefore, even if the police
has submitted charge-sheet after completing the investigation under Section 173(8) of
the Cr.P.C., then also, this Court has every power to exercise its extra ordinary power
vested under Section 482 of the Cr.P.C. to prevent the abuse of process of the law. So
far as decisions reported in MANU/SC/0591/2011 : (2011) 6 SCC 102 is concerned, the
same is not applicable in the present case because in the above stated case initially,
police after completion of the investigation submitted charge-sheet under Section
173(2) of the Cr.P.C. but again after further investigation under Section 173(8) of the
Cr.P.C. recommended for dropping the criminal proceeding and before application of
mind of the concerned court in respect of the above stated charge-sheets, the quashing
petition had been filed and that was the reason the Apex Court of this country held in
the aforesaid decision that inherent power cannot be exercised in regard to matters
specially covered by other provisions of Cr.P.C. and where Magistrate has not yet
applied his mind under Section 190 to merits of reports under Section 173(8) of the
Cr.P.C., High Court ought not to consider a request for quashing the proceedings.
2 3 . So far question of maintainability is concerned, the impugned order is an
interlocutory order and if any revision is filed against the impugned order, the said
revision petition would certainly come under the teeth of sub clause (2) of Section 397
of Cr.P.C. Therefore, I am of the opinion that the impugned order can only be
challenged by filing a petition under Section 482 of Cr.P.C.
2 4 . On the basis of aforesaid discussions, I am of the opinion that this quashing
petition is liable to be allowed and I have no hesitation to quash the impugned order
dated 10.11.2008. Accordingly, the impugned order dated 10.11.2008 passed by
learned Chief Judicial Magistrate, Patna in S.K. Puri P.S. Case No. 52 of 2003 as well as
subsequent developments in above stated S.K. Puri P.S. Case No. 52 of 2003 are,
hereby, quashed.
2 5 . However, it is made clear that police may register a fresh case against the
petitioner in respect of the alleged offence said to have been committed by the
petitioner, if police thinks so.

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