State of Uttar Pradesh v. Suraj Shukla and others), under Section

1. Heard Sri Manish Tiwary, learned Senior Advocate assisted by Sri Pranav Tiwary, learned counsel for the petitioner, Sri Paritosh Malviya, learned AGA-I for the State and perused the record.

2. This writ petition is preferred under Article 226 of the Constitution of India praying for the following principal relief: "Issue a writ, order, or direction in the nature of mandamus to opposite party no. 2 and 3 to conduct a further investigation in Case Crime No.90 of 2023 at P.S. Sikandra, District Kanpur Dehat."

3. However, the learned AGA-I for the State has raised objections to the writ petition's maintainability. Firstly, the petitioner lacks the locus to press the relief as she is neither the informant nor the investigating officer. Further, the informant, Hariom Tripathi, has not filed the present writ petition.

4. Secondly, the order dated 18.10.2024, dismissing an application under Section 173(8) of the Cr.P.C. by Additional District and Sessions Judge/Fast Track Court (14th Finance Commission), Rambai Nagar (Kanpur Nagar), in Sessions Case No.2373 of 2023 (State of Uttar Pradesh Vs. Suraj Shukla and others), under Section 302 of the IPC, Police Station Sikandra, District Kanpur Dehat, has been challenged in this writ petition at a later stage. The prosecution has already examined its three witnesses. Therefore, this petition deserves dismissal on the ground of delay.

4. Thirdly, an application No.42045 of 2024 was filed under Section 528 of the BNSS before the learned Single Judge of this Court by the petitioner, where the impugned order dated 18-10- 2024 application was challenged. However, the proceedings with regard to the aforesaid application under Section 528 of the BNSS were dismissed as withdrawn, granting the petitioner the liberty to file an appropriate application or proceeding before the Court of competent jurisdiction. In light of the observations made by the learned Single Judge, the appropriate forum is not a Division Bench of this Court sitting under Article 226 of the Constitution of India. The order passed by the Single Judge is an order of a coordinate Bench, which is assailable only before the Hon'ble Apex Court Consequently, this second petition for seeking similar relief is not maintainable.

5. Lastly, the learned AGA for the State respondents, submitted that the order passed by the learned Single Judge also reflects that the application filed under Section 173(8) of the Cr.P.C. was filed at a later stage when the trial was pending for cross-examination.

6. In this context, we have examined the record and considered the preliminary objections raised by the learned AGA. It is undeniable that the petitioner filed an application under Section 173(8) Cr.P.C. before the learned Additional District and Sessions Judge/Fast Track Court (14th Finance Commission), Rambai Nagar (Kanpur Nagar), at a very late stage. This was when the testimony of three prosecution witnesses had already been recorded by the Trial Court. The petitioner contends that during the investigation, the name of one Archana Awasthi emerged from the call detail records of the deceased. Archana Awasthi herself admitted in her statement recorded under Section 161 Cr.P.C. that she was in constant contact with the deceased. Moreover, the case diary reveals that money was transferred from the deceased's bank account to Archana Awasthi's. However, these crucial facts were completely overlooked by the Investigating Officer. The petitioner relies on specific extracts from the case diary to argue that the evidence collected by the I.O. is sufficient to establish the complicity of Archana Awasthi and other respondents. Despite the compelling evidence gathered during the investigation, the charge sheet against the real accused was not submitted. This has compelled the petitioner to move an application under Section 173(8) Cr.P.C.

7. From the pleadings in this petition, it is evident that the petitioner initially filed an application under Section 173(8) Cr.P.C. before the Additional District and Sessions Judge. However, the petitioner has not disclosed whether she had previously filed an application before the Magistrate. As a general rule, an application for further investigation or a protest petition is typically filed before the Magistrate, who is empowered to issue an order for further investigation. However, this order can only be granted if new and relevant material comes to the knowledge of either the investigating agency or the Court. In the landmark case of K. Vadivel Vs. K. Shanthi & Ors., 2024 LiveLaw (SC) 757, the Supreme Court held that further investigation can be ordered when fresh material emerges that implicates previously unaccused individuals, absolves those already accused, or brings to the attention of the investigating agency that an accused person has a strong alibi. In contrast, the petitioner's case appears to be the opposite. She has sought the prayer for further investigation based on materials that are already part of the case diary, which cannot be considered fresh material. From the mere reading of the petition, it seems that the application under Section 173(8) Cr.P.C. was filed with the intention of including the excluded respondent as an accused in the ongoing trial rather than to seek further investigation.

8. Another relevant issue to consider is whether an order for further investigation can be made after charges have been framed for initiation of trial. The Supreme Court in Vinubhai Haribhai Malaviya vs. The State of Gujarat, (2019) SCC Online SC 1346, held that an order for further investigation can be made after the filing of a charge sheet but before charges are framed for initiation of trial. In this case, it appears that the petitioner did not attempt to file any such application before charges were framed. Similarly, an order for further investigation can also be made after commencement of trial, but only in exceptional circumstances. The Supreme Court in Rampal Gautam Vs. The State, 2025 Livelaw (SC) 164, held that before directing such investigation, the Court or the concerned police officer must apply their mind to the available material and arrive at a satisfaction that the investigation of the allegations is necessary for a just decision of the case. The same set of facts as narrated in this petition were also before the Supreme Court in Rampal (Supra). The trial had commenced in that case, and it was held that the complainant is entitled to present her entire case and grievances during her examination-in-chief and request the Trial Court to summon the remaining family members who had been exonerated during investigation under Section 319 Cr.P.C.Petitioner in present case still has an option to file an application under Section 319 of Cr.P.C before the learned Trial Court seeking prayer for summoning the accused as alleged in this writ petition. Notably, the petitioner at this belated stage has not presented any new material or allegations that necessitate further investigation for a just decision of the case. Instead, she has relied upon the materials available in the case diary.

9. Moreover, the order passed by the learned Single Judge in Application U/s 528 BNSS No.42045 of 2024 also indicates that it granted the petitioner the liberty to file an appropriate application or proceedings before the Court of competent jurisdiction while rejecting the similar plea. This means that the plea was considered and thereafter liberty was granted. Once the plea has been considered by the Single Judge, it cannot be reconsidered by this Division Bench

10. The writ petition sans merit and is dismissed. (Anil Kumar-X,J.) (Mahesh Chandra Tripathi,J.) Order Date :- 22.5.2025/Mukesh

1. Heard Sri Manish Tiwary, learned Senior Advocate assisted by Sri Pranav Tiwary, learned counsel for the petitioner, Sri Paritosh Malviya, learned AGA-I for the State and perused the record.

2. This writ petition is preferred under Article 226 of the Constitution of India praying for the following principal relief: "Issue a writ, order, or direction in the nature of mandamus to opposite party no. 2 and 3 to conduct a further investigation in Case Crime No.90 of 2023 at P.S. Sikandra, District Kanpur Dehat."

3. However, the learned AGA-I for the State has raised objections to the writ petition's maintainability. Firstly, the petitioner lacks the locus to press the relief as she is neither the informant nor the investigating officer. Further, the informant, Hariom Tripathi, has not filed the present writ petition.

4. Secondly, the order dated 18.10.2024, dismissing an application under Section 173(8) of the Cr.P.C. by Additional District and Sessions Judge/Fast Track Court (14th Finance Commission), Rambai Nagar (Kanpur Nagar), in Sessions Case No.2373 of 2023 (State of Uttar Pradesh Vs. Suraj Shukla and others), under Section 302 of the IPC, Police Station Sikandra, District Kanpur Dehat, has been challenged in this writ petition at a later stage. The prosecution has already examined its three witnesses. Therefore, this petition deserves dismissal on the ground of delay.

4. Thirdly, an application No.42045 of 2024 was filed under Section 528 of the BNSS before the learned Single Judge of this Court by the petitioner, where the impugned order dated 18-10- 2024 application was challenged. However, the proceedings with regard to the aforesaid application under Section 528 of the BNSS were dismissed as withdrawn, granting the petitioner the liberty to file an appropriate application or proceeding before the Court of competent jurisdiction. In light of the observations made by the learned Single Judge, the appropriate forum is not a Division Bench of this Court sitting under Article 226 of the Constitution of India. The order passed by the Single Judge is an order of a coordinate Bench, which is assailable only before the Hon'ble Apex Court Consequently, this second petition for seeking similar relief is not maintainable.

5. Lastly, the learned AGA for the State respondents, submitted that the order passed by the learned Single Judge also reflects that the application filed under Section 173(8) of the Cr.P.C. was filed at a later stage when the trial was pending for cross-examination.

6. In this context, we have examined the record and considered the preliminary objections raised by the learned AGA. It is undeniable that the petitioner filed an application under Section 173(8) Cr.P.C. before the learned Additional District and Sessions Judge/Fast Track Court (14th Finance Commission), Rambai Nagar (Kanpur Nagar), at a very late stage. This was when the testimony of three prosecution witnesses had already been recorded by the Trial Court. The petitioner contends that during the investigation, the name of one Archana Awasthi emerged from the call detail records of the deceased. Archana Awasthi herself admitted in her statement recorded under Section 161 Cr.P.C. that she was in constant contact with the deceased. Moreover, the case diary reveals that money was transferred from the deceased's bank account to Archana Awasthi's. However, these crucial facts were completely overlooked by the Investigating Officer. The petitioner relies on specific extracts from the case diary to argue that the evidence collected by the I.O. is sufficient to establish the complicity of Archana Awasthi and other respondents. Despite the compelling evidence gathered during the investigation, the charge sheet against the real accused was not submitted. This has compelled the petitioner to move an application under Section 173(8) Cr.P.C.

7. From the pleadings in this petition, it is evident that the petitioner initially filed an application under Section 173(8) Cr.P.C. before the Additional District and Sessions Judge. However, the petitioner has not disclosed whether she had previously filed an application before the Magistrate. As a general rule, an application for further investigation or a protest petition is typically filed before the Magistrate, who is empowered to issue an order for further investigation. However, this order can only be granted if new and relevant material comes to the knowledge of either the investigating agency or the Court. In the landmark case of K. Vadivel Vs. K. Shanthi & Ors., 2024 LiveLaw (SC) 757, the Supreme Court held that further investigation can be ordered when fresh material emerges that implicates previously unaccused individuals, absolves those already accused, or brings to the attention of the investigating agency that an accused person has a strong alibi. In contrast, the petitioner's case appears to be the opposite. She has sought the prayer for further investigation based on materials that are already part of the case diary, which cannot be considered fresh material. From the mere reading of the petition, it seems that the application under Section 173(8) Cr.P.C. was filed with the intention of including the excluded respondent as an accused in the ongoing trial rather than to seek further investigation.

8. Another relevant issue to consider is whether an order for further investigation can be made after charges have been framed for initiation of trial. The Supreme Court in Vinubhai Haribhai Malaviya vs. The State of Gujarat, (2019) SCC Online SC 1346, held that an order for further investigation can be made after the filing of a charge sheet but before charges are framed for initiation of trial. In this case, it appears that the petitioner did not attempt to file any such application before charges were framed. Similarly, an order for further investigation can also be made after commencement of trial, but only in exceptional circumstances. The Supreme Court in Rampal Gautam Vs. The State, 2025 Livelaw (SC) 164, held that before directing such investigation, the Court or the concerned police officer must apply their mind to the available material and arrive at a satisfaction that the investigation of the allegations is necessary for a just decision of the case. The same set of facts as narrated in this petition were also before the Supreme Court in Rampal (Supra). The trial had commenced in that case, and it was held that the complainant is entitled to present her entire case and grievances during her examination-in-chief and request the Trial Court to summon the remaining family members who had been exonerated during investigation under Section 319 Cr.P.C.Petitioner in present case still has an option to file an application under Section 319 of Cr.P.C before the learned Trial Court seeking prayer for summoning the accused as alleged in this writ petition. Notably, the petitioner at this belated stage has not presented any new material or allegations that necessitate further investigation for a just decision of the case. Instead, she has relied upon the materials available in the case diary.

9. Moreover, the order passed by the learned Single Judge in Application U/s 528 BNSS No.42045 of 2024 also indicates that it granted the petitioner the liberty to file an appropriate application or proceedings before the Court of competent jurisdiction while rejecting the similar plea. This means that the plea was considered and thereafter liberty was granted. Once the plea has been considered by the Single Judge, it cannot be reconsidered by this Division Bench

10. The writ petition sans merit and is dismissed. (Anil Kumar-X,J.) (Mahesh Chandra Tripathi,J.) Order Date :- 22.5.2025/Mukesh