High Court · 2025

Learned counsel for the applicants submits that the complainant had falsely implicated the applicants in the above mentioned case, wherein the investigation had not been conducted properly and the charge sheet under Section 173(2) Cr.P.C. was filed against the applicants. Learned counsel submits that aggrieved against the defective investigation, an application was moved for further investigation and the same has been dismissed vide order dated 18.12.2024. Learned counsel prays that the impugned order calls for interference by this Court, as in the facts and the further circumstances of the case, investigation is necessary. After hearing the learned counsel and considering his submissions, this court does not find any merit in this case, as by now, it is settled law that that the accused has no right to have any say as regards the manner and method of investigation, and in this regard, the reliance can be placed upon the decision of the Hon'ble Supreme Court in Dinubhai Boghabhai Solanki Vs. State of Gujarat and others, 2014 (4) SCC 626. The relevant observations in this decision read as under:- "The High Court had quashed and set aside the order passed by the Special Judge in charge of CBI matters issuing the order rogatory, on the application of a named accused in the FIR, Mr. W.N.Chadha. The High Court held that the order issuing letter rogatory was passed in breach of principles of natural justice. In appeal, this court held as follows: "89. Applying the above principle, it may be held that when the investigating ofÏcer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under Section 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alterma partem is implicit, but whether the occasion for its attraction exists at all. xx xx xx

92. More so, the accused has not right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has not participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173 (2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding that the said offence is triable by a Magistrate or triable exclusively by the Court of Sessions, the accused has not right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to given an opportunity of being heard under certain specified circumstances. xx xx xx

98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary." The above view was again reiterated by Hon'ble Supreme Court in Romila Thapar and others Vs. Union of India and others, 2018 (10) SCC 753, and the relevant observations are extracted below:- "32.A fortiori, it must follow that the writ petitioners, who are strangers to the offence under investigation (in FIR No.4/2018); and since they are merely espousing the cause of the arrested five accused as their next friends, cannot be heard to ask for the reliefs which otherwise cannot be granted to the accused themselves. What cannot be done directly, cannot be allowed to be done indirectly even in the guise of public interest litigation.

33. We find force in the argument of the State that the prayer for changing the Investigating Agency cannot be dealt with lightly and the Court must exercise that power with circumspection. As a result, we have no hesitation in taking a view that the writ petition at the instance of the next friend of the accused for transfer of investigation to independent Investigating Agency or for Court monitored investigation cannot be countenanced, much less as public interest litigation." Resultantly, the application fails and is hereby dismissed. Order Date :- 9.1.2025 Brijesh BRIJESH KUMAR BRIJESH KUMAR High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

Learned counsel for the applicants submits that the complainant had falsely implicated the applicants in the above mentioned case, wherein the investigation had not been conducted properly and the charge sheet under Section 173(2) Cr.P.C. was filed against the applicants. Learned counsel submits that aggrieved against the defective investigation, an application was moved for further investigation and the same has been dismissed vide order dated 18.12.2024. Learned counsel prays that the impugned order calls for interference by this Court, as in the facts and the further circumstances of the case, investigation is necessary. After hearing the learned counsel and considering his submissions, this court does not find any merit in this case, as by now, it is settled law that that the accused has no right to have any say as regards the manner and method of investigation, and in this regard, the reliance can be placed upon the decision of the Hon'ble Supreme Court in Dinubhai Boghabhai Solanki Vs. State of Gujarat and others, 2014 (4) SCC 626. The relevant observations in this decision read as under:- "The High Court had quashed and set aside the order passed by the Special Judge in charge of CBI matters issuing the order rogatory, on the application of a named accused in the FIR, Mr. W.N.Chadha. The High Court held that the order issuing letter rogatory was passed in breach of principles of natural justice. In appeal, this court held as follows: "89. Applying the above principle, it may be held that when the investigating ofÏcer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under Section 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alterma partem is implicit, but whether the occasion for its attraction exists at all. xx xx xx

92. More so, the accused has not right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has not participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173 (2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding that the said offence is triable by a Magistrate or triable exclusively by the Court of Sessions, the accused has not right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to given an opportunity of being heard under certain specified circumstances. xx xx xx

98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary." The above view was again reiterated by Hon'ble Supreme Court in Romila Thapar and others Vs. Union of India and others, 2018 (10) SCC 753, and the relevant observations are extracted below:- "32.A fortiori, it must follow that the writ petitioners, who are strangers to the offence under investigation (in FIR No.4/2018); and since they are merely espousing the cause of the arrested five accused as their next friends, cannot be heard to ask for the reliefs which otherwise cannot be granted to the accused themselves. What cannot be done directly, cannot be allowed to be done indirectly even in the guise of public interest litigation.

33. We find force in the argument of the State that the prayer for changing the Investigating Agency cannot be dealt with lightly and the Court must exercise that power with circumspection. As a result, we have no hesitation in taking a view that the writ petition at the instance of the next friend of the accused for transfer of investigation to independent Investigating Agency or for Court monitored investigation cannot be countenanced, much less as public interest litigation." Resultantly, the application fails and is hereby dismissed. Order Date :- 9.1.2025 Brijesh BRIJESH KUMAR BRIJESH KUMAR High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench