Investigation; Arun Kumar Vs. State of U.P. [Allahabad High Court, 08-07-2016]

Criminal Procedure Code, 1973 – Section 173(8) – Further Investigation – Refusal of Permission for Further Investigation – Once a permission was sought and declined, then Police department did not have any authority to continue the investigation.

# Further Investigation


HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 482 No. – 3384 of 2014

Applicant :- Arun Kumar Vs. Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Vinay Saran; Counsel for Opposite Party :- Govt. Advocate,Apul Mishra

Hon’ble Bharat Bhushan,J.

1. Two brothers, applicant Arun Kumar and respondent no. 2 Mritunjay Kumar are at each other’s throat vying for possession of two bedroom flat bearing no. B-138, Kendriya Vihar, Sector-51, Noida, District Gautam Buddh Nagar resulting in civil as well as criminal litigation including present charge sheet dated 17.9.2013 under

# Sections 392, 452, 342, 323, 504, 506, 427 Indian Penal Code

(in short, IPC) arising out of Case crime no. 33 of 2010, Police Station Sector-49 Noida, District Gautam Buddh Nagar.

2. Applicant seeks quashing of the aforesaid charge sheet and subsequent proceedings. The brief facts relating to the dispute are that applicant Arun Kumar is working in Border Security Force (in short, BSF) as an employee. He was allotted a two bedroom flat no. B-138, Kendriya Vihar, Sector-51, Noida, District Gautam Buddh Nagar by Central Government Employees Welfare Housing Organization (in short, (C.G.E.W.H.O.) under para-military quota in the year 1997. The possession of the flat was handed-over to the applicant in the year 1999. Applicant, his wife and two children started living in this flat. Since the applicant mostly remains outside on account of his onerous duty, he allowed his elder brother respondent no. 2 to stay in a portion of the aforesaid flat so that during his absence, his elder brother can take care of his family and manage the property while remaining portion was occupied by the applicant’s family. Respondent no. 2 was unmarried till 2006

3. It is stated that for day to day management of the property including telephone connection and power connection etc. a general power of attorney (in short, G.P.A.) and a Will was executed in favour of respondent no. 2. Respondent no. 2 got married in the year 2007. It is further stated that respondent no. 2 developed oblique interest in the property of the applicant and on suspecting the motive of respondent no. 2, applicant cancelled G.P.A. and executed a fresh Will in favour of his wife and children and duly intimated respondent no. 2. In fact, applicant also asked respondent no. 2 to shift to some other property because he required entire flat for growing family needs but Mritunjay Kumar respondent no. 2, instead of vacating the portion of the flat, which was in his possession, issued a legal notice dated 29.5.2007 through his Advocate, which was replied by counsel of the applicant on 28.7.2007. The crux of the dispute is that respondent no. 2 started claiming ownership right on the ground that money for acquisition of the aforesaid flat was supplied by the family especially parents and other brothers of the applicant and family settlement gave this property to respondent no. 2. His claim is that entire money for purchase of the aforesaid property was supplied by the parents, other brothers and respondent no. 2 and now after escalation in value of property, the applicant is trying to grab the property.

4. Applicant, on the other hand, says that the property was allotted to him as a part of his para-military employment and that respondent no. 2 does not have any right over the property. He further claims that no family settlement had been executed and entire family property is still intact without any division. In any case, he claims that his property can not become part of family settlement. The property is self-acquired, even if, some money was paid by their parents and other brothers that would not change nature of title of the property allotted to the applicant by C.G.E.W.H.O. Authority.

5. Apparently, civil litigation started between the parties . Criminal disputes also erupted. Applicant says that he went to Police Station for registration of the complaint against respondent no. 2 but Police initially refused to lodge the complaint but acknowledged it after a considerable delay and modification of the complaint, as suggested by the Police. After acknowledgment of the complaint, respondent no. 2 vacated the flat on his own.

6. It is further stated that on the same day, respondent no. 2 moved an application under section 156(3) Criminal procedure Code (in short, Cr.P.C.) levelling serious allegations against the applicant. The application alleges that applicant along with 5-6 miscreants assaulted respondent no. 2 and robbed his household goods and thereafter, forcibly threw him out of the disputed flat. It was also alleged that a cash amount of Rs. Two lacs and some jewelry was also pillaged by applicant and his companions. Respondent no. 2 claims that his report was not lodged by the Police, therefore, he sought and obtained direction from the court. This report was lodged as Case crime no. 33 of 2010 under sections 392,452,342,323,504,506, 427 and investigation was conducted. The Investigating Officer concluded that there was no satisfactory evidence in support of allegations and that dispute was essentially civil in nature. Thereafter, final report dated 12.10.2010 was submitted.

7. Respondent no. 2 filed a protest petition against final report dated 12.10.2010 and Chief Judicial Magistrate, Gautam Buddh Nagar after considering the entire material on record rejected the protest petition on 14.3.2011 and accepted the final report. This order of Chief Judicial Magistrate, Ghaziabad dated 14.3.2011, approving the final report was challenged by respondent no. 2 by filing Criminal Revision No. 93 of 2011 (Mritunjay Kumar versus State of U.P.). This criminal revision was allowed by Additional Sessions Judge, Ghaziabad vide order dated 17.8.2011 and consequently learned Magistrate was directed to pass fresh orders after considering the report dated 6.6.2010 prepared by Sri Sudhir Kumar, Superintendent of Police (Transport), Meerut. The matter was again considered by Chief Judicial Magistrate, Ghaziabad and this time a detailed order dated 22.9.2011 was passed wherein he considered all the materials as had been directed by the revisional court. Learned Chief Judicial Magistrate again rejected the protest petition dated 25.2.2011 and accepted the final report by this order dated 22.9.2011. This order was again challenged by filing Crl. Revision No. 278 of 2011 (Mritunjay Kumar versus State of U.P.). This time revisional court rejected the criminal revision and affirmed the order dated 22.9.2011 passed by the Chief Judicial Magistrate vide judgment and order dated 18.5.2012.

8. After rejection of this criminal revision against the acceptance of final report dated 12.10.2010, an application was moved before the then Senior Superintendent of Police (in short, S.S.P), Gautam Buddh Nagar on 24.7.2012 for ordering further investigation under section 173(8)Cr.P.C. and S.S.P. Gautam Buddh Nagar with alacrity ordered further investigation on same day without taking into consideration two earlier orders of Chief Judicial Magistrate accepting final report and revisional order dated 18.5.2012 affirming such acceptance.

9. Investigating Officer S.I. Girish Kumar moved an application before Chief Judicial Magistrate, Gautam Buddh Nagar and sought permission for further investigation. The Chief Judicial Magistrate considered the request in the light of acceptance of final reports twice and revisional order dated 18.5.2012 affirming such acceptance and rejected the application vide order dated 17.9.2012 (Annexure-10 to the application). The said order passed by the Chief Judicial Magistrate, Gautam Buddh Nagar is reproduced below :-

[Omitted]

10. The aforesaid rejection order did not deter Police personnel in utter disregard to the judicial order dated 22.9.2011 passed by Chief Judicial Magistrate, revisional judgment dated 18.5.2012 of Sessions Court and refusal of permission for further investigation vide order dated 17.9.2012. Investigating Officer continued to investigate the dispute and filed charge sheet against the applicant bearing no. 147 of 2013 under sections 323, 504, 506, 427 IPC.

11. This charge sheet was submitted before Additional Chief Judicial Magistrate II, Gautam Buddh Nagar whereupon learned Magistrate took cognizance and case was registered as Criminal Case No. 1683 of 2013. It appears that matter did not rest there. Senior Superintendent Of Police, Gautam Buddh Nagar again ordered further investigation on 10.8.2013 but this time, investigation was entrusted to some other Investigating Officer of different Police Station. Police official working at the Police Station Sector-39 Noida, was given responsibility for further investigation despite submission of the charge sheet dated 18.7.2013. This time permission of learned Magistrate was not even sought. The matter was further investigated pursuant to direction of S.S.P. Gautam Buddh Nagar and another charge sheet dated 17.9.2013 under sections 392, 452, 323, 504, 506, 427 IPC was submitted, meaning thereby that new charge sheet also contained two new sections, namely, sections 392 and 452 IPC making the charge-sheet under cognizable and non-bailable offences. This second charge sheet dated 17.9.2013 and subsequent proceedings are under challenge before this Court on behalf of applicant.

12. Heard Sri Vinay Saran, learned counsel for the applicant, Sri Apul Misra, learned counsel for respondent no. 2 and learned AGA for the State.

13. Learned counsel for the applicant claims that entire dispute essentially is of civil in nature and same has deliberately been converted into criminal case in order to grab the property of the applicant by taking benefit of the fact that applicant is mostly posted at distant place with poor connectivity. He further claims that stated G.P.A. agreement and Will can not transfer the title of the property in dispute to respondent no. 2, even if, it is assumed that some money was paid by their parents in order to facilitate the purchase of property. Learned counsel for the applicant has also submitted that two final reports have been submitted by various Investigating Officers and revision against them have been dismissed by the revisional court vide judgment and order dated 18.5.2012.

14. That learned counsel for the applicant has also argued that once an application was moved by Investigating Officer seeking permission from the Magistrate in order to commence further investigation under section 173(8) Cr.P.C., his further action must be in consonance with the order of the Magistrate. He has also drawn attention of this Court towards the application moved for further investigation which was dismissed but in gross violation and utter disregard of the judicial order dated 18.5.2012, the further investigation was conducted. Learned counsel for the applicant has submitted that this course of action is not permissible in view of judgment of Apex Court in

# Vinay Tyagi versus Irshad Ali @ Deepak, 2013 SCC (5) 762

15. Learned counsel for the applicant has also argued that even after submission of charge-sheet under sections 323, 504, 506, 427 IPC, S.S.P. Gautam Buddh Nagar did not stop as charge-sheet had been filed in non-cognizable and bailable offences. Senior Superintendent of Police again ordered further investigation and this time further investigation was handed-over to different Police Station and this new Investigating Officer working out of Police Station Sector-39 Noida, Gautam Buddh Nagar filed another charge-sheet wherein sections 392, 452 IPC were added. Both these offences are non-bailable and cognizable offences. Learned counsel for the applicant has further claimed that he approached Senior Superintendent Of Police and new Investigating Officer, apprising them the pronouncement of Apex Court in Vinay Tyagi’s case (Supra) etc., Copies of the aforesaid judgment was also served on both Senior Superintendent of Police as well as Investigating Officer yet no heed was paid and Investigating Officer in collusion with respondent no. 2 with malafide intention initiated second further investigation and submitted charge-sheet in much graver offences deliberately with oblique purpose.

16. Per contra, learned Additional Government Advocate and Sri Apul Misra, learned counsel for respondent no. 2 have claimed that further investigation under section 173(8) Cr.P.C. is statutory right of Police which does not requires permission from any Magistrate. In this connection, he has drawn attention of this Court to the provisions enshrined under section 173(8) Cr.P.C. which does not contemplate any prior permission of the Magistrate. Learned counsel for the applicant has further submitted that disputed property belongs to respondent no. 2. The name of applicant was used for allotment for the simple reason that no other person could have been allotted this property but entire money for it was paid by parents and brothers of the applicant. He further submits that he was in possession of the property at the time of incident and that he was thrown out of property with the help of anti-social elements by using force and that several household good and jewellery were plundered by the applicant and his companions. Learned counsel for respondent no. 2 has further claimed that judgment of Apex Court in Vinay Tyagi’s case (Supra) is not applicable in the instant case as the same is against the express provisions of Section 173(8)Cr.P.C. He has further argued that even if it is assumed that prior permission of Magistrate is necessary, then absence of prior permission is an irregularity which has been cured subsequently by the Magistrate by taking cognizance on the supplementary charge sheet.

17. Before embarking to decide various arguments raised by learned counsel for the parties, it would be appropriate to dispose of one of the arguments of counsel for respondent no. 2 at the initial stage itself. Learned counsel for respondent no. 2 has claimed that judgment of Apex Court in Vinay Tyagi’s case (Supra) is not applicable as the same is against the express provisions of section 173(8) Cr.P.C. This argument does not deserve to lengthy answer. The fact of the matter is that every statutory provision can be interpreted by the constitutional courts in a particular manner and once they are interpreted in a particular fashion, it is incumbent upon all the inferior court to follow such mandate. No inferior court is empowered to refuse to follow the mandate on the ground that same is against the statutory provisions. If Vinay Tyagi’s case (Supra) is applicable in the instant case, then same will apply with full vigor.

18. Before analyzing the facts of the instant case, it would be appropriate to recapitulate briefly the provisions of Cr.P.C. with regard to charge sheet and protest petition etc. The scheme entails that in pursuance of registration of FIR in cognizable offences, an investigation will be held and as a consequence of this investigation, a report under section 173(3) Cr.P.C. will be submitted. This report may result in exoneration of accused or finding that there is no sufficient evidence to proceed against any body resulting in submission of final report or closure report. But if the Investigation Officer is able to identify the perpetrators of crime and obtain sufficient material for their prosecution, then report is submitted in the form of charge-sheet for the trial. Section 173(8)Cr.P.C. provides that nothing shall be deemed to preclude further investigation after submission of charge sheet, meaning thereby that Incharge/Investigation Officer is not precluded from gathering further evidence. This additional evidence, oral or documentary, is required to be forwarded to the Magistrate with further report. The provisions contained under sub-sections (2) to (6) of Section 173 Cr.P.C. shall, as far as, may apply in relation to the report forwarded under sub-section (2) of section 173 Cr.P.C.

19. It essentially means that even when a charge-sheet or report under section 173(2) Cr.P.C. has been submitted, the Officer Incharge of the Police Station/Investigating officer can conduct further investigation in the matter and submit further oral as well as documentary evidence to the Magistrate and such report ordinarily will be known as supplementary report. The Apex Court in various decisions especially in Vinay Tyagi’s case (Supra) has held that even Magistrate can order further investigation, meaning thereby that not only the officer in charge of the Police Station can commence further investigation, if required, even the Magistrate can order further investigation under section 173(8) of the Code. However, the Apex Court in Vinay Tyagi’s case (Supra) has clearly held that further investigation is nothing but continuation of previous investigation. The Court held, thus :-

“10. The initial investigation is the one which the empowered police officer shall conduct in furtherance to registration of an FIR. Such investigation itself can lead to filing of a final report under Section 173(2) of the Code and shall take within its ambit the investigation which the empowered officer shall conduct in furtherance of an order for investigation passed by the court of competent jurisdiction in terms of Section 156(3) of the Code.

”Further investigation’ is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a ”further investigation’. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as ”supplementary report’. ”Supplementary report’ would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a ”reinvestigation’, ”fresh’ or ”de novo’ investigation.”

20. It is true that normally investigating agencies seek prior permission from the court for conducting further investigation though section 173(8) of the Code does not talk of prior permission from the Magistrate. Section 173(8) of the Code specifically authorizes the Police or Investigating agencies to conduct further investigation of its own. However, for practical purposes, it is always logical to seek prior permission. One of the reasons may be that if the court concerned is not kept in the loop, then trial may be over before supplementary report is submitted. Therefore, it is always preferable to seek prior permission of the Magistrate. But as far as interpretation of law is concerned, it is evident that Police is not required to seek prior permission of the Magistrate before conducting further investigation. Even the Apex Court has taken note of this fact that there is no specific requirement under the provisions of section 173(8)of the Code to conduct further investigation with the leave of the court. The Apex Court in Vinay Tyagi’s case (Supra) has held thus:-

“26. Now, we may examine another significant aspect which is how the provisions of Section 173(8) have been understood and applied by the courts and investigating agencies. It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct ”further investigation’ or file supplementary report with the leave of the Court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct ”further investigation’ and file ”supplementary report’ with the leave of the court. The courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the Court to conduct ”further investigation’ and/or to file a ”supplementary report’ will have to be read into, and is a necessary implication of the provisions of Section 173(8)of the Code. The doctrine of contemporanea expositio will fully come to the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice that is supported by law should be accepted as part of the interpretative process.

Such a view can be supported from two different points of view. Firstly, through the doctrine of precedence, as afore-noticed, since quite often the courts have taken such a view, and, secondly, the investigating agencies which have also so understood and applied the principle. The matters which are understood and implemented as a legal practice and are not opposed to the basic rule of law would be good practice and such interpretation would be permissible with the aid of doctrine of contemporanea exposition. Even otherwise, to seek such leave of the court would meet the ends of justice and also provide adequate safeguard against a suspect/accused.”

21. The aforesaid observation of the court would indicate that there is no legal requirement to seek prior permission of the court though ordinarily permissions are taken or can be taken but question is whether absence of permission would render the further investigation vitiated? I am afraid, this interpretation would be against the express provisions of Code. Apex Court has also held in Vinay Tyagi’s case (Supra) that it is a matter of propriety for the Police to seek permission from the court.

22. The Apex Court in

# State of Andhra Pradesh versus A.S.Peter (2008) I S.C.C. (Cri) 427

has held that law does not mandate taking of prior permission from the Magistrate for further investigation. The Court has held thus:-

“9. 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 chargesheet is a statutory right of the police. A distinction also exists between further investigation and re- investigation. Whereas re-investigation without prior permission is necessarily forbidden, further investigation is not.”

23. Similarly, the Apex Court in

# Rama Chaudhary versus State of Bihar (2009) 2 S.C.C. (Cri) 1059

has held that normal permission from the Magistrate is not necessary for taking further investigation. The judgment reads as under :-

“15. Among other sub-sections, we are very much concerned about sub- section (8) which reads as under:-

“(8) 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, where upon 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 provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).”

A mere reading of the above provision makes it clear that irrespective of report under sub-section (2) forwarded to the Magistrate, if the officer in-charge of the police station obtains further evidence, it is incumbent on his part to forward the same to the Magistrate with a further report with regard to such evidence in the form prescribed. The above said provision also makes it clear that further investigation is permissible, however, reinvestigation is prohibited.

16. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge-sheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible.

17. From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of police report under sub-section (2) on completion of investigation, the police has a right to “further” investigation under sub-section (8) of Section 173 but not “fresh investigation” or “reinvestigation”. The meaning of “Further” is additional; more; or supplemental. “Further” investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether.

18…

19……

20….

21….

24. It is, therefore, apparent that as far as legal position is concerned, Police is not precluded to conduct further investigation even without prior permission of Magistrate. But, in the instant case, situation is significantly different. Investigation was conducted initially and a final report dated 12.10.2010 was submitted concluding that there was no satisfactory evidence in support of allegation and dispute was essentially civil in nature. A protest petition was filed which was rejected by the Magistrate. Respondent no. 2 Mrityunjay Kumar was not satisfied with the order of the Magistrate, therefore, he filed criminal revision bearing Criminal Revision No. 93 of 2011 (Mrityunjay Kumar versus State of U.P.). Apparently, Sessions Judge came across a report prepared by Superintendent of Police (Transport), Meerut, which had not been considered by the Magistrate. It would not be appropriate for this Court to give its opinion regarding this order as same would show that Magistrate was required to decide the protest petition on the basis of available evidence on record and that he was not required to initiate fishing expedition. But whatever may be the reason, the Sessions Judge did allow the criminal revision directing the Magistrate to pass fresh orders after considering the report dated 6.6.2010 prepared by Sri Sudhir Kumar, Superintendent of Police (Transport),Meerut.

25. In pursuance of the aforesaid order of Sessions Judge, learned Chief Judicial Magistrate considered the entire material on record as has been directed by the revisional court and thereafter, again rejected the protest petition on 22.2.2011 and approved the final report by the same order.

26. This did not deter Mritunjay Kumar, he again filed a criminal revision dated 27.8.2011 but this time the Sessions Court rejected the criminal revision and affirmed the order of the Magistrate dated 22.9.2011. Now, situation took an interesting turn. After approval of final report and finding no support from the Magistrate and Sessions Court, Senior Superintendent of Police, Gautam Buddh Nagar stepped in. He ordered further investigation under section 173(8) Cr.P.C. with significant promptness. He did not take into consideration the two earlier orders of Chief Judicial Magistrate approving final report and revisional order dated 18.5.2012. Pursuant to the aforesaid order, the Investigating Officer sought permission from the Chief Judicial Magistrate for further investigation. Learned Magistrate considered the request in the light of acceptance of final report twice and revisional order dated 18.5.2012 affirming the said acceptance and rejected the application vide order dated 17.9.2012. The order has already been quoted in paragraph-9 of this judgment. There was no ambiguity in the order of the learned Magistrate but aforesaid rejection order did not deter the Police from conducting further investigation. They did not care that request for permission had been rejected by the Magistrate. In utter disregard to judicial discipline, they refused to obey the order passed by the Chief Judicial Magistrate and not only continued further investigation but also filed charge-sheet under Sections 323,504, 506,427 IPC.

27. This charge-sheet did not satisfy Senior Superintendent of Police, Gautam Buddh Nagar, he again ordered further investigation vide order dated 10.8.2013 and entrusted the investigation to a different Police Officer working out of Police Station Sector-39, Noida. This time police did not care to seek permission of Magistrate and this second further investigation resulted in another charge-sheet dated 17.9.2013 wherein two new sections 392, 452 IPC were added, making this charge-sheet under cognizable and non-bailable offences. This sequence of event would indicate that some body was hell-bent upon prosecuting the applicant in grave offences. He/she was not satisfied by his prosecution under bailable and non cognizable offences. That person made sure that applicant, who is an employee of B.S.F., is prosecuted under cognizable and non-bailable offences. Question is whether investigation conducted by police without prior permission of the Magistrate is valid or not ? There is no doubt that section 173(8) Cr.P.C. does not talk about prior permission of the Magistrate even Vinay Tyagi’s case (Supra) also does not mandate that further investigation without prior permission of the Magistrate is illegal or vitiated. But, in the instant case, the permission was indeed applied for and same was rejected by the Magistrate. No body asked the Police personnel to seek permission from the Magistrate but once they sought permission from the Magistrate and same was denied, there was no occasion for them to initiate further investigation in utter disregard and in violation of order of Magistrate dated 17.9.2012. Surprisingly, permission was sought and denied, yet investigation was conducted. In the instant case, several investigations have been conducted. First investigation resulted into final report. Second investigation resulted into charge-sheet under non-bailable and non-cognizable offences. The procedure laid down under Section 2(d) Cr.P.C. says in explanation annexed with this provision that a report made by Police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint and police officer by whom such report is made shall be deemed to be the complainant. But, this did not satisfy bigwigs of Police department and they again ordered investigation by a different officer and made sure that charge-sheet is filed under cognizable and non-bailable offences.

28. I have absolutely no doubt that once a permission was sought and declined, then Police department Gautam Buddh Nagar did not have any authority to continue the investigation. Subsequent investigation illegal and vitiated. The charge-sheet dated 17.9.2013 subsequent to this investigation, is not sustainable. The procedure adopted by the Gautam Buddh Nagar Police reeks of malafide and arbitrariness. The Apex Court in

# State of Haryana versus Bhajan Lal 1990 Lawsuit (SC) 701

has held that where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, the High Court would be justified in exercising the powers under section 482 Cr.P.C. in quashing the charge-sheet.

29. A bare perusal of facts would reveal that dispute is essentially about a plot of land, title of which can not be adjudicated by the criminal court. Both brothers are fighting for ownership and possession of flat concerned. Rights over this flat will have to be decided by civil court. Invocation of jurisdiction of criminal court is merely a ploy to pressurize the applicant. It is admitted case that families of both the brothers were living in the same flat therefore, nobody can accuse other of looting or robbing goods enjoyed by both persons. In any case, Police personnel themselves were not satisfied with the correctness of allegations. Instead of advising the brothers to get the dispute adjudicated by a competent civil court, the Police personnel became interested in one brother or other at various points of time. It is my firm opinion that this criminal case is nothing but a ploy to put pressure for settling the civil dispute and that entire procedure is vitiated by mala fide. This criminal case was instituted with mala fide intention of wreaking vengeance upon the applicant due to private and personal grudge.

30. In view of the aforesaid discussion, the Application under section 482 Cr.P.C. is allowed. The impugned charge-sheet dated 18.7.2013 and additional charge-sheet dated 17.9.2013 undersections 392,452, 342, 323, 504, 506, 427 IPC arising out of FIR dated 23.1.2010 registered as Crime No. 33 of 2010 under sections 323, 342, 392, 452, 504, 506 IPC, Police Station Sector-49, Noida, District Gautam Buddh Nagar pending as case no. 1383 of 2013 before Additional Chief Judicial Magistrate, Gautam Buddh Nagar are quashed.

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