{"id":243548,"date":"2007-12-17T00:00:00","date_gmt":"2007-12-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ashok-k-aggarwal-son-of-late-sri-vs-state-of-u-p-through-the-on-17-december-2007"},"modified":"2015-09-04T23:52:47","modified_gmt":"2015-09-04T18:22:47","slug":"ashok-k-aggarwal-son-of-late-sri-vs-state-of-u-p-through-the-on-17-december-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ashok-k-aggarwal-son-of-late-sri-vs-state-of-u-p-through-the-on-17-december-2007","title":{"rendered":"Ashok K. Aggarwal Son Of Late Sri … vs State Of U.P. Through The … on 17 December, 2007"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Ashok K. Aggarwal Son Of Late Sri … vs State Of U.P. Through The … on 17 December, 2007<\/div>\n
Author: S Kulshrestha<\/div>\n
Bench: S Kulshrestha<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 S.S. Kulshrestha, J.<\/p>\n
1. This application under Section 482 of the Code of Criminal Procedure (the Code) has been brought for quashing the order dated 1.10.2007 passed by the learned Chief Judicial Magistrate, Gautam Budh Nagar in Criminal Case No. 8422 of 2007, State of U.P. v. Ashok K. Aggarwal,<\/a> whereby taking cognizance of the offences under Sections 406\/420\/379\/448 IPC in Case Crime No. 89709\/758\/06 of 2006, registered at P.S. Sector 20, NOIDA, Gautam Budh Nagar on the charge sheet submitted by the police under Sub-section 173(1) of the Code.\n<\/p>\n
2. It is said that the entire case has been fabricated against the applicant. Whatever the allegations have been attributed they all relate to the period (1.1.2006) when he was working in the capacity of the President and Director of the complainant-company but the report of this incident was lodged after inordinate delay. The applicant after making substantial contribution to the growth of the company of the complainant left it on 28.2.2006 and joined another group. He was taken to high esteem in the Industrial Group and was also one of the directors of B.H.E.L. He had unnecessarily been dragged into these proceedings. The allegations with regard to non-vacating of the House No. B-115, Sector 26, NOIDA and also non-refund of sum of Rs. 12,25,000\/- are all a matter of civil nature. Further such allegations have been attributed with ulterior motive. Even when applicant was paid his provident fund, gratuity, superannuation fund, leave encashment amount Rs. 50 lacs in the months of January and February, 2006, such outstanding dues were not shown against him. No amount of the company is due against the applicant. On the other hand applicant’s claims which are in the tune of crores of rupees have not been settled by the complainant-company.\n<\/p>\n
3. It has next been contended that the applicant was being harassed by the O.P. No. 2 by bringing one or the other proceedings. Even the complainant intended to get the House No. B-115, Sector 26, NOIDA vacated by forceful and illegal means. Resultantly appellant had to bring Suit No. 533 of 2006 for injunction in the court of the Civil Judge (Sr. Division), Gautam Budh Nagar for restraining the complainant-company to interfere into his possession till due process of law is adopted. The FIR was also got registered by the complainant-company at case crime No. 89709\/758\/06 so as to cause damage to the reputation of the applicant who had unblemished career in the profession. The allegations with regard to the non-return of the CD. and certain other records, earlier accusations were made against one Sri Deepak Vashistha and report was lodged at Crime No. 89709\/235\/06 under Section 406 IPC at P.S. Sector 20, NOIDA, Gautam Budh Nagar and now that blame has been designed to be shifted against applicant.\n<\/p>\n
4. Police made extensive investigation in Case Crime No. 89709\/758\/06 of 2006 and submitted final report on 27.2.2007. As against that final report protest petition was filed by the complainant on 1.5.2007. That protest petition was treated as complaint case by the learned Magistrate vide his order dated 28.5.2007. Statement of the witnesses were also recorded under Sections 200 and 202 of the Code by the learned Magistrate and cognizance for the offences under Sections 406\/420\/379\/448 IPC was taken. The investigating officer, however, moved an application on 26.4.2007 before the Chief Judicial Magistrate for the grant of permission for reinvestigation\/further investigation. That request was declined by the learned Magistrate on 24.5.2007. The investigating officer proceeded at his own for further investigation in defiance of the order of learned Magistrate and submitted charge sheet for the offences under Sections 406\/420\/379\/448 IPC in Case Crime No. 89709\/758\/06 of 2006. The learned Magistrate had taken cognizance of the offences vide the order dated 1.10.2007 and issued summons against the applicant.\n<\/p>\n
5. First and foremost point raised in this application by the learned Counsel for the applicant is that the police had no power to proceed for making further investigation without the permission of the learned Magistrate. Before appropriating and answer to this moot question, a brief resume of the facts may be made. Police earlier submitted final report in Case Crime No. 89709\/758\/06 of 2006 for the offences under Sections 406\/420\/379\/448 IPC against the applicant. The learned Judicial Magistrate, to whom the final report was forwarded under Sub-section (2)(1) of Section 173 of the Code after giving notice of the hearing to the informant, fixed the date for the consideration of the report vide his order dated 1.10.2007. After taking into consideration the evidence and materials in the case diary treated the protest petition as complaint case and recorded the statement of the witnesses under Section 200 and 202 of the Code. After the conversion of the protest petition as complaint case an application in case crime No. 89709\/758\/06 was moved by the investigating officer for seeking permission to make further investigation and the learned Magistrate vide the order dated 24.5.2007 denied permission as no one was there to press that application.\n<\/p>\n
6. It is submitted by the learned Counsel for the complainant that investigating agency could not be tied down on the ground that once the final report has been submitted he is debarred to take up further investigation. Sub-section (8) of Section 173 of the Code permits further investigation and even de-hors any direction from the court as such, it is open to the police to conduct proper investigation even after the court took cognizance of any offence on the strength of the police report earlier submitted. Before proceeding for making such further investigation it is only desirable to give information to the learned Magistrate and in the instant case that information was given by the investigating officer to the learned Magistrate by moving an application. To the contrary from the side of the applicant it has been submitted that the police should inform to the court and seek formal permission to make further investigation when fresh facts come to the light instead of being silent over the matter. The powers of the police to conduct further investigation envisaged therein, can be triggered into motion only at the instance of the court. The Hon’ble Apex Court in the case of Ram Lal Narang v. State (Delhi Administration)<\/a>  had also observed as under:\n<\/p>\n
 …What action a Magistrate is to take in accordance with the provisions of the CrPC in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceedings before the court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light .\n<\/p>\n
7. From the above observations it is clear that the power of the police to investigation is not exhausted the moment report had been submitted. There is no provision in the Code, which, expressly or by necessary implication, barred the right of the police to further investigation after cognizance of the case had been taken by the Magistrate. Thus the police has a right to further investigation when fresh information comes in light. Where the police desired to make a further investigation, the police should seek formal permission from the court to make further investigation. Apex Court in the case of Hemant Dhasmana v. C.B.L (2001 7 SC 542 observed as under (Para 16
\n Although the said sub-section does not, in specific terms, mention about the powers of the court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into which has the jurisdiction to do so, it would not be a proper exercise of revisional powers to interfere therewith because the further investigation would only be for the ends of justice. After the further investigation, the authority conducting such investigation can either reach the same conclusion and reiterate it or it can reach a different conclusion. During such extended investigation, the officers can either act on the same materials or on other materials which may come to their notice. It is for the investigating agency to exercise its power when it is put back on that track. If they come to the same conclusion, it is of added advantage to the persons against whom the allegations were made, and if the allegations are found false again the complainant would be in trouble. So from any point of view the Special Judge’s direction would be of advantage for the ends of justice. It is too premature for the High Court to predict that the investigating officer would not be able to collect any further material at all. That is an area which should have been left to the investigating officer to survey and recheck.\n<\/p>\n
8. As has already been referred that formal permission was not accorded to the police for making further investigation. Simply moving of the application before the learned Magistrate seeking permission would not be sufficient to assume permission.\n<\/p>\n
9. It has next been submitted by the learned Counsel for the opposite party that by the time police moved application for permission to make further investigation, the cognizance of the offences under Sections 406\/420\/379\/448 IPC was not taken by the learned Magistrate in that complaint case. So the requirement of seeking of the permission was not necessary in the given circumstances of the case. It may be mentioned that once the report under Section 173(2)(1) of the Code has been submitted before the learned Magistrate and on that report, protest petition had also been filed by the complainant, under such circumstances it cannot be said that the permission for proceeding to make further investigation is not essential. Even this has also been observed by the Hon’ble Apex Court in the case of Ram Lal Narang (supra) that taking or not taking of the cognizance on the final report had no relevance. In no case the police could ignore the pendency of the proceedings before the court and proceed for making further investigation without permission. The fact remains that the police had not sought permission for further investigation. Now it is to be looked into as to what would be the effect of submitting the charge sheet against the accused applicant for the offences under Sections 406\/420\/379\/448 IPC. Such filing of the charge sheet would be bad in law. Apex Court in the case of Mangal Prasad Tamoli v. Narvedshwar Mishra<\/a> 2005 AIR SCW 1272 under similar circumstances where the order of remand was found bad in law, held all the proceedings non est and set aside. It was observed by the court:\n<\/p>\n
 The trial court and the first appellate court had held that the suit for redemption brought by the plaintiff was premature and rightly dismissed it. It is the High Court by its judgment dated 18.1.1966 in Second Appeal No. 3033\/58, which took an erroneous view that because the plaintiffs advocate had stated that the would not seek delivery of possession before stipulated time (26.1.1968), the suit could be continued. It was on this wrong understanding of the legal position that the remand order dated January 18, 1966 came to be made by the High Court pursuant to which the appeal and further proceedings continued. If this remand order was bad in law, then all further proceedings consequent thereto would be non est and have to be necessarily set aside. That the appellants are entitled to urge this point even at this point of time, is supported by the authority of this Court in Seth Ganga Dhar v. Shankar Lal and Ors.<\/a> .\n<\/p>\n
10. Here in this case the charge sheet submitted in Case Crime No. 89709\/758\/06 of 2006 for the offences under Sections 406\/420\/379\/448 IPC is bad in law. Even all other proceedings consequent thereto would be non est and have to be set aside.\n<\/p>\n
It has next been submitted by the learned Counsel for the applicant that entire case has been fabricated with the ulterior motive and whatever the non-refund of the amount is concerned that is all a matter of civil nature. So is also the position of the house permitted to be used by the complainant-company and for that stay order had already been obtained by the accused applicant. True that complainant’s case for the said cause of action is already pending against the accused applicant. That would all be a matter to be embarked upon by the learned Magistrate.\n<\/p>\n
11. In view of the aforesaid discussion the application is allowed and the charge sheet submitted by Police Sector 20, NOIDA, Gautam Budh Nagar in Case Crime No. 89709\/758\/06 (Criminal Case No. 8422 of 2007), State of U.P. v. Ashok K. Aggarwal,<\/a> under Sections 406\/420\/379\/448 IPC and also the order dated 1.10.2007 passed by the learned Chief Judicial Magistrate, Gautam Budh Nagar for taking cognizance of the offences are hereby set aside.<\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Ashok K. Aggarwal Son Of Late Sri … vs State Of U.P. Through The … on 17 December, 2007 Author: S Kulshrestha Bench: S Kulshrestha JUDGMENT S.S. Kulshrestha, J. 1. This application under Section 482 of the Code of Criminal Procedure (the Code) has been brought for quashing the order dated 1.10.2007 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-243548","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nAshok K. Aggarwal Son Of Late Sri ... vs State Of U.P. 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