KALUA AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

         APPLICATION U/S 528 BNSS No. - 15507 of 2025

Kalua And 3 Others
                                                        .....Applicant(s)
                                Versus
State of U.P. and Another
                                                           .....Opposite
                                                                 Party(s)

Counsel for Applicant(s)               :   Rajesh Kumar Mishra
Counsel for Opposite Party(s)          :   G.A., Vinod Singh

Court No. - 82
              HON'BLE PADAM NARAIN MISHRA, J.

1. Heard Sri Rajesh Kumar Mishra, learned counsel for the
applicants, Sri Vinod Singh, learned counsel for opposite party no. 2,
Sri Vinay Kumar Pandey, learned AGA for the State and perused the
record.

2. Present application under section 528 BNSS has been filed by the
applicants seeking quashing of the entire proceeding as well as
cognizance order dated 04.04.2025 passed by the Additional Civil
Judge (S.D.) Ist, Rampur in Case No. 57 of 2025 arising out of Case
Crime No. 0280 of 2024 under section 115(2), 352, 351(2), 118,
118(2), 109(1)and 3(5) of BNS, P.S. Swar, District - Rampur.

3. Brief fact of the present case is that An FIR was lodged on
12.07.2024 for the offences punishable under Sections 352, 351(2)
and 118 of the Bharatiya Nyaya Sanhita, 2023 ( herein after referred
as 'BNS'). After completing the investigation, the Investigating Officer
submitted the charge-sheet under Sections 115(2), 352, 351(2) and
118 BNS on 24.07.2024. Subsequently, opposite party no. 2 moved
an application under Section 156(3) Cr.P.C. ( Corresponding section
175(3) BNSS) seeking proper investigation. The learned Magistrate,
vide order dated 01.08.2024, directed the Investigating Officer to
collect the medical records of the injured person. Thereafter, an
application dated 04.02.2025 was moved by opposite party no. 2
stating that Section 109 of BNS could not be incorporated in the
charge-sheet due to a typographical error. Pursuant thereto, the
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Investigating Officer submitted a subsequent/supplementary charge-
sheet adding Sections 109(1) and 3(5) of BNS.

4. Learned counsel for the applicants submits the subsequent
charge-sheet has been filed without obtaining permission of the
Magistrate and without any formal order for further investigation. He
further submitted that no further investigation can be conducted after
the submission of the charge sheet without the permission of the
magistrate. It is further submitted that the addition of Section 109(1)
of BNS, being triable by the Court of Sessions, could not have been
taken cognizance of by the learned ACJM, who lacks jurisdiction in
that regard. He placed reliance upon the judgment passed in the case
of Manilal Keshari and Ors. vs The State of Bihar
2006CRILJ3981.

5. Per contra, learned counsel for opposite party no. 2 submitted that
an application under Section 156(3) Cr.P.C. (Corresponding section
175(3) BNSS) was moved for proper investigation and the learned
Magistrate, vide order dated 01.08.2024, directed the Investigating
Officer to collect medical records of the injured person. It is submitted
that the subsequent charge-sheet has been filed in compliance of the
said order, after collecting the relevant medical evidence, and thus,
the same is perfectly legal and justified. He placed reliance on the
judgment passed in the case of Vinubhai Haribhai Malaviya and
Others vs State of Gujurat and Another (2019) 15 SCR 936.

6. Having considered the rival submissions advanced by learned
counsel for the parties and carefully perused the material available on
record. At the outset, the principal contention of the applicant is that
the supplementary charge-sheet has been filed without prior
permission of the Magistrate and, therefore, the same is liable to be
set aside. In this regard, it would be apposite to refer to the scheme
of Section 173(8) Cr.P.C. ( Corresponding section 193(9) BNSS),
which explicitly recognizes the power of the Investigating Officer to
undertake further investigation even after submission of the police
report under Section 173(2) Cr.P.C. (Corresponding section 193(3)
BNSS). The Hon’ble Supreme Court in Vinay Tyagi vs. Irshad Ali @
Deepak (2013) 5 SCC 762 has authoritatively held that further
investigation is a continuation of the earlier investigation and the
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supplementary report is to be read conjointly with the primary report.
It has further been held that the object of the criminal justice system
is to discover the truth and, therefore, any further material collected
by the Investigating Agency cannot be shut out merely on technical
grounds.

Similarly, in Hasanbhai Valibhai Qureshi vs. State of Gujarat
(2004) 5 SCC 347, the Apex Court emphasized that if further
evidence comes to light, the Investigating Agency is not precluded
from conducting further investigation and placing the same before the
Court.

The power of the investigating agency to order further investigation in
any criminal case is derived from the Section 173(8) of CrPC (also
refer to Section 193(9) BNSS), which is reproduced as follows:

“(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).”

7. The issue regarding the procedure to be followed for directing
further investigation in a case has been dealt by this Court in the case
of Vinay Tyagi (supra), wherein this Court while dealing with the
Section 173(8) of CrPC (Corresponding section 193(3) BNSS)
relating to further investigation, has made the following observation.
The relevant paragraphs from the judgment are reproduced as under:

"40. Having analysed the provisions of the Code and the various judgments as
aforeindicated, we would state the following conclusions in regard to the
powers of a Magistrate in terms of Section 173(2) read with Section 173(8)
and Section 156(3) of the Code:
40.1. The Magistrate has no power to direct "reinvestigation" or "fresh
investigation" (de novo) in the case initiated on the basis of a police report.
40.2. A Magistrate has the power to direct "further investigation" after filing of
a police report in terms of Section 173(6) of the Code.
40.3. The view expressed in Sub-para 40.2 above is in conformity with the
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principle of law stated in Bhagwant Singh case [Bhagwant Singh v. Commr. of
Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] by a three- Judge Bench and
thus in conformity with the doctrine of precedent.
40.4. Neither the scheme of the Code nor any specific provision therein bars
exercise of such jurisdiction by the Magistrate. The language of Section 173(2)
cannot be construed so restrictively as to deprive the Magistrate of such
powers particularly in face of the provisions of Section 156(3) and the
language of Section 173(8) itself. In fact, such power would have to be read
into the language of Section 173(8).
40.5. The Code is a procedural document, thus, it must receive a construction
which would advance the cause of justice and legislative object sought to be
achieved. It does not stand to reason that the legislature provided power of
further investigation to the police even after filing a report, but intended to
curtail the power of the court to the extent that even where the facts of the
case and the ends of justice demand, the court can still not direct the
investigating agency to conduct further investigation which it could do on its
own.
40.6. It has been a procedure of propriety that the police has to seek
permission of the court to continue "further investigation" and file
supplementary charge- sheet. This approach has been approved by this Court
in a number of judgments. This as such would support the view that we are
taking in the present case."

8. In the present case, it is not in dispute that the learned Magistrate,
while exercising jurisdiction on an application under Section 156(3)
Cr.P.C. (Corresponding section 175(3) BNSS), had specifically
directed the Investigating Officer to collect the medical records of the
injured person vide order dated 01.08.2024. The subsequent
investigation carried out by the Investigating Officer, culminating in
the filing of the supplementary charge-sheet, is clearly in furtherance
of the said judicial direction. Thus, the action of the Investigating
Officer cannot be said to be arbitrary, unauthorized or dehors of the
procedure established by law.

9. The next limb of argument advanced by learned counsel for the
applicant is that the addition of Section 109(1) BNS, being triable
exclusively by the Court of Sessions, could not have been taken
cognizance of by the learned ACJM. This submission also does not
find substance.

The legal position in this regard stands settled by the Constitution
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                                    Bench judgment of the Hon’ble Supreme Court in Dharam Pal vs.
                                    State of Haryana (2014) 3 SCC 306, wherein it has been
                                    categorically held that a Magistrate is not divested of the power to
                                    take cognizance of an offence merely because the same is triable by
                                    the Court of Sessions. The Magistrate is competent to take
                                    cognizance under Section 190 Cr.P.C. (Corresponding section 210
                                    BNSS) and thereafter commit the case to the Court of Sessions
                                    under Section 209 Cr.P.C. (Corresponding section 232 BNSS).

                                    Thus, the contention that the learned ACJM lacked jurisdiction to take
                                    cognizance on the basis of the supplementary charge-sheet is legally
                                    unsustainable.

                                    10. In absence of any material to demonstrate mala fide, abuse of
                                    process of law, or failure of justice, this Court does not find any
                                    ground to interfere in exercise of its inherent jurisdiction under
                                    Section 528 BNSS which is to be exercised sparingly and with great
                                    caution.

                                    11. The present application is hereby rejected.

                                    January 29, 2026
                                    v.k. updh.
                                                                              (Padam Narain Mishra,J.)




Digitally signed by :-
VINOD KUMAR UPADHYAY
High Court of Judicature at Allahabad