VIRENDRA YADAV URF TUNTUN AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 41197 of 2025

Virendra Yadav Urf Tuntun And 3 Others
                                                               .....Applicant(s)
                                    Versus
State of U.P. and Another
                                                                   .....Opposite
                                                                         Party(s)

Counsel for Applicant(s)                :    Lalji Yadav, Yashpal Yadav
Counsel for Opposite Party(s)           :    Ajay Bahadur Yadav, G.A.

Court No. - 75
                 HON'BLE SAURABH SRIVASTAVA, J.

1. Heard Sri Lalji Yadav, learned counsel for the applicants and Sri Ajay
Bahadur Yadav, learned counsel appearing on behalf of opposite party no.2
as well as learned AGA for the State.

2. Instant application has been filed with the prayer to quash chargesheet
dated 05.11.2024 and cognizance/summoning order dated 12.08.2025 along
with summoning order dated 19.02.2024 as well as the entire proceedings of
Criminal Case No.5201 of 2023 (State Vs. Ramkshatri and others), arising
out of Case Crime No.09 of 2023 under Section 147, 323, 325, 504 IPC, P.S.
Barwapatti, District Kushinagar, pending in the court of learned Civil Judge
(J.D.)/Judicial Magistrate, Kushinagar.

3. Brief facts of the present case are that initially opposite party no.2 lodged
an FIR bearing Case Crime No.09 of 2023 against applicant nos.1 to 3 and
four other named person whereas applicant no.4, namely, Ravindra Yadav
was not named in the FIR. After registration of said FIR, inquiry was
initiated which culminated into submission of chargesheet on dated
25.03.2023 against co-accused persons under Sections 147, 323, 325, 504
IPC only and names of applicant nos.1 to 3 was excluded by the concerned
Investigating Officer on the basis of their non presence at the place of
incident. Upon submission of chargesheet dated 25.03.2023, opposite party
no.2 preferred protest petition under Section 190(1) Cr.P.C. which was
rejected and cognizance of offence was taken up by learned court concerned
vide order dated 28.06.2023. Being aggrieved with the said order, opposite
party no.2 preferred revision which was also rejected by learned Sessions
Judge, Kushinagar vide order dated 05.09.2023. Thereafter, charges were
framed against co-accused persons, namely, Ramkshatri Yadav, Satendra
Yadav, Arjun @ Ramtirat, Kanhaiya Yadav and Kripa Shankar Yadav on
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dated 16.05.2024 under Section 147, 323, 325, 504 IPC.

4. Thereafter, daughter of opposite party no.2, namely, Km. Savita Yadav
preferred application on dated 08.07.2024 under Section 173(8) Cr.P.C.
before Superintendent of Police, Kushinagar seeking further investigation
whereupon the Superintendent of Police, Kushinagar passed direction of
further investigation on dated 08.07.2024. In pursuance of the said direction,
further investigation was initiated and the concerned Investigating Officer
again recorded the additional statements of informant/opposite party no.2
along with other witnesses and thereafter submitted supplementary
chargesheet on dated 05.11.2024 whereupon, learned court concerned took
cognizance of offence vide impugned order dated 12.08.2025 against
applicants herein under Section147, 323, 325, 504 IPC. It appears from the
record that applicant no.4, namely, Ravindra Yadav was neither named in
the FIR nor his name was also taken by the informant as well as witnesses
mentioned in the chagesheet dated 25.03.2023.

5. While challenging the supplementary chargesheet and cognizance order
dated 12.08.2025 along with entire proceedings of the present case in
pursuance of applicants herein, learned counsel for applicants raised legal
arguments that once the charges have been framed, Superintendent of Police,
Kushinagar was not having the authority to pass order for further
investigation without leave of the concerned court. In support of his
submission, learned counsel for applicants placed reliance upon a judgement
rendered by Hon'ble the Apex Court in the case of Vinubhai Haribhai
Malviya Vs. State of Gujrat [AIR 2020 SC (Criminal) 2020].

6. Per contra, learned AGA vehemently opposed the prayer sought through
the instant application but did not dispute the fact that without seeking
permission from the concerned, further investigation was conducted which is
also apparent from the instructions received by learned AGA. The said
instructions are taken on record.

7. After having the rival contentions raised by learned counsel for parties
and perusal of the entire material available on record, this Court notes that
the power of the investigation agency to order further investigation in any
criminal case is derived from the aegis of Section 173(8) 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
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                                   3

     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)."

8. Thus, the powers of the investigation agency for further investigation are
not in dispute herein. However, what catches attention here and which is also
the crux of the controversy in the present case, is which authority can pass
an order directing the investigation agency to undertake further investigation
under Section 173(8).

9. 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 Vs. Irshad Ali [(2013) 5 SCC 762], wherein Hon'ble the Apex Court
while dealing with the contours of Section 173(8) relating to further
investigation, propounded that the police ought to follow the procedure of
seeking permission from the Court to conduct "further investigation" and file
a supplementary chargesheet. 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
     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
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     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……" add 49 and 50 (Emphasis
     Supplied)

10. In this very judgment, Hon'ble the Apex Court, while noting that
although there is no explicit mandate under Section 173(8) CrPC to seek the
leave of the Court before conducting further investigation, nevertheless, over
time, a practice has been developed to seek permission of the Court.
Therefore, the practice of seeking the leave of the Court will have to be read
into the provisions of Section 173(8), and it is essentially a prerequisite for
directing further investigation. Hon'ble the Apex Court therein held as
follows:

     "…49. 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
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                                  5

     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.

     50. Such a view can be supported from two different points of view:
     firstly, through the doctrine of precedent, as aforenoticed, 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 expositio. Even otherwise, to seek such leave of the court
     would meet the ends of justice and also provide adequate safeguard
     against a suspect/accused…." (Emphasis Supplied)

11. The proposition of the law laid down in the case of Vinay Tyagi (supra)
has been further affirmed by the Three Judge Bench of this Court in the case
of Vinubhai Haribhai Malviya (supra).

12. Hon'ble the Supreme Court while dealing with a similar situation in the
case of Peethambaran Versus State Of Kerala & Anr., reported in the
(2024) 16 SCC 65, wherein the District Police Chief, i.e., Superintendent of
Police, ordered further investigation, has quashed the order passed by the
District Police Chief and held that the power to order further investigation
rests either with the Magistrate concerned or a higher court, but not with an
investigation agency.

13. Recently, in a similar matter, Hon'ble the Apex Court in the case of
Pramod Kumar and others Vs. State of U.P. and others [2026 INSC 120]
, decided on 04.02.2026, has held that while passing orders directing further
investigation without seeking leave of the Court, concerned Superintendent
of Police has acted in complete defiance of the procedure laid down under
the law. The relevant paragraphs of the said judgment are being reproduced
hereinbelow:-

     "28. In light of the legal position as settled by this Court through the
     above judgments, it is safe to say that the power to direct further
     investigation in a case rests solely at the discretion of the
     Magistrate/Court concerned. In the event, the police/ investigation
     agency is of the opinion that further investigation is necessary in any
     particular case to cull out complete facts and truth in the case, it is
     binding upon them to file an appropriate application before the
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                                         Magistrate/Court, without directing an order for further investigation by
                                         themselves. Once such an application is filed by the investigation agency,
                                         the Magistrate/Court would apply its judicial mind, in light of the facts
                                         and circumstances of the particular case and the reasons demonstrated
                                         by the investigating agency, in order to exercise its discretion for exercise
                                         of its power to decide whether or not further investigation is to be ordered
                                         under the purview of Section 173(8) CrPC.

                                         31. Thus, it is amply clear that the Superintendent of Police acted in
                                         complete defiance of the procedure laid down under the law while
                                         passing orders directing further investigation without seeking leave of the
                                         Court. It is an unbecoming conduct from the officer of such a rank to
                                         exercise unfettered powers, in excess of its jurisdiction, thereby
                                         undermining the authority vested in the Court of law."

                                    14. In the instant matter also, order for further investigation has been passed
                                    by Superintendent of Police, Kushinagar without leave of the learned court
                                    concerned and as such, the same is liable to be quashed.

                                    15. In view of the aforesaid facts and circumstances, chargesheet dated
                                    05.11.2024 and cognizance/summoning order dated 12.08.2025 along with
                                    summoning order dated 19.02.2024 passed in Criminal Case No.5201 of
                                    2023 (State Vs. Ramkshatri and others), arising out of Case Crime No.09 of
                                    2023 under Section 147, 323, 325, 504 IPC, P.S. Barwapatti, District
                                    Kushinagar, pending in the court of learned Civil Judge (J.D.)/Judicial
                                    Magistrate, Kushinagar, are hereby quashed. In addition to that, order dated
                                    08.07.2024 passed by Superintendent of Police, Kushinagar directing further
                                    investigation over the application preferred at the behest of daughter of
                                    opposite party no.2, is also quashed.

                                    16. Accordingly, the instant application stands allowed in part.

                                    17. However, it is made clear that this order shall not preclude the concerned
                                    police authority to prefer fresh application seeking leave of learned court
                                    concerned for conducting further investigation.

                                    March 18, 2026
                                    Vivek Kr.
                                                                                              (Saurabh Srivastava,J.)




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