Dismissed

Irfan and Another v. State of U.P.

Allahabad HC28 Jul 2021BAIL/27725/2020

Case brief

AI extract

What is this about?

Second bail application by two accused in a murder case after the first was rejected. They claimed changed circumstances, chiefly the quashing of the order framing charge and material from a further investigation said to exonerate them. The court held the further investigation lacked the Magistrate's permission required under Section 173(8) CrPC and refused bail.

What the court decided

AI extract

Irfan and Another Vs State of U.P. — Bail and Remand | Allahabad HC (2021)

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Court No. - 3

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27725 of 2020

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Applicant :- Irfan And Another Opposite Party :- State of U.P. Counsel for Applicant :- Raghuvansh Misra Counsel for Opposite Party :- G.A., Khalid Mahmood, Sadaful Islam Jafri

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Hon'ble Saumitra Dayal Singh,J.

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Heard Sri Manish Tiwary, learned Senior Counsel assisted by Sri Raghuvansh Misra, learned counsel for the applicants, Sri N.I. Jafri, learned Senior Counsel assisted by Sri Khalid Mahmood, learned counsel for the informant and learned AGA for the State.

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This is a second bail application. Earlier, the first bail application being Criminal Misc. Bail Application No.23105 of 2019 filed by the present applicants Irfan and Furkan came to be rejected by this Court vide order dated 28.11.2019. Since the arguments advanced in the present application do arise in part on the observations made in that order, it may be fruitful to extract that order in entirety. Thus, it is quoted below:-

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1. Heard Sri Manish Tiwary, learned Senior Advocate, assisted by Sri Raghuvansh Misra, learned counsel for the applicants; Sri N.I. Jafri, learned Senior Advocate, assisted by Sri Sadaful Islam Jafri, learned counsel for the informant and; Sri Sanjay Kumar Singh, learned AGA for the State. Perused the material placed on record.

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2. The instant bail application has been filed on behalf of the applicants - Irfan & Furkan, with a prayer to release them on bail in Case Crime No. - 0093 of 2017, under Sections -147, 148, 149, 307, 302, 504, 506 I.P.C., Police Station -Kharkhauda, District - Meerut, during pendency of trial.

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3. The applicants and others are accused of having formed an unlawful assembly and murder of two individuals namely, Junaid & Bilal and of causing grievous injuries constituting attempt to murder two others namely, Mehraz & Shahid. Against FIR lodged on 10.02.2017, the applicants are in confinement since 10.04.2019.

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4. Allegations exist of unlawful assembly and assault with firearm, 'lathi', 'danda' and 'sariya'. Prima facie, the post-mortem and injury reports indicate, both, firearm and other injuries suffered due to blows of 'lathi', 'danda' and 'saria'. As per the FIR, accusation has been made against eight persons of use of firearm and against six persons for assault with 'lathi', 'danda' and 'sariya'.

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5. It is also a fact that against the FIR lodged on 10.02.2017, initially the applicants had approached this Court by means of writ petition seeking quashing of the FIR. It was dismissed vide order dated

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04.05.2017. Thereafter the applicants remained at large. In such facts and in the meantime, a chargesheet came to be filed against the applicants, in May 2017. The 482 Cr.P.C. Application No. 23132 of 2017 filed to question the same also came to be dismissed vide order dated 28.07.2017. Against that, a SLP is stated to have been filed before the Supreme Court which was dismissed as withdrawn on 25.08.2017.

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6. Though the chargesheet had been submitted against the applicants, in May 2017, apparently, on some application filed by the father of the present applicants, further investigation was directed to be made by the administrative authorities on 28.08.2017. It is in the course of such further investigation, the Investigating Officer is claimed to have recorded further statements and collected further material especially recording available on a hard drive of the C.C.T.V. camera set-up, claimed to be installed at the own residential premises of the applicants. Based on that, the Investigating Officer reached a conclusion that the applicants had been wrongly implicated.

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7. It is however undisputed that vide his order dated 18.09.2017, the learned Magistrate rejected the application seeking further investigation. That issue is pending before this Court in section 482 Cr.P.C. Application No. 35477 of 2017.

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8. According to the applicants, vide another order dated 14.08.2018, non-bailable warrants came to be issued against the applicants. Then they again approached this Court in Application under section 482 Cr.P.C., No. 33621 of 2018, to challenge that order. An interim order was passed by this court to stay operation of the order dated 14.08.2018.

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9. In such circumstances, it appears that on 03.04.2019, an order came to be passed in 482 Application No.33621 of 2018 wherein the following direction was issued :

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"In the aforesaid backdrop, learned Sessions Judge/the concerned Trial Judge is directed to ensure that the guidelines given in the case of Hussain and another (supra) as well as in Brahm Singh and others(Supra) has to be carried out in its letter and spirit, failing which an adverse inference would be drawn against the erring officers and this Court would be compelled to take appropriate action against them, if found that there is laxity in adhering the above directions. In the event, the bail application is not decided within seven days as contemplated above, the learned Judge will have to spell out the justifiable reasons and record the same on the order sheet of such cases. It is made clear that no further time would be allowed to the applicants for this purpose and after getting themselves surrendered and bailed out, if at all, the applicants want to press their prayer.

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Let this 482 application may be listed before the court of competent jurisdiction along with the record of 35477 of 2017.

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It is made clear that till the applicants being bailed out they are not entitled for any discretion in favour of the applicant."

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10. It is in pursuance of that order that the applicants appear to have

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surrendered before the learned court below on 10.04.2019 since when they are in confinement. In such circumstances, it has been submitted by learned Senior Counsel that the applicant no.1-Irfan is a business man of reputation running a cattle field {sic feed} unit at his villageGhosipur, where the incident had taken place whereas applicant no.2Furkan, who is his real brother is a government servant working at the postal department. They have absolutely clean record and have no criminal history to their discredit.

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11. Second, the said applicants had been falsely implicated in the incident that had taken place involving the other accused persons. Purely on account of pre-existing disputes between the parties, they were falsely implicated and the chargesheet came to be submitted against them in May, 2017 on such false allegations. However, upon further investigation being conducted, other independent eye witness account {sic accounts} were recorded that establish that the applicants were not involved in commission of the aforesaid offence. Also, wholly credible evidence is available in the shape of video recording on the C.C.T.V. camera set-up installed at the residence of the applicants. It shows that the applicants had not left their house till about 6:30 p.m. on the date of the incident whereas the incident had taken place at 5:45 pm at a different place.

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12. Third, it has been submitted that the role of causing gun shot injury has been ascribed to two other accused namely, Abid & Javed but not to either of the applicants. In such circumstances, in light of general and vague allegations made against other persons (including the applicants) of having caused injuries with blows of 'lathi', 'danda' and 'sariya', the applicants are entitled to bail at this stage.

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13. The case of the present applicants is also stated to be wholly distinguishable from that of Imran who, on similar allegations had earlier been enlarged on bail by this court but whose bail came to be cancelled upon order by the Supreme Court on solitary ground and reason of criminal history of that accused person. The applicants have no criminal history.

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14. The submissions so made have been opposed by Sri Jafri, who would submit that the applicants are not entitled to any discretion. Against the FIR lodged on 10.02.2017, they did not participate in the investigation and remained absconding for more than two years. In that circumstance, the chargesheet came to be filed against them in May, 2017. They never appeared before the court below till they were forced to, under order of this Court in Application 482 No. 33621 of 2018, dated 03.04.2019.

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15. The submission that there is credible material and evidence available in the supplementary case diary to establish that the applicants were not present at the place and time of occurrence has been met by submitting that the plea of alibi may not be considered at this stage, and in any case, in the connected trial that is going on against the other accused person being ST No.473 of 2017 (State Vs. Abid), various witness of fact have been examined. They have wholly supported the prosecution story and named the applicants and others as the aggressors who assaulted the victims, in their statements recorded in oath.

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16. Then, it has been submitted, the place of occurrence is very near to the residence of the applicants, and therefore, at this stage, no inference may be drawn on the basis of C.C.T.V. recording as it would remain purely speculative at that {sic this} stage and also it may remain a factor to be considered at the trial.

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17. As to the status of the proceeding against the applicants, it has been submitted, at present, charges have been framed against the applicants but the trial is yet to commence. Enlarging the applicants on bail, at this stage, in light of their past conduct may only delay the trial as there is every likelihood that the applicants would again avoid the law and thus delay the trial proceedings.

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18. In that regard, learned Senior Counsel for the applicants would submit that the order framing charge against the applicants suffers from manifest error of law, inasmuch as, charges had been framed against the applicants in absentia. It could never be done and that matter is engaging the attention of this Court in Criminal Revision No. 3358 of 2019 which is also pending.

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19. Sri Sanjay Kumar Singh, learned AGA would submit, in the first place, the allegation is of common intention which was wholly consistent with the statement of the eye witness recorded during investigation. At the trial of the co-accused in ST No.473 of 2017 (State Vs. Abid), such evidence has also been adduced. Insofar as the recording of the C.C.T.V. camera is concerned, it has been submitted that probabilities and possibilities as may exist or arise owing to a fact that the residence of the applicants may not be more than 150 to 200 meters from the place of occurrence, cannot be examined at this stage. Again much emphasis has been laid on the conduct of the applicants in having avoided the law by absconding over a long period of time. Proceedings under Sections 82 and 83 Cr.P.C. had to be resorted to before the applicants offered their surrender. In totality of the facts and circumstances, learned AGA would submit, if enlarged on bail, there is every possibility that the applicants would avoid the process of law.

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20. Having heard learned counsel for the parties and having perused the record, the learned Senior Counsel for the applicants may be absolutely right in his contention that the bail application of the present applicants may not be rejected on account of the bail cancellation application order passed by the Supreme Court in Criminal Appeal No. 1274 of 2018 (Mohammad Abrar Alam Vs. Imran and Another), decided on 10.10.2018. Perusal of that order would clearly reveal that the Supreme Court cancelled the bail of that accused person, upon a solitary reasoning that he was alleged to be involved in multiple other offences. Therefore, according to the Supreme Court, consideration of gravity of those offences should have been taken into account before granting bail for the present accusation. In absence of any criminal history of the present applicants, the cancellation of bail to Imran is found to be not relevant.

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21. Insofar as emphasis has been laid to the material collected during further investigation that is recording of C.C.T.V. camera and the further statements of witnesses recorded under Section 161 Cr.P.C., merits and credibility of that material apart, at present, for right or

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wrong reasons, the learned court below has rejected the application for further investigation. The material being thus referred to by learned Senior Counsel for the applicants cannot be examined at this stage as at present there is no judicial order enabling such material to be received on the record. The grievance of the applicants in that regard is engaging the attention of this Court in Application u/s 482 No. 35477 of 2017.

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22. Therefore, till the order dated 14.08.2018 is set aside, no blind reliance may be placed on such material, at this stage. For the present limited purposes, it has to be assumed that such material is not part of the case diary. The claim of the applicants that such material must necessarily be considered as part of the case diary, would remain a matter to be considered in the Application u/s 482 Cr.P.C., referred to above.

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23. Even otherwise, if for the purposes of grant of bail, that material were to be looked into, to any extent, the same cannot be examined in isolation. There are other materials available in the case diary being the statements of the victim and others as are part of the original case diary that clearly suggest that the applicants were equally involved in the commission of offence with common intent. The plea of alibi is a plea in defence. The stage to raise it would arise later. In any case, the material referred to by the learned senior counsel for the applicants, is not of unimpeachable credibility as may give rise to any satisfaction, to any extent, at this stage.

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24. Grant of bail is discretionary. For any judicial discretion that may be exercisable in such matters, on account of the clean criminal record of the applicants and general allegations made as to injuries caused, it cannot be ignored or overlooked that the applicants themselves, undeniably did avoid the law for a long period of one year. The F.I.R. was lodged on 10.02.2017, whereas, the chargesheet was submitted within three months therefrom. Not only the applicants did not participate in the initial investigation but they remained at large for almost one year since then despite being fully aware of the proceedings as is clear from their conduct of filing proceedings to challenge the F.I.R. and orders passed at stage of inquiry and trial. In such circumstances, their trial came to be separated causing delay.

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25. Clearly, the applicants appear to have surrendered in the situation arising from the order dated 03.04.2019. Therefore, at present the applicants are found to be not entitled to bail. An accused person who tests the long arm of the law in such matters for a long period of two years and who submits to it after resort is made to coercive measures accompanied with a positive direction issued by this Court, as has been done in this case, cannot, as of right claim bail at the time of his choosing. At present, looking at their past conduct, the court has no reason to be satisfied that the applicants, if enlarged on bail would continuously and regularly participate in the trial. In fact their past conduct indicates otherwise.

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26. However, at the same time, it is made clear, no conclusion of fact has been drawn as to merits of issues that have been raised in the present matter as have also been noted above. All such and other matters as have arisen or may arise would remain to be considered before the appropriate forum in appropriate proceedings. Thus, it is

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clarified, the rights of the applicants to challenge the charge sheet, order framing charge and/or order refusing to take on record supplementary case diary may remain to be considered in appropriate proceedings before this Court.

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27. Needless to add in event of challenge as has been raised by the applicants in other proceedings succeeding, the applicants will remain entitled to apply for bail afresh at that stage, in that light of changed circumstances, if required.

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28. Accordingly, for the reasons noted above, the present application is rejected, at this stage.”

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In the present second bail application, it has been pointed out that there has been change of circumstance since the first bail came to be rejected on 28.11.2019 entitling the applicants to bail on ground of such change. Thus, it is submitted, in the first place, the Court was not entirely right in observing that the material collected during further investigation was not existing on record. Here reliance has been placed on the order dated 09.05.2018 passed by the CJM Meerut wherein it was clearly observed that the material submitted by the Investigating Officer along with supplementary chargesheet pursuant to the order passed by the SP Meerut dated 29.08.2017, was placed on record. At that time, the matter had been committed to the Court of Sessions, and therefore, there was no discretion or jurisdiction remaining with the CJM except to allow such a material to be placed on record.

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It has been further been submitted that the Court may not have been entirely correct in concluding that the applicants have been deliberately absconding for a long period of time, inasmuch as, pursuant to the material brought on record, by means of the above described further investigation vide communication dated 11.10.2018 the Investigation Officer informed the SSP Meerut that the applicants - Irfan and Furkan had been wrongly implicated and that they were no longer wanted in case crime no.93 of 2017. In such circumstances, the applicants were within their right to not surrender of their own. However, upon positive direction issued by this Court in Application u/s 482 no.33621 of 2018, they surrendered.

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As to the change of circumstance, it has been vehemently urged that after rejection of the first bail application, Criminal Revision No.3358 of 2019 filed by the applicants came to be allowed by a learned Single Judge of this Court vide order dated 02.09.2020 wherein the order dated 21.08.2019

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framing charges against the applicants was quashed and the matter remitted to the learned court below with a direction to frame charges afresh as per law, after affording opportunity of hearing to the applicants. In such changed circumstance, it has been submitted, now, in any case the further material placed on record as has also been noted in the order dated 14.08.2018 passed by the CJM Meerut has to be considered even by the learned court below, before it may proceed to frame charge. Thus, the applicants would be entitled to rely on that material for the purpose of seeking discharge as well.

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Reliance has been placed on two decisions of the Supreme Court in Rama Chaudhary Vs. State of Bihar, (2009) 6 SCC 346 and Dharam Pal Vs. State of Haryana & Ors., (2016) 4 SCC 160 . In Rama Chaudhary (supra) , the prosecution relied on evidence led by witness contained alongwith the supplementary charge sheet. Upon challenge raised, the High Court rejected the challenge made by Rama Chaudhary the accused person. The challenge was then carried to the Supreme Court. That Court observed as under :

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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. Re-investigation without prior permission is prohibited. On the other hand, further investigation is permissible.

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22. The law does not mandate taking prior permission from the Magistrate for further investigation. It is settled law that carrying out further investigation even after filing of the charge-sheet is a statutory right of the police (vide K. Chandrasekhar v. State of Kerala [(1998) 5 SCC 223 : 1998 SCC (Cri) 1291] ). The material collected in further investigation cannot be rejected only because it has been filed at the stage of the trial. The facts and circumstances show that the trial court is fully justified to summon witnesses examined in the course of further investigation. It is also clear from Section 231 CrPC that the prosecution is entitled to produce any person as witness even though such person is not named in the earlier charge-sheet.

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The same principle has been applied in Dharam Pal (supra) wherein it

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has been observed as under :

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21. In this context, we may notice the statutory scheme pertaining to investigation. Section 173 CrPC empowers the police officer conducting investigation to file a report on completion of the investigation with the Magistrate empowered to take cognizance of the offence. Section 173(8) CrPC empowers the officer-in-charge to conduct further investigation even after filing of a report under Section 173(2) CrPC if he obtains further evidence, oral or

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documentary. Thus, the power of the police officer under Section 173(8) CrPC is unrestricted. Needless to say, the Magistrate has no power to interfere but it would be appropriate on the part of the investigating officer to inform the Court. It has been so stated in Rama Chaudhary v. State of Bihar [Rama Chaudhary v. State of Bihar, (2009) 6 SCC 346 : (2009) 2 SCC (Cri) 1059].

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Thus, in short, the applicants claim that the observations made by this Court while rejecting the first bail application may not have been entirely correct or may be harsh on the truth. In any case, in view of the changed circumstance and the resultant material now existing on record, it is clear that the applicants were falsely implicated in the occurrence. Here, reference has also been made to the fact that the role of causing firearm injury has been assigned to the other accused persons namely Abid and Javed whereas wholly general and vague role had been assigned to the applicants of carrying illicit firearm. However, no injury is attributable to the present applicants.

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In the end, it has been concluded, in any case it cannot be denied that two police report containing material as may lead to opposite conclusions exist, and therefore, the applicants are entitled to the benefit of doubt even at this stage, for the purposes of grant of bail.

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The bail application has been vehemently opposed by learned AGA and the learned Senior Counsel for the informant. He would submit that the decisions being relied upon by the applicants may not be laying down the correct principle to be applied in this case, inasmuch as while those two decisions are of bench constitutions of two Judges of the Supreme Court, in another decision of the Supreme Court of equal Bench strength being in Vinay Tyagi Vs Irshad Ali @ Deepak & Ors. , 2013 (5) SCC 762 , the Supreme Court had the occasion to consider whether the Investigation Officer can act on his own and file a supplementary report or whether a formal permission of the Court would be required for the same. It was accepted that there is no embargo on the Investigation Officer to carry out further investigation and to file supplementary report, yet, it was equally well recognized in that decision itself that it has been the practice adopted uniformly in such matters that a formal request is obtained by the Investigation Officer before such further investigation is carried out. Relevant to the submission advanced by learned

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counsel for the informant, in paragraph nos.49 and 50 of the said decision, it was observed as under :

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“ 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 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.

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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.”

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While the above apparent conflicting views of the Supreme Court may have posted some difficulty for this Court, however, at present it appears that a later decision of three judge bench of the Supreme Court in Vinubhai Haribhai Malviya Vs. State of Gujarat & Anr., Criminal Appeal Nos. 478479 of 2017 decided on 16.10.2019 as, relied upon by learned counsel for the informant. There, the principle enunciated in Vinay Tyagi (supra) has been confirmed. In that case, the following question had been framed :

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“The question of law that therefore arises in this case is whether, after a charge-sheet is filed by the police, the Magistrate has the power to order further investigation, and if so, up to what stage of a criminal proceeding.”

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While answering the same, the three Judges decision of the Supreme Court laid down the law, as below :

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“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

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of Section 173(2) read with Section 173(8) and Section 156(3) of the Code :

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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.

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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.

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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 ofSection 173(8).

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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.

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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.”

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The Rule of contemporanea expositio observed in the decision of Vinay Tyagi (supra) was reiterated. Therefore, applying that Rule of interpretation, as laid down by the Supreme Court, I am unable to accept the submissions advanced by learned counsel for the applicants that there was no permission required by the Investigation Officer before any further investigation may have been carried out or its material placed on record. Unless, there is a valid further investigation, it would be dangerous to consider any material that may have otherwise been placed in the record, pending evidence at the trial.

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What therefore survives for consideration is whether in the facts of the present case, such permission was granted or may be necessarily read into the situation as the order framing the charges has been quashed by this Court.

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Here, it may be noted, undisputedly, on an earlier occasion the Investigation Officer had sought permission of the learned Magistrate to carry out further investigation. Rightly or wrongly, for reasons good or bad, that application was rejected by order dated 18.09.2017. It is also not disputed that the said order has been challenged by the applicants before this Court in 482 Application No. 35477 of 2017. That challenge is still pending. The order on which heavy reliance has been placed for the present purposes to press existence of such material being order dated 14.08.2018 is really not an order on any application filed by the Investigation Officer, seeking such permission.

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It is an order passed on the application filed by the father of Irfan. The relevant part of the said order only states that the said material be placed on record. Certain material brought before the learned Magistrate after the matter had been committed to trial and grant of permission to conduct further investigation are two different things. The material has been brought on record at the instance of the father of the accused persons whereas the permission required to be obtained is to be sought by and is to be granted to the Investigation Officer. Perhaps the Chief Judicial Magistrate may have recognised the fact that the case had been committed to trial. Therefore, he may not be the proper court to pass any order granting permission to conduct further investigation. However, the Investigation Officer did not apply and he was never granted any permission.

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In face of the specific challenge raised to the order dated 18.09.2017 refusing to grant that permission and the same being pending in a separate proceeding before this Court, it may also be not correct on part of the applicants to suggest that the application for grant of permission has been rendered infructuous as now the charges have been quashed. Merely, because the order framing charges being quashed for the defects noted in that order it would not result in reviving the investigation prior to the stage of trial till submission of the chargesheet. There is no principle shown to exist as may allow the Court to reach such a conclusion, since there are no charges framed against the applicants, therefore, further investigation must be permitted to be carried out because of that reason.

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Further, submission advanced by learned Senior Counsel for the

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applicants that in the facts of the present case, the lack of permission of the learned Magistrate to carry out further investigation is a mere irregularity and not a defect inasmuch as there is no mandatory condition prescribed under the Code as may necessitate such permission to be sought, may not be open to contest at this stage, in view of conclusion drawn by the larger bench of the Supreme Court in Vinubhai Haribhai Malviya (supra) . Though dealing with a question as to whether the learned Magistrate has power to order further investigation after submission of chargesheet, the Supreme Court in no uncertain terms did lay down in paragraph 40.6 quoted above that it is a procedure of propriety that the police has to seek permission to continue a further investigation.

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There is no reason why that procedure of propriety may be read to have been done away in the face of a specific application moved by the Investigation Officer, that had been rejected by the learned Magistrate, vide order dated 18.09.2017. Once that application came to be rejected, it may not be open for the Court to completely ignore the effect of that order in these proceedings especially when the same forms subject matter of challenge in a separate proceedings under Section 482 Cr.P.C. being Application No. 25477 of 2017.

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In view of the above, at present, the applicants are not found entitled to bail at this stage. Accordingly, the present bail application is rejected .

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While the Court has refused to exercise its discretion to grant bail for the reasons noted above, the conclusions drawn are only tentative and may not prejudice the rights of the parties that they may otherwise claim in any other proceedings arising from the same case crime number.

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Order Date :- 28.7.2021 S.Chaurasia/Abhilash

Irfan and Another v. State of U.P.

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Irfan and Another v. State of U.P.

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