Neutral Citation No. - 2025:AHC:7734 Court No. - 79 Case :- MATTERS UNDER ARTICLE 227 No. - 11730 of 2024 Petitioner :- Sant Lal Yadav Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Sudhanshu Kumar Mishra Counsel for Respondent :- G.A. Hon'ble Saurabh Srivastava,J. 1. Heard Sri Sudhanshu Kumar Mishra, learned counsel for the petitioner and learned A.G.A. for the State. 2. The instant petition has been preferred with following reliefs:- "(i) to set aside the order dated 31.05.2024 passed by learned Additional Session Judge/Special Judge (M.P./M.L.A.), Allahabad in Criminal Revision No.11 of 2024 (Sant Lal Yadav Vs. State of U.P. and Others) as well as order dated 05.01.2024 passed by learned Chief Judicial Magistrate, Allahabad in Case No.18695 of 2023 (State Vs. Bheem Saroj and Others) arising out of Case Crime No.34 of 2023, P.S. Nawabganj, District- Allahabad. (ii) to direct the respondent nos.2 and 3 to investigate the matter and submit another charge-sheet under section 302 I.P.C. in Case Crime No.34 of 2023, P.S. Nawabganj, District- Allahabad against the accused persons, during the pendency of present misc. petition." 3. It is the case of the petitioner that an application has been preferred under section 173(8) Cr.P.C. for seeking direction for further investigation, but the same has been rejected vide order dated 05.01.2024 passed by learned Chief Judicial Magistrate, Allahabad by way of recording finding that once the cognizance has been taken up by learned concerned court over the charge- sheet preferred by concerned Investigating Officer, application under section 173(8) Cr.P.C. is redundant and the same is liable to be dismissed. 4. Being aggrieved with the order dated 05.01.2024, petitioner preferred a criminal revision before learned Session Judge, Prayagraj and the same has been registered as Criminal Revision No.11 of 2024 by way of taking specific grounds on the basis of judgement rendered by Hon'ble Apex Court in case of Vinubhai Haribhai Malviya and Others Vs. State of Gujarat and Another, reported in 2017 (17) SCC 43, wherein it has been settled that the application under section 173(8) Cr.P.C. is maintainable even after taking cognizance over the charge-sheet preferred by the concerned Investigating Officer and the same cannot be precluded with the report under section 173(2) Cr.P.C. 5. Learned counsel for the petitioner also submitted that the plain reading of Section 173(8) Cr.P.C. is also open with the same lines, which is reproduced herein below:- "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)." 6. Although learned A.G.A. vehemently opposed the prayer as made in the petition, but did not dispute the essence of section 173(8) Cr.P.C. 7. Arguments as raised by learned counsel for the petitioner is precisely on the legal grounds and as such process of issuing notices to respondent nos.4 to 9 is hereby dispensed with, since there is no factual grounds which is warranted to be rebutted by private respondents. 8. After hearing rival submissions extended by learned counsel for the parties and by bare perusal of provisions contained under section 173(8) Cr.P.C., which is already reproduced above, it is crystal clear that nothing in the section shall be deemed to be precluded in further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the concerned Magistrate, whereas in case of Kaptan Singh and Others Vs. State of Madhya Pradesh and Another, (1997) 4 Supreme 211, it has been held that an Investigating Officer draws on the basis of materials collected during investigation and such conclusion can only form the basis of a competent Court to take cognizance thereupon under section 190(1)(b) Cr.P.C. and to proceed with the case for trial, where the materials collected during investigation are to be translated into legal evidence, the conclusion of trial is solely based on the evidence adduced during trial and it cannot rely on the investigation or the result thereof, which is contrary to the findings recorded by learned Chief Judicial Magistrate, Allahabad while deciding application under section 173(8) Cr.P.C. preferred at the behest of petitioner and no credence has also been given by learned revisional court, more over the submission as available in the application preferred by the petitioner has also been recorded by learned revisional court while dismissing revision preferred by the petitioner. 9. In view of the aforementioned facts and circumstances, order dated 05.01.2024 and 31.05.2024 passed by learned Chief Judicial Magistrate, Allahabad and learned Additional Session Judge/Special Judge, (M.P./M.L.A.), Allahabad are hereby set- aside, the matter is remitted back to the learned Chief Judicial Magistrate, Allahabad/concerned court for deciding application under section 173(8) Cr.P.C. preferred by the petitioner as fresh, if the charges have not been framed till today. 10. Hence, this petition stands allowed accordingly. Order Date :- 17.1.2025 Saif Digitally signed by :- SHAIKH SAIF ABDIN High Court of Judicature at Allahabad