Mar Apr2007

1 All] Praveen Kumar V.
Union of India and others 183
ORIGINAL JURISDICTION before Central Government in terms of

CIVIL SIDE sub-Section (5) of Section 26.
DATED: ALLAHABAD 16.11.2006 Consequently, equally efficacious
remedy is there.
BEFORE
THE HON’BLE V.K. SHUKLA, J. (Delivered by Hon'ble V.K. Shukla, J.)
Civil Misc. Writ Petition No. 61593 of 2006 1. Petitioner had been performing
and discharging duties as Airman with the
Praveen Kumar …Petitioner Indian Air Force. Proceedings were
Versus
undertaken against him and court of
Union of India and others …Respondents
inquiry was conducted. Thereafter show
cause notice dated 22.12.2005 was served
Counsel for the Petitioner:
Sri Rajesh Yadav on the petitioner on 11.01.2006 to show
Sri Lalji Yadav cause as to why petitioner may not be
discharged from service under Rule 15 (2)
Counsel for the Respondents: (g) (ii) of the Air Force Rules, 1969 for
Sri Shashank Shekhar his alleged misconduct as brought out on
Sri Dr. A.K. Nigam, Addl. Solicitor General court of enquiry. Petitioner submitted his
of India reply on 25.05.2006 to the said show
cause notice and thereafter in exercise of
Constitution of India Art. 226-a- power under Section 22 of the Air Force
Alternative remedy-Air Force Act 1950, Act, 1950 read with Rule 15 (2) (g) (ii) of
Section-26 (2)(3) and (4) readwith Air the Air Force Rules, 1969 order of
force Rules 1969 Rule 15 (2)(g)(ii)-
Discharge from duty-petitioner working
discharge was passed on 09.11.2006 and
as Air Man-statutory remedy-to complain the said order was served on petitioner on
before the chief of the air staff-against 10.11.2006.
that further remedy to revision before
central government-petition dismissed 2. Petitioner has approached this
on the ground of alternative remedy. Court questioning the validity of the
aforementioned two actions directing his
Held: Para 7
discharge and issuance of discharge
The claim of petitioner is that he has certificate.
been wronged by Air officer Incharge
Personnel, who is subordinate to the 3. At the point of time when matter
Chief of the Air Staff. Once petitioner has been taken up, Sri Shashank Shekhar,
submits that he has been wronged by an
learned counsel representing respondents,
officer of the level of Air Officer Incharge
Personnel, then petitioner has remedy in contended with vehemence that present
terms of Sub-Section (2) of Section 26 of writ petition is not maintainable, as the
the Act to complain to the Chief of the petitioner has got equally efficacious
Air Staff, and in the event of receipt of remedy of approaching the Chief of the
any such complaint Chief of the Air Staff Air Staff under Section 26 of the Air
will make investigation for giving full
Force Act, 1950, as such writ petition is
redress to the petitioner in terms of sub-
section (3) of Section 26, and if even liable to be dismissed on the ground of
thereafter, petitioner is aggrieved then alternative remedy.
there is further remedy of revision
184 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
4. Sri Rajesh Yadav, learned counsel the decision of the Chief of the Air Staff
for the petitioner, on the other hand shall be final."
contended that Section 26 of the aforesaid
Act is not applicable and attracted in the 6. A bare perusal of Section 26 of
matter of discharge and as such petitioner the Act would go to show that any airman
cannot be relegated to the said alternative who deems himself wronged by any
remedy. superior or other officer, if not attached to
a unit or detachment, has been given a
5. After respective arguments have right to complain to the officer
been advanced, Section 26 of the Act commanding the same. It has also been
dealing with the remedy of aggrieved provided that if he is attached to a unit of
airman is to be looked into, which is detachment then he can complain to the
being quoted below: officer commanding the same. Sub-
section (2) of Section 26 further provides
"26. Remedy of aggrieved airmen.- that when the officer complained against
(1) Any airman who deems himself his officer to whom any complaint should
wronged by any superior or other officer be preferred under sub-section (1), the
may, if not attached to a unit or aggrieve airman may complain to such
detachment, complain to the officer under officer's next superior officer, and if he
whose command or orders he is serving; thinks himself wronged by such superior
and may, if attached to a unit of officer, he may complain to the Chief of
detachment complaint to the officer the Air Staff. Sub-section (3) of Section
commanding the same. 26, on receipt of any such complaint,
(2) When the officer complained against obligates the officer to make a complete
his officer to whom any complaint should, investigation into it as may be possible for
under sub-section (1), be preferred, the giving full redress to the complainant, and
aggrieve airman may complain to such in case it is not feasible, the said officer
officer's next superior officer, and if he has authority to refer the complaint to
thinks himself wronged by such superior superior authority. Sub-section (4) of
officer, he may complain to the Chief of Section 26 provides the format in which
the Air Staff. complaint is to be preferred. Sub-section
(3) Every Officer receiving any such (5) of Section 26 provides for giving
complaint shall make as complete an finality to the order of the Chief of the Air
investigation into it as may be possible for Staff, but even the said finality is subject
giving full redress to the complainant; or to power of revision, which can be
when necessary, refer the complaint to exercised by the Central Government.
superior authority.
(4) Every such complaint shall be 7. Section 26 of Air Force Act, 1950
preferred in such manner as may from is specific and comprehensive qua
time to time be specified by the proper aggrieved airman and same is self
authority. contained, and whenever any airman
(5) The Central Government may revise deems himself ti have been wronged, he
any decision by the Chief of the Air Staff has been given liberty to approach the
under sub-Section (2) but subject thereto, authority concerned. The language of the
Section imports in itself widest amplitude,
1 All] Smt. Rajni Chauhan and another V. Smt. Saroj Singh 185
as it gives an opportunity to the Airman, Section 4 (xiv) of the Air Force Act,
whenever he thinks that he has been 1950.
wronged, to approach the authority.
Section 26 is not only comprehensive but 9. Consequently, petitioner has got
it also obligates the authority concerned equally efficacious remedy under Section
of making investigation for giving full 26 of the said Act, as such present writ
redress to the complainant. In the present petition is dismissed on the ground of
case order of discharge has been passed alternative remedy.
against petitioner and pursuant to the ---------
same discharge certificate has been REVISIONAL JURISDICTION
CIVIL SIDE
issued. The claim of petitioner is that he
DATED: ALLAHABAD 07.11.2006
has been wronged by Air officer Incharge
Personnel, who is subordinate to the Chief BEFORE
of the Air Staff. Once petitioner submits THE HON’BLE UMESHWAR PANDEY, J.
that he has been wronged by an officer of
the level of Air Officer Incharge Civil Revision No. 76 of 2006
Personnel, then petitioner has remedy in
terms of Sub-Section (2) of Section 26 of Smt. Rajni Chauhan & another …Revisionist
the Act to complain to the Chief of the Versus
Air Staff, and in the event of receipt of Smt. Saroj Singh …Respondent
any such complaint Chief of the Air Staff
will make investigation for giving full Counsel for the Revisionist:
redress to the petitioner in terms of sub- Sri Prabhat Kumar Srivastava
section (3) of Section 26, and if even
thereafter, petitioner is aggrieved then Counsel for the Respondent:
there is further remedy of revision before
Code of Civil Procedure-Order 40 rule 5-
Central Government in terms of sub- Review-scope thereof explained-striking
Section (5) of Section 26. Consequently, out defence-review on the ground
equally efficacious remedy is there. counsel not advised-held-can not be
ground for review-unless discovery of
8. It has been next contended by new facts or the error apparent on the
learned counsel for the petitioner that in fact of record.
the present case order has been passed by
Air Head Quarter, New Delhi, and as such (Delivered by Hon’ble Umeshwar Pandey, .J.)
it should be presumed that the order has
been passed by the Chief of the Air Staff, 1. Heard learned counsel for the
as such relegation of petitioner to the revisionist.
Chief of Air Staff would be redundant
exercise. This is clearly misconception on This revision challenges the order
the part of petitioner, inasmuch as in the dated 17.10.2006 passed by the court
present case order has been passed by Air below dismissing the review petition of
Officer Incharge Personnel posted at Air the revisionist.
Head Quarter, New Delhi, and he cannot
be equated with the Chief of the Air Staff, 2. A suit for eviction of the
who holds a unique position under revisionist was filed by the opposite-party
landlord before the Judge Small Causes available at the time when the order was
Court in which payment of rent till passed or on account of some mistake or
01.12.2005 was admitted by the error apparent on the face of the record.
applicants. The rent/damages remained The court would not be obliged to review
due after that date which has admittedly any order or decree on the ground as
not been deposited as per the requirement taken by the revisionist in the present
under order XV Rule 5 C.P.C. case. The simple ground which has been
Accordingly, looking to the facts and taken by the petitioners and as submitted
circumstances of the case the court below by them also for grant of the, review is
struck off the applicant's defence filed in that they could not make the deposit as
the case vide order dated 17.11.2005. required under Order 15 Rule 5 C.P.C.
Thereafter this review petition has been because of the fact that the counsel did
moved stating that since there was no not advice them for the same. This is no
fault on the part of the revisionist-tenant, ground which can be said to be coming
the defence was not liable for being struck within the ambit of the grounds as
off. It is further stated that the enumerated under Order XLVII Rule 1 (c)
requirement of the deposit under Order 15 of the Code of Civil Procedure. There is
Rule 5 C.P.C. was not made clear to the absolutely no mistake or error apparent on
tenants by their counsel and because of the face of the record nor there is any
this ignorance the deposit could not be discovery of new matter or evidence
made. Finding this ground as non which can impel the court to reverse its
sustainable for a review petition the court decision given earlier. Therefore, since
below has held that the order as such the aforesaid ground does not cover the
could not be reviewed under scope of review as enumerated in the
circumstances and the petition has been aforesaid order XLVII, the court below
dismissed by the impugned order. has rejected the review petition.
3. The learned counsel appearing for 5. I do not find any infirmity· in the
the revisionist has contended that since order impugned as to call for any
there is no deliberate default committed interference against it in this review
by the tenants and the deposit could not petition.
be made because of the counsel's incorrect
advice, there is every cogent ground for The petition having no force and is
the court to have reviewed its earlier order hereby dismissed.
dated 17.11.2005. The matter actually ---------
involves the future of small children who
were continuing their studies in the
educational institution.
4. As regards the scope of a review

petition the court can interfere into a
judgment and order passed by it only
when it is found from discovery of a new
and important matter or evidence which,
after exercise of due diligence, was not
1 All] Rajesh Kumar V. State of U.P. and others 187
ORIGINAL JURISDICTION aforesaid authority has not at all cared

CIVIL SIDE to look into 1974 Rules and has passed
DATED: ALLAHABAD 18.08.2006 the impugned order under some
misconception showing total non
BEFORE application of mind on his part. In a
THE HON’BLE SUDHIR AGARWAL, J. matter pertaining to compassionate
appointment, this kind of exercise on the
part of the competent authority shows
Civil Misc. Writ Petition No. 4997 of 2003
total apathy and cannot be appreciated.
Rajesh Kumar …Petitioner

Versus (Delivered by Hon’ble Sudhir Agarwal, J.)
State of U.P. and others …Respondents
1. Heard Sri Vashistha Tiwari,
Counsel for the Petitioner: learned counsel for the petitioner and
Sri Vashistha Tiwari learned Standing Counsel for the
respondents.
Counsel for the Respondents:
Sri Sanjay Goswami 2. The grievance of the petitioner is
S.C. that his father working as Constable in
Civil Police of Uttar Pradesh died in a
U.P. Recruitment of Dependants of Govt. road accident on 17th June, 1992. The
Servants (Dying in Harness) Rules 1974- petitioner after having obtained
Rule-5-Compassionate appointment-
claim denied on the ground at the time
Intermediate Qualification sought for
of death-employee was not discharging compassionate appointment under the
his duty-held-only requirement- U.P. Recruitment of Dependants of
government. servant must be in service- Government Servants (Dying in Harness)
order of rejection passed under Rules, 1974 (hereinafter referred to as
misconception-total non application of 1974 Rules) but vide impugned order
mind-order quashed.
dated 19th December, 2002 the
Held: Para 6 Superintendent of Police, Mainpuri has
rejected his claim only on the ground that
Thus a Government servant, if he is in the petitioner’s father while
service and die, is one who die in unauthorizedly traveling by a Matador,
harness and dependent members of met an accident, therefore his death
family are entitled for suitable
employment under Rule 5 of 1974 Rules.
cannot be said to have occurred in the
The· aforesaid Rule no where require course of employment and he is not
that the death of the Government entitled for any compassionate
servant must occur while discharging appointment under 1974 Rules. He
duty in the course of employment. The submits that the ground on which the
only requirement under 1974 Rules is petitioner’s claim for compassionate
that the Government servant must be in
service. It is not disputed that the
appointment has been rejected is totally
petitioner's father when died in 1992, non-est, illegal and contrary to the
was in service, therefore, apparently the provision of 1974 Rules.
view taken by the Superintendent of
Police, Mainpuri for rejecting the claim of 3. The learned Standing Counsel,
the petitioner is, incorrect and in the however, submits that under 1974 Rules
teeth of 1974 Rules. It appears that the
dependants of a deceased Government post which is within the purview of the

servant is entitled for appointment only Uttar Pradesh Public Service
when the death has occurred in the course Commission, in relaxation of the normal
of employment and therefore the order recruitment rules if such person:-
passed by Superintendent of Police,
Mainpuri is correct and does not warrant (i) fulfils the educational qualifications
any interference, prescribed for the post,
4. Heard learned counsel for the (ii) is otherwise qualified for

parties and perused the record. The only Government service, and
question required for consideration is,
whether 1974 Rules is applicable in the (iii) makes the application for
case in hand or not. Rule 3 of 1974 Rules employment within five years from
provides t hat the said Rules shall apply to the date of the death of the
recruitment of dependants of deceased Government servant;
Government servant to public services Provided that where the State
and posts in connection with the State of Government is satisfied that the time-limit
Uttar Pradesh, except those, which are fixed for making the application for
within the purview of Uttar Pradesh employment causes undue hardship in any
Public Service Commission. Rule 4 gives particular case, it may dispense with or
overriding effect to the aforesaid Rules relax the requirement as it may consider
over any rule, regulation or order enforce necessary for dealing with the case in a
at the commencement of 1974 Rules. just and equitable manner;
Rule 5 is the substantive provision
entitling the dependants of a deceased (2) As far as possible, such an
Government servant recruitment in employment should be given in the same
Government service and reads as under:- department in which the deceased
Government servant was employed prior
5. Recruitment of a member of the to his death.
family of the deceased:-(1) In case a
Government servant dies in harness after 5. A perusal of the aforesaid Rules
the commencement of these rules and the make it clear that the only thing relevant
spouse, of the deceased government for application of the Rule is whether the
servant is not already employed under the deceased person was in the employment
Central Government or a Corporation of the State Government or not. The terms
owned or controlled by the Central "Government servant" and "deceased
Government or a State Government, one Government" servant has also been
member of his family who is not already defined under Rule 2 (a) and 2(b) which
employed under the Central Government reads as under:-
or a State Government or a Corporation
owned or controlled by the Central 2. (a) “Government Servant" means a
Government or a State Government shall, Government servant employed in
on making an application for the purpose, connection with the affairs of Uttar
be given a suitable employment in Pradesh who-
Government service on a post except the
1 All] Rajesh Kumar V. State of U.P. and others 189
(i) was permanent in such employment: "discharging duty in the course of

or employment" does not exist in the Rule.
(ii) though temporary had been regularly The purpose of Rule is to mitigate the
appointed in such employment: or sudden crisis and hardship caused to the
(iii) though not regularly appointed, had family of the deceased on account of
put in three years' continuous service unexpected death while in service.
in regular vacancy in such Whether at the time of death he was
employment. discharging duties or was ill etc. and
(b) "deceased Government servant" therefore died or for whatever other
means a Government servant who dies reason, is wholly irrelevant, since the
while in service; purpose is to mitigate crisis suddenly
occurred due to unexpected death of the
6. Thus a Government servant, if he sole bread earner. The only thing which
is in service and die, is one who die in has to be consider for application of 1974
harness and dependent members of family Rules is whether the incumbent was in
are entitled for suitable employment service or not. The learned Standing
under Rule 5 of 1974 Rules. The· Counsel could not dispute this fact that
aforesaid Rule no where require that the the father of the petitioner was in service
death of the Government servant must when met accident and died.
occur while discharging duty in the course
of employment. The only requirement 7. In view of the aforesaid
under 1974 Rules is that the Government discussion, this writ petition succeeds and
servant must be in service. It is not is allowed. The order dated 19.12.2002 is
disputed that the petitioner's father when hereby quashed.
died in 1992, was in service, therefore,
apparently the view taken by the 8. The Superintendent of Police,
Superintendent of Police, Mainpuri for Mainpuri is directed to reconsider the
rejecting the claim of the petitioner is, matter and pass appropriate order in the
incorrect and in the teeth of 1974 Rules. It light of the above observations and in
appears that the aforesaid authority has accordance with law. It is needless to say
not at all cared to look into 1974 Rules that while considering the claim of the
and has passed the impugned order under petitioner under 1974 Rules all other
some misconception showing total non aspects would also be considered
application of mind on his part. In a regarding the nature of appointment, the
matter pertaining to compassionate objective of compassionate appointment
appointment, this kind of exercise on the etc. and thereafter he shall pass a speaking
part of the competent authority shows order in accordance with law.
total apathy and cannot be appreciated. There shall be no orders as to costs.
The way in which the Superintendent of
Police, Mainpuri has considered the case 9. The competent authority
of petitioner, has resulted in adding shall take decision as directed above
certain words in 1974 Rules i.e. within two months from the date of
"Government servant dying in harness production of certified copy of this order.
while discharging duty in the course of Petition Allowed.
employment" though the words ---------
ORIGINAL JURISDICTION From the facts as have been noticed

CIVIL SIDE herein above, this Court is prima facie
DATED: ALLAHABAD 08.11.2006 satisfied that continuance of Sri Ramesh
Chandra is apparently illegal and is
BEFORE based on procured documents. It is,
THE HON’BLE ARUN TANDON, J. therefore, directed that Sri Ramesh
Chandra shall not be paid salary without
leave of the Court.
Civil Misc. Writ Petition No. 39944 of 2006
Gyanendra Kumar …Petitioner (Delivered by Hon’ble Arun Tandon, J.)

Versus
State of U.P. and others …Respondents 1. A post of Lecturer Physics in
Chaudhary Chhotu Ram Inter college,
Counsel for the Petitioner: Muzaffarnagar was requisitioned to the
Sri Arun Kumar Mishra U.P. Secondary Education Services
Selection Board, Allahabad vide
Counsel for the Respondents: requisition dated 28th February, 2003. The
Sri R.P. Dubey vacancy was earmarked for Other
Sri Sanjay Srivastava Backward Classes category in the
S.C. requisition. The said vacancy was
ultimately advertised under
Constitution of India, Art. 226-
Advertisement No. 2/2004 in the said
Appointment as lecturer of Physics-
empanelled against the requisition category. Petitioner, who belongs to the
vacancy of Hindu Inter College Banda- category of Other Backward Classes
due the reasons best known-petitioner applied in pursuance to the advertisement.
not joined at Banda-but managed be He was ultimately selected and
adjusted in another institution against empanelled for appointment as Lecturer
Backward category-without requisition
Physics in the Caudhary Chhotu Ram
without advertisement-held-without
leave of court no salary shall be paid Inter College, Muzaffar Nagar.
such appointee secretary to hold and
submit its enquiry report against the 2. The District Inspector of Schools,
conduct of D-103, the manager and the Muzaffarnagar, on receipt of the select
Head of the Institution concerned. panel, forwarded a letter to the Secretary,
U.P. Secondary Education Services
Held: Para 9 & 10
Selection Board dated 21.4.2006 stating
The enquiry may be completed by the therein that one Sri Ramesh Chandra has
Secretary and specific finding should be already been appointed against the
recorded in respect of the individual requisitioned vacancy of Lecturer Physics
persons involved. Report may be and therefore there is no vacancy against
submitted before this Court by 12th
which petitioner can be offered
December, 2006. The original records, as
have been produced before this Court,
appointment and requested that he may be
may be transmitted to the Secretary, adjusted in some other institution. Against
Secondary Education, U. P. Government, this order of the District Inspector of
Lucknow under a sealed cover along with Schools present writ petition has been
certified copy of the order. filed.
1 All] Gyanendra Kumar V. State of U.P. and others 191
3. This Court required the District District Inspector of Schools,

Inspector of Schools, Muzaffar Nagar to Muzaffarnagar issued a letter to the
remain present before this Court with all Manager of the institution, which was
relevant records. The Secretary of the promptly accepted and appointment was
U.P. Secondary Education Services offered to Sri Ramesh Chandra without
Selection Board was also directed to raising any objection to the fact that the
produce the records. The original records candidate now appointed was not with the
produced by the District Inspector of category reserved for appointment for the
Schools as well' as U.P. Secondary post in question and as had been
Education Services Selection Board have requisitioned.
been examined by the Court today. A
counter affidavit has also been filed on 5. It Is further admitted on record
behalf of Sri Ramesh Chandra that the vacancy on the post of Lecturer
(respondent no. 5). Physics "reserved for Other Backward
Classes in Chaudhary Chhotu Ram Inter
4. From the records it is apparent College, Muzaffarnagar was not
that Sri Ramesh Chandra (respondent no. advertised up to the date adjustment had
5) was selected in pursuance to the been directed by the U.P. Secondary
advertisement no. 2/2002 for the post of Education Services Selection Board.
Lecturer Physics and was empanelled Thus, it is an admitted position that
against the vacancy which was adjustment has been directed against an
requisitioned for Hindu Inter College, unadvertised vacancy in favour of Sri
Atarra, district Banda within the reserved Ramesh Chandra.
category of Scheduled Caste. The said
Ramesh Chandra, for the reasons best 6. On being asked as to on what
known to him, did not join the said basis the U.P. Secondary Education
institution, it is alleged that the institution Services Selection Board had issued the
refused to accept his joining. However, order directing adjustment of Ramesh
instead of pursuing the remedy against the Chandra against an unadvertised vacancy,
institution concerned, Sri Ramesh and that to of a candidate non-belonging
Chandra manipulated the documents in to requisitioned category, counsel for the
connivance with the Principal of U.P. Secondary Education Services
Chaudhary Chhotu Ram Inter College, Selection Board refers to the letter dated
District Inspector of Schools 24.7.2003, which is said to have been
Muzaffarnagar as well as with the officers forwarded by Sri Ramesh Chandra along
of U.P. Secondary Education Services with his application dated 19th July, 2003.
Selection Board, which resulted in an The said document appears a stamp,
order being passed by the Secretary, U.P. which reads as follows:
Secondary Education Services Selection
Board dated 21.8.2003. Under this order “izzfr gLrk{kfjr
Sri Ramesh Chandra has been directed to lg ftyk fo|ky; fujh{kd
be adjusted/appointed against the vacancy eq0uxj ”
on the post of Lecturer Physics in
Chaudhary Chhotu Ram Inter College, 7. However, it is apparent from the
Muzaffarnagar. In pursuance whereof the original document that the same has not
been signed by any officer concerned. It is aware that vacancy is earmarked for Other
surprising, responsible officers like Backward Classes candidate.
Secretary as well as Chairman of the U. P.
Secondary Education Services Selection 9. The enquiry may be completed by
Board acted upon such a letter, which was the Secretary and specific finding should
not countersigned by the District be recorded in respect of the individual
Inspector of Schools, and directed persons involved. Report may be
adjustment. These facts lead to an submitted before this Court by 12th
apprehension that adjustment has been December, 2006. The original records, as
directed for other considerations. The have been produced before this Court,
matter requires investigation. may be transmitted to the Secretary,
Secondary Education, U. P. Government,
8. The records, produced today Lucknow under a sealed cover along with
along with a copy of the writ petition, are certified copy of the order.
directed to be transmitted to the Secretary,
Secondary Education, U.P. Government, 10. From the facts as have been
Lucknow for holding a detail enquiry into noticed herein above, this Court is prima
the issue (a) can a candidate selected facie satisfied that continuance of Sri
amongst against a reserved category of Ramesh Chandra is apparently illegal and
Scheduled Caste can be adjusted against a is based on procured documents. It is,
vacancy reserved for Other Backward therefore, directed that Sri Ramesh
Classes, (b) whether a candidate selected Chandra shall not be paid salary without
in pursuance of Advertisement No. leave of the Court. The District Inspector
2/2001 could have been adjusted against of Schools shall further ensure that
an unadvertised vacancy, as has been petitioner is permitted to join in the
done by the U.P. Secondary Education institution as Lecturer Physics within two
Services Selection Board under an order weeks from the date a certified copy of
dated 21.8.2003, (c) who, in fact, inducted this order is filed before him.
the letter dated 24.7.2003 in the records of
the U.P. Secondary Education Services List on 12th December, 2006.
Selection Board, inasmuch as counsel for Application disposed of.
Sri Ramesh Chandra has made a ---------
statement that application dated 19th July, APPELLATE JURISDICTION
CRIMINAL SIDE
2003 was not accompanied with any such
document, as is available on the records
of the U.P. Secondary Education Services BEFORE
Selection Board and (d) The role of the THE HON’BLE R.C. DEEPAK, J.
Chairman and Secretary by the Secondary THE HON’BLE V.D. CHATURVEDI, J.
Education Services Selection Board in
directing adjustment of Ramesh Chandra, Criminal Appeal No.1865·of 1980
the role of the District Inspector of
Schools, Committee of Management and Hira Lal …Appellant (In Jail)
Principal of Chaudhary Chhotu Ram Inter Versus
College, Muzaffarnagar, who appointed State of U.P. …Opposite Party
Ramesh Chandra even after being fully
1 All] Hira Lal V. State of U.P. 193
Counsel for the Appellant: of his family started embarrassing,

Sri P.N. Misra harassing, humiliating, troubling,
Sri Apul Misra turmoiling, beating and compelling her to
Sri A.P. Mathur ask for more dowry from her parents.
Sri Shashank Shekhar Giri Consequently, she happened to be
extremely worried. She used to tell her
Counsel for the Opposite Party: parents and other members of the family
Sri Devendra Upadhyay about the anxieties and atrocities caused
Sri S.K. Dubey to her by appellant-accused and other
Sri S.K. Chaubey
members of his family. Consequently, she
Sri Shivendra Nath Singh
was unwilling to go to the house of the
A.G.A.
appellant-accused. Not only this, but also
Indian Penal Code-302-Punishment of
she very sorrowfully expressed before the
life imprisonment-based on presumption parents and other members of the family
of provisioning-No person found in that she would not visit the house of
viscera report-peculiar case of appellant-accused otherwise the
punishment without evidence-appeal appellant-accused would poison her to
deserves to be allowed. death. The informant and other members
of her family, however, consoled her and
(Delivered by Hon’ble R.C. Deepak, J.) asked appellant-accused not to
cause/commit any evil deed in regard to
This criminal appeal has been filed her. The appellant-accused agreed and,
by the appellant-accused Hira Lal for therefore, the informant and other
setting-aside the judgment and order members of his family sent Gyani Devi
passed by Sri I.P. Mittal, the then along with the appellant-accused to his
Additional Sessions Judge, Mirzapur house. Two days before the occurrence,
dated 30.8.1980 in Sessions Trial No.43 one Paras Nath informed the informant
of 1978 pertaining to Police Station Katra, that the appellant-accused was beating his
District Mirzapur convicting and wife Gyani Devi in the night between
sentencing him to imprisonment for life 21/22.7.1977 and, therefore, she was
under Section 302 IPC. weeping and crying. Consequently, the
informant, accompanied by Bhola Nath,
The facts of the prosecution case, Chunni Lal, Rameshwar Prasad, Radhey
briefly stated, are that the informant Shyam, Shanker Lal, Purushottam, Durga
Munni Lal son of Baldev Prasad, resident Prasad and many others went to the house
of Mohalla Ganeshganj, Police Station of the appellant-accused who happened to
Katra, District Mirzapur had solemnized come out of his house and seeing them all
the marriage of his daughter Gyani Devi there, started running away. Whereupon
with appellant-accused Hira Lal resident they all ran after him, who fell down at a
of the same Mohalla and District two or short distance and received certain
three years back. His daughter had been injuries. The informant and certain others
happily and peacefully living at the house named above beat the appellant-accused
of the appellant-accused. After two or and caught hold of him. The appellant-
three months after the marriage, the accused with his folded hands confessed
appellant-accused and the other members his guilt/crime expressing that he at the
instance of his father administered poison Government Appeal No.2811 of 1980

to his wife Gyani Devi to death. The against the order of acquittal. He died
informant and others went to the upper during the pendency of the Government
storey of the house of the appellant- Appeal. Consequently, the Appeal stand
accused and found Gyani Devi dead there. abated.
The informant dictated the alleged report
Exhibit Ka-l on the spot to Bhola Nath in The prosecution examined as many
connection with the occurrence. He took as 9 witnesses in support of its case.
this report to the Police Station concerned Munni Lal (P.W.l), Bhola Nath (P.W.2),
where the first information report Exhibit Chunni Lal (P.W.3), Paras Nath (P.W.6)
Ka-l was written on the basis of the said are the witnesses of fact, whereas Dr.
report and a case as case crime no.180 of D.D. Tripathi (P.W.5), Narendra Singh
1977 under Section 302/328 IPC was (P.W.7) and Bal Govind Tiwari (P.W.9),
registered. After the registration of the the Investigating Officer are the formal
case, its investigation was initially ones. Paras Nath turned hostile. The
entrusted to Sub-Inspector Bal Govind appellant-accused denied all the charges
Tiwari and subsequent to Sub-Inspector / against him vide his statement under
Station Officer Narendra Singh. S.I. Bal Section 313 Cr.P.C. He has examined Dr.
Govind Tiwari visited the place of S.C. Verma (D.W.l) in support of his
occurrence and prepared its site plan version, as disclosed by him in his
Exhibit Ka-16. He took the dead body of statement under Section 313 Cr.P.C. The
Smt. Gyani Devi into his custody and trial court convicted the appellant-accused
prepared Panchayatnama Exhibit Ka-12 in under Section 302 IPC against which the
connection therewith. He sent the dead present criminal appeal has been filed, as
body of Smt. Gyani Devi through already referred-to-above.
Constable Naim Ullah for postmortem
examination. Doctor D.D. Tripathi We have heard Sri P.N. Misra,
(p.W.5) conducted the postmortem on the learned senior advocate with the
dead body of Gyani Devi on 22.7.1977. assistance of Sri Apul Misra, learned
His report is Exhibit Ka-3. He preserved counsel for the appellant-accused, Sri
viscera also as is clear from his report. Devendra Upadhayay, learned A.G.A. for
The Investigating Officer S.I. Bal Govind the State and perused the records.
Tiwari took down the statements of
Munni Lal, Bho1a Nath and Rameshwar The first information report is a copy
Prasad. Similarly, second Investigating (verbatim) of the report Exhibit Ka-l
Officer S.I. Narendra Singh took down alleged to have been written by Bhola
the statements of Paras Nath and Nath (P.W.2) on the dictation of the
Purushottam and after completion of the informant Munni Lal (P.W.I) allegedly on
investigation into the case, he submitted the spot itself. It may be mentioned at the
the charge-sheet Exhibit Ka-9 against the very outset that there is no evidence on
appellant-accused and another in the record to point out when, where and from
Court. Ultimately, the Court framed whom Munni Lal (P.W.1) or Bhola Nath
charges against the appellant-accused and (P.W.2) had actually obtained pen-ink or
his father Babu Ram. Babu Ram was fountain pen and paper for the purpose of
acquitted by the trial court. The State filed writing the alleged report. There is no
1 All] Hira Lal V. State of U.P. 195
mention of any thing in any form or Durga Prasad, Bhola Nath, Shanker Lal,
manner in the alleged report, showing Radhey Shyam and many others had gone
where it was actually written. Munni Lal together to the house of Hira Lal, who
(P.W.1) has stated that the report was happened to come out of his house and
written at the door of the house of started running away seeing them all
appellant Hira Lal. Chunni Lal (P.W.3) there. Whereupon Munni Lal and all
has stated that Munni Lal (P.W. 1) had others chased and ran after him. He fell
got the report written by Bhola Nath down at a short distance and consequently
(P.W.2) on his dictation while sitting on a received certain injuries. Munni Lal and
platform (chabootra) outside the courtyard all others caught hold of him there
of the house of Hira Lal. Bhola Nath whereupon he (Hira Lal) confessed before
(P.W.2) has, on the other hand, them all with folded hands that he at the
categorically stated in this cross- instance of his father Babu Ram,
examination that the report was not administered poison to his wife Gyani
written on the spot. Devi to her death. Munni Pal (P.W.I) has
stated in his examination-in-chief that
In view of all these inconsistent and Hira Lal had made the above confession
contradictory statements of Munni Lal before him and all others in his courtyard
(P.W.1), Chunni Lal (P.W.3) and Bhola where he was taken by them after having
Nath (P.W.2) and in view of the been caught hold outside his house. In his
conspicuous silence of the place of cross-examination, he has categorically
procurement of the pen and paper, as stated that Hira Lal had made the above
mentioned earlier, the learned counsel for confession only in his courtyard and
the appellant-accused has forcefully nowhere else. Bhola Nath (P.W.2) has
argued that the report was not written on also stated in his cross-examination that
spot, but at the police station itself and Hira Lal had confessed his guilty in the
that too in consultation with the police courtyard where he was taken by him and
officers concerned. This is, according to others after having been of caught hold by
him, so because Munni Lal had gone mad them outside his house. Chunni Lal
seeing his daughter Gyani Devi dead at (P.W.3) has also stated the same thing.
the upper storey of the house of Hira Lal There is nothing in the first information
because there was no sketch / rough draft report to indicate that he (Hira Lal) had
already prepared for the purpose of made any such confession, as alleged, in
writing of the report and also because his courtyard. Similarly there is nothing in
Munni Lal cannot be expected to have the first information report to show that
given for the first time extempore Babu Ram, father of the appellant-
dictation to Bhola Nath for writing the accused Hira Lal had made confession to
alleged report in the state of his madness the effect that he had administered poison
in particular. The arguments of the to Gyani Devi to her death. Bhola Nath
learned counsel for the appellant-accused (P.W.2) has disclosed in his examination-
appears to have substance. in-chief that Babu Ram, father of Hira Lal
(appellant-accused) had also made
It is further alleged in the first confession in his courtyard to the effect
information report that Munni Lal that he had administered poison to Gyani
(P.W.1), Rameshwar Prasad, Chunni Lal, Devi.
The first information report shows absolutely silent on the alleged presence
that Paras Nath had told that Hira Lal was of Paras Nath at the house of Hira Lal at
beating Gyani Devi. This report is the time when they are alleged to have
conspicuously silent where, when and been there. It is on the basis of all these
before whom he had told the alleged fact. inconsistencies and contradictions
It was disclosed by Munni Lal, Bhola occurring in the statements of the above
Nath and Chunni Lal in their respective named witnesses, the learned counsel for
statements that Paras Nath had told the the appellant-accused has vehemently
above fact to Munni Lal before them and argued that legally speaking there is no
others at a temple situate nearby the case or evidence against the appellant
houses of Munni Lal and others, but their Hira Lal, that there is no eye-witness, that
statements in regard to this aspect of the the above named witnesses are related to
matter stand nowhere especially when one another and that they have cooked
Paras Nath (P.W.6) has battered and and concocted the present case with the
shattered this alleged aspect of the case sole aim and objective of falsely
saying that he had not gone to any temple, implicating the appellant-accused therein.
that he had not met there Munni Lal and
that he had not told anything to Munni Lal Doctor D.D. Tripathi (P.W.5)
and others. Consequently, he turned conducted the postmortem on the dead
hostile. Therefore, the statements of body of Gyani Devi. His postmortem
Munni Lal, Bhola Nath and Chunni Lal examination report is Exhibit Ka-3. He
on the above fact introduced as has mentioned in this report that the cause
afterthought are baseless and cannot be of death was poisoning. A perusal of his
relied upon. report would show that his opinion is
based on his guess and surmises. This
It is further alleged in the first probably the reason why he had preserved
information report that Munni Lal, viscera, as is clear from his report itself.
Rameshwar Prasad, Radhey Shyam,
Chunni Lal, Durga Prasad, Bhola Nath, The most significant aspect of this
Shanker Lal, Purushottam and many appeal is that the postmortem examination
others went to the house of Hira Lal who report Ext. Ka 18 goes to show that no
happened to come out of his house and mark of any external injury was seen on
who seeing them all started running away, the corpse of the deceased Smt. Gyani
but they all caught hold of him on his Devi. P.W.5 Dr. D.D. Tripathi, therefore,
falling down at a little distance, but preserved the viscera of the deceased.
Munni Lal, Bhola Nath and Chunni Lal Regarding the cause of death, Dr. D.D.
(P.Ws. 1, 2 & 3) have very cleverly and Tripathi gave his report in a peculiar
cunningly excluded themselves from manner. After scripting cause of death he
others named in their respective put a sign of interrogation and thereafter
statements in the alleged process of wrote 'poisoning' below that line he
catching hold of him outside of his house. mentioned 'viscera preserved'. He deposed
They have also stated in their respective that on the basis of the condition of the
statements that Paras Nath had also dead body it might be presumed that she
accompanied them to the house of Hira died as a result of poisoning.
Lal, but first information report is
1 All] Mahendra Yadav V. Om Prakash and another 197
The accused cannot be convicted on Having visualized, envisioned,

the basis of the presumption that the death paused, pondered, carefully considered
was caused by poisoning. It requires a and scrutinized all the facts and
positive evidence to reach a conclusion circumstances of the case, we arrive at the
that the death was caused by poisoning. conclusion that the present is a peculiar
The viscera was sent to chemical case without evidence and evidence
examiner, who reported vide his report without. Therefore, the appeal deserves to
Ex. Ka 18 that no poison was found in be allowed and it is accordingly allowed.
any component of viscera. Learned
A.G.A. contended that the viscera report The judgment and order dated
Ext. Ka-18 was not proved. Section 293 30.8.1980 passed by the trial court
Cr.P.C. permits that any document referred-to-above are set-aside. The
purported to be a report under the hand of appellant-accused Hira Lal is acquitted of
the Government Scientific Expert upon the offence under Section 302 IPC for
any matter or thing du1y submitted to him which he was convicted and sentenced.
for chemical examination or analysis may His personal and surety bonds are
be used in any enquiry. Ext. Ka 18 is a discharged. He is on bail. He need not to
report of the chemical examiner and it surrender. Appeal Allowed.
may be used under Section 293 Cr.P.C. ---------
We, therefore, reject the arguments of the APPELLATE JURISDICTION
CIVIL SIDE
learned A.G.A. that the viscera report Ext.
Ka 18 cannot be read or used.
BEFORE
The opinion of Dr. D.D. Tripathi that THE HON’BLE PRAKASH KRISHNA, J.
Smt. Gyani Devi died as a result of
poisoning is based on presumption and First Appeal From Order No.956 of 2005
surmises. Therefore, his opinion is not
acceptable. Besides it, his opinion that the Mahendra Yadav …Plaintiff
deceased died due to poisoning is contrary Versus
to the opinion of chemical examiner, Om Prakash and another …Defendant
therefore, it deserves to be rejected.
Counsel for the Appellant:
Thus in the nut-shell we have Sri K.K. Mani
nothing before us which may lead us to a
positive conclusion that Smt. Gyani Devi Counsel for the Respondents:
Sri J.P. Gupta
died due to poisoning.
Sri Janardan Yadav
Sri Manish Kumar Nigam
The investigation into the case does
not appear to have been fairly and Code of Civil Procedure-Order 23 rule 3
properly made by the police officers. readwith Indian Contract Act, Section 23
Nagendra Singh (P.W. 7), Bal Govind with Transfer of Property Act-Section-
Tiwari (P.W.9) who appear to have very 54-Transfer of immovable property-by
formally submitted the charge-sheet means of compromise terms of
against the appellant-accused. compromise being unlawful u/s 23 of
Contract Act-sale transaction being his
by the provisions of 54 of T.P. Act-held- defendant is living all alone and has been
compromise rightly refused. looked after by the plaintiff. He was in
need of Rs.1 Lakh in the month of June,
Held: Para 8 & 9
1988, which was advanced by the plaintiff
In other words, the title to the disputed on the understanding that in lieu of money
house is being sought to transfer from the house of the defendant stood sold. It
the defendant to the plaintiff. Such an was also understood that if the aforesaid
agreement is obviously hit by Section 23 sum of Rs.1 Lakh is not returned within a
of the Contract Act. The purpose and
period of five years, there would be a sale
object of the said compromise is to
transfer the disputed house through the
deed in pursuance of the understanding
agency of the Court in absence of a arrived at between the parties in the
registered instrument. Such thing is not month of June, 1988. The defendant has
permissible in law being against Section failed to return the money within the
54 of the Transfer of Property Act, which aforesaid period and has executed a
defines sale and provides that in case of registered Will deed dated 25.1.1995 in
tangible immovable property of value of
Rs.100/- and upwards can be made only
his favour on the assurance that there
by a registered instrument. would be no further demand for refund of
money from the plaintiff. In this regard on
In this view of the matter the finding 5th of April, 1996 a Yaddast was also
recorded by the Court below that written by the defendant. The plaintiff is
compromise was not lawful agreement in possession of the house, which belongs
or compromise, is correct and the trial
court committed illegality in deciding the
to the defendant and filed the suit for
suit in terms of compromise. injunction that the defendant be restrained
Case law discussed: permanently from transferring, alienating
AIR 1993 SC-1139 or interfering in the possession of the
2000 (4) AWC-2848 plaintiff over the disputed house. A relief
for declaration was also sought for that in
(Delivered by Hon'ble Prakash Krishna, J.) view of the Yaddast dated 5.4.1996
executed by the defendant, the defendant
1. This is plaintiff's appeal under ceased to have any right, title or interest
Order 43 Rule 1 (u) C.P.C. against the in the said house.
order dated 2nd of February, 2005 passed
by the Additional District Judge, Court 3. A supporting written statement
No.16, Deoria in civil appeal No.14 of reiterating the plaint allegation was filed
1998 whereby it allowed the appeal and by the defendant on 21st of November
set aside the judgment and decree dated 1999 and the evidence of the plaintiff was
27.11.1997 passed by the Court below recorded on 26th of November, 1997. On
and remanded the matter for decision of that day a compromise petition was filed
the suit on merits after giving before the trial court on the allegation that
opportunities to the parties to file the parties have entered into a
evidence. compromise and the suit be decided in
terms thereof. The trial court on 27th of
2. The plaintiff, Mahendra Yadav, November, 1997 in the presence of the
instituted suit No.306 of 1997 against Om parties decided the suit in terms of
Prakash on the allegations that the
1 All] Mahendra Yadav V. Om Prakash and another 199
compromise and the compromise was Court below and as such the appeal was
made part of the decree. not maintainable. On merits, he submitted
that the parties having been entered into
4. Feeling aggrieved against the the compromise before the trial court and
judgment and decree, civil appeal No.14 in the absence of any finding of
of 1998 was filed by the defendant Om impersonation by the Court below, the
Prakash and one Smt. Vandana Devi wife Court below committed illegality in
of Pawan Kumar Sharma @ Pappu allowing the appeal. The learned counsel
Sharma before the Court Below on the for the respondents supported the order
ground that the aforesaid compromise under appeal and submitted that the
being unlawful, the suit could not have compromise in question, on the face of it,
been decided by the trial court in being unlawful is void under Section 23
pursuance thereof. It was further stated of the Contract Act. Elaborating the
that the said compromise decree was argument it was submitted that title to an
obtained by impersonation and the immovable property can be passed only
defendant namely Om Prakash did not through a registered document such as
sign the said compromise nor ever agreed sale deed, gift deed or exchange.
to it. The appellant no.2 namely Smt.
Vandana Devi Sharma claimed the 7. The Order 23 of C.P.C. deals with
property in question on the basis of earlier the subject "withdrawal and adjustment of
sale deeds executed on 15.9.1995 and suits." Rule 3 deals with compromise of
29.10.1992 by the defendant Om Prakash. suit. It provides that where it is proved to
Smt. Vandana Devi Sharma also claimed the satisfaction of the court that a suit has
that she is in possession of the house in been adjusted wholly or in part by lawful
question in pursuance of the aforesaid sale agreement in writing signed by the
deeds and submitted that the compromise parties, the court shall order the such
decree dated 27th of November, 1997 is agreement, compromise or satisfaction to
liable to be set aside as the vendor namely be recorded and shall pass a decree in
defendant had already sold the disputed accordance therewith. The orders ''lawful
property to her through the aforesaid two agreement' or ''compromise' in Rule 3 had
sale deeds. given rise to a conflict in the matter of
interpretation. One view was that the
5. The Court below by the order agreements which are void under Section
under appeal has allowed the appeal and 19 A of the Contract Act are not
remanded the matter to the trial court for excluded. This was the view of the
fresh consideration in the light of the Allahabad, Calcutta, Madras and Kerala
observations made in the judgment. High Courts. A contrary view was taken
by Bombay and Nagpur High Courts. To
6. Heard the learned counsel for the set it at rest, the said controversy, an
parties and perused the record. The explanation has been added to the Rule to
learned counsel for the appellant clarify the position. The said
strenuously submitted that no appeal lies "explanation" reads as follows:-
under section 96 C.P.C. in view of the
Sub Section (3) thereof. It was submitted "An agreement or compromise which
that a regular appeal was filed before the is void or voidable under the Indian
Contract Act, 1972 (Act No.9 of 1972), 10. As regards the maintainability of
shall not be deemed to be lawful within appeal is concerned, the issue is no longer
the meaning of this Rule." res integra and has been set at rest by
Apex Court in Banwari Lal Vs. Smt.
8. From the averments made in the Chando Devi A.I.R. 1993 S.C. 1139. It
plaint, it is clear beyond doubt that the has been held that where a challenge to
plaintiff is not owner of the house in the compromise petition is made, an
question. He, rather has admitted the application can be filed under Proviso to
ownership and title of the defendant in Order 23 Rule 3 of C.P.C. or an appeal
respect to the house in question. The under Section 96 (1) C.P.C. The relevant
learned counsel for the plaintiff appellant paragraph is reproduced below:-
could not dispute the proposition that title
to an immovable property can be 13. "When the amending Act
transferred only by a registered introduced a proviso along with an
instrument namely sale deed, gift deed, explanation to Rule 3 of O. 23 saying that
exchange, surrender deed etc. A copy of where it is alleged by one party and
the compromise petition has been denied by other that an adjustment or
annexed along with the affidavit. By satisfaction has been arrived at, "the
means of the said compromise, an attempt Court shall decide the question", the
has been made to make the plaintiff Court before which a petition of
owner of the disputed house by divesting compromise is filed and which has
it from the defendant who is owner recorded such compromise, has to decide
thereof. In other words, the title to the the question whether an adjustment or
disputed house is being sought to transfer satisfaction had been arrived at on basis
from the defendant to the plaintiff. Such of any lawful agreement. To make the
an agreement is obviously hit by Section enquiry in respect of validity of the
23 of the Contract Act. The purpose and agreement or the compromise more
object of the said compromise is to comprehensive, the explanation to the
transfer the disputed house through the proviso says that an agreement or
agency of the Court in absence of a compromise "which is void or voidable
registered instrument. Such thing is not under the Indian Contract Act ......" shall
permissible in law being against Section not be deemed to be lawful within the
54 of the Transfer of Property Act, which meaning of the said Rule. In view of the
defines sale and provides that in case of proviso read with the explanation, a
tangible immovable property of value of Court which had entertained the petition
Rs.100/- and upwards can be made only of compromise has to examine whether
by a registered instrument. the compromise was void or voidable
under the Indian Contract Act. Even R.
9. In this view of the matter the 1(m) of O. 43 has been deleted under
finding recorded by the Court below that which an appeal was maintainable
compromise was not lawful agreement or against an order recording a compromise.
compromise, is correct and the trial court As such a party challenging a
committed illegality in deciding the suit in compromise can file a petition under
terms of compromise. proviso to R. 3 of O. 23, or an appeal
under S. 96(1) of the Code, in which he
1 All] Deepak V. State of U.P. and another 201
can now question the validity of the Counsel for the Revisionist:
compromise in view of R. I A of O. 43 of Sri T.K. Srivastava
the Code."
Counsel for the Opposite Parties:
11. The aforesaid judgment has been Sri Mahipal Singh
followed by Learned Single Judge in A.G.A.
Durga Prasad Tandon Vs. Gaur
Code of Criminal Procedure-Section 311-
Brahmin Sabha 2000 (4) AWC 2848.
Application for re-examination of
witness-after one year-it is for the court
The submission of the learned to ensure justice-ends of justice is higher
counsel for the appellant that instead of than end of law-held-it is for Trail Court
filing a miscellaneous appeal, a regular to apply its independent mind in
appeal under Section 96 C.P.C. was filed evaluating the value of evidence.
and therefore the same was not
Held: Para 5
maintainable needs to be noted. However,
he could not dispute that even if a I am not in agreement with this
miscellaneous appeal would lie before the contention of the learned counsel for the
Court below and there will not be change petitioner. The ends of justice are higher
of forum of the appellate court may be a than the mere ends of law, and it is for
regular appeal or a miscellaneous appeal. the Courts to ensure that justice is not
made hostage to the money or muscle
Assuming for a moment that the said power of accused persons who after
argument of the appellant has some force committing crimes are determined to
it will not make any difference as it has sabotage their trials and to prevent them
been firmly established that mere mention from reaching their culmination. The
of a wrong Section will not make any time factor in moving the application for
difference if the court had the jurisdiction re-examination of the witnesses who
had become hostile is also not all-
to entertain and decide the appeal. important, as it may have taken time for
the witnesses to regain confidence and
In view of the above discussion I to overcome their fear of the accused for
find no merit in the appeal. The appeal is deposing about the true version in Court.
dismissed.
--------- (Delivered by Hon'ble Amar Saran, J.)
REVISIONAL JURISDICTION
CRIMINAL SIDE 1. This criminal revision has been
filed for challenging the order dated
2.9.2004 passed by the Additional
BEFORE
THE HON’BLE AMAR SARAN, J.
Sessions Judge, FTC No.2, Bijnor
allowing the application moved by the
Criminal Revision No. 3996 of 2004 complainant-opposite party No. 2 under
Section 311 Cr.P.C. seeking to re-
Deepak …Revisionist examine Rakesh Kumar and Virendra
Versus Singh in S.T. No. 220 of 2002 (State Vs.
State of U. P. and another Deepak and others), under Sections
…Opposite parties 302/324 IPC, police station Haldaur,
district Bijnor.
2. The revisionist Deepak along with had been examined just prior to the
two other co-accused Chandu and Sumer recording of 313 Cr.P.C. statement of the
had been arrayed as accused in the FIR accused and that no good ground for
dated 18.5.2001, which alleged that the allowing the application under Section
incident had taken place on 18.5.2001 at 311 Cr.P.C. after such a long lapse of
about 9 P.M. where the brother of the time.
informant Madan was murdered by the
accused persons including the revisionist. 5. I am not in agreement with this
The role of the revisionist was to give a contention of the learned counsel for the
knife blow on the chest of the deceased petitioner. The ends of justice are higher
while the other co-accused Chandu and than the mere ends of law, and it is for the
Sumer were assigned the role of catching Courts to ensure that justice is not made
hold of the deceased at the time of hostage to the money or muscle power of
incident. accused persons who after committing
crimes are determined to sabotage their
3. However, when the witnesses trials and to prevent them from reaching
appeared in court, they turned hostile. their culmination. The time factor in
An application ext. Kha 85, which moving the application for re-examination
contained a copy of a report in case No. of the witnesses who had become hostile
467 C of 2003 under Sections is also not all-important, as it may have
452/504/506 IPC lodged at police station taken time for the witnesses to regain
Haldaur, which alleged that the accused confidence and to overcome their fear of
Sumer and Chandu (who have been the accused for deposing about the true
granted bail in the present case) armed version in Court.
with country made pistols had intimidated
and threatened the witness Rakesh Kumar 6. In a Division Bench criminal
on 25.7.2003 at 6 P.M. and had exerted appeal in the case of Kundan Singh and
pressure on them to turn hostile in the others v. State of U.P., Criminal Appeal
murder case. It was on account of this No. 1194 of 1988 writing for the bench I
threat, that the witnesses could not give have held that the Majesty of Justice is to
the true version in the court because there be upheld. When the witnesses are not
was such a great terror of the accused prepared to come out with the entire truth
persons. On account of this application and are turning hostile and the police
and the FIR in case crime No. 467 C of agency and the public prosecutor also do
2003, the impugned order had been not appear to be completely independent
passed by the Additional Sessions Judge and supportive of the prosecution case,
FTC No.2, Bijnor. the onus of the Court is even heavier, and
if the court is to maintain public
4. The principal ground for confidence in the administration of justice
challenging the impugned order was that and to vindicate and uphold the 'majesty
the application had been moved by O.P. of the law' it is important that it does not
No.2 on 25.8.2004, i.e. after one year of meekly surrender before a wily accused
the examination of the witnesses PW. 1 and allow the criminal justice system to
Rakesh and P. W. 2 Virendra and it was be derailed because the accused succeeds
moved belatedly after the other witnesses in winning over some of the witnesses
1 All] Deepak V. State of U.P. and another 203
inducing them to turn hostile, or wins Constitution has to be held only in trust
over the police or even the public for the public and society at large. If
prosecutor to his side. deficiency in investigation or prosecution
is visible or can be perceived by lifting
7. It would also be appropriate here the veil trying to hide the realities or
to reiterate the pertinent observations of covering the obvious deficiencies. Courts
the Apex Court in paragraph 58 and 59 in have to deal with the same with an iron
the case of Zahira Habibullah H. Shaikh hand appropriately within the framework
v. State of Gujarat, AIR 2004 SC 3114: of law. It is as much the duty of the
prosecutor as of the Court to ensure that
“58. The Courts at the expense of full and material facts are brought on
repetition we may state, exist for doing record so that there might not be
justice to the persons who are affected. miscarriage of justice. (See Shakila Abdul
The Trial/First Appellate Courts cannot Gafar Khan (Smt.) v.. Vasant Raghunath
get swayed by abstract technicalities and Dhobe, (2003(7) SCC 749)." (Emphasis
close their eyes to factors which need to 'supplied)
be positively probed and noticed. The
Court is not merely to act as a tape 8. On examination of the witnesses
recorder recording evidence, overlooking in exercise of powers under section 311 of
the object of trial i.e. to get at the truth. It the Code of Criminal Procedure, what
cannot be oblivious to the active role to value is to be assigned to their testimony
be played for which there is not only and the question as to whether the
ample scope, but sufficient powers witnesses had indeed been terrorized by
conferred under the Code. It has a the accused to turn hostile or they had
greater duty and responsibility i.e. to voluntarily resiled from the prosecution
render justice, in a case where the case at the time of their initial
role of prosecuting agency itself is examination in Court are matters for
put in issue and is said to be hand in appreciation by the trial court which must
exercise its independent mind in
glove with the accused, parading a
evaluating the value of the testimony of
mock fight and making a mockery of the witnesses, uninfluenced by any
the criminal justice administration observations hereinabove.
itself.
9. The Revision has, therefore, no
As pithily stated in Jennison v. force and it is dismissed. Stay order dated
Backer (1972 (1) All ER 1006), "The 16.9.2004 is vacated.
law should not be seen to sit limply,
while those who defy it go free and, 10. However as the trial has
those who seek its protection lose remained stayed for a long time in view of
hope". Courts have to ensure that the High Court's stay order the trial court
accused persons are punished and that is now directed to proceed with the trial
the might or authority of the State are and to conclude it expeditiously.
not used to shield themselves or their
men. It should be ensured that they do
not wield such powers which under the
11. Office is directed to decreed ex-parte. It was filed and

communicate this order to the Court decreed after possession had been taken
by the State.
below within two weeks.
Revision Dismissed. In my opinion, therefore petitioner can
--------- not claim any right in the land in dispute
ORIGINAL JURISDICTION and it was validly given in the choice by
CIVIL SIDE respondent No.4 to be taken as surplus
DATED: ALLAHABAD 10.10.2006 land.
Case law discussed:
BEFORE 2004 (97) RD (17) SC
THE HON’BLE S.U. KHAN, J. 1996 RD-112
Civil Misc. Writ Petition No. 9461 of 1988 (Delivered by Hon'ble S.U. Khan, J.)
Rajendra Singh & another …Petitioners 1. This writ petition arises out of
Versus proceedings under U.P. Imposition of
Additional Commissioner, Jhansi
division, Jhansi & others …Respondents
Ceiling on Land Holdings Act 1960
(hereinafter referred to as the Ceiling
Counsel for the Petitioners: Act). Respondent No.4 Rameshwar Singh
Sri Kunal Ravi Singh was tenure holder of the agricultural land
in dispute. Ceiling proceedings were
Counsel for the Respondents: initiated against him in the form of case
Sri Ranvir Singh No. 260 which was decided on 2.3.1983
S.C. by prescribed authority Kalpi district
Jalaun. Through the said order 7.88 acres
U.P. Imposition Ceiling on Land Holding of irrigated land of respondent No.4 was
Act 1960-Section 5 (2)-Surplus land- declared as surplus. Against the said order
after declaration of surplus land by appeal No.99/101/10 of 1985-86 was filed
Prescribed authority on 2.3.1983-during
pendancy of appeal-impladment
by the respondent No.4, which was
application by the petitioner-that plot dismissed on 12.2.1988 by respondent
no. 510 1 Bigha 16 Biswa wrongly no.1.
treated the land of respondent No. 4 as
he has been declared bhumidhar by 2. During pendency of appeal,
S.D.O.-held-keeping in view of petitioners filed impleadment application
explanation II of section 5 inspite of
decree of 1985 the land will be treated
stating therein that one of the plots i.e.
of original tenure holder-No right or title plot No. 510 area one bigha, 16 biswa was
can be claimed by the petitioner. wrongly treated to be held by respondent
No.4 and it was actually the petitioners
Held: Para 6 & 7 who were tenure holder of the said plot as
they had matured their right through
In view of the above explanation (ii), in
spite of decree of 1985 land will have to
adverse possession against respondent
be treated to be of respondent No.4. In no.4 and they had also filed declaration
this regard reference may be made to suit under section 229 B of U.P.Z.A.L.R
Vinod Kumar Vs. Commissioner 2004(97) Act which was pending at that time before
RD 17(SC) and D.N. Agarwal Vs. State S.D.O. It was further stated that
1996 RD 112. Moreover, suit was petitioners were recorded in column No.9
1 All] Rajendra Singh and another V. Addl. Commissioner, Jhansi and others 205
in the revenue records against the plot in Explanation (i) -In determining the
dispute. Affidavit in support of ceiling area applicable to tenure holder of
impleadment application was filed on land held by him in his own right whether
8.11.1985. It may be mentioned that in his own name or ostensibly in the name
respondent No.4 had indicated his choice of another person shall be taken into
regarding surplus land to be taken by the account.
State and plot No. 510 was included in the
said choice. Explanation (ii) if on or before 24. 1.
1971 any land was held by a person who
3. The appellate court through its continues to be in its actual cultivatory
judgment dated 12.2.1988 (dismissing the possession and the name of any other
appeal) also rejected the impleadment person is entered in the annual register
application of petitioner hence this writ after the said date either in condition to or
petition. to the exclusion of former or on the basis
of deed of transfer or licence or on the
4. Appellate court held that it was basis of a decree it shall be presumed
proved on the basis of record that unless the contrary is proved to the
possession of surplus land as per choice satisfaction of the prescribed authority
of tenure holder respondent No.4 had that the first mentioned person continues
been taken in 1983 hence claim of the to hold the land and that itself was held by
petitioner was not maintainable. Appellate him ostensibly in the name of the second
court rightly held that if petitioners had mentioned person.
any claim then they should have raised
the same in 1983 when possession of 6. In view of the above explanation
surplus land was being taken. In para 3 of (ii), in spite of decree of 1985 land will
the affidavit filed in support of have to be treated to be of respondent
impleadment application it was stated that No.4. In this regard reference may be
petitioners filed suit for declaration made to Vinod Kumar Vs. Commissioner
against Rameshwar respondent No.4 2004(97) RD 17(SC) and D.N. Agarwal
before S.D.O, which was decreed on Vs. State 1996 RD 112. Moreover, suit
26.8.1985. Copy of the said order has was decreed ex-parte. It was filed and
been filed as annexure RA 1 to the decreed after possession had been taken
rejoinder affidavit. by the State.
5. From perusal of the said 7. In my opinion, therefore

judgment, it is clear that the respondent petitioner can not claim any right in the
No.4 who was defendant in the said suit land in dispute and it was validly given in
filed written statement but thereafter the choice by respondent No.4 to be taken
absented himself hence case was decided as surplus land.
ex-parte.
8. At the time of arguments no one
Explanations 1 and 2 to section 5 of appeared for respondent No.4 hence
the Ceiling Act are quoted below: judgment was reserved after hearing
learned counsel for the petitioner and
arguments of the learned standing counsel
for the State representing respondents 1,2 Held: Para 5

and 3. Few minutes thereafter learned
Such being the case, the petitioner is
counsel for the respondent No.4 appeared
justified in saying that the impugned
and stated that respondent No.4 had died order dated 19.6.1993 has been in
in May 2000 and no substitution violation of the provisions of section 8
application had been filed. However, as I (2)(b) of the Rules aforesaid. The
am dismissing the writ petition on merit consequent order has been passed
hence I need not take notice of that. without holding any enquiry is also
therefore vitiated. The petitioner is
clearly entitled to the protection granted
9. Accordingly there is no merit in under Article 311 (2) of the Constitution
the writ petition hence it is dismissed. of India.
--------- Case law discussed:
ORIGINAL JURISDICTION 2001 (2) UPLBEC-1775 relied on.
CIVIL SIDE
DATED: ALLAHABAD 22.09.2006 (Delivered by Hon'ble Bharati Sapru. J.)
BEFORE
THE HON’BLE BHARATI SAPRU, J.
1. Heard learned counsel for the
petitioner and the learned standing
Civil Misc. Writ Petition No. 14752 of 2002 counsel for the respondents.
Narendra Prasad Rai …Petitioner 2. The petitioner has made a prayer

Versus seeking writ of certiorari quashing the
State of U.P. and others …Respondents impugned orders dated 19.6.1993 and
2.3.1992 passed by the respondents no. 3
Counsel for the Petitioner: and 2 respectively (Annexures 1 and 2 to
Sri M.L. Rai the writ petition). The first the order of
Sri Babu Lal removal was passed by the
Superintendent of Police and the second is
Counsel for the Respondents: the order passed in appeal by the D.I.G.
S.C. (Police).
Constitution of India Art. 311 (2)
readwith U.P. Police Officers of the
3. The contention of the petitioner is
subordinate Rules (Punishment and that both the impugned orders are
appeal) Rules 1991-Section 8 (2)(b)- arbitrary and illegal because the services
Dismissal order-without recording any of the petitioner have been brought to an
reason about impossibility of holding end without giving to the petitioner an
enquiry-on the ground-unauthorised opportunity of hearing and in violation of
absence petitioner found with heroin
about which-declared indisciplined
the provisions of section 8 (2)(b) of the
employee-held-order passed in violation U.P. Police Officers of the Subordinate
of the provisions of section 8 (2) (b) of Ranks (Punishment and Appeal) Rules,
Rules without holding enquiry-petitioner 1991. The contention of the petitioner
be given proper opportunity complete also is that the provisions of section 8
the enquiry within six months-till (2)(b) of the Rules aforesaid can only be
conclusion of disciplinary proceeding-
impugned order kept in abeyance.
dispensed with certain circumstances and
although if there are good reasons to do so
1 All] Narendra Prasad Rai V. State of U.P. and others 207
and also where the authority who is 6. The petitioner, in support of his
empowered to dismiss or remove a person contentions, has stated that the decision of
is satisfied for reasons to be recorded by this Court in the case of Ram Das Yadav
the authority in writing that it is versus Sena Nayak, 45th Battalion, P.A.C.
reasonably impracticable to hold such an Contingent Konkrajhar, reported in
enquiry. (2001) 2 UPLBEC 177s5 wherein this
Court came to the conclusion that in
4. I have perused the order of absence of any material being placed
termination dated 19.6.1993. The order before the Court, the decision to dispense
does not record any reason why it is with the enquiry was not a good one. I am
impracticable to hold an enquiry. The in respectful agreement with the view
order simply records that firstly the taken by the learned Single Judge in the
petitioner was unauthorizedly absent, said decision and following the same.
secondly that previously also he had been
absent without leave 164 days; and thirdly 7. In view of the above, I am of the
he was found with heroin for which he opinion that the petitioner must be given
has been declared indisciplined employee an opportunity of hearing in an enquiry.
but no reason has been given why it is not The respondents no. 1, 2 and 3 are
possible to hold an enquiry against him. directed to initiate and hold an enquiry
After all in all cases of misconduct, an against the petitioner giving him a proper
enquiry is held. It is only in very special opportunity of hearing within a period of
circumstances that an enquiry can be ten days from the date of issuance of
dispensed with. Therefore if the certified copy of this order. The
provisions of Rule 8 (2) (b) are to be respondents will allow the petitioner to
invoked by the authority, then it must participate freely in the enquiry and they
record clearly the reasons for doing so. will conclude it within a period of six
Rule 8 (2)(b) is quoted below: months. The impugned order dated
19.6.1993 will be kept in abeyance for a
"(b) Where the authority empowered period of six months or till the conclusion
to dismiss or remove a person or to reduce of enquiry whichever is earlier. The
him in rank is satisfied that for some petitioner will co-operate with the
reason to be recorded by that authority in authorities concerned in the enquiry. In
writing, it is not reasonably practicable to case, after completion of enquiry, the
hold such enquiry;" petitioner is exonerated, it will be open to
the respondents to pass fresh orders in
5. Such being the case, the petitioner accordance with law. It is made clear that
is justified in saying that the impugned this order is being passed for the purposes
order dated 19.6.1993 has been in of allowing to the petitioner an
violation of the provisions of section 8 opportunity of hearing and does not
(2)(b) of the Rules aforesaid. The amount to an order of reinstatement of the
consequent order has been passed without petitioner in service. However the
holding any enquiry is also therefore petitioner will be allowed whatever
vitiated. The petitioner is clearly entitled benefits he is entitled to under the law.
to the protection granted under Article
311 (2) of the Constitution of India.
8. The writ petition is disposed of as Case law discussed:

above. 2000 JT (7) SC-379, 2003 (6) SC-465, 2002
--------- (49) AIR 110, 2003 (3) AWC-2198, 1994 ARC
ORIGINAL JURISDICTION (2)-204, 1990 ARC (1) 8
CIVIL SIDE
DATED: ALLAHABAD 29.11.2006 (Delivered Hon’ble A. N. Varma. J.)
BEFORE The opposite party no. 1, i.e. the

THE HON’BLE A.N. VERMA, J. Plaintiff before the trial court, instituted a
Suit, being Suit No. 209 of 1986, for
Civil Misc. Writ Petition No. 53099 of 2004 specific performance of contract against
the petitioners, i.e. Defendants. During
Ram Ishwar @ Rameshwar and others the pendency of the proceedings the
…Defendants-Petitioners
Versus
petitioners preferred an application for
Laxmi Narain and another…Respondents issuance of a Commission. The trial court
vide its order dated 01.07.2004 rejected
Counsel for the Petitioners: the said application, against which the
Sri H.S.N. Tripathi petitioners approached the District Judge
Sri P.S. Tripathi in Revision under Section 115 of C.P.C.,
who vide its judgment and order dated
Counsel for the Respondents: 15.10.2004 dismissed the same on the
Sri Pramod Kumar Jain ground of maintainability. It is against the
S.C. said judgment and order that the
petitioners have approached this Court
Code of Civil Procedure-Section 115- through the instant writ petition.
Revision-against the order of rejection to
issue commission-held-neither any issue
decided nor the right of parties
2. I have heard Sri H.S.N. Tripathi,
adjudicated-not amount to case decided- learned counsel for the petitioners as well
revision not maintainable. ash Sri P.K. Jain, learned counsel for the
opposite party no. 1.
Held: Para 16
3. Sri Tripathi submitted that the
Thus what is clearly decipherable from
the aforesaid discussion is that before a
learned courts below committed a
Revision can be entertained in exercise manifest error in dismissing the Revision
of power under Section 115 C.P.C., the on the ground of maintainability.
order which is said to be assailed under
Revisional jurisdiction has to be a case As per his submission the application
decided within the meaning Section 115 which was preferred for issuance of
of C.P.C. In view of the fact, by rejection
of the application issuance of a
Commission was for the purpose to
Commission, neither any issue is decided ascertain as to whether or not the bricks
nor any of the rights of the parties are which were supplied to the opposite party
adjudicated upon, therefore, such an no. 1, were from the brick klin of the
order does not amount to a case decided petitioner and the money which had been
and in the considered opinion of this paid to them pertained to the cost of the
Court the Revision against the same is
not maintainable.
said bricks and not as an advance in
respect of the alleged agreement. In
1 All] Ram Ishwar @ Rameshwar & others V. Laxmi Narain and another 209
support of his case he placed reliance Gazette including such suits or other
upon (a) Judgement Today 2000 (7) SC proceedings instituted before the date of
379- Shreepat vs. Rajendra Prasad & commencement of the Uttar Pradesh Civil
Others, (b) Judgment Today 2003 (6) SC Laws (Amendment) Act, 1991, or as the
465 - Surya Dev Rai Vs. Ram Chander case may be, the date of commencement
Rai & Ors., (c) 2002 (49) A.I.R. 110 - of such notification), and the District
Smt. Soni Vs. District Judge, Allahabad Court in any other case, including a case
and others, (d) 2003 (3) AWC 2198 (SC) arising out of an original suit or other
- Shiv Shakti Co-operative Housing proceedings instituted before such date,
Society, Nagpur vs. Swaraj Developers may call for the record of any case which
and others. has been decided by any court subordinate
to such High Court or District Court, as
4. In opposition Sri P. K. Jain the case may be, and in which no appeal
submitted that the order rejecting an lies thereto, and if such subordinate court
application for issuance of Commission is appears-
not revisable as it is not a case decided
within the meaning of Section 115 C.P.C. (a) to have exercised a jurisdiction not
As per his submission the learned court vested in it by lay; or
below was perfectly justified in not (b) to have failed to exercise a
interfering with the order dated 1.7.2004 jurisdiction so vested; or
as the same neither adjudicated upon an (c) to have acted in the exercise of its
issue, nor decided any rights of the jurisdiction illegality or with i
parties. In support of his case he placed material irregularity; the Hi or the
reliance upon 1994 (2) Allahabad Rent District Court, as the case may be,
Cases 204 - Munshi Lal Agarwal and may make such order in the case as it
others V s. IXth A.DJ. Lucknow and thinks fit;
others and 1990 (1) Allahabad Rent Cases
page 8 Hajari Lal Vs. Siya Saran and Provided that in respect of cases arising
others. He further submits that in a Suit out of original suits or other proceeding of
for specific performance of contract with any valuation, decided by the District
regard to supply of the bricks can be Court, the Hi alone shall be competent to
established by other evidence and not by make an order under this section.
issuing the Commission and getting it Provided further that the Hi or the District
ascertained through Commission. Court shall not under this section, vary or
reverse any order including an order
5. Section 115 of C.P.C., as deciding an issue, made in the course of a
amended and applicable to State of U.P. suit or other proceeding, except where,-
reads as follows: (i) the order, if so varied or reversed,
"115. Revision.--The High Court, in would finally dispose of the suit or other
cases arising out of original suits or other proceedings; or
proceedings (of the value exceeding one (ii) the order, if allowed to stand, would
lakh rupees or such higher amount not occasion a failure of justice or cause
exceeding five lakh rupees as the High irreparable injury to the party against
Court may from time to time fix, by whom it was made.
notification published in the Official
*(Provided also that where a proceeding issuance of Commission was required. In

of the nature in which the District Court para 4 the Apex Court had observed as
may call for the record and pass orders follows:
under this section was pending
immediately before the relevant date of "4. In our opinion, this contention is
commencement referred to above, in the correct. Since there was a serious dispute
High Court, such Court shall proceed to with regard to the area and boundaries of
dispose of the same.) the land in question, especially with
Explanation.--In this section, the regard to its identity, the courts below,
expression 'any case which has been before decreeing the suit should have got
decided' includes any order deciding an the identify established by issuing a
issue in the course of a suit or other survey commission to locate the plot in
proceedings." dispute and find out whether it formed
part of Khasra No.257/3 or Khasra No.
6. A perusal of the aforesaid 257/1. This having not been done has
provision shows that the High Court in resulted in serious miscarriage of justice.
cases arising out of original Suits or other We consequently allow the appeal, set
proceedings and District Courts in any aside the order passed by the courts below
other cases including a case arising out of as affirmed by the High Court and remand
original Suits and other proceedings may the case to the trial court to dispose of the
call for the record of any case which has suit afresh in the light of the observations
been decided by any court subordinate to made above and in accordance with law."
such High Court or District Court.
9. In the case at hand there is no
7. Explanation-I appended to the question of identity of land and therefore,
said Section defines the expression "any regarding establishment of the same the
case which has been decided, which issuance of Commission was not required.
includes any order deciding an issue in The said case does not have any
the course of the Suit or other application as such.
proceeding". The application made for
issuance of a Commission and decision 10. In Surya Dev Rai Vs. Ram
rendered thereon does not decide any Chander Rai & Ors. (Supra), the Apex
issue in the course of the Suit or other Court observed that those interlocutory
proceedings. Unless any issue which orders passed by the subordinate court
decides the rights of the parties is dealt which are amenable the Revisional
with and adjudicated upon by the court jurisdiction. Supervisory jurisdiction
subordinate to High Court or District under Article 226 of the Constitution of
Court, as the case may be , the case India would be applicable. This is also not
cannot be said to have been decided. the case in the present dispute, therefore,
the said case has no application.
8. In Sreepat V s. Rajendra Prasad &
Ors. (supra) the identity of land which 11. In Smt. Soni Vs. District Judge,
was subject matter of dispute was raised. Allahabad & Others (supra) the question
The Apex Court observed in order to was also to whether or not the Plaintiff is
ascertain the identity of the land the entitled to exparte injunction amounts to a
1 All] Ram Ishwar @ Rameshwar & others V. Laxmi Narain and another 211
case decided. Since this is not the mode of procedure is altered the parties
question involved, therefore, the said case are to proceed according to the altered
also does not have any application. mode, without exception unless there is a
different stipulation."
12. In Shiv Shakti Co-operative
Housing Society, Nagpur Vs. Swaraj 13. In view of the fact that the order
Developers and others the question before rejecting an application for issuance of a
Apex Court was as to whether a Revision Commission does not attach any finality
was maintainable against interlocutory to the proceedings, therefore, no Revision
order. The Hon'ble Supreme Court lies against the said order which is in the
observed that in case the order attaches shape of an interlocutory order. The said
finality then the Revision is maintainable case also does not have any application.
and if the answer is 'no' then the Revision
is not maintainable. In para 32 of the said 14. In Munshi Lal Agarwal and
report, the Apex Court observed as others vs. IXth A.D.J. Lucknow and
follows: others (supra) relaying upon various
decisions of this Court as well as by the
"32. A plain reading of Section 115, Apex Court, it was observed that order
as it stands makes it clear that the stress is rejecting an application for issuance of
on the question whether the order in Commission does not amount to a case
favour of the party applying for revision decided and the same being an
would have given finality to suit or other interlocutory order no Revision lies. In
proceeding. If the answer is 'yes' then the para 11 of the said report it was observed
revision is maintainable. But on the as follows:
contrary, if the answer is 'no', then the
revision is not maintainable Therefore, if "11. An order rejecting earlier
the impugned order is of interim nature or application dated 15-9-1990 in this case is
does not finally decide the lis, the revision nothing but order is interlocutory in its
will not be maintainable. The legislative nature. This order by itself does not pass
intent is crystal clear. Those orders, which or determine any right of the parties. The
are interim in nature, cannot be the Court had only to observe that the report
subject-matter of revision under Section of the Commissioner is nothing but a
115. There is marked distinction in piece of evidence and that a party cannot
language of Section 97(3) of the Old be allowed to adduce fresh evidence
Amendment Act and Section 32 (2) (i) of except in very exceptional circumstance.
the Amendment Act. While in the former, In the order dated 15-9-1990 the Court
there was clear legislative intent to save further observed that in the instant case,
applications admitted or pending before from the perusal of the Lower Court
the amendment came into force. Such an record it is clear that the appointment of
intent is significantly absent in Section 32 Vakil Commissioner was done on 6-1-
(2)(i). The amendment relates to 1990 with the consent of the parties. The
procedures. No person has a vested right learned Lower Court has given full
in a course of procedure. He has only the opportunity to the parties to file their
right of proceeding in the manner objection against the Commissioner report
prescribed. If by a statutory change, the and after hearing these objections the
learned Court had passed the order on 16- controversy cannot amount to a case
3-1990 that the Commissioner report decided, which is a condition precedent
would be read in evidence subject to the for exercise of powers under section 25 of
evidence adduced on behalf of the parties. the Act. In its decision, rendered in the
It further appears from the records that the Central Bank of India Ltd. v. Gokal
appellant has filed evidence in this case Chand, reported in AIR 1967 SC 799, the
after the submission of the report of the Hon’ble Supreme Court has held that
Vakil Commissioner. In view of the orders regarding of summoning witnesses,
matter the prayer of appellant for Local discovery, production and inspection of
Inspection of the disputed property, I find, documents, issue of a commission for
is not liable to be allowed. The appellant's examination of witness, inspection of
application is rejected. Such orders are premises, fixing a date of hearing and
and have been taken to be orders of inter- admissibility of a document or a
locutory nature and not one deciding or relevancy of a question are interlocutory
determining any of rights of the parties orders. They are steps towards the final
and so do of the amount to be case adjudication and for assisting the parties
decided. This being the position that the in the prosecution of their cases in the
order does not amount to be an order pending proceedings, they regulate the
determining the right of the parties when procedure only and do not affect any right
an application for issue of Commission is or liability of the parties."
rejected it does not amount to be a case
decided. It has been so held by a Division 16. Thus what is clearly
Bench of this Court in the case of decipherable from the aforesaid
Gambhir Mal Pandia v. George Anthony discussion is that before a Revision can be
John, reported in AIR 1934 Allahabad. entertained in exercise of power under
57." Section 115 C.P.C., the order which is
said to be assailed under Revisional
15. In Hajara Lal Vs. Siya Saran and jurisdiction has to be a case decided
others (supra) this Court held that an within the meaning Section 115 of C.P.C.
order holding a document to be In view of the fact, by rejection of the
inadmissible in evidence is a interlocutory application issuance of a Commission,
order and also it does not amount to final neither any issue is decided nor any of the
adjudication of dispute inter se within the rights of the parties are adjudicated upon,
parties, therefore, Revision is not therefore, such an order does not amount
maintainable. However, the Revision of to a case decided and in the considered
the said case was under Section 25 of the opinion of this Court the Revision against
Small Causes Court Act. In para 2 of the the same is not maintainable.
said report it was observed as follows:
17. Thus, in the backdrop of the
"2. Under Section 25 of the Act only discussions made hereinabove, the
such decrees or orders are open to learned court below did not commit any
challenge which are made in any case illegality in not interfering with the order
decided. It cannot be gainsaid that any dated 1.7.2004 in exercise of its revisional
order which does not adjudicate upon any jurisdiction. The learned District Judge
right or obligation of the parties in was perfectly justified in holding that
1 All] Smt. Santoshi V. State of U.P. and others 213
since the order under challenge did not Held: Para 3

amount to case decided and also the same
In view of the statement made by Smt.
being an interlocutory order, therefore,
Santoshi she is allowed to go with her
the revision was not maintainable. husband Manoj Verma as the interest of
justice demands that the mother of two
18. I do not find any illegality or infants who has expressed her deep
infirmity in the orders passed by the desire to live a happy life with her
District Judge. The petition being devoid husband, must be allowed to go and live
with her husband and children. The
of merit is hereby dismissed.
father Om Prakash is hereby restrained
not to interfere into the marital life of
19. There will, however, be no order Smt. Santoshi and Manaj Verma.
as to costs.
(Delivered by Hon’ble Vinod Prasad, J.)
20. Since the Suit is of 1986, it is
desirable that the trial court shall decide 1. Corpus Smt. Santoshi is
the same expeditiously, say within a personally present today in court who has
period of six months. Petition Dismissed. been identified by his father Sri Om
--------- Prakash Gupta who is also present in the
ORIGINAL JURISDICTION
court. The statement of Smt. Santoshi was
CIVIL SIDE
recorded in open court today, which was
verified to be correct by her and after said
BEFORE verification she has put her thumb
THE HON’BLE VINOD PRASAD, J. impression on it. She clearly stated that
she is aged about 24 years and she had
Habeas Corpus Petition No. 47785 of married with Manoj Verma on her own
2006 accord. At the time of marriage she was
19 years of age. She also expressed the
Smt. Santoshi …Petitioner desire that she would like to go with her
Versus husband Manoj Verma. She further stated
that she has got two issues Jahanwi and
Dinkar aged about 2 years four months
and one year respectively. She also stated
Sri Ram Chandra Srivastava
that she is very happy in her family and
with her husband. (She has brought both
A.G.A. the infants in the court today. Her
husband Manoj Verma is also present in
Constitution of India, Art. 226-Habeas court).
Corpus Petition-scope under writ
jurisdiction-considering the statement of 2. Father of Smt. Santoshi, namely,
corpus as well as the welfare of two very Om Prakash Gupta, the petitioner who is
young infants the corpus being 19 years also present in court today raised serious
of age-at the time of marriage-living
happily with her husband-her father
objection to the said request of Smt.
restrained to resort any illegal means for Santoshi and prayed that the couple be
their separation-pending criminal case sent to Jail.
quashed-with consequential directions.
I have heard both the sides. 7. The SHO P.S. Civil Lines,
Allahabad is personally present in court
3. In view of the statement made by today. He is not needed to be present
Smt. Santoshi she is allowed to go with further. His presence is exempted. Since I
her husband Manoj Verma as the interest have quashed the criminal prosecution of
of justice demands that the mother of two Smt. Santoshi and her husband Manoj
infants who has expressed her deep desire Verma, no coercive measure, which has
to live a happy life with her husband, been issued against them, shall be
must be allowed to go and live with her executed against them.
husband and children. The father Om
Prakash is hereby restrained not to Let a copy of this order be sent to
interfere into the marital life of Smt. CJM, Allahabad for his intimation
Santoshi and Manaj Verma. forthwith. Petition disposed of.
---------
4. This Habeas Corpus petition now REVISIONAL JURISDICTION
CRIMINAL SIDE
does not relate with two lives only but it
relates with the life of two young adult
persons and two very young infants, who BEFORE
require all the love affection and caring of THE HON’BLE VINOD PRASAD, J.
both of their parents. In exercise of my
power under Article 226 of the Criminal Revision No. 4501 .Of 2006
Constitution of India, I direct the father
Om Prakalsh Gupta not to resort any Lok Bahadur and others …Revisionists
illegal means for the separation of couple. Versus
State of U.P. & another…Opposite Parties
5. It is stated that a criminal case has
been lodged against them which is Counsel for the Revisionists:
pending before CJM, Allahabad arising Sri S.A. Saroj
out of Crime No. 359 of 2001, U/S 363, Sri Mahesh Kumar
366 IPC, P.S. Civil Lines, district
Allahabad. In view of the order passed by
A.G.A.
me today, I also quash the criminal
prosecution of Manoj Verma and Smt. Code of Criminal Procedure-S. 397 (1)-
Santoshi arising out of aforesaid crime Criminal Revision-offence under section
number. 323/34 IPC-sentenced with six month
R.I. with 500/- fine-conviction order
6. Smt. Santoshi and her husband passed in the year 1992-more than 14
Manoj Venna are directed to get a years passed undoubtly the conviction
cemented by concurrent finding of facts-
certified copy of this order and to appear revisionist remained in jail for about one
before the court of CJM Allahabad within month-nothing to suggest regarding any
a period of one week from today. The mis happening by either side during this
CJM, Allahabad will pass a order in period-conviction reduced to already
accordance this order and will close the undergone with fine of Rs.4000/- on
prosecution. each-payable to the injured-revision
party allowed.
1 All] Lok Bahadur and others V. State of U.P. and another 215
Held: Para 8 of 2002 State Vs. Lok Bahadur and

others, under Sections 325, 323, 504
I have considered the submissions of the
I.P.C., P.S. Phoolpur, District Allahabad
rival sides. This is admitted that the
incident occurred in the year 1992 and relating to crime no. 166 of 1992 vide his
fourteen years had lapsed since then and order dated 27.10.04. The trial court had
that the revisionist do not have any bad convicted the revisionists for offences
antecedent. No doubt their conviction is under Section 323/34 I.P.C. and had
cemented by the concurrent findings of sentenced them to six months Rigorous
facts but after such a long gap of
Imprisonment and to pay a fine of
fourteen years things must have settled
down a lot between the rival factions.
Rs.500/-. It had allowed ten days time for
There is nothing on record to suggest depositing the fine so awarded. Aggrieved
that any of sides did any thing after the by aforesaid judgment of convictions and
incident or made any complaint against sentences passed in the aforesaid case no.
each other. The revisionist also remained 6462 of 2002, the revisionists preferred an
in jail for about a month as is clear from appeal before the Sessions Judge,
the lower appellate court record which
indicates that after their conviction by
Allahabad as Criminal Appeal No. 41 of
the trial court on 27.10.2004 they filed 2004. Lok Bahadur and others Vs. State
appeal against the said conviction on of U.P. The said appeal was heard and
9.11.2004 on which date they were was dismissed by Additional Sessions
ordered to be released on bail by the Judge, Court No.5, Allahabad vide its
lower appellate court. After dismissal of order dated 7.8.06. Hence this revision
their appeal by the lower appellate court
on 7.8.2006 they filed instant revision in
challenging the said convictions and
this court on 11.8.2006 and on sentences.
18.8.2006 they were ordered to be
released on bail by this court. Their 4. I have heard learned counsel for
actual release must have taken another a the revisionists and learned AGA at a
week. Thus it seems that the revisionists great length and have gone through both
had remained in jail for more than a
month. In this view of the matter I
the impugned judgments.
consider it appropriate that the sentence
for the period already under gone and a 5. So far as the merits of the matter
compensation of Rs. Four thousand each is concerned, learned counsel for the
to be paid to the injured will meet the revisionists fairly conceded that the
ends of justice. findings record by both the courts below
does not suffer from any illegality and
(Delivered by Hon'ble Vinod Prasad, J.) consequently he did not challenge the
merits of the matter at all. Hence so far as
1. Heard learned counsel for the conviction of the revisionists under
revisionists and learned AGA. Section 323/34 I.P.C. is concerned, the
same is affirmed.
2. This revision is finally disposed
of in agreement with both the sides. 6. However, learned counsel for the
revisionists contended that the incident
3. The revisionists have challenged had taken place as for back as in 1992 and
their convictions and sentences recorded more than 14 years has lapsed and no
by A.C.J.M., Allahabad in case no. 6462 useful purposes will be served to send the
revisionists to jail at this belated stage. after their conviction by the trial court on
Learned counsel for the revisionists 27.10.2004 they filed appeal against the
further contended that the revisionist had said conviction on 9.11.2004 on which
remained in jail for 13 days after their date they were ordered to be released on
conviction by the trial court and they had bail by the lower appellate court. After
also remained in jail after the dismissal of dismissal of their appeal by the lower
their appeal by the lower appellate court appellate court on 7.8.2006 they filed
and thus for nearly about a month or so instant revision in this court on 11.8.2006
they had remained in jail. He also and on 18.8.2006 they were ordered to be
contended that there is no bad antecedent released on bail by this court. Their actual
of the revisionist and they have no release must have taken another a week.
criminal background. He also submitted Thus it seems that the revisionists had
that the incident started all of a sudden at remained in jail for more than a month. In
the spur of moment without any pre this view of the matter I consider it
meditation and therefore there was total appropriate that the sentence for the
absence of any mes-rea on the part of the period already under gone and a
revisionists. He also submitted that the compensation of Rs. Four thousand each
revisionist had suffered a lot from 1992 to be paid to the injured will meet the
till date and therefore their substantive ends of justice.
sentence be altered into fine.
9. Hence this revision is party
7. Learned AGA on the other hand allowed. The conviction of the
contended that the sentence awarded to revisionists under section 323/34 IPC is
the accused revisionists is not excessive maintained but their sentences of six
and they had caused as many as fourteen months RI and a fine of Rs. Five hundred
inures to the injured Kirti Singh and each are reduced to the period already
therefore no leniency should be shown to under gone and each of them are further
the accused revisionists. directed to pay a compensation of Rs Four
thousand to the injured Kirti Singh to-
8. I have considered the submissions tallying to Rs. Sixteen thousand in all.
of the rival sides. This is admitted that the The said amount of Rs. Sixteen thousand
incident occurred in the year 1992 and shall be deposited by them with the trial
fourteen years had lapsed since then and court to be paid to Kirti Singh injured by
that the revisionist do not have any bad the trial court. The revisionist are granted
antecedent. No doubt their conviction is three weeks time to deposit the said
cemented by the concurrent findings of amount of compensation with the trial
facts but after such a long gap of fourteen Magistrate who will give it to the injured
years things must have settled down a lot within a week of it's deposit with it. If the
between the rival factions. There is revisionists fail to deposit the said
nothing on record to suggest that any of compensation within the time allowed to
sides did any thing after the incident or them the trial court is directed to issue
made any complaint against each other. non bailable warrant of arrest against
The revisionist also remained in jail for them and will send them to jail to serve
about a month as is clear from the lower out the sentence awarded to them by it
appellate court record which indicates that vide it's order dated 27.10.2004. If the
1 All] Ajai Kumar V. Motor Accident Claims Tribunal Spl. Judge and others 217
revisionist deposit the compensation Devi Jain Vs. Kuntal Kumari and others,
amount within the stipulated period of AIR 1972 SC 749 The State of West
Bengal Vs. The Administrator, Howrah
three weeks the trial court is directed to Municipality and others, etc. and 1998
discharge their sureties and personal (2) JCLR 917 :: AIR 1998 SC 3222 N.
bonds. Balakrishnan Vs. M.Krishnamurthv.
Case law discussed:
10. With the above modification in 2003 AC-769
AIR 1969 SC-575
sentence the revision is party allowed. AIR 1972 SC-749
---------
AIR 1998 SC-3222
CIVIL SIDE
(Delivered by Hon'ble Rakesh Sharma, J.)
BEFORE
THE HON’BLE RAKESH SHARMA, J.
1. Heard Ms. Pratima Srivastava,
learned counsel for the petitioner and Sri
Writ Petition No. 55607 of 2003 K.K.Misra, holding brief for Sri N.K.
Srivastava, learned counsel appearing for
Ajai Kumar …Petitioner the National Insurance Company Limited,
Versus respondent no. 2.
Motor Accident Claims Tribunal,
Moradabad and others …Respondents
2. The petitioner has assailed the
two orders passed by the Motor Accident
Km. Pratima Srivastava Claims Tribunal, Moradabad, one dated I.
10.2002 dismissing his claim petition in
Counsel for the Respondents: default and the subsequent order dated
Sri K.K. Misra 3.3.2003 rejecting the application for
Sri N.K. Srivastava recall of the order dated 1.10.2002.
Constitution of India, Art. 226-Practice 3. Learned counsel for the petitioner

and Procedure-Restoration Application- has submitted that the Tribunal has
Motor Accident claim Tribunal if found exc1uded from consideration the
merit in claim-refusal of restoration on
submissions made in the application for
technical ground-held-highly unjust and
unfair. recall of the order dated 1.10.2002 and the
compelling circumstances under which
Held: Para 6 the petitioner could not pursue his case
before the Tribunal. As per petitioner,
Therefore, I am of the view that it will be there was no element of wilful or
highly unjust and unfair if a claim which
deliberate avoidance in pursuing the case
is prima facie found to be valid for
consideration by the Tribunal is before the Tribunal. Several
dismissed in default and the restoration circumstances, which were enumerated in
application is also rejected on technical the application, were highlighted before
or hyper-technical grounds. The the Tribunal showing sufficient reasons to
Tribunal, while dealing with such recall the order but they were not taken
matters should not take such a technical
into consideration. The Tribunal ought to
view to deny justice to an injured party,
vide judgments of Apex Court as have restored the claim petition and heard
reportcd in AIR 1969 SC 575 Sakuntala it on merits. Learned counsel for the
petitioner has placed reliance on a calculating the amounts. The Allahabad

judgment of this Court as reported in High Court had dismissed the writ
2003(2) Transport and Accident Cases petition stating that it is a question of fact
769 United India Insurance Co. Ltd. Vs. for which writ petition is the appropriate
Additional District and Sessions Judge. remedy. The Supreme Court allowing
Muzaffarnagar and others, in support of applications filed under Sections 151, 152
her submissions. and 153, C.P.C., praying for recall of
orders on the ground of revelations of
4. Learned counsel for United India new facts that injuries were not suffered
Insurance Company Limited has also put due to accident, held in para 16 as
forth his version before the Court. follows:
5. After hearing the learned counsel "16. Therefore, we have no doubt

for the parties and perusing the record, that the remedy to move for recalling the
this Court is of the opinion that the order on the basis of the newly-discovered
Tribunal has failed to consider the entire facts amounting to fraud of high degree,
facts and evidence on record. There was cannot he foreclosed in such a situation.
substance in the submissions made before No Court or Tribunal can he regarded as
the Tribunal. This fact cannot be ignored powerless to recall its own order if it is
that the petitioner was injured in an convinced that the order was wangled
accident, which took place near village through fraud or misrepresentation of
Mangupura on Moradabad-Gajraula road. such a dimension as would affect the very
The claim petition was dismissed as the basis of the claim."
petitioner could not pursue the matter on
the date fixed for sufficient reasons. His 6. Therefore, I am of the view that it
application for recall has been dismissed will be highly unjust and unfair if a claim
without appreciating the material on which is prima facie found to be valid for
record and a too technical view of the consideration by the Tribunal is dismissed
matter has been taken by the learned in default and the restoration application
Tribunal while disposing of the is also rejected on technical or hyper-
application for recall of the order. The technical grounds. The Tribunal, while
petitioner's case is squarely covered by dealing with such matters should not take
the afore-mentioned judgment cited by such a technical view to deny justice to an
the learned counsel for the petitioner. It injured party, vide judgments of Apex
would be relevant to quote para 9 of the Court as reported in AIR 1969 SC 575
said judgment, wherein this Court has Sakuntala Devi Jain Vs. Kuntal Kumari
observed as under: and others, AIR 1972 SC 749 The State
of West Bengal Vs. The Administrator,
"9. In United India Insurance Co. Howrah Municipality and others, etc. and
Ltd. v. Rajendra Singh and others, (2000) 1998 (2) JCLR 917 : AIR 1998 SC 3222
3 Supreme Court Cases 581, the Supreme N. Balakrishnan Vs. M.Krishnamurthv.
Court allowed the appeal, set aside the
orders of Tribunal, which held that In view of above, the writ petition is
Tribunal does not have powers to review allowed and the judgment and orders
its orders except to correct any error in dated 1.10.2002 and 3.3.2003 passed by
1 All] Smt. Geeta Srivastava V. Sri A.K. Saxena, Judge Family Court and others 219
the Motor Accident Claims Tribunal, event also the transferee court acquires
Moradabad, contained respectively in territorial jurisdiction for the trial or
hearing of the transferred case.
Annexures 2 and 3 to the petition are
Therefore, if the cases referred to in
quashed. The Tribunal shall reopen the paragraph-11 of the petition are
proceedings, hear the case on merits and withdrawn from the court of Principal
conclude the controversy expeditiously. Judge, Family Court and transferred to a
Petition Allowed. court of other Additional District Judge
--------- whose jurisdiction for its trial is excluded
ORIGINAL JURISDICTION by-Section 8 of Family Courts Act, the
CIVIL SIDE transferee court would be deemed as a
DATED: ALLAHABAD 17.11.2006 competent court for its trial
notwithstanding the provision of Section
BEFORE 8 of the Family Courts Act. Therefore, the
THE HON’BLE UMESHWAR PANDEY, J. submissions of the learned counsel
appearing for the opposite parties that
the case could not be transferred to any
Civil Misc. Transfer Application No. 260 of other court within the district of
2006 Gorakhpur, does not appear to have
much relevance simply because of the
Smt. Geeta Srivastava …Applicant provisions contained in Section 8 of
Versus Family Court Act.
Sri A.K. Saxena, Judge Family Court,
Gorakhpur and others …Respondents (Delivered by Hon'ble Umeshwar Pandey. J.)
Counsel for the Applicant: Heard learned counsel for the

Sri Amish Srivastava applicant.
Counsel for the Respondents: 1. This transfer petition under
Sri Shashi Nandan Section 24 of C.P.C. has been filed
Sri K.K. Mani
seeking transfer of five pending matters
Sri Abhishek Srivastava
detailed in paragraph-11 of the petition
Sri Shyamal Narain
from the court of Principal Judge Family
Code of Civil Procedure Section 24
Court to any other court in the district.
readwith Family Court Act-Section-8-
Transfer of cases pending before judge 2. There is a complaint against the
family court to Additional District Judge Presiding Officer of the concerned court
of the same district-despite of the in annexure-3 to the petition, which bas
provision of exclusion of jurisdiction been made the entire basis for seeking the
transfree court would be deemed as
competent court.
transfer. This complaint has been
addressed to Hon'ble the Chief Justice
Held: Para 7 spelling out extremely scandalous
allegations against the Presiding Officer.
In the same manner, if this court under The petitioner has not spared even the
Section 24 C.P.C. makes an order of the District Judge of concerned district
transfer of a particular case pending in a
court, which possesses territorial
against whom there is accusation that he
jurisdiction for its trial to a court has prejudice against her because he
functioning in another district in that wanted to marry his daughter with
petitioner's husband earlier to the such accusation made against a Judicial

petitioner's marriage. The comments of Officer of the seniority possessed by the
the concerned District Judge have been Principal Judge Family Court, Gorakhpur,
received in this context in which he has can ever be correct and acceptable. There
though, admitted that the proposal was is absolutely no strength in the grounds
once made but subsequently he himself taken by the petitioner for transfer of
did not find this proposal as appropriate those cases from that court to any other
for his daughter's marriage. Obviously, court. Accordingly. the petition being
this sort of allegation against the District wholly misconceived is hereby dismissed.
Judge, who has absolutely no concern in
the aforesaid pending matters himself, 4. Besides above, the allegations
demonstrates to the extent of made against the Presiding Officer
hardheadedness of the petitioner lady. In assassinating his character and conduct in
the accusations made against the relation to his approach towards
Presiding Officer, she has also made some petitioner's cases pending before him,
reference to certain conversations and: being wholly scandalous and frivolous,
talks, which the Presiding Officer there is one big question, which may be
allegedly had with the lady in his noticed that after so much scandalisation
chamber. Those facts, as disclosed in the of Officer's character would it be
complaint, have been categorically denied justifiable to keep the cases in that court
by the Judge Family Court in his over which he is Presiding? The answer
comments submitted before this court. would be in the negative. May be that the
Otherwise also these charges, which have Presiding Officer, who has put in so much
been lavelled in the complaint, appear to of service in the judicial wing deciding
be wholly frivolous and baseless. Nothing the cases, must have acquired enough will
is there on record to indicate as to what power to sustain his cool while finally
has happened in the inquiry against the deciding the matter and delivering the
officer but on the face of it, these judgment. But it apparently does not
accusations being extremely scandalous appear just that the cases, which are
appear to be wholly absurd and before him, should any further-remain
unacceptable. Certain other sundry factual there waiting for his decision. It would be
incidents have been narrated in this always just and-proper that the cases
complaint supporting to petitioner's should be transferred to some other court
accusation regarding prejudice that the for decision, which may also appear to be
court has allegedly acquired against her. It fair and unprejudiced. The justice done in
is on these grounds that the petitioner has a particular matter between the parties
submitted that she would not be getting ought to appear that the justice in
justice at the hands of the Presiding actuality, has been done. Therefore, in
Officer of the court and is in-charge of pursuance to this if the, cases; are
those cases for its disposal. transferred from the court of present
Principal Judge Family Court to any other
3. As already referred to above, the court, it would be more justifiable. In this
entire accusations made against the context, submission was made from the
Presiding Officer has been categorically side of the counsel appearing for the
denied and otherwise also, I do not feel opposite parties that there being only one
designated Family Court in the district, section or, as the case may be, before any
the other courts functioning there are not Magistrate under the said Code; and
supposed to be competent courts for (ii) which would have been required
disposal of those matters in the face of to be instituted or taken before or by such
provisions of Section 8 of the Family Family Court if, before the date on which
Courts Act. The provision excludes the such suit or proceeding was instituted or
jurisdiction of other courts in the district taken, this Act had come into force and
from exercising jurisdiction in respect of such Family Court had been established,
any suit or proceeding of the nature shall stand transferred to such Family
referred to in the explanation to Section 7 Court on the date on which it is
(i) of the said Act. established.
5. While dealing with the aforesaid 24. General power of transfer and
submissions, it would be pertinent that the withdrawal.-- (1) On the application of
provisions of Section 8·of the Family any of the parties and after notice to the
Courts Act as well as provisions of parties and after hearing such of them as
Section 24 of C.P.C. should be extracted desired to be heard, or of its own motion,
below to facilitate the discussion on the without such notice, the High Court or the
point: District Court may, at any stage-
(a) transfer any suit, appeal or
8. Exclusion of Jurisdiction and other proceeding pending before it for
pending proceedings: trial or disposal to any Court subordinate
Where a Family Court has been to it and competent to try or dispose of the
established for any area.- same; or
(a) no district court or any (b) withdraw any suit, appeal or
subordinate civil court referred to in sub- other proceeding pending in any Court
section (1) of Section 7 shall, in relation subordinate to it; and
to such area, have or exercise any
jurisdiction in respect of any suit or (i) try or dispose of the same; or
proceeding of the nature referred to in the (ii) transfer the same for trial or
Explanation to that sub-section; disposal to any Court subordinate to it
(b) no Magistrate shall, ·in relation and competent to try or dispose of the
to such area, have or exercise any same; or
jurisdiction or powers under Chapter IX (iii) re-transfer the same for trial or
of the Code of Criminal Procedure, 1973 disposal to the Court from which it was
(2 of 1974); withdrawn.
(c) every suit or proceeding of the (2) Where any suit or proceeding has
nature referred to in the Explanation been transferred or withdrawn under sub-
under Chapter IX of the Code of Criminal section (1), the Court which [is thereafter
Procedure, 1973 (2 of 1974);- to try or dispose of such suit, or
(i) which is pending immediately proceeding] may, subject to any special
before the establishment or such Family directions in the case of an order of
Court before any district court or transfer, either retry it or proceed from
subordinate court referred to in that sub- the points at which It was transferred or
withdrawn.
[(3) For the purposes of this section-- Section 16 of the Provincial Small Cause
(a) Courts of Additional and Courts Act, which reads as below:-
Assistant Judges shall be deemed to be
subordinate to the District Court; 16. Exclusive Jurisdiction of Courts
(b)" "proceeding” includes a of Small Causes.- Save as expressly
proceeding for the execution of a decree provided by this Act or by any other
or order.] enactment for the time being in force, a
(4) The Court trying any suit transferred suit cognizable by a Court of Small
or withdrawn under this section from a Causes shall not, be tried by any other
Court of Small Causes shall, for the Court having jurisdiction within the local
purposes of such suit, be deemed to be a limits of the jurisdiction of the Court of
Court of Small Causes. Small Causes by which the suit is triable.
[(5) A suit or proceeding may be
transferred under this section from a 7. This provision also excludes the
Court which has no jurisdiction to try it.] jurisdiction of other courts in the district
for trying suit cognizable by a Small
6. No doubt, Section 8 of the Family Causes Court after a designated court of
Courts Act says that where a Family Small Causes is established thereJ4ri-
Court has been established for an area, no spite· of this exclusion of jurisdiction of
district court or any subordinate court the other courts the aforesaid sub-section
functioning in that area shall exercise any (4) of Section 24 C.P.C. says that after
jurisdiction in respect of any suit or withdrawal of the suit of Small Cause
proceeding of the nature referred to in the nature from the court of Judge Small
Explanation of Section 7 (i) of the said Causes, if transferred under this Section
Act. There is definite exclusion of the to any other court, the transferee court for
jurisdiction of other courts functioning in the purposes, of such suit shall be deemed
the district after a designated Family to be a court of Small Causes; meaning
Court has been established there. It may, thereby that on passing of an order of
therefore, sound justified that a matter transfer under Section 24 C.P.C. the case
pertaining to the jurisdiction of the Family when reaches to a court not having
Court pending there, it cannot be jurisdiction on account of exclusion of the
transferred to any other court in that jurisdiction by Section 16 of Provincial
district for its disposal. But in this Small Cause Courts Act, it acquires such
context, the provision of sub-section (4) jurisdiction by virtue of transfer itself.
of Section 24 C.P.C. may be referred, Section 24 of.C.P.C. confers general
which says that if a particular suit or power of transfer of cases upon this court.
proceeding is transferred to any regular There are definite provisions in the Code
court after withdrawing the same from a regarding territorial jurisdiction of a court
court of Small Causes, the court trying where the suit may legally be instituted.
that suit or proceeding shall for the These provisions are contained from
purposes of such suit or proceeding would Section 15 to 20 of the Code of Civil
be deemed to be a court of Small Cause. Procedure. Obviously, every court
An identical provision to that of Section 8 functioning in the State or in the district
of the Family Courts Act, is available in does not have power to take cognizance
of a particular case the cause of action of
which does not fall in the extent of its appearing for the opposite parties that the
territorial jurisdiction but by virtue of this case could not be transferred to any other
general power of transfer, this court has court within the district of Gorakhpur,
jurisdiction to withdraw the case and does not appear to have much relevance
transfer it for disposal to any subordinate simply because of the provisions
court competent to try or dispose of the contained in Section 8 of Family Court
same in any other district of the State. Act.
Any way, the aforesaid Section 15 to 20
of C.P.C. virtually exclude the jurisdiction 8. In the aforesaid view of the
of other courts in whose territorial the matter, those cases may be transferred
cause of action for the suit has not arisen, from the court of Principal Judge, Family
still this court, if transfers a particular Court to any other court. All the five
case to any other court in the State, it pending matters namely (i) Suit No.15 of
acquires territorial jurisdiction to try and 2006 under Guardianship and Wards Act
dispose of the said case. The territorial (ii) Suit No. 91 of 2005 for divorce·(iii)
jurisdiction stands virtually conferred Suit No. 697 of 2005 for injunction
upon that court by the order of transfer restraining applicants not to damage the
passed under Section 24 C.P.C. It is house situated at Batiya Hata in which
therefore, clear that in case this court or admittedly applicant lives (iv) Suit No.9
the court of District Judge makes an order of 2006 by applicant as indigent of
of transfer under Section 24 C.P.C. the injunction restraining respondent not to
transferee court acquires jurisdiction for eject applicant from the house (v) Suit
the trial of that case notwithstanding the No. 180 of 2005·for maintenance, are
exclusion of jurisdiction by any other hereby transferred from the court of
provision of an statute. In the same Principal Judge Family Court to the court
manner, if this court under Section 24 of first Additional District Judge, who
C.P.C. makes an order of the transfer of a shall start taking all these cases on
particular case pending in a court, which priority basis and will decide one by one
possesses territorial jurisdiction for its by holding day to day hearing/proceeding
trial to a court functioning in another in the matter. The suit pertaining to the
district in that event also the transferee grant of relief for decree of divorce shall
court acquires territorial jurisdiction for be taken up first for hearing and decision
the trial or hearing of the transferred case. and thereafter other matters shall be
Therefore, if the cases referred to in disposed of by regular hearing one by
paragraph-11 of the petition are one. Unnecessary indulgence of the court
withdrawn from the court of Principal for adjournment on the request of either
Judge, Family Court and transferred to a of the parties shall be discouraged with
court of other Additional District Judge hard hands.
whose jurisdiction for its trial is excluded ----------
by-Section 8 of Family Courts Act, the
transferee court would be deemed as a
competent court for its trial
notwithstanding the provision of Section
8 of the Family Courts Act. Therefore, the
submissions of the learned counsel
APPELLATE JURISDICTION
CRIMINAL SIDE 2. The accused respondent was
granted bail on 6.7.2004 by Additional
Sessions Judge/Special Judge S.C./S.T.
BEFORE
THE HON’BLE VINOD PRASAD, J.
Act, Ghaziabad. The bail granting order
has been filed along with this bail
Criminal Misc. Bail Cancellation cancellation application, which indicates
Application No.12170 of 2004 that the Lower Court considered three
aspect of the matter while granting ball to
Satyendra Yadav …Applicant the accused respondent.
Versus
State of U.P. & another …Opposite Parties 3. The first aspect was that there was
no intention to commit murder of the
Counsel for the Applicant: deceased as he had received a single fatal
Sri Rajesh Kumar Sharma injury by assault made by a cricket bat
and therefore, the offence will not travel
Counsel for the Opposite Parties: beyond the scope of Section 304 part II
A.G.A. I.P.C. and no offence under Section 302
I.P.C. was prima-facie made out.
Cancellation of Bail granted by Session
judge-on the ground-counsel who 4. The second reason for granting of
appeared before the session court-power bail was that it was a casa of a sudden
of appearance bears no signature of the fight at the spur of the moment without
counsel-No allegation about fleeing from any pre-meditation.
justice or hampering trail-held-said
technicality can not be ground for
cancellation by bail.
5. The third reason was that a cross
case under Sections 452, 323, 504 and
Held: Para 10 506 I.P.C. initiated by the wife of the
Further the contentions of the counsel present accused, respondent, was also
for the applicant that the power filed on lodged. The said F.I.R. was registered as
behalf of the accused did not contain the crime no.436A of 2004. The ancillary
signature of the counsel, I am of the
view that the said technicality is no
reason, which is mentioned by the
ground to cancel the bail. A perusal of Additional Sessions Judge was that the
the power definitely shows that the accused is an athlete champion and son of
counsel who appeared on behalf of the a senior advocate. He also belongs to a
applicant had got his stamp affixed in respectable family and there was no
the memo. That, in my view is sufficient chance of his absconding. The Additional
compliance so far as engagement of a
counsel is concerned in a criminal
Sessions Judge has observed in
matter. concluding portion of the order that there
was a single injury on the head. The wife
(Delivered by Hon'ble Vinod Prasad. J.) of the accused had also sustained simple
injuries in the same incident. The incident
1. Heard Sri R.K. Sharma, learned had taken place at the spur of the moment
counsel for the applicant and the learned regarding the return of two lacs rupees.
A.G.A.
1 All] Satyendra Yadav V. State of U.P. and another 225
6. On all these aspect of the matter 9. I have considered the submissions

considering the totality of the raised by both sides. In this case it is clear
circumstance, the trial court exercised the that Additional Sessions Judge/Special
discretionary power to grant bail to the Judge S.C/S.T. Act, Ghaziabad while
accused respondent. allowing bail to the respondent on
6.7.2004 has observed that there was a
7. Sri Rajesh Kumar Sharma learned single injury sustained by the deceased
counsel for the applicant contended that Pintoo on his head, which subsequently
the bail was granted to the accused proved fatal. The wife of the deceased
respondent on the ground that he was the also sustained some simple injuries. He
son of a senior advocate and was an had further observed that the incident has
athlete champion and he belonged to a taken place all of a sudden for the
respective family and there was no chance recovery of Rs. 2 lac. Thus on these
of his absconding is wholly illegal. considerations the Additional Sessions
Learned counsel for the applicant also Judge allowed the bail. I am also of the
contended that the memo filed in the trial view that this Court is not sitting on the
court did not contain the signature of the appeal over the bail granting order passed
counsel and hence bail application filed by the Lower Court. Power under Section
by accused respondent was not 439 Cr.P.C. given to this Court in bail
maintainable. He has field certified copy matters also gives to the power to the
of the said memo of the engagement. Sessions Judge. Grant of bail is one thing
and cancellation thereof is quite another.
8. Learned A.G.A. on the other hand Bail once granted cannot be cancelled as a
contended that contentions raised by punitive measure. The relevant ground for
counsel for the applicant is not correct. He cancellation of bail is tampering with the
submitted that the Additional Sessions course of justice or fleeing from justice or
Judge did not grant the order of bail on hampering the trial or otherwise like
the contentions raised by the counsel for reasons such as, it is not in the interest of
the applicant but he had taken into justice to r allow the accused to remain on
consideration the material in the case bail. None of these conditions are present
diary and the medical report. He pointed in the present case. Whatever learned
out to paragraph 7 of the bail granting counsel for the applicant has submitted
order. He contended that the bail was was the argument, which was raised by
granted on the factual aspect of the matter both the sides and which was referred to
and not on the considerations, which has by the lower court, as is perceptable from
been stated by learned counsel for the the order granting bail. The Additional
applicant. Learned A.G.A. also submitted Sessions Judge has referred to the
that the contentions, which has been submissions raised by both the sides and
raised by the counsel for the applicant is finding the case to be fit for bail, taking
wrong in as much as it were the and over all view of the matter, as was
arguments which were raised by the rival argued before him by the rival sides, that
sides which has been mentioned by the he had allowed the bail. The view taken
Additional Sessions Judge in the bail by the Additional Sessions Judge cannot
granting order. be said to be perverse or illegal in any
manner. It cannot be said that the grant of
bail was because of extraneous reasons REVISIONAL JURISDICTION

than those, which are relevant under the CRIMINAL SIDE
law. Moreover, this bail cancellation
application was filed on 29th July 2004. It
BEFORE
has come up for final disposal after a gap THE HON'BLE VINOD PRASAD, J.
of two years. During this period of two
years there has been no complaint at all Criminal Revision No. 6130 of 2006
against accused respondents. The gap of
two years is sufficient enough not to Revati Raman & others …Revisionists
interfere with the bail granting order once Versus
there is no allegation of tampering with State of U.P. & another …Opposite Parties
the record or evidences or fleeing from
justice. Counsel for the Revisionists:
Sri D.K. Tiwari
10. Further the contentions of the
counsel for the applicant that the power Counsel for the Opposite Parties:
filed on behalf of the accused did not A.G.A.
contain the signature of the counsel, I am
Code of Criminal Procedure–397(2)-
of the view that the said technicality is no Revision–Order passed under Section
ground to cancel the bail. A perusal of the 146(1) Cr.P.C. being preventive measure
power definitely shows that the counsel an interlocutory in nature–not a final
who appeared on behalf of the applicant order–hence revision not maintainable.
had got his stamp affixed in the memo.
That, in my view is sufficient compliance Held Para 7
so far as engagement of a counsel is
In view of the above, the order under
concerned in a criminal matter. Section 146(1) Cr.P.C. can be bracketed
only within the purview of an order
11. In view of what has been stated which is interlocutory in nature and not
herein before, I am of the opinion that as an order which is final. Hence
there is no reason to cancel bail of revision under Section 397(2) Cr.P.C. is
barred against such an order.
accused respondent no.2 which has been
allowed by the Additional Sessions
Judge/Special Judge SC/S.T. Act,
Ghaziabad vide his Impugned order dated
1. The applicants have filed this
6.7.2004 in Crime No. 436 of 2004 under
revision aggrieved by an order dated
Section 302, 504 I.P.C., P.S. Kavi Nagar,
11/10/2006 passed by Sub Divisional
district Ghaziabad. Resultantly, this
Magistrate, Handia in Case No. 44 of
criminal miscellaneous bail cancellation
2006 Gauri Shanker Vs. Revati Raman
application being devoid of merit is
and others under Section 145 Cr. P.C. by
hereby dismissed.
----------
the impugned order, the S.D.M.
concerned has passed an order under
Section 146(1) Cr. P.C. for attachment.
2. Learned counsel for the

revisionists contended that the Magistrate
1 All] Revati Raman and others V. State of U.P. and others 227
has committed an illegality by passing the Session Judge to revised any order or any
impugned order. He further contended proceeding of the lower Court.
that the there was no justification for the
trial court to pass such an order. 4. For clarity of understanding
Section 146 Cr.P.C. is quoted below:
3. In my view, the order under
Section 146(1) Cr. P.C. is an interlocutory 146. Power to attach subject of
order and revision is not maintainable dispute and to appoint receiver. (1) If the
against such an order being barred by Magistrate at any time after making the
Section 397(2) Cr. P.C. The order under order under sub-section (1) of section 145
Section 146(1) Cr. P.C. is only an considers the case to be one of
enabling provision giving power to the emergency, or if he decides that none of
Magistrate concerned, during the the parties was then in such possession as
pendency of the proceeding under Section is referred to in section 145, of if he is
145, to attached the property so as to unable to satisfy himself as to which of
obliterate apprehension breach of peach them was then in such possession of the
during the pendency of 145 proceeding subject of dispute, he may attach the
itself. By passing an order under Section subject of dispute until a competent Court
146(1) Cr. P.C. no proceeding is finalized. has determine the rights of the parties
It is only an interim order which is in the thereto with regard to the person entitled
nature of a preventive measure. The court to the possession thereof:
concerned is required to decide the Provided that such Magistrate may
question of possession two months prior withdraw the attachment at any time if he
to the passing of the preliminary order is satisfied that there is no longer any
and inter regrum in deciding the said likelihood of breach of the peace with
question of possession, the power under regard to the subject of dispute.
Section 146(1) Cr. P.C. has been (2) When the Magistrate attaches
conferred, by the statue, on the Magistrate the subject of dispute, the may, if no
for the simple reason that during the receiver in relation to such subject of
pendency of the determination on the dispute has been appointed by any Civil
question of possession the parties should Court, make such arrangement as he
not take undue advantage and commit considers proper for looking after the
breach of peace. I may remind that property or if he thinks fit, appoint a
145(1) Cr.P.C. proceeding is also started receiver thereof, who shall have, subject
to obliterated apprehension of breach of to the control of the Magistrate, all the
peace and no change in the property in powers of a receiver appointed under the
question should be permitted to be done Code of Civil Procedure, 1908 (5 of
meanwhile. The very phraseology in 1908).
which Section 146(1) Cr. P.C. as is Provided that in the event of a
enacted by the legislature indicates that an receiver being subsequently appointed in
order under Section 146(1) is an interim relation to the subject of dispute by any
order and the said order is not covered Civil Court, the Magistrate,
within the word "proceeding" as is (a) shall order the receiver
contemplated under Section 397 Cr.P.C. appointed by him to hand over the
which gives power to this Court and to the possession of the subject of dispute to the
receiver appointed by the Civil Court and 8. This revision, therefore, is not
shall thereafter discharge the receiver maintainable and is hereby dismissed.
appointed by him. ---------
(b) may make such other incidental ORIGINAL JURISDICTION
CIVIL SIDE
or consequential orders as may be just.
5. From the bare reading of the said BEFORE

statutory provision, it is clear that if at the THE HON’BLE TARUN AGARWALA, J.
time of passing an order under section
145(1) Cr.P.C. or after making of the Civil Misc. Writ Petition No. 32177 of 2005
aforesaid order if the Magistrate considers
"the case to be one of emergency" or "if Ganesh Swaroop Tandon …Petitioner
he decides that none of the parties was Versus
then in possession as is referred to under Anchal Kumar Tandon and others
Section 145" or "if he is unable to satisfy …Respondents
himself as to which of them was then in
possession of the subject of dispute" he Counsel for the Petitioner:
Sri M.A. Qadeer
can pass an order under Section 146(1)
Cr.P.C. These three conditions are sine
quo non for exercising power under
Sri T.A. Khan
Section 146(1) Cr. P.C.
Code of Civil Procedure-Order 8 Rule-6-
6. Suffice to it to say that two A-counter claim-written statements filed
subsequent conditions do not apply on the on 3.10.02-amendement application in
facts of the present case. So far as the counter claim filed on 31.07.04-held-
first condition is concerned, the same is could not be filed.
related to a case of emergency. It is a
Held: Para 5
discretionary power of the Magistrate
based on his satisfaction on the tangible A perusal of the aforesaid provision
material that emergency exist for passing indicates that a counter claim could be
of an order under Section 146(1) Cr.P.C. filed where the cause of action accrued
The said order can be withdrawn, either before or after the filing of the suit
and, in· any case, before the filing of the
annulled or modified by him at any
written statement. The counter claim
subsequent stage of proceeding on being cannot be filed where the cause of action
satisfied that the emergency no longer accrued to the defendants after the filing
exists. of the written statement. In the present
case, the written statement was filed on
7. In view of the above, the order 3.10.2002 and-the cause of action, as
admitted by the defendant, accrued on
under Section 146(1) Cr.P.C. can be
31.7.2004, i.e., after the filing of the
bracketed only within the purview of an written statement. Clear1y the said-
order which is interlocutory in nature and counter claim could not be filed in the
not as an order which is final. Hence present proceedings in view of the
revision under Section 397(2) Cr.P.C. is mandatory provision of Order 8 Rule
barred against such an order. 6Aof the C.P.C.
Case law discussed:
AIR 1966 SC-2222
1 All] Ganesh Swaroop Tandon V. Anchal Kumar Tandon and others 229
AIR 1967 SC-3985 4. The submission of the learned

AIR 1987 SC-1395 counsel for the petitioner appears to be
correct. Order 8, Rule 6-A of the C.P.C.
(Delivered by Hon’ble Tarun Agarwala, J.) provides as under:-
1. Heard Sri M.A. Qadeer, the "6-A. Counter-claim by
learned counsel for the plaintiff-petitioner defendant.-(l) A defendant in a suit may,
and Sri T.A. Khan, the learned counsel in addition to his right of pleading a set-
for· the defendant-respondent. off under Rule 6, set up, by way of
counter claim against the claim of the
2. A written statement was filed by plaintiff, any right or claim in respect of a
the defendant on 3.10.2002. Thereafter, cause of action accruing to the defendant
the defendant filed an application on against the plaintiff either before or after
2.8.2004 praying for an amendment of the the filing of the suit but before the·
written statement and to bring on record a defendant has delivered his defence or
counter claim. This application was before the time limited for delivering his
opposed by the plaintiff. The trial court by defence has expired, ,whether such
an order dated 10.9.2004 allowed the counter claim is in the nature of a claim
amendment of the written statement for damages or not;
permitting the defendant to incorporate Provided that such counter-claim
the counter claim in his written statement. shall not exceed the pecuniary limits of
A revision was filed by .the plaintiff the jurisdiction of the Court.
which was rejected by an order dated (2) Such counter-claim shall have the
24.3.2005. Consequently, the writ same effect as a cross-suit so as to enable
petition. the Court to pronounce a final judgment
in the same suit, both on the original
3. The learned counsel for the claim and on the counter-claim.
petitioner submitted· that in view of the (3) The plaintiff shall be at liberty to
mandatory provision of. Order 8 Rule 6-A file a written statement in answer to the
of the C.P.C., the amendment could not counter-claim of the defendant within
be allowed, inasmuch as, the counter such period as may be fixed by the Court.
claim, if any, could be filed where the (4) The counter-claim shall be
cause of action accrues· to the defendant treated as a p1aintand governed by the
against the plaintiff either before or after rules applicable to plaints."
the filing of the suit but before the
defendant had delivered his defence. It 5. A perusal of the aforesaid
was urged that the written statement was provision indicates that a counter claim
filed on 3.10.2002 and in the application could be filed where the cause of action
for amendment, the cause of action, as accrued either before or after the filing of
alleged by the defendant arose on the suit and, in· any case, before the filing
31.7.2004, therefore, the cause of action of the written statement. The counter
accrued after the filing of the written claim cannot be filed where the cause of
statement which cannot be permitted action accrued to the defendants after the
under Order 8 Rule 6-A. filing of the written statement. In the
present case, the written statement was
filed on 3.10.2002 and-the cause of REVISIONAL JURISDICTION

action, as admitted by the defendant, CRIMINAL SIDE
accrued on 31.7.2004, i.e., after the filing
of the written statement. Clear1y the said-
BEFORE
counter claim could not be filed in the THE HON'BLE VINOD PRASAD, J.
present proceedings in view of the
mandatory provision of Order 8 Rule Criminal Revision No.6049 of 2006
6Aof the C.P.C.
Sitari Begam …Revisionist
6. In Jag Mohan Chawla and Versus
another vs. Dera Radha Swani Satsang State of U.P. and another…Respondent
and others, A.I.R. 1996 SC 2222 the
Supreme Court held- Counsel for the Revisionist:
Sri Devendra Saini
"The only limitation is that the cause
of action should arise before the time Counsel for the Respondent:
fixed for filing the written statement A.G.A.
expires. The defendant may set up a cause
Code of Criminal Procedure-Section
of action which has accrued to him even 156(3)–Rejection of application by
after the institution of the suit." Magistrate–in where cognizable offence
of gravious nature disclosed–Magistrate
7. In Smt. Shanti Rani Das to follow the mandate of law–victim may
Dewanjee vs. Dinesh Chandra Day not file complaint, for so many reasons–
(dead) By Lrs., AIR 1997 SC 3985, the held–Magistrate committed manifest
error of law in not directing the police to
Supreme Court held that the cause of
register and investigate the case.
action should arise before or after the
filing of the suit and such cause of action Held: Para 2
should arise before or after the filing of
the suit and such cause of action could The Judicial Magistrate-Ist Saharnpur
continue upto the date of the filing of the without looking into the law laid down
by the Apex Court in state of Haryana
written statement or extended date of the
and others versus Bhajan Lal and
filing of the written statement. Similar others;1992 SCC (Criminal) 426 and in
view was again reiterated by the Supreme other similar judgments of the Apex
Court in Mahendra Kumar and another Court has passed the impugned order on
vs. State of Madhya Pradesh, AIR 1987 16/10/2006 in the said Misc. Application
SC 1395. No. 54 of 2006, under Section 156(3)
Cr.P.C. filed by the revisionist Sitari
Begam, which cannot be sustained and is
8. In view of the consistent hereby set aside. The matter is
pronouncement of the Supreme Court on recommended back to him decide the
this issue, the impugned order cannot be application afresh in accordance with
sustained and is quashed. The writ law.
petition is allowed. The amendment Case law discussed:
1992 SCC (Criminal)-426
application of the defendant is
consequently rejected. Petition Allowed.
---------
1 All] Sitari Begam V. State of U.P. 231
(Delivered by Hon’ble Vinod Prasad, J.) the Apex Court in state of Haryana and
others versus Bhajan Lal and others;
1. Heard learned counsel for the 1992 SCC (Criminal) 426 and in other
revisionist and the learned A.G.A. similar judgments of the Apex Court has
passed the impugned order on 16/10/2006
2. The application being Misc. in the said Misc. Application No. 54 of
Application No. 54 of 2006 filed by the 2006, under Section 156(3) Cr.P.C. filed
revisionist Sitari Begam, under Section by the revisionist Sitari Begam, which
156(3) Cr.P.C. disclosed commission of a cannot be sustained and is hereby set
cognizable offence of grievous nature aside. The matter is recommended back
under section 325 I.P.C. as well as under to him decide the application afresh in
section 308 I.P.C. Since there was a accordance with law.
fracture of the head bone found on the
head of Kumar Gulista. Moreover, the 3. With the aforesaid direction revision
accused persons have entered into the is allowed at the admission stage.
house of the revisionist and there they ---------
have assaulted her, which is also a ORIGINAL JURISDICTION
CIVIL SIDE
cognizable offence. Judicial Magistrate-I,
Saharanpur committed manifest error of
law in not directing the police to follow BEFORE
the mandate of law to exercise their THE HON’BLE DR. B.S. CHAUHAN, J.
plenary power of investigation as was THE HON’BLE PANKAJ MITHAL, J.
prayed by the revisionist through the said
application under Section 156(3) Cr.P.C. Civil Misc. Writ Petition No.46861 of 2005
It is not the law that if an application
under Section 156(3) is filed disclosing Satish Kumar …Petitioner
commission of cognizable offences the Versus
Magistrate should leave the police to act State of U.P. and others …Respondents
arbitrarily by not directing to register the
F.I.R. The Magistrate concerned was Counsel for the Petitioner:
expected to follow the mandate of law Sri K.C. Shukla
Sri Rakesh Kumar Singh
and direct the police to register the F.I.R.
Sri Pradeep Verma
In this case the Magistrate by not
directing the police to register the F.I.R. Counsel for the Respondents:
of the cognizable offence committed Sri A.K. Singh
manifest error of law and did not exercise Sri C.K. Rai
his jurisdiction properly in law. The S.C.
victim never wanted to file a complaint
and there may be thousands of reasons for Uttar Pradesh Secondary Education
the same including the fact that the (Service Selection Board) Act 1982 read
accused are musclemen and the victim with U.P. Secondary Education Service
was not in position to bring the witness to Selection Board Rules 1998-Adjustment
of earlier selected candidate against
the court of law to support her version.
unadvertised vacancy whether
The Judicial Magistrate-Ist Saharnpur possible?-held-‘No’-decision of single
without looking into the law laid down by Judge in case of Savita Gupta-overruled.
(B) Whether the U.P. Secondary SCC-581, 2002 (4) SCC-380, 2005 (2) SCC-
Education Service Selection Board is 720, 2006 (5) SCC-789
empowered to direct for adjustment
against the vacancy although intimated (Delivered by Hon'ble Dr. B.S. Chauhan, J.)
and notified but not advertised with the
aid of G.O. dated 12.3.2001? held-‘No’.
1. This reference has arisen out of
Held: Para 33 the order dated 25th August, 2005,
wherein a learned Single Judge of this
Therefore, it is evident that subordinate Court has referred the following questions
legislation cannot override the statutory to be answered by this Bench, as
rules nor can it curtail the content and
nominated by Hon'ble the Chief Justice:-
scope of the substantive provision for or
under which it has been made.
1. Whether an unadvertised vacancy
For the reasons and the conclusions can be filled up from amongst the
drawn hereinabove, our answer to candidates, who have been selected
Question No. 1 is: in the earlier selection?
"An unadvertised vacancy cannot be
filled up from amongst the candidate
2. Whether under U.P. Act No.5 of
who has been selected in any previous 1982 or under U.P. Secondary
selections and to that extent we declare Education Service Selection Board
that the pronouncement of the learned Rules, 1998, there is any authority
Single Judge in the case of Savita Gupta vested with the U.P. Secondary
Vs. State of U.P. & Ors., 2004 (2) UPLBEC Education Service Selection Board to
2739, does not lay down the law
correctly and is hereby overruled."
direct for adjustment of candidates
who have been selected but could not
and to Question No.2 is: join for one reason or the other, to
any other institution, vacancy
"The U.P. Secondary Education Services whereof has been notified but not
Selection Board constituted under the advertised?
U.P. Act No.5 of the 1982 cannot, with
the aid of the Government Order dated
12th March, 2001, order any adjustment 2. The aforesaid questions relate to
in respect of a vacancy, which has been filling up of an unadvertised vacancy of a
intimated and notified but not Lecturer in an Intermediate College, the
advertised". selection whereof is governed by the
Case law discussed: provisions of the Uttar Pradesh Secondary
AIR 1996 sC-976, 1994 (Supp.) SCC-591, 1996
(4) SCC-319, AIR 1999 SC-1701, 1992 (Supp.)
Education (Services Selection Board) Act,
3 SCC-84, AIR 1998 SC-18, 2001 (10) SCC- 1982 (U.P. Act No.5 of 1982) (hereinafter
237, 2005 (4) SCC-148, AIR 2001 SC-2900, called the ''Act') and U.P. Secondary
2005 (4) SCC-148, 2003 (1) ESC-53, 2005 (4) Education Service Selection Board Rules,
SCC-154, 2006 (3) SCC-330, W.P. 1998 (hereinafter called the ''Rules').
No.21245/2000 decided on 11.05.2005, (1876)
1 CH. D.-426, AIR 2001 SC-1512, AIR 2000
sC-2281, AIR 2004 SC-1657, AIR 1968 SC-49,
3. The occasion for this reference
AIR 1977 SC-757, AIR 1990 SC-166, AIR 1991 has arisen on account of the decision of a
SC-2288, AIR 1998 SC-431, AIR 1961 SC-757, learned Single Judge in the case of Savita
AIR 1981 SC-711, (1994) 1 SCC-269, 2001 (5) Gupta Vs. State of U.P. & Ors., 2004 (2)
1 All] Satish Kumar V. State of U.P. and others 233
UPLBEC 2739, wherein it has been held against an unadvertised vacancy would, in
that if the vacancy has been requisitioned any way, violate the provisions of the Act
and the Management has notified it to the and the Rules. The learned Single Judge
Board under the provisions of the distinguished the ratio of the decision of
aforesaid Act, then in that event, the said the Hon'ble Apex Court in the case of
vacancy can be offered to a selected Kamlesh Kumar Sharma Vs. Yogesh
candidate even if the vacancy was not Kumar Gupta, AIR 1998 SC 1021 on the
advertised by the Board. This decision ground that that was a case pertaining to
was cited on behalf of the petitioner selections under the provisions of U.P.
where after the learned Single Judge, in Higher Education Services Commission
the instant case, for the reasons stated in Act, 1980 and the Rules framed there
the referring order, has after respectfully under, which made a provision for a
disagreeing with the said judgment, definite life of the select list. The learned
framed the questions aforesaid for being Single Judge went on to distinguish the
answered by this Bench. said decision that in the Rules under
consideration and in the case under U.P.
4. The learned Single Judge in the Secondary Education Service
case of Savita Gupta (supra) was Commission Act, there was no such
considering the case of a teacher, who provision, providing the life of the list,
was claiming promotion on the post and therefore, the Board did not commit any
whose claim had been returned by the error in making adjustment against the
District Inspector of Schools after the said said post. The Court held that in the
vacancy had been offered to the absence of any such restriction under the
respondent therein, who was a candidate Act and the Rules under consideration, it
selected by the Board through direct cannot be said that the selection of the
recruitment and whose adjustment was candidate and his or her adjustment was
sought to be made in terms of the invalid. In effect, the conclusion drawn
Government Order dated 12th March, was that such an interpretation serves the
2001. The learned Single Judge held that object and purpose of the Act and Rules,
once a vacancy was notified to the Board referred to hereinabove. The action of the
for selection by way of direct recruitment, Board in making the recommendation
then it was not open to the Committee to against an unadvertised vacancy was
consider the case of any promotion upheld.
against the said post and once the vacancy
had been notified, it was the Board alone 5. Heard Shri Pradeep Verma,
which could have filled up the said learned counsel for the petitioner and Shri
vacancy. The Court further held that this Amit Kumar Singh for respondent no.7
would advance the cause and purpose of and Shri C.K. Rai, learned Standing
selection by way of direct recruitment in Counsel for the State.
accordance with the object of the said
Act. It was further held that the provisions 6. The gist of the argument of the
of the Act and the Rules did not prohibit learned counsel for the petitioner is that
or create any hindrance for making such once a vacancy stood notified to the
adjustments and, therefore, it cannot be Board, though might have occurred
said that the recommendation made subsequent to the advertisement issued by
the Board, the Board has a right to fill up posts arising or expected should be
the said vacancy recommending the name notified inviting applications from all
of the selected candidate from the panel eligible candidates to be considered for
prepared in pursuance of the their selection in accordance with their
advertisement issued prior to the date of merit. The recruitment of the
occurrence of the vacancy, as it does not candidates in excess of the notified
adversely affect any person and further vacancies is a denial and deprivation of
guarantees avoidance of any kind of the constitutional right under Article
nepotism and corruption, therefore, both 14 read with Article 16 (1) of the
the questions should be answered in Constitution.......Boards should notify the
affirmative. existing and excepted vacancies and the
Recruitment Board should get
7. On the other hand, it has been advertisement published and recruitment
argued by the counsel for respondent no.7 should strictly be made by the respective
that if a person attains eligibility Boards in accordance with the procedure
subsequent to the date of advertisement to the notified vacancies but not to any
and if the vacancy so occurred after the vacancies that may arise during the
advertisement is filled up by the panel process of selection". (Emphasis added)
prepared in pursuance of the
advertisement issued prior to occurrence 9. In Gujarat State Deputy Executive
of the vacancy, it would violate the Engineer's Association Vs. State of
fundamental rights guaranteed under Gujarat & Ors., 1994 Suppl. (2) SCC 591,
Articles 14 and 16 of the Constitution of the Hon'ble Supreme Court quashed the
India, of such persons who were not appointments made over and above the
eligible to apply in pursuance of the vacancies advertised holding that such an
advertisement made prior to occurrence of action was neither permissible nor
the vacancy. Therefore, adjustment in desirable for the reason that it would
such facts and circumstances is not amount to 'improper exercise of power'
permissible and, therefore, both the and only in a rare and exceptional
questions should be answered in negative. circumstance and in emergent situation,
this rule can be deviated from and it can
8. We have considered the rival be done only after adopting policy
submissions made by learned counsel for decision based on some rational as the
the parties and perused the record. authority cannot fill up more posts than
advertised as a matter of course.
In Ashok Kumar & Ors. Vs.
Chairman, Banking Service Recruitment 10. In Prem Singh & Ors. Vs.
Board & Ors., AIR 1996 SC 976, the Haryana State electricity Board & Ors.,
Supreme Court held as under:- (1996) 4 SCC 319, the Apex court
observed as under-
"5. Article 14 read with Article 16
(1) of the Constitution enshrines ".........The selection process by way
fundamental right to every citizen to of requisition and advertisement can be
claim consideration for appointment to a started for clear vacancies and also for
post under the State. Therefore, vacant anticipated vacancies but not for future
vacancies. If the requisition and and above the vacancies notified. The
advertisement are for a certain number Hon'ble Supreme Court rejected the
of posts only, the State cannot make contention observing that keeping the
more appointments than the number of selection process pending for long and not
posts advertised........... State can deviate issuing any fresh advertisement in
from the advertisement and make between, may not be justified but offering
appointments on the posts falling vacant the posts in such a manner would
thereafter in exceptional circumstances adversely prejudice the cause of those
only or in an emergent situation and that candidates who achieved eligibility in the
too by taking a policy decision in that meantime.
behalf." (Emphasis added).
13. In Surinder Singh & Ors. Vs.
11. The said judgment in Prem State of Punjab & Ors., AIR 1998 SC 18,
Singh was followed with approval by the the Apex Court held as under:-
Hon'ble Supreme Court in Virendrer
Singh Hooda Vs. State of Haryana, AIR "A waiting list, prepared in an
1999 SC 1701. examination conducted by the
Commission does not furnish a source of
12. In Union of India & Ors. Vs. recruitment. It is operative only for the
Ishwar Singh Khatri & Ors, 1992 Suppl. contingency that if any of the selected
(3) SCC 84, the Court held that selected candidates does not join then the persons
candidate have right to appointment only from the waiting list may be pushed UP
against 'vacancies notified' and that too and be appointed in the vacancy so caused
during the life of the select list as the or if there is some extreme exigency the
panel of selected candidate cannot be Government may as a matter of policy
valid of indefinite period. Moreover, decision pick up persons in order of merit
impaneled candidates "In any event from the waiting list. But the view taken
cannot have a right against future by the High Court that since the
vacancies." In State of Bihar & Ors. Vs. vacancies have not been worked out
The Secretariat, Assistant S.E. Union, properly, therefore, the candidates
1986 & Ors, AIR 1994 SC 736, the Apex from the waiting list were liable to be
court held that " a person who is selected appointed does not appear to be sound.
does not, on account of being empanelled This practice may result in depriving
alone, acquire any indefeasible right of those candidates who became eligible for
appointment. Empanelment is at the best a competing for the vacancies available in
condition of eligibility for purposes of future. If the waiting list in one
appointment, and by itself does not examination was to operate as infinite
amount to selection or create a vested stock for appointment, there is danger that
right to be appointed unless relevant the State may resort to the device of not
service rules say to the contrary." In the holding the examination for years
said case as the selection process was together and pick up candidates from the
completed in five years after the waiting list as and when required. The
publication of the advertisement, the Constitutional discipline requires that this
contention was raised that the empanelled Court should not permit such improper
candidates deserved to be appointed over exercise of power which may result in
creating a vested interest and perpetuating In State of Punjab Vs. Raghbir

the waiting list for the candidates of one Chand Sharma & Ors., AIR 2001 SC
examination at the cost of entire set of 2900, the Apex Court examined the case
fresh candidates either from the open or where only one post was advertised and
even from service.....Exercise of such the candidate whose name appeared at
power has to be tested on the touch-stone Serial No.1 in the select list joined the
of reasonableness.....It is not a matter of post, but subsequently resigned. The
course that the authority can fill up Court rejected the contention that post can
more posts than advertised." (Emphasis be filled up offering the appointment to
added). the next candidate in the select list
observing as under:-
In Kamlesh Kumar Sharma (supra),
the Apex Court similarly observed as "With the appointment of the first
under:- candidate for the only post in respect of
which the consideration came to be made
"As per the scheme of the Act and and select list prepared, the panel ceased
the aforesaid provisions, for each to exist and has outlived its utility and at
academic year in question, the any rate, no one else in the panel can
management has to intimate the existing legitimately contend that he should have
vacancies and vacancies likely to be been offered appointment either in the
caused by the end of the ensuing vacancy arising on account of the
academic year in question. Thereafter, the subsequent resignation of the person
Director shall notify the same to the appointed from the panel or any other
Commission and the Commission, in turn, vacancies arising subsequently."
will invite applications by giving wide
publicity in the State of such vacancies. 15. Similar view has been reiterated
The vacancies cannot be filled except in State of Jammu & Kashmir Vs. Sanjeev
by following the procedure as Kumar, (2005) 4 SCC 148; and Secretary,
contained therein. Sub-section (1) of Andhra Pradesh Public Service
Section 12 has incorporated in strong Commission Vs. G. Swapna, (2005) 4
words that any appointment made in SCC 154, wherein the Court dealt with
contravention of the provisions of the Act the powers of the employer or Board in
shall be void. This was to ensure to back- relation to filling up existing vacancies,
door entry but selection only as provided notified vacancies and future vacancies
under the said sections." (Emphasis and held that the question of making
added). appointment beyond advertised vacancy
does not arise.
14. Similar view has been reiterated
by the Hon'ble Supreme Court in Sri Kant 16. In State of U.P. & Ors. Vs.
Tripathi Vs. State of U.P. & Ors., (2001) Rakjumar Sharma & Ors., (2006) 3 SCC
10 SCC 237; and State of J & K Vs. 330, the Hon'ble Apex Court, placing
Sanjeev Kumar & Ors., (2005) 4 SCC reliance upon a larger number of its
148. earlier judgments, held that filling up
vacancies over and above the number of
vacancies advertised, would be violative
of fundamental rights guaranteed under Committee of Management through the

Articles 14 and 16 of the Constitution, for Inspector of Schools to the Board. Rule
the reason that persons, who acquire 12 provides that on receiving such
eligibility subsequent to the vacancies, the Board shall advertise the
advertisement, could not have an vacancies taking into consideration the
opportunity to make applications. reservation policy etc., at least in two
daily newspapers, having wide circulation
17. Several Divisions Benches of in the State and call for applications from
this Court dealing with the issue of higher the eligible candidates. The applicants are
education service, have taken the same also asked to give the choice of three
view, in Dr. Radhey Shyam Sharma Vs. institutions in order of preference. After
Director (Higher Education) U.P. receiving the applications, the Board shall
Allahabad, 2003 (1) ESC 35; Dr. Prakash scrutinize the same and subsequently, it
Chandra Kamboj & Ors. Vs. Committee may hold the examination/interview etc.
of Management of Bareilly College, for their evaluation and a list shall be
Bareilly & Ors., 2003 (4) ESC 2363; and prepared on the basis of merit category-
Writ Petition No. 21245 of 2000, wise. Thereafter, the Board, after
Dr.Kanta Srivastava Vs. Director of preparing the panel in accordance with the
Higher Education, U.P. Allahabad & Ors., Rules, allocate the institutions to the
decided on 11.05.2005. selected candidates according to their
preference. In case a candidate cannot be
18. In order to answer the aforesaid allocated an institution as per his
questions, it is necessary to examine the choice/preference for the reason that other
scheme of the Act and the Rules framed candidates had been placed in the merit
thereunder. list above to him, the Board may allocate
him any other institution as it may deem
19. Section 10 of the Act provides fit. The panel so prepared shall be sent to
that for filling up the vacancy by direct the Inspector of Schools for further
recruitment, the Management shall action. Rule 13 further provides for
determine the number of vacancies taking intimation of names of selected
into consideration the policy of candidates to the Committee of
reservation and notify the same to the Management for issuance of appointment
Board and the said vacancies shall be letters.
filled up by adopting the procedure as
may be prescribed. Section 11 of the Act Section 16 (1) of the Act provides for
provides for preparation of the panel after appointment to be made only on the
holding the examination/interview of the recommendation of the Board. However,
candidates who are found most suitable sub-section 2 thereof reads as under:-
for appointment.
"Any appointment made in
20. In order to determine as what is contravention of the provisions of sub-
the procedure prescribed, reference may section (1) shall be void."
be made to the relevant Rules. Rule 11
provides for determination and 21. The cumulative effect of reading
notification of vacancies by the the Act and the Rules together is that the
Act and Rules provide for a complete and Ram Phal Kundu Vs. Kamal Sharma,
Code and none of its chain is removable. AIR 2004 SC 1657).
The procedure starts with the intimation
of the vacancy by the Committee of 24. The learned Single Judge in
Management to the Board and ends with Savita Gupta (supra) placing reliance
issuance of the appointment letter to the upon the Government Order dated 12th
selected candidate by the Committee of March, 2001 has proceeded to hold that
Management. Any appointment made in such an adjustment is permissible and is
violation of the procedure so prescribed not prohibited nor is there any bar under
would be de hors the Rules and rendered the Act and the Rules to provide for the
void in view of the provisions of Section requisitioned and intimated vacancies to
16 (2) of the Act. be filled up from amongst the selected
candidates of the previous selections who
22. There is no dispute to the settled could not get appointment even though
legal propositions that statutory the post had not been advertised. The
provisions require to be given strict learned Single Judge has held that the
adherence and authority is bound to act in purpose and object of the Act and the
the manner prescribed under the Statute. Rules will not be defeated, if such an
interpretation is given. We have
23. When the statute provides for a scrutinized the same microscopically. The
particular procedure, the authority has to said Government Order refers to a grave
follow the same and cannot be permitted concern over the irregularities and
to act in contravention thereof. The illegalities in filling up the vacancies
uncontroverted legal position is that because of non-cooperation of the
where a Statute requires thing to be done Committee of Management of the
in a certain way, the thing must be done in educational institutions. Therefore, by this
that way alone or not at all. Other order, a Committee consisting of three
methods or mode of performance are officials named therein was constituted to
impliedly and necessarily forbidden. The examine particular cases where the
aforesaid settled legal proposition is based vacancies could not be filled up because
on a legal maxim "Expressio unius est of the attitude of non-cooperation adopted
exclusio alterius", meaning thereby that if by the Committees of Management. The
a statute provides for a thing to be done in said Order provided that the appointments
a particular manner, then it has to be done must be made in such institutions keeping
in that manner and in no other manner and in mind the reservation policy, without
following other course is not permissible. any further delay. The Government Order
This maxim has consistently been seems to have been issued to remove any
followed, as is evident from the cases action of nepotism and corruption keeping
referred to above. (Vide Tailor Vs. in view the adamant attitude adopted by
Taylor, (1876) 1 Ch.D. 426; State of the Committees of Management. It does
Bihar & Anr. Vs. J.A.C. Saldanna & Ors., not provide any procedure other than the
AIR 1980 SC 326; Haresh Dayaram statutory provisions referred to
Thakur Vs. State of Maharashtra & Ors., hereinabove. However, the said
AIR 2000 SC 2281; Dhanajaya Reddy Vs. Government Order, a little before the
State of Karnataka, AIR 2001 SC 1512; penultimate paragraph states that in the
event a candidate is unable to join against to the District Inspector of Schools as he

the post of his preference, then in that may think proper. The joining of a
event an order for adjustment of such a candidate has to be in accordance with his
candidate shall be passed subject to the merit and preference offered by him in
Rules of reservation. The Act and Rules respect of the post available.
do not indicate any power vested with the
State Government for constituting any 25. The question therefore, is, that
such Committee through a Government does the Government Order dated 12th
Order. The Act makes a provision for the March 2001 permit adjustment of a
promulgation of regulations by the selected candidate against a vacancy
Selection Board with the approval of the which was not advertised. Rule 12 (1)
State Government and in Section 35, the clearly prescribes the advertisement of the
State Government has been empowered vacancies in at least two daily
by way of notification to make Rules for newspapers. Rule 12 (1) of the Rules is
carrying out the purpose of the Act. Apart quoted herein below for ready reference:-
from this, there is no other power vested
in the State Government to issue "12. Procedure for direct
Government Orders for creating an recruitment.- (1) The Board shall, in
authority other than the authorities respect of the vacancies to be filled up by
referred to in the Rules, in order to enable direct recruitment, advertise the
such an authority to issue orders for vacancies including those reserved for
making adjustment in the event a candidates belonging to Scheduled
candidate is unable to join the post which Castes, Scheduled Tribes and other
has been allocated to him. For this backward classes of citizens in at least
purpose, the statutory provisions are two daily newspapers, having wide
already in existence as contained in circulation in the State, and call for the
Section 17 of the Act for ensuring the applications for being considered for
appointment and joining of a selected selection in the proforma published in the
candidate and to take appropriate action in advertisement. For the post of Principal of
the matter. This 3rd alternative of an Intermediate College or the Head
adjustment as indicated in the Master of a High School, the name and
Government Order dated 12th March place of the institution shall also be
2001 is nowhere authorized under the Act mentioned in the advertisement and the
and the Rules. As indicated hereinabove, candidates shall be required to give the
Rules 1998 make a specific provision for choice of not more than three institutions
the manner in which a candidate has to be in order of preference and if he wished to
permitted to join in an institution. Rules be considered for any particular
12 and 13 are exhaustive in nature and institution or institutions and for no other
sub-rule 4 of Rule 13 empowers the Joint institution, he may mention the fact in his
Director of Education to monitor and application." (Emphasis added)
ensure that the candidates selected by the
Board are able to join the institution in the 26. As discussed hereinabove, the
specified time for this purpose. For this, Act in Section 10 mandates that the
the Joint Director has also been selection will proceed in the manner
empowered to issue necessary directions prescribed, which clearly means that in
the manner as provided under the Rules. candidates so selected, can by offered
The prescription has to be by way of appointment against the vacancies, which
either Regulations or Rules, which cannot have been notified and requisitioned even
be substituted through the executive if not advertised. The aforesaid reasoning
instructions. The above quoted Rule, overlooks the fact that the Rules do not
therefore, mandates the advertisement of indicate that candidates selected in respect
a post before the applications of the of the vacancies occurring in the year of
candidates are scrutinized and selections recruitment if not appointed, will continue
held. This leaves no room for doubt that to form a perennial pool for the source of
an unadvertised post cannot be offered to recruitment. So far as the question of the
a candidate who could not have applied as life of the select list is concerned, the
the post had not been advertised. The same is not a relevant criteria in our
selection against an unadvertised post, considered opinion for judging the issue
therefore, is not prescribed under the as to whether an unadvertised vacancy
Rules. The offering of the vacancies by can be offered to a candidate who had
way of preference, which have been appeared in the previous selections. To
intimated and notified by the our mind, the same does not have any
Management has to be a subject matter of rationale nexus to the object to be
advertisement and the vacancy cannot be achieved. Selection of a candidate against
filled up by avoiding the advertisement. a non-advertised vacancy would clearly
This aspect of the matter has not been violate the fundamental rights guaranteed
effectively noticed and considered by the under Articles 14 and 16 of the
learned Single Judge and, therefore, with Constitution as ruled by the Apex Court
respect, we are unable to agree with the in the judgments referred to herein above.
reasoning of the learned Single Judge in In our opinion, in the event, a vacancy is
Savita Gupta's case. The question, not advertised, the same would give a
therefore, is not as to whether the object handle to the Board and the authorities to
and purpose of the Act is not being indulge into selective discrimination by
defeated rather the question is as to what offering appointments to such candidates
would be the manner in which the object for whom vacancies were not available
and purpose of the Act has to be achieved. and by discriminating such candidates
In our opinion and in view of the who were qualified and had not been able
discussions made hereinabove, we hold to apply in the absence of advertisement.
that the object and purpose of the Act has
to be fulfilled in the manner as prescribed 28. Even otherwise, it is settled legal
under the Rules and not by introducing a proposition that the executive instructions
method of adjustment, which is not cannot override the statutory provisions.
prescribed under the Rules. A Constitution Bench of the Hon'ble
Supreme Court, in B.N. Nagarajan & ors.
27. One of the reasons given by the Vs. State of Mysore & ors., AIR 1966 SC
learned Single Judge in Savita Gupta's 1942, has observed as under:-
case is that since the U.P. Act No.5 of the
1982 and the Rules framed thereunder "It is hardly necessary to mention
does not provide any life for the list of a that if there is a statutory rule or an Act on
selected candidates, therefore, the the matter, the executive must abide by
that Act or Rule and it cannot in exercise India., AIR 1998 SC 431, held that the
of its executive powers under Article 162 executive instructions are binding
of the Constitution ignore or act contrary provided the same have been issued to fill
to that rule or the Act." up the gap between the statutory
provisions and are not inconsistent with
Similarly, another Constitution the said provisions.
Bench of the Hon'ble Supreme Court in
Sant Ram Sharma Vs. State of Rajasthan 31. Thus, it is settled law that
& Ors., AIR 1967 SC 1910, has observed executive instructions cannot amend or
as under:- supersede the statutory rules or add
something therein. The orders cannot be
"It is true that the Government issued in contravention of the statutory
cannot amend or supersede statutory rules for the reason that an administrative
Rules by administrative instruction, but if instruction is not a statutory rule nor does
the Rules are silent on any particular it have any force of law; while statutory
point, the Government can fill-up the gap Rules have full force of law as held by the
and supplement the rule and issue Constitution Bench of the Hon'ble
instructions not inconsistent with the Supreme Court in State of U.P. & ors. Vs.
Rules already framed." Babu Ram Upadhya, AIR 1961 SC 751;
and State of Tamil Nadu Vs. M/s. Hind
29. The law laid down above, has Stone etc. etc., AIR 1981 SC 711.
consistently been followed and it is settled
proposition of law that an Authority 32. Similar view has been reiterated
cannot issue orders/office in Union of India & Anr. Vs. Amrik
memorandum/executive instructions in Singh & Ors., (1994) 1 SCC 269; Swapan
contravention of the statutory Rules. Kumar Pal & Ors. Vs. Samitabhar
However, instructions can be issued only Chakraborty & Ors., (2001) 5 SCC 581;
to supplement the statutory rules but not Khet Singh Vs. Union of India, (2002) 4
to supplant it. Such instructions should be SCC 380; Laxminarayan R. Bhattad &
subservient to the statutory provisions. Ors. Vs. State of Maharashtra & Anr.,
(Vide The Commissioner of Income-tax, (2003) 5 SCC 413; ITW Signode India
Gujarat Vs. M/s. A. Raman & Co., AIR Ltd. Vs. Collector of Central Excise,
1968 SC 49; Union of India & ors. Vs. (2004) 3 SCC 48; Dr. Mahendra Prasad
Majji Jangammayya & ors., AIR 1977 SC Singh Vs. Chairman Bihar legislative
757; Paluru Ramkrishnaiah & ors. Vs. Council, (2004) 8 SCC 747; Pahwa
Union of India & Anr., AIR 1990 SC 166; Chemicals (P) Ltd. Vs. Commissioner of
Comptroller & Auditor General of India Central Excise, New Delhi, (2005) 2 SCC
& ors. Vs. Mohan Lal Mehrotra & ors., 720; K.P. Sudhakaran & Anr. Vs. State of
AIR 1991 SC 2288; and C. Kerala & Ors.,(2006) 5 SCC 386; and
Rangaswamaiah & ors. Vs. Karnataka K.K. Parmar Vs. High Court of Gujrat &
Lokayukta & ors., AIR 1998 SC 2496). Ors., (2006) 5 SCC 789; and it has been
observed that statutory rules create
30. The Constitution Bench of the enforceable rights which cannot be taken
Hon'ble Supreme Court, in Naga People's away by issuing executive instructions.
Movement of Human Rights Vs. Union of
33. Therefore, it is evident that should be sent back to the appropriate

subordinate legislation cannot override Bench for proper adjudication/final
the statutory rules nor can it curtail the disposal in the light of law laid down
content and scope of the substantive therein. As in the instant case, the
provision for or under which it has been petitioner does not want to press the
made. petition, no purpose would be served,
sending the matter back to the Court
For the reasons and the conclusions concerned. The petition is accordingly
drawn hereinabove, our answer to dismissed as withdrawn.
Question No. 1 is: ---------
CIVIL SIDE
"An unadvertised vacancy cannot be
filled up from amongst the candidate who
has been selected in any previous BEFORE
selections and to that extent we declare THE HON‘BLE TARUN AGARWALA, J.
that the pronouncement of the learned
Single Judge in the case of Savita Gupta Civil Misc. Writ Petition No.58649 of 2006
Vs. State of U.P. & Ors., 2004 (2)
UPLBEC 2739, does not lay down the State of U.P. and another …Petitioners
law correctly and is hereby overruled." Versus
Ram Kishun and others …Respondents
and to Question No.2 is :
Counsel for the Petitioners:
"The U.P. Secondary Education Sri Shiv Nath Singh (Addl.S.C.)
Services Selection Board constituted
under the U.P. Act No.5 of the 1982 Counsel for the Respondents:
cannot, with the aid of the Government
Constitution of India-Art. 226-Writ
Order dated 12th March, 2001, order any petition-challenging the order passed by
adjustment in respect of a vacancy, which District Judge-delay about 2 years 124
has been intimated and notified but not days-explain given-the file run from one
advertised". place to another table-in the case of
government the court should be liberal-
Shri Pradeep Verma, learned counsel held-a bald averment without showing
sufficient cause-before court the private
for the petitioner states that the petitioner and government litigants be given equal
does not stake any claim further against treatment-petitioner can not be
the post in D.A.V. College, Varanasi for entertained on highly belated stage.
the reason that the said post has already
been filled up and he, therefore, prays that Held: Para 10
the writ petition be dismissed as
In my opinion, these averments are
withdrawn. insufficient for the Court to hold that
sufficient cause was made out by the
34. It is a settled legal proposition petitioner for condoning the delay and
that the Court answering the reference for the Court to entertain a petition
should not decide the case on merit and beyond the stipulated period. In the
after answering the question, the matter opinion of the Court, on the basis of a
bald averment, sufficient cause has not
1 All] State of U.P. and another V. Ram Kishun and others 243
been explained and therefore, the Court that all litigants including the State, as a
is not inclined to give any kind of latitude litigant, should be equally treated and that
to the State Government. Consequently,
the law should be administered in an even
the Court is not inclined to entertain this
writ petition at this belated stage. handed manner. The law of limitation is
Case law discussed: the same for a common litigant as well as
1996 SCC (3)-132, J.T. 1996 (7) SC-204, 1998 for the State Government. A common
(7) SCC-123, J.T. 2000 (5) SC-389, 1969 (1) litigant has to arrange for the requisite
SCR-1006, 1979 (4) SCC-365, 1969 (2) SCC- expenses and make arrangement for his
770, 1981 Supp. SCC-72, 1982 (3) SCC-366,
boarding and lodging. He also has to
1984 (4) SCC-661, J.T. 1987 (1) SC-537, 1987
(2) SCC-107, 1987 Supp. SCC-339, J.T. 1988
choose an advocate of his choice. These
(1) SC-524, J.T. 1992 (Supp.) SC-496, 1993 are time consuming process, but the same
(1) SCC-572, 1993 Supp. (1) SCC-487, 1994 has to be done within a stipulated period.
Supp. (2) SCC-507, 1995 Supp. (1) SCC-37, On the other hand, the State Government
1996 (3) SCC-132 has all the requisite infrastructure to file a
writ petition as early as possible. Merely,
(Delivered by Hon'ble Tarun Agarwala, J.) because the State Government is an
impersonal machinery does not mean that
1. Heard Sri S.N. Singh, the learned the Government can work at its own pace
Additional Chief Standing Counsel and leisure.
appearing for the petitioners.
4. Section 5 of the Limitation Act,
2. The petitioners have challenged extends the period of limitation in filing
the judgment dated 16.3.2004 passed by an application or an appeal and gives a
the District Judge, Kushi Nagar. There is power to the Court to admit the appeal or
a delay of two years and 124 days in an application after the prescribed period.
approaching the writ Court. The The only condition is, that the applicant or
explanation for condoning the delay has the appellant satisfies the Court that he
been averred in paragraph-18 of the writ had sufficient cause for not preferring the
petition which stated that the department appeal or making the application within
sought permission for filing the writ the stipulated period. Though, the
petition and, in that regard, the file had to Limitation Act is not applicable in a writ
pass from one table to another table and, jurisdiction, nonetheless, the principles
therefore, that it took some time in can be applied and the Court can decline
granting the permission. The said to entertain a writ petition, on the ground
paragraph further stated that the Court of laches, if sufficient cause is not shown.
should take a lenient view, while
condoning the delay, in the cases filed on 5. What constitutes "sufficient
behalf of the State Government. cause" cannot be laid down by any hard
and fast principle. The discretion given to
3. The State Government is not the Court cannot be defined or crystallised
above the law and that it cannot be treated in a rigid rule of law. The Supreme Court
differently from that of a common in a number of cases has observed that the
litigant. The law applies equally to all, expression "sufficient cause" should be
including the State Government. The construed liberally if it finds that the
doctrine of equality before law demands litigant had acted with reasonable
diligence in pursuing the matter. If the "It is axiomatic that condonation of

Court finds that there was lack of delay is a matter of discretion of the court.
bonafide or negligence on the part of the Section 5 of the Limitation Act does not
party, the application was liable to be say that such discretion can be exercised
refused. only if the delay is within a certain limit.
Length of delay is no matter, acceptability
6. In State of Haryana Vs. of the explanation is the only criterion.
Chandra Mani and others, (1996)3 Sometimes delay of the shortest range
SCC 132 the Supreme Court held that may be uncondonable due to a want of
even though the Court should adopt a acceptable explanation whereas in certain
liberal approach in condoning the delay, other cases, delay of a very long range
the law of limitation was required to be can be condoned as the explanation
administered in an even handed manner thereof is satisfactory. Once the court
and that a litigant, including the State, accepts the explanation as sufficient, it is
should be accorded the same treatment, the result of positive exercise of discretion
though certain amount of latitude was and normally the superior court should
permissible to be given to the State not disturb such finding, much less in
Government on account of its impersonal revisional jurisdiction, unless the exercise
machinery and the inherited bureaucratic of discretion was on wholly untenable
methodology. Similar view was held by grounds or arbitrary or perverse. But it is
the Supreme Court in the case of The a different matter when the first court
Special Tehsildar, Land Acquisition, refuses to condone the delay. In such
Kerla Vs. K. V. Ayisumma, JT 1996(7) cases, the superior court would be free to
SC 204 wherein the Supreme Court held consider the cause shown for the delay
as follows: afresh and it is open to such superior court
to come to its own finding even
"It is true that Section 5 of the untrammeled by the conclusion of the
Limitation Act envisages explanation of lower court.
the delay to the satisfaction of the Court
and in matters of Limitation Act made no The reason for such a different stance is
distinction between the State and the thus:
citizen. Nonetheless adoption of strict
standard of proof leads to grave The primary function of a court is to
miscarriage of public justice. It would adjudicate the dispute between the parties
result in public mischief by skilful and to advance substantial justice. The
management of delay in the process of time limit fixed for approaching the court
filing the appeal. The approach of the in different situations is not because on
Court would be pragmatic but not the expiry of such time a bad cause would
pedantic." transform into a good cause.
7. In N. Balakrishnan Vs. M. Rules of limitation are not meant to

Krishnamurthy, (1998)7 SCC 123, the destroy the rights of parties. They are
Supreme Court held as under : meant to see that parties do not resort to
dilatory tactics, but seek their remedy
promptly. The object of providing a legal
1 All] State of U.P. and another V. Ram Kishun and others 245
remedy is to repair the damage caused by Collector,LandAcquisition v. Katiji [JT

reason of legal injury. The law of 1987 (1) SC 537 = 1987 (2)SCC 107],
limitation fixes a lifespan for such legal Prabha v. Ram Prakash Kalra [1987 Supp.
remedy for the redress of the legal injury SCC339],G. Ramegowda, Major v. Spl.
so suffered. Time is previous and wasted Land Acquisition Officer [JT1988(1) SC
time would never revisit. During the 524 =1988(2) SCC 142], Scheduled Caste
efflux of time, never causes would sprout Coop. Land Owning Society Ltd. v.
up necessitating newer persons to seek Union of India [ JT 1990 (4) SC 1= 1991
legal remedy by approaching the courts. (1) SCC 174], Binod Bihari Singh v.
So a lifespan must be fixed for each Union of India [JT 1992 (Supp.) SC 496
remedy. Unending period for launching =1993(1) SCC 572], Shakambari & Co. v.
the remedy may lead to unending Union of India [ 1993 Supp. (1) SCC487],
uncertainty and consequential anarchy. Ram Kishan v. U.P.S.R.TC. [1994 Supp.
The law of limitation is thus founded on (2) SCC 507] and Warlu v. Gangotribai
public policy. It is enshrined in the maxim [1995 Supp. (1) SCC 37] ; this Court in
interest reipublicae up sit finis litium [It is State of Haryana v. Chandra Mani & Ors.
for the general welfare that a period be [UT 1996(3) SC 371 = 1996(3) SCC 132 ]
put to litigation]. Rules of limitation are held :
not meant to destroy the rights of the
parties. They are meant to see that parties "It is notorious and common
do not resort to dilatory tactics but seek knowledge that delay in more than 60
their remedy promptly. The idea is that percent of the cases filed in this Court be
every legal remedy must be kept alive for it by private party or the State- are barred
a legislatively fixed period of time." by limitation and this Court generally
adopts liberal approach in condonation of
8. The Supreme Court in State of delay finding somewhat sufficient cause
Bihar and others Vs. Kameshwar to decide the appeal on merits. It is
Prasad Singh and Another, JT2000 [5] equally common knowledge that litigants
SC 389 the Supreme Court after analysing including the State are accorded the same
its earlier judgment held – treatment and the law is administered in
an even-handed manner. When the State
"After referring to the various is an applicant, praying for condonation
judgments reported in New India of delay, it is common knowledge that on
Insurance Co. Ltd. v. Shanti Misra [1975 account of impersonal machinery and the
(2) SCC 840], Brij Inder Singh v. Kanshi inherited bureaucratic methodology
Ram [AIR 1917 PC 156], Shakuntala imbued with the note- making, file
Devi Jain v. Kuntal Kumari [1969 (1) pushing, and passing -on-the buck ethos,
SCR 1006], Concord of India Insurance delay on the part of the State is less
Co. Ltd. v. Nirmala Devi [1979 (4) SCC difficult to understand though more
365], Lala Mata Din v. A. Narayanan difficult to approve, but the State
[1969(2) SCC 770 ], State of Kerala v. represents collective cause of the
E.K. Kuriyipe [1981 Supp. SCC 72], community. It is axiomatic that decisions
Milavi Devi v. Dina Nath [1982(3) SCC are taken by officers/agencies
366], O.P. Kathpaliav.Lakhmir Singh proverbially at slow pace and encumbered
[1984(4) SCC 66], process of pushing the files from table to
table and keeping it on table for 9. To the same effect is the

considerable time causing delay judgment of this Court in Special
intentional or otherwise- is a routine. Tehsildar, Land Acquisition, Kerala v.
Considerable delay of procedural red-tape K.V. Ayisumma [JT 1996 (7) SC 204
in the process of their making decision is =1996 (10) SCC 634].
a common feature. Therefore, certain
amount of latitude is not impermissible. If In Nand Kishore v. State of Punjab
the appeals brought by the State are lost [JT 1995 (7) SC 69=1995(6) SCC 614]
for such default no person is individually this Court under the peculiar
affected but what in the ultimate analysis circumstances of the case condoned the
suffers, is public interest. The expression delay in approaching this Court of about
'sufficient cause' should, therefore, be 31 years. In N. Balakrishnan v. M.
considered with pragmatism in justice- Krishnamurthy [JT 1998 (6) SC 242
oriented process approach rather than the =1998(7) SCC 123] this Court held that
technical detention of sufficient case for the purpose of Limitation Act was not to
explaining every day's delay. The factors destroy the rights. It is founded on public
which are peculiar to and characteristic of policy fixing a life span for the legal
the functioning of pragmatic approach in remedy for the general welfare. The
justice-oriented process. The court should primary function of a Court is to
decide the matters on merits unless the adjudicate disputes between the parties
case is hopelessly without merit. No and to advance substantial justice. The
separate standards to determine the cause time limit fixed for approaching the court
laid by the State vis-a-vis private litigant in different situations is not because on
could be laid to prove strict standards of the expiry of such time a bad cause would
sufficient case. The Government at transform into a good cause. The object of
appropriate level should constitute legal providing legal remedy is to repair the
cells to examine the cases whether any damage caused by reason of legal injury.
legal principles are involved for decision If the explanation given does not smack
by the courts or whether cases require malafides or is not shown to have been
adjustment and should authorise the put forth as a part of dilatory strategy, the
officers to take a decision to give court must show utmost consideration to
appropriate permission for settlement. In the suitor. In this context it was observed:
the event of decision to file the appeal
needed prompt action should be pursued "It is axiomatic that condonation of
by the officer responsible to file the delay is a matter of discretion of the court.
appeal and he should be made personally Section 5 of the Limitation Act does not
responsible for lapses, if any. Equally, the say that such discretion can be exercised
State cannot be put on the same footing as only if the delay is within a certain limit.
an individual. The individual would Length of delay is no matter; acceptability
always be quick in taking the decision of the explanation is the only criterion.
whether he would pursue the remedy by Sometimes delay of the shortest range
way of an appeal or application since he is may be uncondonable due to a want of
a person legally injured while State is an acceptable explanation whereas in certain
impersonal machinery working through other cases, delay of a very long range
its officers or servants." can be condoned, as the explanation
1 All] Smt. Ranju V. State of U.P. and others 247
thereof is satisfactory. Once the court employee, some responsibility should

accepts the explanation as sufficient, it is have been fixed upon that officer or
the result of positive exercise of discretion employee concerned, but no such
and normally the superior court should allegation has been made. Further the
not disturb such finding, much less in averment that the court should take a
revisional jurisdiction, unless the exercise lenient view in matters relating to the
of discretion was on wholly untenable State Government is a clear indication
grounds or arbitrary or perverse. But it is that the State Government thinks that it is
a different matter when the first court above the law and that it can get away
refuses to condone the delay. In such with anything. In my opinion, these
cases, the superior court would be free to averments are insufficient for the Court to
consider the cause shown for the delay hold that sufficient cause was made out
afresh and it is open to such superior court by the petitioner for condoning the delay
to come to its own finding even and for the Court to entertain a petition
untrammeled by the conclusion of the beyond the stipulated period. In the
lower court." opinion of the Court, on the basis of a
bald averment, sufficient cause has not
10. In view of the aforesaid, it is been explained and therefore, the Court is
clear that the State Government being an not inclined to give any kind of latitude to
impersonal machinery and because of its the State Government. Consequently, the
bureaucratic methodology imbued with Court is not inclined to entertain this writ
the note-making, file pushing and passing petition at this belated stage.
-on-the buck ethos, certain amount of
latitude is required provided it shows 11. The writ petition is dismissed on
sufficient cause. In the present case, the ground of laches.
sufficient cause which has been alleged is ---------
that the file had to travel from one table to REVISIONAL JURISDICTION
CRIMINAL SIDE
another and consequently, in the cases
relating to the State Government, the
Court should take a liberal approach. BEFORE
Necessary details are lacking in this THE HON’BLE K.N. OJHA, J.
regard. Nothing has been stated or
brought on the record as to when the Criminal Revision No. 5775 of 2006
permission was sought from the higher
authority for filing a writ petition. No Smt. Ranju …Revisionist
details have been given as to how the Versus
delay occurred from one table to another State of U.P. and others …Opposite Parties
table. Merely by making a bald statement
that the delay occurred because of the Counsel for Revisionist:
movement of the file from one table to Sri Prashant Kumar Singh
another does not come within the
parameter of the words "sufficient cause" Counsel for the Opposite Parties:
A.G.A.
for the court to exercise its discretion and
condone the delay. If there had been a
Code of Criminal Procedure-section-
delay at the behest of some officer or 156(3)-Rejection of complaint-No
evidence about injury-out of 13 wheat etc. Many persons witnessed the

witnesses-no witness support the case- occurrence. She went to lodge FIR at
rejection of application-held-No
Police Station Ghatampur, it was not
jurisdictional error illegality found.
written, then she moved application to the
Held: Para 5 S.S.P. Kanpur Nagar but no action was
taken. Thereafter she moved application
In this case where there is no evidence under section 156(3) Cr.PC which was
that injury was caused and no witness rejected by learned Addl. Sessions Judge
supports the case of the complaint, if the
(D.A.A.) Kanpur Dehat, hence this
learned Magistrate has rejected the
application and under section 156 (3)
revision.
Cr.P.C there appears no jurisdictional
error, illegality irregularity in the 3. A perusal of the record shows that
impugned order. The revision is as many as 13 persons made raid at the
dismissed at the admission stage house of the revisionist but not even a
Case law discussed: single abrasion or contusion was caused
1976 SCC (Crl.)-507
AIR 1992 SC-1815
to her, nor there is any injury report· in
support of the fact that injury was caused
(Delivered by Hon'ble K.N. Oiha, J.) to her. According to allegation of the
revisionist the occurrence was witnessed
1. Smt. Ranju Devi has preferred by many persons including Ram Sewak,
instant revision against order dated Hanuman, and Lakhan Lal etc. but no
10.7.05 passed by learned Addl. Sessions person has filed affidavit in support of the
Judge (D.A.A.) Kanpur Dehat in Misc. allegation of the revisionist. If animals, 10
Application No. Nil of 2006 whereby quintals wheat etc. would have been taken
application moved under section 156 (3) away by the respondent 2 to 14 then
of Cr.P.C, Police Station Ghatampur, conveyance would have been specified in
district Kanpur Nagar was rejected. respect of which the revisionist stated
nothing. It does not appear natural that
2. Heard Sri Prashant Kumar Singh such heinous offence was committed but
learned counsel for the revisionist and there is no evidence in support of it. Mere
learned AGA and have gone through the allegation of damage being caused, loot
record. Record shows that revisionist Smt. being made cannot be taken to be
Ranju Devi moved application against 13 sufficient' unless natural consequences
persons including four ladies under follow which is medical examination of
section 156(3) Cr.PC containing the fact the victim-revisionist, statement or
that Crime No. 222/06 under section 308 affidavit of the witnesses, details of the
IPC was registered against her husband manner in which looted articles were
Rajendra Singh. Later on the case was taken away. If an allegation merely
converted under section 304 IPC. Her contains the ingredients of the offence but
husband surrendered in the court of it does not appear natural merely on the
C.J.M. Kanpur Dehat on 29.4.06. It is said basis of allegation as many as 13 persons
that on 1.6.05 revisionist 2 to 14 went to cannot be prosecuted.
her residence, looted Rs.20,000/= cash,
ornaments worth Rs.40,000/=, took away 4. It has been held in 1976 SCC
2 buffaloes, 2 goats, and 10 quintals (Crl.) 507 Smt. Nagawwa V. Veeranna
1 All] Raju and another V. State of U.P. and another 249
Shivalingappa Konjalgi and others by Counsel for the Revisionists:

Hon'ble the Apex Court that where the Sri Santosh Kumar Dubey
allegation made in the complaint are Sri Vinod Kumar Tripathi
patently absurd or are inherently
improbable so that no prudent person can Counsel for the Opposite Parties:
ever reach a conclusion that there is A.G.A.
sufficient ground for proceeding against
Code of Criminal Procedure-Section 397
the "accused or the discretion of the
(2)-Trail Court by exercising power
Magistrate is based on no evidence. The under section 311 Cr.P.C.- summoned
prayer for summoning the accused can be the witness for cross examination-for
rejected. In 1992 SC 1815 Punjab just decision-re-examination P.W. 2
National Bank v. Surendra Prasad must-such order being interlocutory-
Sinha it has been held by Hon'ble the revision held-bar under section 397 (2)
Apex Court that relevant fact and Cr.P.C.
circumstances should be considered Case law relied:
before issuing the process: Process issued 1977 SCC (Crl.) 585
mechanically on the basis of complaint
filed as vendetta to harass persons (Delivered by Hon'ble Vinod Prasad, J.)
deserves to be quashed because judicial
process would not be an instrument of Heard Sri Vinod Kumar Tripathi
oppression of needless harassment. holding brief of Sri Santosh Kumar
Dubey, learned counsel for the
5. In this case where there is no revisionists and the learned A.G.A.
evidence that injury was caused and no
witness supports the case of the Exercising power under Section 311
complaint, if the learned Magistrate has Cr.P.C. the Additional Sessions Judge,
rejected the application and under section F.T.C. No.3, Gautam Budh Nagar in S.T.
156 (3) Cr.P.C there appears no No.250 of 2006, State Vs. Raju and other,
jurisdictional error, illegality irregularity under Section 307 I.P.C., P.S. Dankaru,
in the impugned order. The revision is district Gautam Budh Nagar has re-
dismissed at the admission stage. summoned the P.W.2 for further cross-
--------- examination vide his impugned order
dated 9.11.2006. In view of the law laid
CRIMINAL SIDE
down by the Apex Court in Amar Nath
And Others versus State of Haryana
BEFORE and Another 1977 SCC (Cr.) 585, the
THE HON’BLE VINOD PRASAD, J. said order of summoning a witness is
nothing but an interlocutory order and a
Criminal Revision No. 6445 of 2006 revision against such an order is barred
under Section 397(2) Cr.P.C. Further the
Raju and another …Revisionists trial court was of the opinion that for just
Versus decision of the case reexamination of
State of U.P. and another P.W.2 is a must. This discretionary power
…Opposite Parties
of the trial court should not be in any way
curtailed by this court while exercising its
revisional power specially when the 2. The revisionist is admittedly a

revision is not maintainable. juvenile. His bail prayer by the Juvenile
Board has been rejected on 19/04/2006
In this view of the matter, this with the observation that if the revisionist
revision stands dismissed. will be released his physical, mental and
--------- psychological condition is such that he is
REVISIONAL JURISDICTION likely to fall in bad company. The appeal
CRIMINAL SIDE
preferred by the revisionist being
Criminal Appeal No. 37 of 2006 was also
BEFORE
dismissed by Additional District and
THE HON'BLE VINOD PRASAD, J. Sessions Judge Court No. 1 Kanpur Nagar
vide his order dated 13/06/2006. The
Criminal Revision No. 4388 of 2006 aforesaid two orders are under challenge
in the instant revision. It is an admitted
Mohd. Feroj …Revisionist (In Jail) fact that the applicant is a juvenile and
Versus that he is an accused of selling a narcotic
State of U.P. and another drug. No doubt the offence is a serious
…Opposite Parties one but the Juvenile Board and the Lower
Appellate Court did not address itself to
Counsel for the Revisionist: Section 12 of the Juvenile Justice Act.
Sri M.A. Khan
Keeping juveniles in custody is not the
law as the Juvenile Justice Act has been
enacted for an over all development of the
A.G.A.
delinquent juveniles. Jail is not such a
Juvenile Justice Act S-12-Bail place where a juvenile can be reared up in
Application–applicant a juvenile–an an healthy atmosphere. Section 12,
accused of selling narcotic drug–a therefore, mandates that before rejecting
serious offence–The Juvenile Board as the bails prayer of an juvenile some
well as the lower Appellate Court–over tangible cogent material unerringly
sighted the very purpose of the
pointed out that juveniles likely to fall in a
enactment of the Act itself which cover
all developments of juvenile–Jail cannot bad company must be recommended. The
be a place where the delinquent juvenile bail to a delinquent cannot be denied by
can be reared up–held–entitled for Bail. making casual observations as has been
done which rejecting the bail of the
Held para 3 present revisionist. The Juvenile Justice
The Lower Appellate Court also in an
Board has made a cursory objection that
unmindful manner has rejected the bail
prayer of the revisionist. I have the revisionist is likely to fall in a bad
considered the merits of the matter. In company. The said observation was not
my view, the revisionist deserves to be based on any tangible material at all.
released on bail. Cursory observation without any material
before it is not expected from Juvenile
(Delivered by Hon’ble Vinod Prasad, J.) Board who should be sensitive to
juveniles as the mind of delinquent
1. Heard learned counsel for the juveniles is psychologically very
revisionist and learned A.G.A. unmatured and they are roved to hazards
1 All] Mohd. Feroj V. State of U.P. and another 251
of the punishment which can have an Sri Lav Srivastava

adverse effect on them.
Counsel for the Opposite Party:
3. The Lower Appellate Court also Sri Braham Singh
in an unmindful manner has rejected the Sri Susheel Kumar Tiwari
bail prayer of the revisionist. I have A.G.A.
considered the merits of the matter. In
my view, the revisionist deserves to be
Bail Application offence under section
released on bail. 147, 148, 149, 307, 302/34 read with
U.P. Criminal law Amendment Act S. 7-
4. The revisionist Mohd. Feroj is informant and injured persons belonging
directed to be released on bail on his to Scheduled Cast-applicant, a very
father Mohd. Hanif furnishing a personal powerful man-offence committed-in
bond of Rs.50,000.00 and two sureties order to establish supremacy-occurrence
took place broad day light-role of
each in the like amount to the satisfaction causing injury by rifle-two persons lost
of Juvenile Justice Board, Kanpur Nagar. their life-several injured-considering
Father of the revisionist Mohd. Hanif is gravity of case-without expressing any
directed to keep his son Mohd. Feroj opinions on merit-held-not entitled for
under his guardianship. He is further bail.
directed to produce Mohd. Feroj before
Held: Para 7
Juvenile Justice Board once in a month.
He is further directed to keep watch over Considering the facts that the alleged
his son Mohd. Feroj so that he may not occurrence had taken place in broad day
indulge any criminal activity in further. light, F.I.R. was promptly lodged, role of
causing injury by rifle has been assigned
With the aforesaid direction, this to the applicant, two persons have lost
their lives, several persons are injured,
revision is finally allowed at the the cause of death was due to fire arm
admission stage itself. injury and there are injured witnesses to
--------- support the prosecution story, the
APPELLATION JURISDICTION gravity of offence is too much and other
CRIMINAL SIDE facts and circumstances of the case and
DATED: ALLAHABAD 18.09.2006 submission made by both side, without
expressing any opinion on the merits of
BEFORE the case, the applicant is not entitled for
THE HON’BLE RAVINDRA SINGH, J. bail. Therefore, the prayer for bail is
refused.
Criminal Misc. Bail Application No. 17764
of 2006 (Delivered by Hon'ble Ravindra Singh, J.)
Awdhesh Singh …Applicant (In Jail) 1. This application has been filed by
Versus the applicant Awdhesh Singh with the
State of U.P. …Opposite Party prayer that he may be released on bail in
case crime no. 16 of 2006 under sections
Counsel for the Applicant: 147,148,149,307,302/34 I.P.C. and
Sri V.P. Srivastava
Section 3(2)(v) SC.C./S.T.(P.A) Act and
Sri Ram Lal Singh
section 7 of U.P. Criminal Law
Amendment Act P.S. Dhanapur district received three ante mortem injuries in
Chandauli. which injury no.1 was abraded contusion,
injury no.2 was fire arm wound of entry
2. The prosecution story in brief is and injury no.3 was fire arm wound of
that the F.I.R. of this case has been lodged exit. The deceased Ram Nihore sustained
by the applicant Ram Lakhan Ram at P.S. two ante mortem injuries in which injury
Dhanapur on5.3.2006 at about 12.30 p.m. no. 1 was firearm wound of entry and its
in respect of the incident which had exit wound, injury no.2. Injured Dehuli
occurred on 15.3.2006 at about 11.00 sustained five injuries. Injured Sadani
p.m., the distance of the police station was sustained three injuries. Injured
about 5 k.m. from the alleged place of Nageshwari Devi sustained one injury.
occurrence, alleging therein that the first Injured Saraswati sustained four injuries.
informant was belonging to Chamar Injured Ram Lakhan sustained two
Caste, on 15.3.2006 at about 11.00 a.m. injuries.
the accused Desh Raj Singh hurled abuses
to the deceased Ramapati due to the 4. Heard Sri V.P. Srivastava, Senior
enmity of previous election, he was asked Advocate, assisted by Sri Ram Lal Singh
not to abuse then the co-accused Ganga and Sri Lav Srivastava, learned counsel
Sagar, co-accused Bhullan alias Ramesh, for the applicant, learned A.G.A. for the
co-accused Hansraj caused injuries by State of U.P. and Sri Braham Singh and
using lathi and danda blows on the person Sunil Kumar Tiwari, learned counsel for
of Smt. Kaushalya, Achche Lal, Ram the complainant.
Lakhan and Dehuli. They were asked
again not to beat then the applicant having 5. It is contended by the learned
a licensed rifle, co-accused Saheb Singh counsel for the applicant:
and Bablu Singh having unauthorised fire
arm chased the first informant and others. 1. That the prosecution story is false,
Dilip Kumar and Dinesh have made concocted and highly improbable.
attempt to pacify the matter but the 2. That the prosecution story is not
applicant and co-accused Saheb Singh, corroborated by the medical evidence
Bablu Singh discharged shots by their because according to the F.I.R. the
respective weapon, consequently applicant and other co-accused persons
deceased Ramapati, deceased Ram Nihore discharged shots from the back side but
and injured Saraswati ran to save their both of the deceased received injuries on
lives but they were chased by the front side. Therefore, the manner of the
applicant and others discharged shots occurrence has been changed during
consequently Ramapati, deceased Ram investigation by alleging that the injuries
Nihore sustained injuries, deceased were caused from the front side.
Ramapati died instantaneously. Due to the 3. That according to the prosecution
above act done by the applicant and version the applicant was armed with
others persons a panic was created and a licence rifle but the direction of the
atmosphere of fear and terror was created. injuries are upward to downward which
suggest that the injuries were not caused
3. According to the post mortem as alleged by the prosecution.
examination report the deceased Ramapati
1 All] Awdhesh Singh V. State of U.P. 253
4. That the prosecution story is not was due to fire arm injury and there are
corroborated by the spot inspect note and injured witnesses to support the
the site plan. prosecution story, the gravity of offence is
5. That the alleged motive is absolutely too much and other facts and
false, baseless because the previous circumstances of the case and submission
election was not contested by any of the made by both side, without expressing
first informant side, therefore, there was any opinion on the merits of the case, the
no question of enmity. applicant is not entitled for bail.
6. That the applicant is a peaceful Therefore, the prayer for bail is refused.
person. He is not a previous convict and
not wanted in any other case. Therefore, 8. Accordingly this application is
he may be released on bail. rejected.
---------
6. In reply to the above contentions ORIGINAL JURISDICTION
it is submitted by the learned A.G.A. ad CIVIL SIDE
the learned counsel for the complainant:
BEFORE
I. That the alleged occurrence had THE HON’BLE S.U. KHAN, J.
taken place in a broad daylight. Its F.I.R.
has been lodged within 1,1/2 hours. The Civil Misc. Writ Petition No. 8309 of 1990
distance of the police station was about 5
k.m. Specific role of causing injury by Sukhdeo …Petitioner
rifle has been assigned to the applicant. In Versus
this case two persons have lost their lives. Collector, Banda & others …Respondents
The injuries were caused by the fire arm
and several persons are injured. Counsel for the Petitioner:
II. That the applicant is a very powerful Sri V.D. Ojha
man and the first informant and injured
persons belong to scheduled cast, weaker Counsel for the Respondents:
Sri V.K. Singh
section of the society and the applicant
S.C.
and other co-accused persons have
committed the alleged offence without U.P.Z.A. & L.R. Act-Section 122-B-
any reason, in order to establish his Eviction for Graon Sabha Land-
supremacy. In case, the applicant is proceeding initiated after 30 years-even
released on bail, he shall temper with if the allotment not found valid-due to in
evidence. Therefore, he may not be ordinate delay-can not be evicted-nor
released on bail the damage more than the market rate
can be imposed.
7. Considering the facts that the Held: Para 3

alleged occurrence had taken place in
broad day light, F.I.R. was promptly In view of this, even though I agree that
lodged, role of causing injury by rifle has valid allotment was not fully proved by
been assigned to the applicant, two the petitioner still due to inordinate
delay of 30 years in initiating the
persons have lost their lives, several
proceedings for eviction, award of the
persons are injured, the cause of death damages is the appropriate relief instead
of eviction. The amount of Rs.11400/- 3. There are some authorities of this

awarded as damages by the impugned court which have held that there is no
order will be more than the market value
limitation to initiate the proceedings by
of the land at the time of occupation i.e.
either 1958 or 1961. Gaon Sabha for eviction of persons who
Case law discussed: are in unauthorised occupation of its land.
2005 RD (98) 741 Still silence of Gaon Sabha for about 30
years was very strange. Even if there is no
(Delivered by Hon'ble S.U.Khan J.) limitation for starting the eviction
proceedings still delay of about 30 years
1. This writ petition arises out of is sufficient to refuse to pass the order of
proceedings under section 122-B of eviction. In certain cases even if
U.P.Z.A.L.R Act. Property in dispute is possession of some one is unauthorised
comprised in Gaon Sabha plot No. 528, still eviction is not necessary or proper
area 2 Bigha 13 Biswas. The proceedings relief and award of damages in lieu of
were initiated in the form of case No. 178 eviction is the appropriate relief. In
of 1987-88 Gaon Sabha Vs. Sukhdev. The respect of small pieces of land of Gaon
petitioner pleaded that Gaon Sabha had Sabha over which the occupants have
validly allotted the land in dispute to him constructed their houses since long I have
on 28.10.1961. He also filed copy of held that award of damages is the proper
proceeding register of Gaon Sabha dated remedy in lieu of eviction vide Bhudaee
28.10.1961. He also filed copy of form Vs. Collector 2005(98) RD 741. Gaon
No. 59. Against the land in dispute, name Sabha is required to allot the land to the
of petitioner was mentioned in column 4 needy persons in accordance with
since 1366 fasli (1.7.1958 to 30.6.1959). preference and proceedings provided
Column 4 contains the names of under section 195/198 U.P.Z.A.L.R Act.
unauthorised occupants. In the notice 49 Accordingly, if a person is in possession
Ka possession of petitioner was shown for more than 12 years, instead of eviction
from 1395 fasli (1.7.1987 to 30.6.1988). award of damage is the appropriate relief.
Tehsildar/ Assistant Collector gave notice In view of this, even though I agree that
to petitioner on 23.3.1988. Tehsildar valid allotment was not fully proved by
through order dated 27.7.1988 directed the petitioner still due to inordinate delay
eviction of petitioner and imposed of 30 years in initiating the proceedings
damages of Rs.11400/-. Against the said for eviction, award of the damages is the
order petitioner filed revision which was appropriate relief instead of eviction. The
registered as Case No. 24. Collector amount of Rs.11400/- awarded as
Banda dismissed the revision on damages by the impugned order will be
25.1.1990, hence this writ petition. more than the market value of the land at
the time of occupation i.e. either 1958 or
2. Collector held that petitioner was 1961.
in possession from 1366 to 1395 fasli.
Regarding the plea of valid allotment, 4. Accordingly impugned orders are
Collector held that original Patta was not set-aside in respect of eviction. Petitioner
filed by the petitioner. is directed to pay the awarded damages of
Rs.11400/- within six months. On
payment of these damages, land in dispute
1 All] R.P. Garg V. Indian Oil Corporation Ltd. and another 255
shall stand settled with him. However if disciplinary proceeding without show
damages are not paid within six months cause notices-termination not proper.
then this order shall stand automatically
Held: Para 8
vacated and writ petition shall stand
dismissed. Damages shall be deposited he impugned order has to be judged in
before S.D.O concerned for being kept in the light of what has been contained in it
concerned Gaon Sabha fund. and not on the basis of the stand or the
defence taken in the counter affidavit.
The respondents, by counter affidavit
Writ petition is accordingly disposed
cannot supplement reasons which are
of. not contained in the impugned order.
---------
The above view is fortified by the
ORIGINAL JURISDICTION decision of the Supreme Court in case of
CIVIL SIDE Mohinder Singh Gill & another Vs. The
DATED: ALLAHABAD 01.12.2006 Chief Election Commissioner, New Delhi
& Ors. AIR 1978 SC 851. The Apex Court
BEFORE in the said decision ruled that when
THE HON’BLE PANKAJ MITHAL, J. statutory functionary makes an order
based on certain grounds, its validity
Civil Misc. Writ Petition No. 8502 of 1989 must be judged by the reasons so
mentioned and cannot be supplemented
R.P. Garg …Petitioner by fresh reasons in the shape of affidavit
Versus or otherwise. In view of the above it is
Indian Oil Corporation Ltd. and another not possible to consider the defence
…Respondents taken by the respondents in the counter
affidavit and to read the reasons
mentioned therein for terminating the
Counsel for the Petitioner: services of the petitioner to be part of
Sri A.S. Diwakar the impugned order. Therefore, as the
Sri V.K. Agarwal services of the petitioner under the
Sri I.M. Kushwaha Standing Orders stood confirmed he was
Sri Rahul Sahai not liable to be terminated for the
Sri H.P. Pandey reasons recorded in the impugned order
Sri V.K. Verman by treating him to be on probation.
Admittedly, no disciplinary proceedings
were initiated against the petitioner.
Accordingly, the impugned order is
Sri V.R. Agarwal unsustainable and is liable to be
Sri Vivek Ratan quashed.
Case law discussed:
Constitution of India, Art. 226- AIR 1973 SC-2650
Termination Order-appointment on one AIR 1978 SC-851
year probation with stipulation that 2006 (4) ADJ-772
confirmation of service shall be in
writing-even after expiry of one year (Delivered by Hon'ble Pankaj Mithal, J.)
neither probation period extended-nor
confirmation order passed-performance
found excellent-held shall be deemed 1. The petitioner was appointed as
automatically confirmed-termination Electrician Gr. III with Indian Oil
held-illegal-in view of standing order- Corporation Ltd. vide letter of
services stood confirmed hence without appointment dated 21.4.1986. The said
appointment of the petitioner was on petitioner was sponsored for training by

probation. According to the appointment the Nigam from 3rd February 1986 to 4th
letter the probation was for a period of six July 1986 but the petitioner deserted
months from the date of joining and was training on 19th May 1987 by submitting
liable to be extended or reduced. his resignation which was in violation of
However, condition No. 3 of the the contract which was for a period of
appointment letter stated that the three years. Therefore, he had rendered
petitioner was not liable to be treated as himself disqualified for appointment.
confirmed unless a letter of confirmation
to that effect is issued. The petitioner 3. The first question which arises for
alleges that he had worked satisfactorily determination is whether the services of
and he had completed the probation the petitioner stood confirmed or he
period which was never extended. Under continued to be on probation on the date
the model standing orders framed under on which his services were terminated.
the Industrial Employment Standing
Orders Act, which are applicable, the 4. Undisputedly under the
maximum period of probation provided is appointment letter the petitioner was
one year and on completion of the said appointed on probation and the probation
period of probation, the services of the was to continue till a letter of
petitioner were deemed to be confirmation was issued to him.
automatically confirmed. These Model Admittedly no letter of confirmation was
Standing Orders being statutory in nature ever issued to the petitioner.
supersedes the terms and conditions
contained in the letter of the appointment. 5. However, according to the
Therefore, the petitioner stood confirmed petitioner he stood confirmed under the
after he had put in over one year of Model Standing Orders as he had
service. However, his services were continued in service beyond 12 months,
abruptly terminated without any notice or the maximum period of probation
opportunity of hearing vide order dated provided therein. Learned counsel for the
26.4.1989 on the ground that he is on petitioner Sri Rahul Sahai in this
probation and his services are no longer connection placed reliance upon a
required. The said termination order is decision of the Hon'ble Supreme Court in
under challenge by the petitioner. the case of Western Indian Match
Company Ltd. Vs. Workman AIR 1973
2. In the counter affidavit, the SC 2650. In this case the Apex Court held
respondents have tried to justify the that where the terms of the agreement
termination by stating that the petitioner, were inconsistent with the Standing
before joining his duties had given a Order, the terms of employment as per the
declaration suppressing material Standing Order would prevail over the
information and containing false express terms of the contract of service. In
information. The petitioner in the other words, the terms and conditions of
declaration form had concealed about his employment inconsistence with the
last employment, which was with U.P. Standing Orders would not survive. Thus,
Rajya Vidyut Utpadan Nigam Ltd. On from the above it is evident that the
inquiries it was revealed that the Standing Orders, which have the statutory
1 All] R.P. Garg V. Indian Oil Corporation Ltd. and another 257
force would prevail over the terms and 8. The impugned order has to be
conditions of the letter of appointment. judged in the light of what has been
The Standing Order provides for a contained in it and not on the basis of the
probation of a maximum period of 12 stand or the defence taken in the counter
months. Therefore, the period of affidavit. The respondents, by counter
probation of the petitioner cannot exceed affidavit cannot supplement reasons
the above period. Since the petitioner which are not contained in the impugned
satisfactorily continued in service for order. The above view is fortified by the
three years he stood automatically decision of the Supreme Court in case of
confirmed on the expiry of the above Mohinder Singh Gill & another Vs. The
probation period of 12 months and as Chief Election Commissioner, New
such was a confirmed employee when his Delhi & Ors. AIR 1978 SC 851. The
services were terminated. Apex Court in the said decision ruled that
when statutory functionary makes an
6. Sri V.K. Agrawal, Senior order based on certain grounds, its
Advocate assisted by Sri Vivek Ratan validity must be judged by the reasons so
emphasized that since the petitioner was mentioned and cannot be supplemented
guilty of concealment of facts and of by fresh reasons in the shape of affidavit
making false declaration, his services or otherwise. In view of the above it is not
have rightly terminated as the corporation possible to consider the defence taken by
does not want to retain such type of the respondents in the counter affidavit
persons in employment. and to read the reasons mentioned therein
for terminating the services of the
7. I have examined the record of the petitioner to be part of the impugned
writ petition and have perused the order. Therefore, as the services of the
impugned termination order dated 26th petitioner under the Standing Orders
April 1989. The impugned order stood confirmed he was not liable to be
specifically states "You were on probation terminated for the reasons recorded in the
and no confirmation letter is yet issued to impugned order by treating him to be on
you. Your services cannot therefore be probation. Admittedly, no disciplinary
regarded as confirmed. Your services are proceedings were initiated against the
no longer required by the Corporation petitioner. Accordingly, the impugned
and hence terminated with immediate order is unsustainable and is liable to be
effect". The contents of the impugned quashed.
order demonstrates that the service of the
petitioner had been terminated by treating 9. Sri Agrawal then relied upon the
him to be on probation and for no other decision in the case of Ramesh Prasad
ground much less for the reasons stated in Patel Vs. Union of India & Ors. 2006 (4)
the counter affidavit. The termination ADJ 772 (Alld.) and submitted that even
order does not say that the services of the if the petitioner is treated to be a
petitioner are being terminated on the confirmed employee since his services
ground of concealment of facts and for have been terminated on the ground as
making a false declaration at the time of stated in the counter affidavit i.e. for
seeking the employment. making wrong declaration, which was
subsequent found to be false as such the
principles of natural justice are not Counsel for the Respondent:

attracted and the appointment of the Sri A.N. Mahajan
petitioner itself stand vitiated under law. S.C.
The above argument is devoid of any
substance in as much as the impugned Income Tax Act, 161, Section 271 (c)-
Imposition of penalty applicant-assessed
termination order has otherwise been
income tax during assessment year
found to be invalid without going into the 1989-90-assessee concealed the
question of it having been passed in particulars of income of Rs.1,65,000/-
violation of the principles of natural held-the satisfaction can be concluded
justice. Moreover, the respondents have from assessment order itself-penalty
not chosen to cancel the appointment of proceeding rightly initiated.
the petitioner on the alleged ground of
Held: Para 20
misrepresentation or concealment of fact
which may have possibly be done without So far as the two decisions of the Delhi
affording any opportunity of hearing to High Court are concerned, we find that
the petitioner. under the provisions of the Act, the
Income Tax Officer is not required to
10. In view of the above discussion, record his satisfaction in a particular
manner or reduce it in writing. It can be
the impugned termination order dated gathered from the assessment order
26th April 1989 (Annexure 3 to the writ itself. In D.M. Mansavi (supra) the Apex
petition) is quashed. However, the Court has clearly held that the Income
respondents are at liberty to pass a fresh Tax Officer should be satisfied during the
order if they so desire in accordance with course of the assessment proceeding
law. that the assessee had concealed his
particulars of income or has furnished
inaccurate particulars of such income.
The writ petition is allowed. No The satisfaction can be gathered from
order as to costs. the assessment order. In the present
--------- case, we find that the Income Tax Officer
ORIGINAL JURISDICTION had material before him for being
CIVIL SIDE satisfied that the applicant has
DATED: ALLAHABAD 30.10.2006 concealed the particulars of his income
and, therefore, penalty proceeding have
BEFORE rightly been initiated. We are, therefore,
THE HON’BLE R.K. AGRAWAL, J. with great respect unable to persuade
THE HON’BLE VIKRAM NATH, J. ourselves to follow the view taken by the
Delhi High Court in the aforesaid two
cases.
Income Tax Reference No.73 of 1993
Case law discussed:
(1991) 189 I.T.R. 41 (Bom)
M/s Nainu Mal Het Chand, Kanpur (1994) 210 ITR 103 (Cal.)
…Applicant (1999) 235 ITR-461 (G)
Versus (2000)164 CTR 209 (Guj)
Commissioner of Income Tax, Kanpur (2000) 246 ITR-568 (Delhi)
…Respondent (2000) 246 ITR-571
(2003) 263 ITR-484 (P & H)
Counsel for the Applicant: (1972) 86 ITR-557
Sri K.N. Kumar
1 All] M/s Nainu Mal Hot Chand, Kanpur V. Comissioner of Income tax, Kanpur 259
(Delivered by Hon’ble R.K. Agrawal, J.) the income had already been assessed in
the hand of the minors and that the
1. The Income Tax Appellate deposits have come from their savings
Tribunal, Allahabad has referred the bank account through cheques. The
following question of law under Section genuineness of the cash credit as well as
256(1) of the Income Tax Act, 1961 the capacity to give money/loan stands
(hereinafter referred to as "the Act") for established. The Assessing Authority after
opinion to this Court:- examining the explanation and the
documents filed by the applicant in the
"Whether on the facts and in the assessment proceeding, came to the
circumstances of the case, the Tribunal conclusion that all the three minors are
was justified in confirming the penalty grand sons of Sri Nainu Mal Matlani who
under Section 271(1)(c) read with is a partner of the firm and are closely
Explanation 1 thereto?" related to the partners. The father of
Master Manish Matlani, Sri Ram Chandra
2. The reference relates to the Matlani is working as Manager on a
Assessment Year 1989-90 in respect of salary of Rs.1,500/- p.m. in M/s Naini
the penalty imposed under Section Mal & Sons, which is a sister concern of
271(1)(c) of the Act. the applicant whereas Sri Om Prakash
Matlani, father of Master Hitesh Matlani
3. Briefly stated, the facts giving rise and Sri Kanhaiya Lal Matlani, father of
to the present reference are as follow:- Master Lucky Matlani, are working in the
applicant firm on a monthly salary of
The applicant has been assessed to Rs.1,500/-. He further found that Master
income tax during the assessment year Lucky Matlani had a credit balance of
1989-90 as a registered firm. During the Rs.27,000/- in the applicant firm. He had
course of the assessment proceeding, made a deposit of Rs.2,000/- on 2.4.1988,
three cash credit entries of Rs.26,000/- Rs.58,000/- on 21.6.1988 and Rs.1,000/-
appearing in the name of Master Manish on 1.7.1988 and the entire amount was
Matlani, Rs.78,000/- appearing in the squared up on 28.7.1988. The source of
name of Master Hitesh Matlani and deposit of Rs.61,000/- made during the
Rs.61,000/- appearing in the name of year was explained as gifts received by
Master Lucky Matlani were noticed by the minor on various occasions. However,
the Assessing Authority. He proposed no proof regarding receipt of gifts was
addition of the aforesaid amount under furnished. The only explanation offered
Section 68 of the Act. The applicant gave was that the minor had shown the gift as
the explanation that all the three his income in his return filed for the
depositors who were minors, have been assessment years 1986-87, 1987-88 and
regularly assessed to tax with the Income 1988-89. Sri Kanhaiya Lal, father of
Tax Officer, Ward II (VII), Kanpur and Master Lucky Matlani, who was
were maintaining savings bank account examined under Section 131 of the Act,
with the Indian Overseas Bank, Swarup had deposed in his statement that in the
Nagar Branch, Kanpur. The applicability return of income of Master Lucky Matlani
of the provisions of Section 68 of the Act filed for the assessment year 1988-89,
was also challenged on the ground that Rs.87,800/- was shown as cash in hand
which was deposited in the savings bank which is the same date on which the
account maintained with the Indian amount was credited by the applicant in
Overseas Bank, Swarup Nagar Branch, its books of account. He came to the
Kanpur from where Rs.58,000/- was conclusion that the firm's profit had been
withdrawn and deposited with the routed through minor's bank account. In
applicant firm. On being questioned to respect of the deposits appearing in the
explain the source of the income of the name of Master Hitesh Matlani, the
minor declared in the income tax return, position was no different. The Assessing
Sri Kanhaiya Lal had stated that the gifts Authority added a sum of Rs.1,65,000/-
were the source of the income for which towards unexplained cash credit under
he had no proof and every year the source Section 68 of the Act. The additions have
of income remained the same, i.e., the been upheld upto the stage of the
gifts. On being further questioned as to Tribunal. The Income Tax Officer while
how the gifts received in each year were passing the assessment order, also
not deposited in the bank account directed for initiation of penalty
immediately or soon thereafter they were proceeding under Section 271(1)(c) of the
received, Sri Kanhaiya Lal had no Act for concealment of particulars of its
explanation to offer. The Income Tax income. After considering the explanation
Officer examined the savings bank given by the applicant, he imposed a sum
account pass book of Master Lucky of Rs.86,950/- as penalty. The appeal
Matlani and found that the amount of preferred by the applicant has been
Rs.87,800/- was deposited in cash on rejected by the Commissioner of Income
21.6.1988 and on the same day, the Tax (Appeals), Kanpur, which order has
money was deposited with the firm. He been affirmed by the Tribunal.
came to the conclusion that it is nothing
but unaccounted profit of the firm which 4. We have heard Sri K.N. Kumar,
has come to it in the garb of gifts and learned counsel for the applicant, and Sri
subsequently as deposits in the name of A.N. Mahajan, learned Standing Counsel
the minors. So far as the deposit made by appearing for the Revenue.
Master Manish Matlani is concerned, his
account with the applicant firm showed 5. The learned counsel for the
opening credit balance of Rs.8,000/- and applicant submitted that before initiating
further credit of Rs.25,000/- on 21.6.1988 penalty proceedings under Section
and Rs.1,000/- on 1.7.1988 and the entire 271(1)(c) of the Act, the Income Tax
amount was squared up on 1.10.1988. The Officer had not recorded his satisfaction
explanation furnished was the same as in and, therefore, the entire penalty
the case of Master Lucky Matlani. Sri proceeding stands vitiated. He further
Ram Chandra Matlani, father of Master submitted that minor depositors had three
Manish Matlani, was examined under independent source of income and the
Section 131 of the Act and he gave the money credited in the books of account of
similar explanation. The copy of the the applicant really belonged to them.
savings bank account of Master Manish They were income tax payees and had
Matlani was also examined by the Income been assessed to income tax on such
Tax Officer who found that Rs.25,000/- income whereunder the amounts received
was deposited on 21.6.1988 in the bank by them as gifts have been treated to be
their income and merely because in the the authorities. According to him, in the
quantum proceeding the amount had been assessment order itself the Assessing
added under Section 68 of the Act at the Authority had mentioned for initiating
hands of the applicant, the explanation penalty proceeding under Section
given by the applicant cannot be treated to 271(1)(c) of the Act for concealment of
be false or unsubstantiated. Thus, no particulars of income which itself
penalty under Section 271(1)(c) of the Act establishes that the Income Tax Officer
could have been imposed. He further was satisfied that in the present case
submitted that the onus of proving the penalty proceeding for concealment of
source of these deposits have been particulars of income has to be initiated.
discharged. In support of his aforesaid According to him, no particular form of
plea, he has relied upon the following recording satisfaction has been mentioned
decisions:- under the Act and, therefore, recording of
the fact to initiate penalty proceeding
(i) Commissioner of Income Tax v. during the course of the assessment
Dajibhai Banjibhai, (1991) 189 ITR 41 proceeding would itself mean that the
(Bom); Assessing Authority was satisfied that the
(ii) Commissioner of Income Tax v. applicant had concealed the particulars of
Eastern Commercial Enterprises, his income and penalty proceedings have
(1994) 210 ITR 103 (Cal); to be initiated. He further submitted that
(iii) Roop Chandra & Manoj Kumar v. the explanation offered by the applicant
Commissioner of Income Tax, (1999) had rightly been disbelieved by all the
235 ITR 461 (Gau); authorities including the Tribunal on valid
(iv) National Textiles v. Commissioner and cogent reasons. He submitted that
of Income Tax, (2000) 164 CTR 209 Explanation 1 to Section 271(1)(c) of the
(Guj); Act clearly applies in the present case as
(v) Commissioner of Income Tax v. the explanation offered by the applicant
Ram Commercial Enterprises Ltd., has been found to be false by all the
(2000) 246 ITR 568 (Delhi); authorities. Thus, the penalty has rightly
(vi) Diwan Enterprises v. been imposed. He has relied upon a
Commissioner of Income Tax, (2000) decision of the Apex Court in the case of
246 ITR 571 (Delhi); and D.M. Manasvi v. Commissioner of
(vii) Commissioner of Income Tax v. Income Tax, Gurjarat - II, Ahmedabad,
Munish Iron Store, (2003) 263 ITR 484 (1972) 86 ITR 557.
(P&H).
7. We have given our anxious
6. On the other hand, Sri A.N. consideration to the various pleas raised
Mahajan, learned Standing Counsel, by the learned counsel for the parties.
submitted that the deposits made by the
three minors with the applicant have been 8. It is not in dispute that the
upheld upto the stage of the Tribunal to be deposits of Rs.1,65,000/- appearing in the
not genuine deposits and have been added name of three minors have been added as
as unexplained cash credit under Section unexplained cash credit under Section 68
68 of the Act. The explanation offered by of the Act. The explanation given by the
the applicant had been disbelieved by all applicant has been found to be false by all
the authorities including the Tribunal. In proceeding that the assessee had
the penalty proceeding, similar concealed the particulars of his income or
explanation was given, which had been has furnished incorrect particulars of such
disbelieved and penalty of Rs.86,950/- income. In paragraph 8 of the report, the
under Section 271(1)(c) of the Act has Apex Court has held as follows:-
been imposed. The Tribunal while dealing
with the explanation has recorded a "The fact that notices were issued
finding of fact that the applicant has not subsequent to the making of the
been able to substantiate the explanation assessment orders would not, in our
to the effect that the depositors have opinion, show that there was no
received gifts in any of the previous years satisfaction of the Income-tax Officer
or had any independent source of income; during the assessment proceedings that
the applicant has not been able to prove the assessee had concealed the particulars
that this explanation was bona fide; there of his income or had furnished incorrect
was no documentary evidence in support particulars of such income. What is
of the assessee's contention; even the contemplated by clause (1) of section 271
name of the person from whom the is that the Income-tax Officer or the
alleged gifts were received, were not Appellate Assistant Commissioner should
disclosed to the Department; the minor have been satisfied in the course of
depositors were intimately related to the proceedings under the Act regarding
partners of the assessee firm; the matters mentioned in the clauses of that
explanation was baseless and the sub-section. It is not, however, essential
provision of Section 271(1)(c) of the Act that notice to the person proceeded
were attracted in the present case. against should have also been issued
during the course of the assessment
9. The learned counsel for the proceedings. Satisfaction in the very
applicant had not been able to show that nature of things precedes the issue of
the conclusions arrived at by the Tribunal notice and it would not be correct to
suffer from any legal infirmity. It is based equate the satisfaction of the Income-tax
on appreciation of evidence and material Officer or Appellate Assistant
on record. The Tribunal has not Commissioner with the actual issue of
committed any illegality while recording notice. The issue of notice is a
the aforesaid findings and the conclusions consequence of the satisfaction of the
it drew. Income-tax Officer or the Appellate
Assistant Commissioner and it would, in
10. So far as the question of our opinion, be sufficient compliance with
recording the satisfaction by the Income the provisions of the statute if the Income-
Tax Officer is concerned, we find that the tax Officer or the Appellate Assistant
Apex Court in the case of D.M. Mansavi Commissioner is satisfied about the
(supra) has held that merely because matters referred to in clauses (a) to (c) of
notices for imposition of penalty were sub-section (1) of section 271 during the
issued subsequent to making of the course of proceedings under the Act even
assessment order, would not show that though notice to the person proceeded
there was no satisfaction of the Income against in pursuance of that satisfaction is
Tax Officer during the assessment issued subsequently. We may in this
context refer to a decision of five judges 12. Though Section 271(1)(c) of the
Bench of this court in the case of Act was not mentioned as one of the
Commissioner of Income-tax v. S. V. sections in respect of which the Income
Angidi Chettiar [(1962) 44 ITR 739] Tax Officer was satisfied, the Inspecting
Shah J., speaking for the court, while Assistant Commissioner to whom the
dealing with section 28 of the Indian reference was made, imposed penalty of
Income-tax Act, 1922, observed: Rs.3,00,000/- under Section 271(1)(c) of
the Act. In the light of the aforesaid facts,
"The power to impose penalty under the Bombay High Court has held as
section 28 depends upon the satisfaction follows:-
of the Income-tax Officer in the course of
proceedings under the Act; it cannot be ".......the legal position in this regard
exercised if he is not satisfied about the is now well settled. In view of the
existence of conditions specified in clause Supreme Court's decision in CIT v. S. V.
(a), (b) or (c) before the proceedings are Angidi Chettiar [1962] 44 ITR 739,
concluded. The proceeding to levy power to impose penalty under section 28
penalty has, however, not to be of the old Act corresponding to section
commenced by the Income-tax Officer 271 of the new Act depends upon the
before the completion of the assessment satisfaction of the Income-tax Officer in
proceedings by the Income-tax Officer. the course of the proceedings under the
Satisfaction before conclusion of the Act. It cannot be exercised if he is not
proceeding under the Act, and not the satisfied and has not recorded his
issue of a notice or initiation of any step satisfaction about the existence of the
for imposing penalty is a condition for the conditions specified in clauses (a), (b) and
exercise of the jurisdiction." (c) before the proceedings are concluded.
There is no evidence on record to show
11. In the case of Dajibhai that the Income-tax Officer, in this case,
Kanjibhai (supra) one of the questions up was satisfied in the course of the
for consideration before the Bombay High assessment proceedings. Therefore, we
Court was as to whether the finding of the must hold that the penal provisions of
Tribunal that the primary ingredient for section 271(1)(c) were not attracted in this
initiating penalty proceedings was absent case."
in the case as the Income-tax Officer did
not record his satisfaction during the 13. The aforesaid decision is clearly
course of the assessment proceedings is distinguishable for the reason that in the
correct in law? In the last paragraph of the present case during the course of the
assessment order, the Income Tax Officer assessment proceeding the Income Tax
has stated as follows:- Officer has mentioned for initiating
penalty proceeding under Section
"Assessed under section 144 of the 271(1)(c) of the Act for concealment of
Act. Issue notice of demand. Issue notice the particulars of income.
under sections 271(1)(a), 273(b) and
271(l)(b) of the Act Charge interest under 14. In the case of Eastern
section 217. Give concession in tax as per Commercial Enterprises (supra) the
Taxation Concessions Order, 1964." Calcutta High Court has held that it is trite
law that cross-examination is the sine qua therefore, the credit worthiness of the
non of due process of taking evidence and depositors stands disproved.
no adverse inference can be drawn against
a party unless the party is put on notice of 16. In the case of National Textiles
the case made out against him and he (supra) the Gujarat High Court has held
must be supplied the contents of all such that the Explanation is to the effect that
evidence, both oral and documentary, so where in respect of any fact or material
that he can prepare to meet the case for purposes of his assessment, an
against him which necessarily also assessee offers an explanation which is
postulates that he should cross-examine found by the Assessing Officer or the
the witness hostile to him. In the present Deputy Commissioner of Income Tax
case, we find that all the witnesses (Appeals) to be false or where the
examined under Section 131 of the Act assessee is unable to substantiate his
were fathers of the minor depositors and explanation, then the amount added to his
were closely related with the applicant. In income shall be deemed to represent his
any event, the applicant had not raised concealed income; the newly introduced
any grievance nor had made any request Explanation 1 considerably reduces, but
for cross examination. The aforesaid does not altogether remove the
decision is, therefore, of no help to the Department's onus to prove concealment
applicant. in assessed income based on unexplained
cash credit or unexplained investment and
15. In the case of Roop Chandra & like; in order to justify the levy of penalty,
Manoj Kumar (supra) the Gauhati High two factors must co-exist, (i) there must
Court has held where the gift amount does be some material or circumstances
not run into four or five figures, generally leading to the reasonable conclusion that
no record or list is maintained and this is the amount does represent the assessee's
not a case of receipt of gifts on one income; it is not enough for the purpose
occasion, like marriage, etc. and were of penalty that the amount has been
purportedly received on various assessed as income, and (ii) the
occasions, each year and for 12-14 years, circumstances must show that there was
the creditworthiness in respect of a sum of animus, i.e., conscious concealment or no
Rs.9,000 each by the two creditors stands act of furnishing of inaccurate particulars
established. The facts of the present case on the part of the assessee; the
are entirely different. Here the gifts run Explanation has bearing on factor no.1
into five figures. The list of the donors but it has bearing only on factor no.2; the
have not been produced nor any Explanation does not make the
explanation had been given. Even the assessment order conclusive evidence that
recipients of the gifts, i.e., the three the amount assessed was in fact the
minors had voluntarily disclosed the same income of the assessee; no penalty can be
as their income. The amount which had imposed if the facts and circumstances are
been advanced, was deposited in cash on equally consistent with the hypothesis that
the same day with the bank and later the amount does not represent concealed
given as loan by cheques. The authorities income as with the hypothesis that it does;
have disbelieved the explanation and, if a assessee gives an explanation which is
unproved but not disproved, i.e., it is not
accepted but circumstances do not lead to Tribunal wherein the Tribunal has given
the reasonable and positive inference that the following reasoning for cancelling the
the assessee's case is false, the penalty imposed under Section 271(1)(c)
Explanation cannot help the Department of the Act:-
because there will be no material to show
that the amount in question was the "It is clear from the above that not a
income of the assessee; alternatively, word has been written about concealment
treating the Explanation as dealing with of income. The Assessing Officer quietly
both the ingredients (i) and (ii) above, accepted the revised return and the
where the circumstances do not lead to income disclosed therein. He did not
the reasonable and positive inference that record how and why the revised return
the assessee's explanation is false, the was submitted. The statement of the
assessee must be held to have proved that partner on pages 14-16 of the paper book,
there was no mens rea or guilty mind on Shri Ramesh Kumar was recorded and in
his part; even in this view of the matter, that statement, he did explain the reasons
the Explanation alone cannot justify levy which led to filing of the revised return.
of penalty and absence of proof Learned counsel for the assessee
acceptable to the Department cannot be contended that those reasons were
equated with fraud or wilful default. impliedly accepted by the Assessing
Officer. Looking at the assessment order,
17. In the case of Ram Commercial one cannot challenge the above assertion
Enterprises Ltd. (supra) the Delhi High of learned counsel for the assessee. At any
Court has held that a bare reading of the rate, the satisfaction above the
provisions of section 271 and the law laid concealment of income of furnishing of
down by the Supreme Court makes it inaccurate particulars of income to
clear that it is the assessing authority assume jurisdiction to initiate and levy
which has to form its own opinion and penalty is clearly not recorded as enjoined
record its satisfaction before initiating the by law. The above jurisdictional defect in
penalty proceedings; merely because the our view cannot be cured. Accordingly,
penalty proceedings have been initiated, it we hold that penalty imposed is not valid
cannot be assumed that such a satisfaction and jurisdiction to impose the same was
was arrived at in the absence of the same illegally assumed without recording a
being spelt out by the order of the proper satisfaction. Penalty imposed is
assessing authority; even at the risk of cancelled for the above reasons."
repetition we would like to state that the
assessment order does not record the 19. The aforesaid decisions is of no
satisfaction as warranted by section 271 help to the applicant inasmuch as in the
for initiating the penalty proceedings. The present case we find that in the
aforesaid decision has been followed assessment order the Assessing Authority
subsequently by the Delhi High Court in had recorded a clear finding that the
the case of Diwan Enterprises (supra). profits of the firm had been diverted
through the deposits in question and a
18. In the case of Munish Iron case of concealment has been made out.
Store (supra) the Punjab and Haryana
High Court has approved the order of the
20. So far as the two decisions of the Counsel for the Revisionists:
Delhi High Court are concerned, we find Sri Rahul Chaturvedi
that under the provisions of the Act, the
Income Tax Officer is not required to Counsel for the Opposite Parties:
record his satisfaction in a particular A.G.A.
manner or reduce it in writing. It can be Sri K.K. Nirkhi
gathered from the assessment order itself.
In D.M. Mansavi (supra) the Apex Court
Power of Trail Court-an extra ordinary
has clearly held that the Income Tax one-to be exercised ex-debito justice-
Officer should be satisfied during the only when reasonable possibility of
course of the assessment proceeding that conviction-un married handicapped girl
the assessee had concealed his particulars suffering deformity in her leg-no
of income or has furnished inaccurate possibility of her involvements-should
particulars of such income. The not be harassed merely because of the
relative of husband of the deceased-
satisfaction can be gathered from the consequential directions issued.
assessment order. In the present case, we
find that the Income Tax Officer had Held: Para 10 & 11
material before him for being satisfied
that the applicant has concealed the Power under section 319 Cr.P.C. is an
particulars of his income and, therefore, extraordinary power given to the court
to be exercised ex- debito justice. It
penalty proceeding have rightly been should be exercised sparingly only when
initiated. We are, therefore, with great it is required most. Summoning any body
respect unable to persuade ourselves to as an accused at the stage of trial after
follow the view taken by the Delhi High the evidence had started in the case
Court in the aforesaid two cases. should be resorted to only when there is
reasonable possibility of his conviction.
Asking some body to fact the ordeal of
21. In view of the foregoing trial only to be acquitted is not the law
discussions, we answer the question but is his harassment.
referred to us in the affirmative, i.e., in
favour of the Revenue and against the On the facts of the present case I find
assessee. There shall be no order as to that revisionist no.1 is an unmarried girl
costs. who is handicapped and has deformity in
her leg. Her involvement in the offence is
---------
a remote possibility. So far as two other
revisionists are concerned they are a
CRIMINAL SIDE
married couple resident of different
places. Merely because they are relatives
of the husband they should not be
BEFORE
harassed without any specific allegation
THE HON’BLE VINOD PRASAD, J. against them. They have got two infant
daughters and it very unlikely that they
Criminal Revision No. 4674 of 2006 will indulge in the demand of dowry and
torture. There is no specific allegation
Km. Mona and others …Revisionists against them and their names are
Versus mentioned as a matter of course in the
State of UP and another …Respondents statements, which in my view was not
sufficient to anoint any charge on them.
1 All] Km. Mona and others V. State of U.P. and another 267
(Delivered by Hon'ble Vinod Prasad, J.) subjected to torture. Kusum made a

complaint of the said demand to the
1. Aggrieved by their summoning informant and other relatives. The
order dated 15.7.2006, under section 319 informant tried to pacify the in laws but of
Cr.P.C., passed by Additional Chief no avail. There was a conciliatory
Judicial Magistrate, Court No. 1, Mathura meeting also in which the accused had
in criminal case no. 1312 of 2005 State said that they will not demand the dowry
versus Gajendra Pal Singh And Others, henceforth. On 18.7.2003 the accused
the three revisionists- Km. Mona, Smt persons accompanied with Kusum came
Poonam and Balvir Singh have to do Govardhan Parikrama on a jeep and
approached this court in it's revisional then while returning they dropped Smt
jurisdiction under sections 397/401 Kusum near Agra Canal at 1.30 AM in
Cr.P.C. with the prayer that the said order the night of 14.7.2003 and went away
of summoning them in the aforesaid case warning her that she will not bring the car
be quashed. Their interim prayer is for they will accept her back. Smt. Kusum
stay of further proceeding of the said case tried to plead that her parents were poor
no. 1312 of 2005 State versus Gajendra and they will not be able to fulfill the car
Pal Singh And Others interregnum. demand she was assaulted as well. This
incident was witnessed by Pooran,
2. In short the factual matrix of the Banwari Lal, Pritam Singh, Bhagwan
case are that a FIR was lodged by Das, who all saved Kusum. The accused
Raghunath Prasad against Veeri Singh, then left for Mathura. The informant tried
his wife Smt Prabha, his two sons to lodge the report on 14.7.2003 and
Gajendra Singh and K.P. Singh and two 17.7.2003 but the same was not
daughters Km. Mona, Smt. Poonam and registered. At last he filed a written FIR to
one Balbir Singh at police station Senior Superintendent Of Police Mathura
Govardhan District Mathura as crime on 18.7.2003 and on his direction his FIR
number 270 of 2003 under sections 498A, was registered on 16.10.2003 at 8.30 PM
323 IPC and ¾ D.P. Act in respect of an at PS Govardhan District Mathura as
incident dated 26.11.2001 to 14.7.2003. crime number 270 of 2003 under sections
The narration of incident in the said FIR 498A, 323, IPC and ¾ D.P. Act. The
were that Kusum Singh,daughter of the police investigated the matter and
informant Raghunath Prasad Pali was ultimately submitted a charge sheet
married to Gajendra Singh son of Veeri against rest of the accused persons but for
Singh on 26.11.2001.In the marriage the the revisionist against whom the police
informant had spent Rs. 5 lakhs which did not find offence being committed by
included one lakh fifty thousand cash, one them. The submission of charge sheet was
Hero Honda Motor Cycle, 20 Tolas of succeeded by trial in the court of Ist
gold 1 ½ KG of silver ornaments fridge, Additional Chief Judicial Magistrate
Washing Machine and other house hold Mathura as case number 1312 of 2005
articles. The accused were no satisfied State versus Gajendra Pal And Others. In
with the dowry given in the marriage and the trial during the examination of PW 2
started torturing Smt. Kusum for bring a Smt. Kusum an application, 27 Ba, was
car. For the fulfillment of the said demand filed by the prosecution to summon the
Kusum was assaulted also and was revisionists under section 319 Cr.P.C. but
the same was rejected by the trial court also contended that there are no specific
vide it's order dated 6.6.2006 on the allegations against the revisionists and
grounds that the three revisionist are they are named in the statements only to
married Nanad and Nandoi and she used be harassed. He contended that during the
to reside in her in laws house and that course of investigation the complicity of
merely because they were named in the the revisionist was found to be false and
statement they should not be summoned. therefore on the same evidence the
More over the cross examination of PW.2 revisionist should not be summoned. He
was continuing and therefore till her further contended that the summoning
cross-examination is over there was no order is illegal and deserves to be set
reason to summon the revisionists vide aside.
annexure no. 3 to the affidavit filed in
support of this revision. How ever from 5. Learned AGA as well as learned
the record it transpires that after the counsel for the victim contended that
examination of PW 2 Kusum, the wife since the revisionist are named in the
was over on 9.6.2006 the prosecution statements therefore they are liable to be
filed another application for summoning summoned and there is no illegality in the
the revisionist under section 319 Cr.P.C. impugned order which deserves to be up
vide paper no. 48 A. which was allowed held. They further submitted that the
by the trial court vide it's impugned order demand of the car or of RS. Two lakhs in
dated 15.7.06 which order is under lieu thereof was made by all the accused
challenge in this revision. and therefore the summoning order is not
bad in law. They also contended that once
3. I have heard Sri Rahul Chaturvedi a person is named in the statement
learned counsel for the applicant in recorded in court as an accused the court
support of this revision and the learned has no option but to summon him for trial.
AGA as well as Sri K.K.Nirkhi, Learned In their submission the revision lacked
counsel for the victim Smt. Kusum. merit and deserved to be dismissed.
4. Sri Rahul Chaturvedi contended 6. In view of rival contentions and

that the summoning order under section keeping the facts of the case into
319 Cr.P.C. is illegal and deserves to be consideration when I examine the matter
quashed. He contended that on the earlier it transpired that the revisionist were
occasion the trial court had rightly named in the FIR. There was no specific
rejected the prayer for summoning the allegation against them but they were
revisionists by passing a well-reasoned named in a casual way. The investigating
and well-considered order on 6.6.2006. officer after the investigation found their
He further contended that the revisionist complicity in the crime not established
no. 1 Km. Mona is unmarried girl and is and hence no charge sheet was submitted
handicapped and therefore her implication in their respect. At the stage of
is false. He further contended that rest of summoning on objection was raised
the two revisionists Smt Poonam and her regarding non-charge sheeting the
husband Balvir are residents of revisionist by the informant or the victim.
Bulandshahr and therefore their During the trial PW 1 Aghast oath Prasad
summoning order is also bad in law. He had admitted that Gajendra husband had
1 All] Km. Mona and others V. State of U.P. and another 269
filed a case of restitution of conjugal "6. Before we proceed to deal with

rights in Oligarchy much before the the two contentions relating to limitation
present case.He also admitted the and territorial jurisdiction, we would like
revisionist no. 1 Mona is unmarried and to consider first the contention advanced
she is handicapped by one leg. He further on behalf of the appellant-Gowri
admitted that revisionist no, 2 was Ramaswamy. Looking at the allegations
married prior to the marriage of Kusum. in the F.I.R. and the contents of charge
He intentionally concealed stating the age sheet, we hold that none of the alleged
of Mona and regarding children of Smt. offences, viz. Sections 498-A, 406 of the
Poonam and her husband. In his statement I.P.C. and Section 4 of the Dowry
he has no said any thing against the Prohibition Act are made out against her.
revisionist specifically but has only said at She is the married sister of the
times "Sasural Wale". At rest of the informant's husband who is undisputedly
places he has stated "All accused" without living in Delhi with her family. Assuming
making any specification. His whole that during the relevant time, i.e. between
statement read to gather indicates that March and October, 1997, when the 6th
there is a dispute between husband and respondent (informant) lived in Mumbai
wife read-only far statement of victim in her marital home, the said lady stayed
Kusum PW 2 is concerned her statement with them for some days, there is nothing
also does no improve upon the merit of in the complaint which connects her with
prosecution case. She is an educated lady an offence under Section 498-A or any
and is postgraduate. She has also admitted other offence of which cognizance was
that Mona has got a deformity in her one taken. Certain acts of taunting and ill-
leg. She has admitted that the application treatment of informant by her sister-in-
under section 9 of Hindu Marriage Act law (appellant) were alleged but they do
1955 was filed by Gajendra (husband) in not pertain to dowry demand or
2002 being AP No. 1105/ 02. She even entrustment and misappropriation of
does not remember as the demand was property belonging to the informant. What
made for which car. She admitted that the was said against her in the F.I.R. is that
revisionist no. 3 is posted in Narora and on some occasions, she directed the
both revisionist no. 2 and 3 Poonam and complainant to wash W.C. and she used
Balvir had two daughters Shikha and to abuse her and use to pass remarks such
Sonu aged about 4 and 2 years as 'even if you have got much jewellery,
respectively. She has also admitted that you are our slave'. It is further stated in
but for her husband and father in law no the report that Gowri would make wrong
other accused has assaulted her. Thus imputations to provoke her husband and
from the above gist of her statement it is would warn her that nobody could do
clear that the material on record is anything to her family. These allegations,
insufficient to try the revisionist. At this even if true, do not amount to harassment
stage a glimpse of law laid down by the with a view to coercing the informant or
apex court may be taken to be the guiding her relation to meet an unlawful demand
factor. It has been held by the apex court for any property or valuable security. At
in the case of Ramesh And Others the most, the allegations reveal that her
versus State of Tamil Nadu : AIR 2005 sister-in- law Gowri was insulting and
SC 1989 as follows:- making derogatory remarks against her
and behaving rudely against her. Even 12. But even then, what is conferred
acts of abetment in connection with on the Court is only a discretion as could
unlawful demand for property/dowry are be discerned from the words "the Court
not alleged against her. The bald may proceed against such person". The
allegations made against her sister-in-law discretionary power so conferred should
seem to suggest the anxiety of the be exercised only to achieve criminal
informant to rope in as many of the justice. It is not that the Court should turn
husband's relations as possible. Neither against another person whenever it comes
the F.I.R. nor the charge-sheet furnished across evidence connecting that another
the legal basis to the Magistrate to take person also with the offence. A judicial
cognizance of the offences alleged against exercise is called for keeping a
the appellant-Gowri Ramaswamy. The conspectus of the case, including the
High Court ought not to have relegated stage at which the trial has proceeded
her to the ordeal of trial. Accordingly, the already and the quantum of evidence
proceedings against the appellant-Gowri collected till then, and also the amount of
Ramaswamy are hereby quashed and her time which the Court had spent for
appeal stands allowed." collecting such evidence. It must be
remembered that there is no compelling
7. Further in the case of Michael duty on the Court to proceed against
Machado v. Central Bureau of other persons."
Investigation: AIR 2000 SUPREME
COURT 1127 the apex court has held as 8. The Supreme court in Municipal
follows:- Corporation of Delhi v. Ram Kishan
Rohtagi, AIR 1983 SC 67 has held that: -
"11. The basic requirements for
invoking the above section is that it "But we would hasten to add that this
should appear to the Court from the is really an extraordinary power which is
evidence collected during trial or in the conferred on the Court and should be
inquiry that some other person, who is not used very sparingly and only if
arraigned as an accused in that case, had compelling reasons exist for taking
committed an offence for which that cognizance against the other person
person could be tried together with the against whom action has not been taken."
accused already arraigned. It is not
enough that the Court entertained some 9. It has been further held by the
doubt, from the evidence, about the apex court in the case of Michael
involvement of another person in the Machado (Supra):-
offence. In other words, the Court must
have reasonable satisfaction from the "14. The Court while deciding
evidence already collected regarding two whether to invoke the power under
aspects. First is that the other person has Section 319 of the Code, must address
committed an offence. Second is that for itself about the other constraints imposed
such offence that other person could as by the first limb of sub-section (4), that
well be tried along with the already proceedings in respect of newly added
arraigned accused. persons shall be commenced afresh and
the witnesses re-examined. The whole
1 All] Pujari Yadav V. Ram Briksh Yadav 271
proceedings must be re-commenced from be harassed without any specific

the beginning of the trial, summon the allegation against them. They have got
witnesses once again and examine them two infant daughters and it very unlikely
and cross-examine them in order to reach that they will indulge in the demand of
the stage where it had reached earlier. If dowry and torture. There is no specific
the witnesses already examined are quite allegation against them and their names
a large in number the Court must are mentioned as a matter of course in the
seriously consider whether the objects statements, which in my view was not
sought to be achieved by such exercise is sufficient to anoint any charge on them.
worth wasting the whole labour already
undertaken. Unless the Court is hopeful Resultantly in view of the
that there is reasonable prospect of the discussions made above I find force in
case as against the newly brought this revision, which deserves to be
accused ending in conviction of the allowed.
offence concerned we would say that the
Court should refrain from adopting such 12. This revision is allowed. The
a course of action." impugned order dated 15.7.2006, under
section 319 Cr.P.C., passed by Additional
10. Thus from the above law laid Chief Judicial Magistrate, Court No. 1,
down by the apex court it is evident that Mathura in criminal case no. 1312 of
no body should be summoned under 2005 State versus Gajendra Pal Singh
section 319 Cr.P.C. only to face the trial. And Others summoning the three
There should be possibility of his revisionists- Km. Mona, Smt Poonam and
conviction as well. Power under section Balvir Singh is here by set aside. The trial
319 Cr.P.C. is an extraordinary power court is directed to proceed with the case
given to the court to be exercised ex- against rest of the accused and conclude
debito justice. It should be exercised the same if possible within five months.
sparingly only when it is required most. Revision allowed.
Summoning any body as an accused at the ---------
stage of trial after the evidence had started APPELLATE JURISDICTION
CIVIL SIDE
in the case should be resorted to only
when there is reasonable possibility of his
conviction. Asking some body to fact the BEFORE
ordeal of trial only to be acquitted is not THE HON’BLE YATINDRA SINGH, J.
the law but is his harassment. THE HON’BLE RAN VIJAI SINGH, J.
11. On the facts of the present case I Second Appeal No. 1291 of 1981
find that revisionist no.1 is an unmarried
girl who is handicapped and has Pujari Yadav …Plaintiff-Respondent-
deformity in her leg. Her involvement in Appellant
the offence is a remote possibility. So far Versus
Ram Briksha Yadav …Defendant-
as two other revisionists are concerned
Appellant-Respondent
they are a married couple resident of
different places. Merely because they are Counsel for the Appellant:
relatives of the husband they should not Sri N.P. Mishra
Sri Awadhesh Rai (Delivered by Hon'ble Yatindra Singh, J.)

Sri D.N. Shukla
Sri Vimal Kumar 1. The main question involved in
Sri Ganga Prasad this appeal is when can a contract of
Sri Saroj Kumar Singh personal service be enforced in a civil
Sri D.B. Yadav suit.
Counsel for the Respondent: THE FACTS
Sri Faujdar Rai
Sri C.K. Rai 2. There is a school known as Shri
Sri V.K. Singh Shanker Uchchtar Madhyamik Vidyalaya,
Pargana Ghosi, district Azamgarh (the
U.P. Intermediate Education Act, 1921-
Regulation 16-G-jurisdiction of civil
School). This school imparts education up
court-termination of class 4th employee to 10th class and is recognized under
of recognized school imparting education Intermediate Education Act 1921 (the
upto class 10-shall for declaration and Act); it is also given grant-in-aid by the
injunction-before civil court-held proper. State Government in respect of salaries of
its teachers and non-teaching staff.
Held: Para 17
We would have, either finally decided 3. The plaintiff-appellant was

this point or if necessary referred it to appointed as Class IV employee in the
the larger bench for decision, however, School on 1.3.1976 and was subsequently
in view of our finding on other points, it confirmed. There was misappropriation of
is not necessary to do so. Even if it is Rs.1400/- from the Boys' Fund. It was
taken that these two categories as
alleged that the plaintiff-appellant had
mentioned above are added, no relief
can be granted to the plaintiff-appellant. forged the signatures of the Principal and
had taken out the money. The defendant-
(B) Inter Mediate Education Act, 1921- respondent was the officiating principal of
chapter III Regulation 31-Termination of the school. He called an explanation of
Class 4th employee of recognized the plaintiff-appellant on 11.5.1977.
institution-imparting education upto
Initially a reply was submitted on
class 10-whether prior approval is
necessary? Held- ‘No’. 11.5.1977. Thereafter the plaintiff-
appellant admitted his guilt on 15.5.1977.
Held: Para 28 Subsequently, his services were
terminated on 12.6.1977.
In view of above we hold that after
amendment of Regulation 31 by the
4. The plaintiff-appellant filed the
1975 Notification, it is not necessary to
take prior approval of the Inspector original suit no. 259 of 1977 against the
before terminating the services of a officiating principle, who is sole
Class-IV employee. defendant-respondent in the suit, for
Case law discussed: declaration that:
2006 ESC-1965
1993 (2) UPLBEC-1402
1998 (1) ESC-403
• The termination order dated
AIR 1977 Alld.-977 12.6.1977 was illegal, null and
void; and
• An injunction be issued Single Judge by his order dated

restraining the defendant- 3.12.1999, referred the question of
respondent from maintainability of the suit to the larger
interfering/stopping the plaintiff- bench by observing that:
appellant from functioning as the
Class IV employee of the School. 'In this way I find that there is a
serious controversy over the aforesaid
The defendant-respondent filed written question regarding maintainability or the
statement denying the allegations of the suit in Civil Court. In my humble opinion
suit. the matter requires consideration by a
larger bench and therefore, the entire
5. The trial court decreed the suit on record be remitted before the Bench
16.5.1979. The court restrained the nominated by the Hon'ble Chief Justice.
defendant respondent for interfering with Lay before the Hon'ble Chief Justice for
the service of the plaintiff-appellant. The orders.'
court while decreeing the suit recorded
the following findings: This is how the case has come up
before us.
• The Civil Court has jurisdiction
to decide the suit. This was held POINTS FOR DETERMINATION
earlier on 24.8.1978.
• The defendant-respondent could 8. It was agreed by the parties that
not be officiating Principal of the instead of answering the referred
School. question, the entire appeal may be
• The principle of natural justice decided. We have heard Sri DB Yadav,
were not followed in conducting counsel for the plaintiff- appellant and Sri
the enquiry. CK Rai, counsel for the defendant-
respondent, and Sri VK Singh who was
6. The defendant-respondent filed an appointed as friend of the Court. The
appeal. This appeal was allowed on following points are to be decided in the
12.11.1980 and the suit was dismissed. appeal:
The appellate court recorded the
following findings: (i) Whether the suit is maintainable in
the Civil Court?
(ii) Whether the prior approval of DIOS
• It can not be said that the
was necessary before terminating the
defendant-respondent was not the
services of the plaintiff-appellant?
officiating principal of the
(iii) Whether on the finding recorded
School.
by the first appellate court, the plaintiff is
• There was no illegality in
entitled to any relief?
terminating the services of the
(iv) Whether any relief can be granted to
plaintiff-appellant.
plaintiff-appellant in absence of
Committee of Management, the
7. Aggrieved by the order of the
DIOS and the State of UP?
appellate court, the plaintiff-appellant has
filed the present second appeal. The
POINT NO. 1: THREE EXCEPTIONS (i) where a public servant is sought to

SHOULD BE EXTENDED. be removed from service in
contravention of the provisions of
9. The counsel for the defendant Article 311 of the Constitution of
respondent submitted that the suit is not India;
maintainable as, (ii) where a worker is sought to be
reinstated on being dismissed under
• The suit is for declaration that the Industrial Law; and
termination order is illegal and (iii) where a statutory body acts in breach
for permanent injunction or violation of the mandatory
restraining the defendant- provisions of the statute.'
respondent from interfering his
right to function as Class-IV This case has also been followed by a
employee; division bench of our court reported in
• It is essentially a suit for specific Agarwal Digambar Jain Samiti Vs. Badri
performance of personal service; Prasad Srivastava (the Agrawal Digambar
and case). According to the counsel for
• The right can neither be enforced defendant-respondent, the case in hand
in a suit, nor such a suit can be does not fall in any of the aforesaid three
decreed. categories and as such it is not
maintainable.
10. The counsel for the defendant-
respondent also cited the decision in 11. It is correct that the Supreme
Executive Committee of Vaish Degree Court in the Vaish College case has laid
College, Shamli and others vs. Lakshmi down the three categories where a suit for
Narain and others: AIR 1976 SC 888 (the contract of personal service has been held
Vaish College case) decided by the to be maintainable and this case is not
Supreme Court and brought to our notice covered in that but, are these three
the following observations of the categories exhaustive? Was it necessary
Supreme Court: to provide exhaustive list of categories in
that case? Shouldn't the observations be
'On consideration of the authorities confined to the facts of that case?
mentioned above, it is, therefore, clear
that a contract of personal service cannot 12. The facts of the Vaish College
ordinarily be specifically enforced and a case as found by the Supreme Court were
Court normally would not give a as follows:
declaration that the contract subsists and
the employee, even after having been (i) The College was being managed by a
removed from service can be deemed to society which was registered under
be in service against the will and consent the Societies Registration Act. It was
of the employer. held by the High Court that it is a
statutory body. This was reversed by
This rule, however, is subject to three the Supreme Court and it was held
well-recognised exceptions— that the committee of management
was not a statutory body or rather it these facts, the three categories
was held to be a private body. enumerated in the Vaish College case are
(ii) There was no agreement between the exhaustive but if the facts are otherwise
Executive Committee of the College then it may not be so; for example:
and the Principal.
(iii) In absence of any agreement, the (i) If a body (which is not a statutory
statutory provisions requiring prior body) is a state within the meaning
approval of the Vice Chancellor did of Article 12 of the Constitution and
not apply. acts contrary to the regulations and
byelaws framed by it then it will be
13. The aforementioned findings are violating article 14 of the
clear from the following observations of Constitution. Can it be still said that
the Supreme Court: a suit is not maintainable for
enforcement of Article 14?
It may be noticed that so far as the (ii) If a private body (which is neither
plea of the plaintiff-respondent that he statutory body nor a state within the
had executed an agreement with the meaning of Article 12 of the
Executive Committee of the College Constitution) acts contrary to
which formed the basis of the terms of his mandatory provisions of law. Or in
contract of service was concerned the other words acts contrary to the
learned Additional Civil and Sessions mandate of the legislature. Can if
Judge also affirmed the finding of the still be said that a suit is not
Munsif on this point and held that there maintainable?
was no such agreement. Even before us
this finding was not disputed by the 15. In our opinion on the facts of the
learned counsel for the plaintiff- Vaish College, the three categories
respondent who has proceeded on the mentioned therein are exhaustive.
assumption that there was no agreement Nevertheless, if the facts are otherwise
executed between the plaintiff and the then they may not be so. In fact this was
defendant as alleged by the plaintiff. explained in the judgment itself by Justice
[Paragraph-5]. Bhagwati in his concurring but separate
… judgment:
In the instant case, the statute merely
enjoined that the agreement between the 'But in any event it does appear to
employer and the employee should be me that the three exceptions formulated in
incorporated according to the form and the statement of law laid down by this
conditions prescribed by the statute and Court in the above decisions are not
until the said agreement is executed the intended to be and cannot be exhaustive.
provisions of the Statute would not apply The categories of exceptions to the
proprio vigore.[Paragraph-12]. general rule should not be closed, because
any attempt at rigid and exhaustive
14. Thus it is clear that in the Vaish formulation of legal rules--any attempt to
College case the services were terminated put law in a straitjacket formula--is bound
by a private body. There was also no to stifle the growth of law and seriously
violation of any statutory provision. On cripple its capacity to adapt itself to the
changing needs of society. In fact, Ray J., it is taken that these two categories as
as he then was, speaking on behalf of this mentioned above are added, no relief can
Court in Sirsi Municipality v. Cecelia be granted to the plaintiff-appellant.
Kom Francis, (1973) 3 SCR 348= (AIR (Kindly see Appendix-I)
1973 SC 855) pointed out that the third
exception applied not only to employees POINT NO. 2: NO VIOLATION OF
in the service of "bodies created under ANY STATUTORY PROVISION.
statutes", but also to those in the
employment of "other public or local 18. The committee of management
authorities." It may be a possible view -- is not a statutory body. This is clear from
and some day this Court may have to the VaishCollege case as well as Aley
consider it --that where law, as distinct Ahmad Abidi Vs. DIOS, Allahabad and
from contract, imposes a mandatory others AIR 1977 Allahabad 539. The
obligation prescribing the kind of contract committee of management is also not a
which may be entered into by an State within the meaning of Article 12 of
employer and the manner in which alone the Constitution. So the fourth exception
the service of an employee may be does not apply. However, is there
terminated, any termination of service violation of any mandatory provision of
effected in breach of such statutory statutory law?.
obligation would be invalid and
ineffective and in such a case the court 19. The counsel for the appellant
may treat it as null and void.' [Paragraph submitted that before terminating the
32 of the judgment]. services of class IV employee prior
approval of the Inspector was necessary
16. In our opinion the following two under regulation 31 of Chapter-III. In
categories may be added to three support of his submission, he has also
mentioned in the Vaish College case: brought to our notice the following
decisions:
(iv) Where a body which is non-statutory
but is 'State' within the meaning of (i) Daya Shanker Tewari vs. Principal
Article 12 of the Constitution acts RDBM Uchchatar Madhyamik
contrary to the Rules, Regulations Vidyalay Neogaon, Mirzapur and
and bye-laws framed by it. others: 1998 (1) ESC 403 (All);
(v) Where a private body (which is (ii) Principal Rastriya Inter College, Bali
neither statutory nor 'State' within the Nichlaul, vs. DIOS and others: 2000
meaning of Article 12 of the (1) ESC 704 (All);
Constitution) acts in violation of any (iii) Raj Kumar Sharma vs. Joint Director
mandatory provision of statutory of Education (Girls), directorate of
law. Education UP Allahabad and others
(1993) 2 UPLBEC 1402.
17. We would have, either finally
decided this point or if necessary referred Is this submission correct?
it to the larger bench for decision,
however, in view of our finding on other 20. Section 16-G of the Act relates
points, it is not necessary to do so. Even if to conditions of service. Initially the title
of this section was 'Conditions of Service 22. Regulation 31 has been amended
of Teachers'. Subsequently by UP Act No. twice:
26 of 1975 this title was amended and
words 'Conditions of service of Heads of (i) By the Notification no. 789
Institutions, teachers and other employees' (1)/15(7)-75 dated 1st March 1975
were substituted. Sub-section (1) of published vide No. Board-7/562-V-8
section 16-G {Section 16-G(1)} provides (Board September 1974) Allahabad
that conditions of service of every person dated 10th March 1975 (the 1975
employed in a recognised institution may Notification). By this notification
be prescribed by Regulations and two clauses were added in regulation
agreement which is not inconsistent with 31.
provisions of the Act and the Regulations. (ii) By Notification No. 8372/15(7)-
Sub-section (3) of Section 16-G {Section 12(103)/77 Lucknow: dated 27th
16-G(3)} provides that the Principal, February, 1978 (the 1978
Headmaster and teacher may not be Notification). By this Notification
discharged, removed or dismissed from the two clause added by the 1975
service or reduced in rank or subjected to Notifications were modified.
any diminution in emoluments without
the prior approval in writing of the 23. The effect of the first clause
Inspector. The word Inspector means the added by the 1975 Notification was to
District Inspector of Schools, (DIOS) and empower the principal to award any
in relation of institution for girls, the punishment to class IV employees and his
Regional Inspectress of Girls School order is subject to appeal before the
{Section 2(bb) of the Act}. A party Committee of Management. The second
aggrieved by grant of approval can also clause provides further appeal to the
file appeal before the Regional Deputy DIOS/Regional Inspector. These clauses
Director of Education. Section 16-G (3) are further amended by the 1978
does not apply to the non-teaching staff. Notification, however substantially they
remain the same.
21. The Board has framed
regulations under section 15 of the Act. 24. The services in the present case
Regulation 31 of Chapter III of the were terminated on 12.6.1977 and as such
Regulation (see Appendix-II of the the Regulation 31 as amended by the
judgment) provides that the prior approval 1975 notification was applicable. The
of the Inspector will be necessary for the question is, whether Regulation 31 as
punishments enumerated therein. This amended by the 1975 Notification
includes dismissal also which is the case requires prior approval of the Inspector
in present. Regulation 31 unlike section before terminating the services a class IV
16-G(3) of the Act is not confined to the employee or not.
teachers and Head of Institutions but
refers to the 'employees' which prima 25. It is correct that the cases
facie include non teaching staff as well as (mentioned in paragraph 19 of this
class IV employees also. judgement) do support the submission of
the plaintiff-appellant. However these
cases have not taken into account the
amendment made in Regulation 31 by the amendments in the case of Ali Ahmad

1975 or 1978 Notification. They have Ansari vs. DIOS Kushinagar and others:
taken into account regulation 31 as it was 2006(3) ESC 1965 All) DB). The court
originally framed. These cases have not held that:
considered the regulation 31 as amended
from time to time and can not be pressed 'The scheme of the Regulations 31 to
to show that prior approval was necessary 45 Chapter-III, thus, do not provide that
before terminating services of class IV prior approval is required for awarding
employees. This question has to be punishment of removal or termination of a
decided in the light of the regulation 31 of Class-IV employee from the District
Chapter III as amended. Inspector of Schools.'
26. Regulation 31 as it was 28. In view of above we hold that

originally framed required prior approval after amendment of Regulation 31 by the
of the DIOS before terminating service of 1975 Notification, it is not necessary to
an employee. However, after addition of take prior approval of the Inspector before
two clauses in regulation 31 in 1975 it terminating the services of a Class-IV
clearly empowered the principal to employee.
terminate the services of class-IV
employee. It further provided an appeal to 29. There will be no difference in
the Committee of Management and outcome of this case, even if the three
thereafter to the Inspector itself. In case exceptions laid down in the VaishCollege
prior approval of Inspector was necessary case are extended by the two exceptions
before terminating services of class IV mentioned in paragraph 16 of this
employee then what was the point in judgement: this case is neither covered by
providing appeal first to the committee of the fourth nor by the fifth.
management and then to the Inspector. In
case the Inspector has already granted POINTS NO. 3: FINDING NOT VITIATED
approval for terminating the service then
can he change his decision in the appeal. 30. In our opinion, even if it is taken
In our opinion the purpose of including that the prior approval of the Inspector
two clauses by 1975 notification, which was necessary and the suit was
continued with some modification by maintainable before the Civil Court no
1978 notification, clearly show that the relief can be granted to the plaintiff-
principal is empowered to terminate the appellant.
services of the class-IV employee without
taking any prior approval of the Inspector 31. The trial court had held in favour
and his decision is final; it is subject to an of the plaintiff-appellant but the appellate
appeal before the committee of court has recorded the following findings:
management then to the appeal before the
Inspector. • The defendant-respondent was
officiating principal and could
27. We are not alone in taking this terminate the services of plaintiff-
view. It is also so held by a division bench appellant.
of our court after considering these
• There is no violation of principle (iv) Where a body which is non-

of natural justice in terminating statutory but is State within the
the services of the plaintiff- meaning of Article 12 of the
appellant as he himself admitted Constitution acts contrary to the
his guilt and his admission was Rules, Regulations and Bye Laws
not properly explained. framed by it.
(v) Where a private body (which is
32. These are findings of fact. There neither statutory nor state within the
is nothing to show that these findings are meaning of Article 12 of the
illegal. On these finding, even if the prior Constitution) acts in violation of
approval of Inspector was necessary no any mandatory provision of
relief could be granted to the plaintiff- statutory law.
appellant. (b) After amendment of regulation 31 by
the 1975 Notification prior approval
POINT NO. 4: NECESSARY PARTY of the Inspector (DIOS here) is not
NOT IMPLEADED. necessary before terminating the
services of class IV employee.
33. The School was a recognised (c) No mandatory provision of statutory
institution. The grain-in-aid is given by law was violated before terminating
the State Government. It is given for the the services of the plaintiff appellant.
post that was held by the plaintiff- (d) In absence of of State and DIOS as a
appellant. The committee of management, party, no relief can be granted to the
the State Government and the DIOS have plaintiff appellant.
not been impleaded as parties. In their
absence no relief can be granted as the 35. In view of our conclusions, the
damages are to be paid by the State appeal is dismissed however, the parties
Government. It is not a fit case in which shall bear their own cost.
any relief should be granted in absence of
these parties. This is also clear from the Appendix-I
decision reported in (2001) 10 SCC 11;
Shiv Kumar Tiwari (D) Lrs Vs. Jagar Apart from the VaishCollege case,
Narain Rai and others. some other cases were also cited before
us. As we have not finally expressed our
CONCLUSIONS opinion on the first point, we have not
referred to them in our judgement but
34. Our conclusions are as follows: wish to refer them here in case they are so
required in future.
(a) In a suitable case, the court may
consider whether the three exceptions Cases Cited By The Defendant-
mentioned in the VaishCollege case Respondent
are exhaustive or not and may
consider including the following two J. Tiwari vs. Jwala Devi Vidya
more exceptions, Mandir AIR 1981 SC 122 (the JwalaDevi
case) and UPSW Corporation vs. CK
Tyagi case AIR 1979 SC 1244 (the
Warehousing case) were cited by the Committee of Management (1995) 3

counsel for the defendant-respondent. UPLBEC 1682. In these cases the
VaishCollege case was distinguished.
The Jwala Devi case has merely
assumed that the Vaish College Case is Appendix-2
correct and the court was influenced by
the fact that the plaintiff did not attempt to The Regulation 31 as it was initially
mitigate the damages. framed was as follows:
In the Warehousing case, there was 31- deZpkfj;ksa dh izkI; naM] ftlds fy, fujh{kd vFkok
breach of regulation 16(3) while eaMyh; fujhf{kdk dh iwoZ Lohd`fr vko’;d gksxh]
conducting the enquiry. The Supreme fuEufyf[kr esa ls fdlh ,d :i esa gks ldrh gS%&
Court refused to grant the declaration that
the termination is null and void as well as ¼d½ fo;qfDr;
dthe eclaration that the employee ¼[k½ i`FkDdj.k vFkok izeqfDr;
continues to be in service. However this ¼x½ Js.kh esa voufr
was on the following finding (paragraph ¼?k½ ifjyfC/k;ksa esa deh
31 of the judgement,
The followings two clauses were added by
'An order made in breach of the the 1975 Notification.
regulations ... would not be in breach of
prqFkZ Js.kh deZpkfj;ksa dks mijksDr dksbZ naM nsus gsrq
any statutory obligation, ... The Act does iz/kkukpk;Z vFkok iz/kkuk/;kid l{ke gksxkA l{ke vf/kdkjh
not guarantee any statutory status to the }kjk naM fn;s tkus dh n’kk esa prqFkZ Js.kh deZpkjh }kjk
respondent, nor does it impose any izcU/k lfefr dks vihy dh tk ldsxhA ;g vihy naM
obligation on the appellant in such lwfpr fd;s tkus dh frfFk ls ,d ekg ds vUnj izLrqr gks
matters. ... It is not in dispute that, in this tkuh pkfg,A leLr vko’;d vfHkys[kksa ij fopkj djus ,oa
case, the authority who can pass an order deZpkjh dh] ;fn pg izcU/k lfefr ds le{k Lo;a mifLFkfr
of dismissal has passed the same. Under gksuk pkgs] lquokbZ ds i'pkr izcU/k lfefr vihy ij fu.kZ;
those circumstances, a violation of nsxhA
regulation 16(3), has alleged and
established in this case, can only result in prqFkZ Js.kh deZpkjh dks ;g Hkh vf/kdkj gksxk fd
the order of dismissal being held to be mldh vihy ij fd;s x;s izcU/k lfefr ds fu.kZ; ds fo:)
wrongful and, in consequence, making the og ftyk fo|ky; fujh{kd@eaMyh; ckfydk fo|ky;
appellant liable for damages. But the said fujhf{kdk dks] fu.kZ; lwfpr fd;s tkus dh frfFk ls ,d ekg
order cannot be held to be one which has ds vUnj] vH;kosnu dj ldsxkA ftyk fo|ky;
fujh{kd@eaMyh; ckfydk fo|ky; fujhf{kdk dk fu.kZ;
not terminated the service, albeit
vfUre gksxkA
wrongfully or which entitles the
respondent to ignore it and ask for being vH;kosnu ds izLrqrhdj.k] fopkj ,oa fu.kZ; ds
treated as still in service. lEcU/k esa vko’;d ifjorZu ds lkFk bl v/;k; ds fofu;e
86 ls 98 ykxw gksaxsA
Cases Cited By The Plaintiff-Appellant
The two clauses added by the 1975
The plaintiff-appellant has cited P. Notification were substituted by the
Shri AKUM Vidyalay vs. B. Ram: 1978 followings clauses by the 1978
(4) ALR 62 and Sachindanand Dubey vs. Notification.
1 All] Jai Prakash V. State of U.P. and others 281
PrqFkZ Js.kh deZpkfj;ksa dks mijksDr dksbZ naM nsus gsrq Sri V.K. Singh
iz/kkukpk;Z vFkok iz/kkuk/;kid l{ke gksxkA l{ke vf/kdkjh Counsel for the Respondents:
}kjk naM fn;s tkus dh n’kk esa prqFkZ Js.kh deZpkfj;ksa }kjk S.C.
izcU/k lfefr dks vihy dh tk ldsxhA ;g vihy naM
lwfpr fd;s tkus dh frfFk ls ,d ekg ds vUnj izLrqr gks U.P. Office Inspection Service Rules,
tkuh pkfg, vkSj ml ij izcU/k lfefr }kjk fu.kZ; vihy 1990-Rule 21-seniority-peitioner got
dh izkfIr dh frfFk ls vf/kdre 6 lIrkg ds Hkhrj ns fn;k promotion-under promotion quota on
tkosxkA leLr vko’;d vfHkys[kksa ij fopkj djus ,oa 1.7.96 in the vacancy of 1996-97-direct
deZpkjh dh] ;fn og izcU/k lfefr ds le{k Lo;a mifLFkfr appointee selected against the vacancy
gksuk pkgs] lquokbZ ds i'pkr izcU/k lfefr vihy ij fu.kZ; of 1989-90-admitedly the substantive
nsxhA date of appointment of petitioner is
2.12.98 whereas direct recruities
29.8.98-placement of petitioner below
prqFkZ Js.kh deZpkjh dks ;g Hkh vf/kdkj gksxk fd
the direct recruities-held-proper-there
mldh vihy ij fd;s x;s izcU/k lfefr ds fu.kZ; ds fo:) can not be retrospective promotion.
og ftyk fo|ky; fujh{kd@eaMyh; ckfydk fo|ky;
fujhf{kdk dks] fu.kZ; lwfpr fd;s tkus dh frfFk ls ,d ekg Held: Para 10 & 11
ds vUnj] vH;kosnu dj ldsxkA
fdUrq izfrcU/k ;g gksxk fd ;fn izcU/k lfefr mi;qZDr From a reading of Rule 21, we find that
fu/kkZfjr N% lIrkg dh vof/k ds Hkhrj viuk fu.kZ; seniority has to be determined according
mijksDr vihy ij u ns rks lEcfU/kr deZpkjh viuk to the date of substantive appointment.
vH;kosnu lh/ks ftyk fo|ky; fujh{kd@eaMyh; ckfydk
fo|ky; fujhf{kdk dks mijksDr N% lIrkg dh vof/k chr The date of substantive appointment
tkus ij ns ldrk gSA which is the criteria fixed for
determining the seniority under sub-rule
(1) of Rule 21 of the Rules, in respect of
ftyk fo|ky; fujh{kd@eaMyh; ckfydk fo|ky;
the petitioner is subsequent to the date
fujhf{kdk }kjk mijksDr vH;kosnu dh izkfIr dh frfFk ls of substantive appointment of the direct
vf/kdre rhu ekg ds Hkhrj fu.kZ; ns fn;k tk;sxk vkSj ;g recruits and, therefore, the petitioner
fu.kZ; vfUre gksxkA has rightly been placed after the direct
recruits. Even though under the first
vH;kosnu ds izLrqrhdj.k] fopkj ,oa fu.kZ; ds proviso to sub-rule (1) of Rule 21 of the
lEcU/k esa vko’;d ifjorZu ds lkFk bl v/;k; ds fofu;e Rules, the provisions have been made to
86 ls 98 esa ykxw gksaxsA treat the date of order as substantive
--------- appointment if the appointment order
ORIGINAL JURISDICTION specifies a particular back date, it does
CIVIL SIDE not give any advantage to the petitioner
DATED: ALLAHABAD 08.08.2006 to claim a back date for substantive
appointment as the appointment order
BEFORE
does not mention the petitioner's
appointment from any back date.
THE HON’BLE R.K. AGRAWAL, J.
Case law discussed:
THE HON’BLE RAN VIJAI SINGH, J.
J.T. 1991 (5) SC-35
1991 Supp. (2) SCC-363
Civil Misc. Writ Petition No.42264 of 2001
(Delivered by Hon’ble R.K. Agrawal, J.)
Jai Prakash …Petitioner
Versus
1. By means of the present writ
petition filed under Article 226 of the
Counsel for the Petitioner: Constitution of India, the petitioner, Jai
Sri G.K. Singh Prakash, seeks the following reliefs:-
the Inspector. The promotion was to be

(i) a writ, order or direction in the nature made in consultation with the U.P. Public
of certiorari quashing the impugned Service Commission, Allahabad
orders dated 5.11.2001 (Annexures (hereinafter referred to as "the
No.12 & 13 to this petition) passed Commission"). The Principal Secretary,
by respondent no.1. Administrative Reforms Department I,
(ii) a writ, order or direction in the nature Lucknow, vide letter dated 8.10.1996,
of mandamus commanding the asked the Secretary of the Commission,
respondent no.1 to fix the seniority respondent no.10, to arrange for holding
of the petitioner above Faiyyaz of a meeting of the Selection Committee
Ahmad and below Sri R.D.Sonkar in for considering the cases of promotion.
the seniority list treating his date of No action was taken in the matter. The
promotion to be 1.7.1996. petitioner sent a reminder to the
(iii) any other writ, order or direction as respondent no.1 on 19.12.1996. The
this Hon'ble Court may deem fit and Commission made certain query from the
proper in the circumstances of the State Government, which was replied by
case to meet the ends of justice. the Chief Inspector, Government Offices,
(iv) award cost of the petition to the U.P., Allahabad, vide letter dated
petitioner." 20.11.1996. Instead of considering the
case of the petitioner for promotion, the
2. Briefly stated, the facts giving rise respondent no.1 proceeded to fill up, by
to the present petition are as follows:- way of direct recruitment, certain other
vacancies of Inspectors which were
According to the petitioner, he was already there in the Department to which
appointed as a Routine Grade Clerk in the the petitioner got an objection filed on
office of the Chief Inspector, Government 2.8.1997 through his union. No heed was
Offices, U.P., Lucknow, with effect from paid to the request made by the petitioner.
1.7.1976. He belongs to the Scheduled The Commission interviewed the
Caste. As per the provisions contained in candidates for appointment on the post of
the U.P. Office Inspection Service Rules, the Inspectors by way of direct
1990 (hereinafter referred to as "the recruitment in August, 1997 and made the
Rules"), 15% of the total number of the recommendations. The State Government
posts of Inspectors are to be filled up by issued an order on 29.8.1998 appointing
way of promotion from the permanent 10 persons as Inspector directly and
employees who had put in more than 20 sending them for six months training.
years of service in the clerical cadre. 3 They were required to submit their joining
posts of Inspectors were available on on or before 30.9.1998. Thereafter the
1.7.1996. According to the petitioner, matter relating to promotion was
these posts were to be filled up by way of considered and vide order dated
promotion. As the petitioner had 2.12.1998, the petitioner and two other
completed 20 years of continuous service persons were promoted on the post of the
as Routine Grade Clerk on 1.7.1996, he Inspector. A tentative seniority list was
staked his claim, by making a issued on 19.10.2001. Objections were
representation on 2.7.1996, for being invited. The petitioner filed his objections
considered for promotion on the post of on 24.10.2001. The respondent no.1, vide
order dated 5.11.2001, had rejected the on 14.10.1997 and the appointment letters
objection preferred by the petitioner and, were issued on 29.8.1998, whereas the
vide order of the same date, had finalised recommendations in respect of the
the seniority list. It may be mentioned selection by promotion were sent to the
here that while rejecting the objection State Government by the Commission
filed by the petitioner, the respondent no.1 vide letter dated 18.11.1998 and
has held that the petitioner has been appointment letters were issued on
appointed/promoted against the vacancy 2.12.1998. The petitioner had been
for the year 1996-97 and there was no selected against the vacancies of the
question of his being promoted in respect recruitment year 1996-97 and not of any
of the vacancies of the earlier years. Some prior recruitment year and, therefore, he
time is taken by the Commission for can be placed in the seniority list in
considering the promotion. Further, the respect of selection made against the
direct recruits have been selected and vacancies of that recruitment year only.
appointed in respect of the vacancies for Writing letter by the Secretary of the State
the recruitment years 1989-90 to 1995-96 Government to the Secretary of the
and, therefore, these direct recruits have Commission, on the basis of the so-called
rightly been placed above the petitioner in representation dated 2.7.1996, has been
the seniority list. The petitioner is denied. The seniority list, as finalised, has
aggrieved by finalisation of the seniority been defended.
list as, according to him, he was entitled
to be granted promotion to the post of the 4. In the counter affidavit filed by
Inspector with effect from 1.7.1996 and Radhey Lal, Section Officer, U.P. Public
the action of the respondent no.1 in Service Commission, Allahabad, on
granting him promotion from 2.12.1998 behalf of the respondent no.10, it has been
was totally illegal and arbitrary and, stated that the Selection Committee for
therefore, his seniority ought to have been making promotion to the post of
fixed taking the date of promotion and Inspector, Government Offices, for the
joining on the post of the Inspector on recruitment years 1995-96 to 1997-98
1.7.1996. made recommendations on 24.10.1998
and the petitioner was found suitable for
3. In the counter affidavit filed by one vacancy reserved for the Scheduled
S.D. Padalia, Chief Inspector of Caste candidate in the recruitment year
Government Officers, U.P., Allahabad, on 1996-97. The recommendation was sent
behalf of the respondent no.1, it has been on 18.11.1998 whereas the Commission
stated that the requisition for 12 posts of had interviewed the candidates for the
the Inspector of Government Offices by post in question for making selection by
direct recruitment was sent to the way of direct recruitment and sent its
Secretary of the Commission, vide letter recommendations of selected candidates
dated 15.4.1996, whereas the requisition vide letter dated 7.10.1997.
for selection by promotion was sent vide
letter dated 8.10.1996 and 15.10.1998. 5. In the rejoinder affidavit filed by
The recommendations of the Commission the petitioner he has stated that when the
in respect of 12 posts of direct recruits vacancies for the year 1996-97 was
were received by the State Government available, the Commission ought not to
have taken such a long time in appointed on 29.8.1998. He further

considering the matter of promotion and submitted that, under Rule 27 of the
the State Government ought to have Rules, the State Government has been
granted promotion to the petitioner empowered to relax or dispense with the
retrospectively with effect from the date requirement of any rule which may cause
he became eligible and entitled. The undue hardship in a particular case. Thus,
petitioner cannot be made to suffer on the State Government ought to have
account of inaction on the part of the issued an order appointing the petitioner
respondents. on the post of the Inspector with effect
from 1.7.1996 and the petitioner should
We have heard Sri G.K. Singh, not be made to suffer for no fault of his.
learned counsel for the petitioner, and the In support of his submissions, he has
learned Standing Counsel on behalf of the relied upon a decision of the Apex Court
respondents. in the case of Nirmal Chandra
Bhattacharjee and others v. Union of
6. The learned counsel for the India and others, JT 1991(5) SC 35 =
petitioner submitted that under Rule 3(l) 1991 Supp (2) SCC 363.
of the Rules, ''year of recruitment' has
been defined to mean a period of 12 7. The learned Standing Counsel,
months commencing from the first date of however, submitted that the petitioner has
July of a calendar year. Under Rule 5 of been promoted on the post of the
the Rules, the source of recruitment has Inspector in respect of vacancies which
been given. Clause (b) of sub-rule (1) of were available during the recruitment year
Rule 5 of the Rules provides for 1996-97 as he became eligible for
recruitment to the post of the Inspector by promotion on 1.7.1996. His promotion
way of promotion from the permanent has been made on 2.12.1998. The direct
ministerial employees who have put in 20 recruits have been selected in respect of
years of continuous service and the total the vacancies which had occurred during
strength of the promotees, at any time, the recruitment years 1989-90 to 1995-96
have been fixed at 15% of the cadre and the requisition was sent on 15.4.1996
strength. Under Rule 16 of the Rules, the by the State Government to the
procedure for recruitment by promotion to Commission for making selection on the
the post of the Inspector has been post of the Inspector to be filled up by
provided. Rule 18 of the Rules deals with direct recruitment. It was much before the
the appointment. Rule 21 of the Rules date on which the petitioner became
deals with the seniority. According to eligible for being considered for
him, taking into consideration the various promotion under 15% promotional quota,
provision of the Rules and also the first i.e., 1.7.1996. The selected direct recruits
proviso to sub-rule (1) of Rule 21, were appointed on 29.8.1998 whereas the
appointment can be made by specifying a recommendation was sent by the
particular back date. He, thus, submitted Commission on 14.10.1997. In
that the petitioner was entitled to be completing the exercise for filling up the
promoted with effect from 1.7.1996 and post whether by direct recruitment or by
consequently ought to have been placed way of promotion, some time is taken
above the direct recruits who were and, therefore, no person can take
advantage of the time taken for persons in any category of post shall be
completing the process. He further determined from the date of the order of
submitted that, under Rule 21 of the substantive appointment and, if two or
Rules, the seniority has to be determined more persons are appointed together, by
from the date of the order of substantive the order in which their names are
appointment and, as admittedly the arranged in the appointment order :
petitioner's date of substantive Provided that if the appointment
appointment is 2.12.1998 whereas that of order specifies a particular back date with
the direct recruits is 29.8.1998, the effect from which a person is
petitioner has rightly been placed below substantively appointed, that date will be
the direct recruits. deemed to be the date of order of
substantive appointment and, in other
8. Having given our anxious cases, it will mean the date of issue of the
consideration to the various pleas raised order:
by the learned counsel for the parties, we Provided further that, if more than
find that it is not in dispute that the one orders of appointment are issued in
selection of direct recruits which have respect of any one selection the seniority
been selected and appointed vide order shall be as mentioned in the combined
dated 29.8.1998, was in respect of the order of appointment issued under sub-
vacancies which had arisen during the rule (2) of rule 18.
recruitment years 1989-90 to 1995-96.
The requisition was sent by the State (2) The seniority inter se of persons
Government on 15.4.1996. The selection appointed directly in the result of any one
was made by the Commission and selection, shall be the same as determined
recommendations was made on by the Commission or as the case may be,
14.10.1997. The petitioner has been by Selection Committee:
selected for promotion in respect of the Provided that a candidate recruited
vacancies arising or available during the directly may lose his seniority if he fails
recruitment year 1996-97 as he became to join without valid reasons when
eligible for the first time for being vacancy is offered to him. The decision of
considered for promotion on 1.7.1996 the appointing authority as the validity of
which fell vacant during the recruitment reasons shall be final.
year 1996-97. The requisition was sent to
the Commission on 8.10.1996 and (3) The seniority inter se of persons
15.10.1998. The Commission had appointed by promotion on the result of
recommended on 18.11.1998 and the any one selection shall be the same as it
appointment letter to the petitioner was was in the cadre from which they were
issued on 2.12.1998. promoted."
9. It would be relevant to reproduce "27. Relaxation from the

Rules 21 and 27 of the Rules, for ready conditions of service. - Where the State
reference:- Government is satisfied that the operation
of any rule regulating the conditions of
"21. Seniority. - (1) Except as service of persons appointed to the service
hereinafter provided, the seniority of causes undue hardship in any particular
case, it may, notwithstanding anything petitioner to get a declaration that he be

contained in the rules applicable to the treated as having been appointed on the
case, by order, dispense with or relax the post of the Inspector on 1.7.1996, taking
requirements of that rule to such extent recourse to the provisions of Rule 27 of
and subject to such conditions as it may the Rules, if accepted, would also lead the
consider necessary for dealing with the Court to give a direction to the State
case in a just and equitable manner: Government to provide for retrospective
Provided that where a rule has been operation of the date of substantive
framed in consultation with the appointment of the direct recruits as they
Commission that body shall be consulted have been selected against the vacancies
before the requirements of the rule are which had occurred during the
dispensed with or relaxed." recruitment years 1989-90 to 1995-96,
i.e., prior to the vacancies in which the
10. From a reading of Rule 21, we petitioner has been appointed. The
find that seniority has to be determined decision of the Apex Court in the case of
according to the date of substantive Nirmal Chandra Bhattacharjee (supra)
appointment. relied upon by the learned counsel for the
petitioner is of no help. In para 5 of the
11. The date of substantive report, the Apex Court has held as
appointment which is the criteria fixed for follows:-
determining the seniority under sub-rule
(1) of Rule 21 of the Rules, in respect of "5. One of the principles of service is
the petitioner is subsequent to the date of that any rule does not work to prejudice of
substantive appointment of the direct an employee who was in service prior to
recruits and, therefore, the petitioner has that date. Admittedly the vacancies
rightly been placed after the direct against which appellants were promoted
recruits. Even though under the first had occurred prior to restructuring of
proviso to sub-rule (1) of Rule 21 of the these posts. It is further not disputed that
Rules, the provisions have been made to various other posts to which class ''IV'
treat the date of order as substantive employees could be promoted were filled
appointment if the appointment order prior to August 1, 1983. The selection
specifies a particular back date, it does not process in respect of Ticket Collectors
give any advantage to the petitioner to had also started prior to August 1, 1983. If
claim a back date for substantive the department would have proceeded
appointment as the appointment order with the selection well within time and
does not mention the petitioner's would have completed it before August 1,
appointment from any back date. 1983 then the appellants would have
become Ticket Collectors without any
12. We further find that the State difficulty. The mistake or delay on the
Government has been empowered, under part of the department, therefore, should
Rule 27 of the Rules, to dispense with or not be permitted to recoil on the
relax the requirement of any Rule but, in appellants. Paragraph ''31' of the
the absence of any such power having restructuring order itself provides that
been exercised, the petitioner cannot vacancies in various grades of posts
claim any benefit. The insistence of the
covered in different categories existing on July 31, 1983 would be filled in

accordance with the procedure which was ground the appointment were not
in vogue before August 1, 1983." transparent most of them found relative
of the officers-termination order-can not
be raised-who itself the result of fraud-
13. Applying the principle laid down not interfered.
in the aforesaid case to the facts of the
present case, we find that the process of Held: Para 8
selection for direct recruitment had started
by sending the requisition on 15.4.1996 In the present case the impugned letter
reveals that undoubtedly a fraud has
much before the date when the petitioner
been committed in the process of
became eligible for promotion. Thus, the selection and the appointment of the
principle that any prejudice had been petitioners,. Therefore any technical
caused to the petitioner cannot be infringement or nonobservance of
accepted. principles of natural justice can not
deflect the course of justice. In S.L.
14. In view of the foregoing Kapoor Vs. Jagmohan and Ors. AIR 1981
SC 136, it has been held that where from
discussions, we do not find any merit in admitted and undisputed fact, only one
the petition. It is dismissed with costs. conclusion is possible and under the law
--------- only one course is permissible to be
ORIGINAL JURISDICTION adopted, the court should not enforce
CIVIL SIDE the observance of the principles of
DATED: ALLAHABAD 24.11.2006 natural justice, as it would amount to
giving premium to unscrupulous persons
BEFORE by getting a futile writ issued.
THE HON’BLE PANKAJ MITHAL, J. 1994 UPLBEC-129
AIR 1992 SC-1555
Civil Misc. Writ Petition No. 29857 of 1999 1992 AWC 780
AIR 1981 SC-136
1990 (3) SCC-655
Mohan Lal and others …Petitioners
2004 (2) UPLBEC-1473
Versus
U.P. Co-operative Institutional Services
Board and others …Respondents (Delivered by Hon'ble Pankaj Mithal, J.)
Counsel for the Petitioners: 1. All the four petitioners were

Sri K.N. Misra appointed on Group-IV posts in the
District Co-operative Bank, Meerut under
Counsel for the Respondents: the order dated 15.5.1999 issued by the
Sri V.K. Goel Secretary/ General Manager, District Co-
Sri Raj Kumar operative Bank, Meerut. However
Sri V.K. Shukla Respondent No. 2- Addl. Registrar
S.C. (Banking) co-operative Societies U.P.
Lucknow vide letter dated 8th July 1999
Constitution of India, Art. 226-Principle directed the Secretary/ General Manager,
of Natural Justice-cancellation of
selection including appointment-
District co-operative Bank Limited to
petitioner were appointed on class IV immediately cancel all the appointments
post-in District Cooperative Bank- made on the Group IV posts including
cancellation by Secretary/G.M. on the that of the petitioners, as the selection and
the appointments were not transparent and Regulations has been imposed upon the
regular and all the candidates selected and petitioners and they have been ordered to
appointed were related to some officers. be removed from service by way of
This letter of respondent No. 2 has been punishment. The impugned letter has been
challenged by the petitioner by means of issued to cancel the appointments of the
the present writ petition and it has been petitioners as they have been unlawfully
prayed that the the working of the appointed. All the candidates in the select
petitioners may not be disturbed. list from which the petitioners have been
appointed were relatives and favourites of
2. The contention of the petitioner is the members of the Selection committee.
that that the petitioners were appointed The Selection Committee prepared the
following the procedure prescribed under Select list without advertising the post
the U.P. Co-operative Societies properly in newspapers having wide
Employees Services Regulations 1975 circulation. The local daily newspaper
(hereinafter referred to as Regulations). Heera Times is not a widely circulated
The posts were duly advertised in the newspaper of any standard. The notice
local daily newspaper 'Heera Times' dated was placed on the notice board on
7.4.1999 and applications were also 12.4.1999 fixing last day for submitting
invited from the Employment Exchange. application as 16.4.1999 and therefore
On 28.4.1999 the duly constituted only four days time was given to the
Selection Committee issued the select list applicants to apply. None of the
in which the names of the petitioner were candidates recommended by the
also included. The said selection list was Employment Exchange were selected.
approved by the Secretary U.P. Co- The relationship of each of the selected
operative Institutional Services Board, candidate with some officer of the Bank
Lucknow- respondent No. 1 vide letter has also been described in the counter
dated 13.5.1999. Thereafter the order of affidavit. Thus it has been argued that the
appointment dated 15.5.1999 was issued procedure adopted for the appointment of
and the appointments of the petitioners the petitioners was not transparent and
were made. they were unlawfully appointed.
Accordingly the respondent No. 2 has
3. Sri K.N. Misra, learned counsel committed no illegality in issuing
for the petitioner argued that the services direction for cancelling their
of the petitioner can not be terminated appointments. It has also been argued that
without approval of the respondent No. 1 in the above circumstances, since fraud
as provided under Regulation 87 of the was played in getting the appointments,
Regulations more particularly without therefore, no notice or opportunity of
notice or affording opportunity of hearing hearing is necessary before cancelling all
to the petitioners. the appointments. Lastly it has been
submitted that the writ petition is
4. Sri V.K. Goel, learned counsel for premature, as on the basis of the
Respondent No. 1 and Sri V.K. Shukla impugned letter the appointments of the
appearing for respondent No. 4 submitted petitioners have not been canceled.
that this is not a case were any
punishment as provided under the
1 All] Mohan Lal and other V. U.P. Cooperative Institutional Service Board and others 289
A perusal of the impugned letter appointment of the petitioners is not an

reveals that it only directs the Appointing order of punishment as contemplated
Authority to cancel the appointments of under the regulations and therefore
the category IV employees who have been regulation 87 of the regulations does not
appointed as according to the preliminary come into ply at all.
Enquiry made by the office of the
Commissioner Meerut Division, Meerut it 6. The next submission that the
transpired that the selection was not appointments of the petitioners cannot be
transparent and the appointments were cancelled without giving them notice or
made unlawfully on the basis of opportunity of hearing is also of no force.
favouritism. It is not an order terminating First for the reason that so far there is no
the services of the petitioner. There is no order cancelling the appointment.
order pursuant to the above letter by Moreover, where fraud has been detected
which the services of the petitioners can in the matter of appointment such
be said to have been terminated. appointment can not be sustained in the
Therefore, the said order would not eyes of law, as fraud vitiates even the
amount to order of punishment pursuant most solemn proceedings in any civilized
to any disciplinary proceeding imposing system of jurisprudence vide AIR 1992
any penalty upon the petitioners and as Supreme Court 1555 Smt. Shrishti
such would not be an order which would Dhawan Vs. M/S Shaw Bros. It is a
require prior concurrence of the cardinal principal of law that fraud and
respondent No. 1 as contemplated by justice never dwell together and therefore
regulation 87. Thus, the submission of the the petitioners who have invoked the
learned counsel for the petitioner that the discretionary jurisdiction of the Court
impugned letter is unsustainable as no must have come before the Court not only
prior approval of the respondent No. 1 has with clean hands but with clean mind and
been taken, is misconceived and has no clean heart. They should not expect the
merit. It is therefore fails. court to promote their malafide intention
by upholding their appointments so as to
5. The two authorities 1994 allow fraud to perpetuate. The Hon'ble
UPLBEC 129 Munne Khan Pathan Vs. Apex Court in District Collector &
Jalaun District Co-operative Bank Chairman Vizianagram Social Welfare
Limited and 1992 AWC 780 Shekh Residential School Society Vs. M.
Abdul Kalam Azad Vs. B.M. Bohra, Tripura Sundari Devi (1990) 3 SCC 655
Managing Director/ Chairman, U.P. Co- has observed as under:-
operative spinning Mill and others cited
by the learned counsel for the petitioner in "If by committing fraud any
support of his contention that the services employment is obtained, the same cannot
of the petitioner cannot be terminated be permitted to be countenanced by a
without the prior concurrence of the Court of Law as the employment secured
respondent No. 1 are of no help to him in by fraud renders it voidable at the option
so far as the services of the petitioners of the employer."
have not been terminated by way of
punishment under the Regulations.
Secondly, the direction to cancel the
7. The above view has been without giving individual notice to the
followed regularly by the Supreme Court selected candidates the entire selection
and the other Courts in quick succession. process was cancelled. The court held that
where irregularities were found in the
8. In the present case the impugned selection process and the entire selection
letter reveals that undoubtedly a fraud has had been cancelled neither notice nor
been committed in the process of opportunity of hearing is necessary and no
selection and the appointment of the individual notice was required to be given
petitioners,. Therefore any technical to the selected candidates, as cancellation
infringement or nonobservance of was passed on valid reasons and the
principles of natural justice can not Appointing Authority was within his
deflect the course of justice. In S.L. jurisdiction to cancel the appointments.
Kapoor Vs. Jagmohan and Ors. AIR The above case law squarely applies to
1981 SC 136, it has been held that where the facts and circumstances of the present
from admitted and undisputed fact, only case and therefore the argument that the
one conclusion is possible and under the principles of natural justice have not been
law only one course is permissible to be followed falls to the ground.
adopted, the court should not enforce the
observance of the principles of natural 12. In the last learned counsel for
justice, as it would amount to giving the petitioner submitted that the impugned
premium to unscrupulous persons by letter is without jurisdiction the Addl.
getting a futile writ issued. Registrar (Banking) Co-operative
Societies, U.P. Lucknow has no authority
9. The aim of following the under law to issue such directions. Be as
principles of natural justice is to secure it may be, it is pointless to go into the
justice and not to perpetuate any controversy, as the Appointing Authority
illegality. is fully empowered under law to take
suitable action for cancellation of the
10. In the present set of appointments, if it is found that the
circumstances the observance of appointments were obtained by
principles of natural justice is not at all misrepresentation, concealment of fact or
warranted when the conclusion, even if by playing fraud irrespective or
the petitioners were afforded opportunity independent of the above letter.
of hearing, would not have been different.
Besides, the entire selection has been 13. In view of the above, the writ
found to be stinking therefore,individual petition lacks merit and is accordingly
innocence has no priority. dismissed.
---------
11. Sri V. K. Goel in support of his
argument has placed reliance upon the
judgment of the Division Bench of the
Alld. High Court (2004) 2 U.P.LBEC
1473 Arvind Kumar Pipal and others Vs.
Commissioner, Trade Tax, U.P.,
Lucknow and others. In the said case
1 All] Mohan Lal and other V. U.P. Cooperative Institutional Service Board and others 291
ORIGINAL JURISDICTION course, to which he was not entitled,

CIVIL SIDE because of the mistake on the part of the
DATED: ALLAHABAD 14.09.2006 University in admitting him and allowing
him to carry on the studies for one year I
BEFORE assess these damages, to the tune of
THE HON’BLE PRADEEP KANT, J. Rs.5000/-.
Civil Misc. Writ Petition no. 30150 of 2000 (Delivered by Hon'ble Pradeep Kant, J.)
Ram Prasad Kushwaha …Petitioner 1. By this petition Ram Prasad

Versus Kushwaha claims recognition of the
Vice Chancellor Bundelkhand University, degree of Bachelor of Programme (B.A.),
Jhansi and others …Respondents
(one sitting), of the Bhartiya Shiksha
Parishad U.P. and consequently also the
prayer for declaration of the result of the
Sri R.S. Singh
B.Ed. Examination conducted by the
Bundelkhand University for the academic
Sri Prakash Padia session 1997-98. It appears that the
Sri R.P. Tiwari petitioner swayed by the scheme of the
Govt. of India for providing Education
Constitution of India, Art. 226- from Open Universities, applied for
Cancellation of admission-admission to admission in the aforesaid examination of
persue the B.Ed. course-on the basis of B.A. to the Bhartiya Shiksha Parishad
mark sheet of graduation from Bhartiya Uttar Pradesh which is a registered body
Kshiksha Parishad-refusal to participate under the provisions of Societies
in examination alongwith candidature-
held proper-but omission on the part of
Registration Act, 1860 for providing
university resulted wasting precious education under the Open University
time of petition-direction to refused fee System. The petitioner completed his one
of Rs.5000/- alongwith damage of year course which is known as one sitting
Rs.5000/- within one month. course of Bachelor of Programme (B.A.)
in August, 1995. He was issued a mark
Held: Para 11
sheet which shows that Bhartiya Shiksha
For the lapse on the part of the Parishad U.P. conducted examination
University which has resulted into under Open University System, the name
wasting of one year precious time of-his of which is Bachelor of Programme
-youth-in pursuing the course of study as (B.A.) in one sitting. The petitioner
it was the duty of the University to deny succeeded in that examination.
admission to the petitioner at the very
outset and in fact his form for admission
should not have been entertained, makes 2. After clearing the aforesaid
the petitioner entitled to the refund of examination the petitioner applied for
fee viz., Rs.5000/- from the University. admission in the B.Ed. Course of the
Besides the aforesaid amount of fee, the Bundelkhand University wherein he
petitioner is also entitled to the became successful in the test and was
damages, for compensating him for the
loss that he suffered, by pursing a
required to deposit Rs.5000/- on 11.7.97
under the special Scheme for entrance.

The petitioner was issued admission card 4. Sri Ram Swaroop Singh learned
in B.Ed. Special scheme on 12.7.97; counsel for the petitioner could not satisfy
accordingly the petitioner was given the court and rather admitted that unless
admission in Atarra College Atarra the petitioner was possessed of the basic
District Banda. The petitioner got himself educational qualification, the minimum
admitted in the aforesaid college and as qualification which was necessary for
per his case after one year study he making him eligible for taking admission
appeared in the examination in the year in B.Ed. Course, the petitioner could not
1998 with Roll No. 97252. However, the have been given admission in the B.Ed.
Bundelkhand University did not declare Course, but he qualified the aforesaid
the result and on contacted by the argument by arguing that the petitioner is
petitioner he was informed that his B.A. not at fault when he took admission with
(Bachelor of Programme) examination the Bhartiya Shiksha Parishad, little
conducted by the Bhartiya Shiksha knowing that the degree which is to be
Parishad was neither a recognised degree given by the Parishad under the Open
nor was a degree of the minimum University Scheme would not be a
duration of 3 years which is the usual recognised degree and that further when
duration of graduate degree, the minimum he was duly admitted by the University
basic educational qualification required wherein he had not concealed any
for pursuing B.Ed course. The petitioner material fact regarding his educational
therefore has approached this Court for qualification, he has a right to get his
the relief’s aforesaid. result declared.
3. A counter affidavit has been filed 5. I have considered the pleas raised
by the University specifically stating from both the sides and I find that it is a
therein that B.A. Examination which has hard case for the petitioner which
been cleared by the petitioner is not a deserves sympathy but the Court would
recognised degree and that in the absence not be issuing any mandamus for
of the minimum basic educational declaration of the result where the
qualification, the petitioner could not have petitioner inherently lacks the basic
been admitted in the B.Ed. Course nor he educational qualification for being
could be allowed to appear in admitted in the B.Ed. Course.
the examination but since due to
inadvertence this fact could not be noticed 6. The plea that since the admission
by the University at the time of admission has been made and therefore the result be
therefore admission was wrongly given, declared can also not be sustained for the
but this fact in itself could not give any simple reason that if the petitioner is not
right to the petitioner to get the result eligible for being admitted and/or it was
declared of B.Ed. Examination. A plea by inadvertence or otherwise he was
regarding the duration of the course of the admitted, it could not give any right to
graduate degree to be of 3 years as against him for pursuing the B.Ed. Course or
the B.A. Degree of one year has also been seeking declaration of the result.
taken by the learned counsel for the
respondents.
1 All] Ram Prasad Kushwaha V. Vice Chancelor, Bundelkhand University and others 293
7. A dispute has also been raised by has provided the necessary certificate
the standing counsel that the Bundelkhand including the mark sheet showing that he
University stopped the B.Ed. Examination had cleared the aforesaid examination
right from 1996-97 and therefore the plea from Bhartiya Shiksha Parishad, the
raised that the petitioner appeared in the action of the University giving him
examination in the year 1998 is not admission even of its own with the
correct. However, I do not find it aforesaid material may be by oversight,
necessary to deal with this question as in cannot run against the petitioner or
my opinion no relief can be granted to the against his interest. One cannot lose sight
petitioner, even otherwise. of the fact that the petitioner could have
pursued some other course, and the
8. Learned counsel for the petitioner University not admitted him in B.Ed.
lastly urged that since the petitioner had course, which virtually wasted his
applied for admission in the B.Ed. complete one year under the mistaken
Examination in Bundelkhand University belief that he is pursuing a professional
on the same result of Bhartiya Shiksha qualification. There is no fault of the
Parishad U.P. annexing the mark sheet petitioner in taking admission and
and other relevant papers etc., and the pursuing the course for one year and for
University had allowed the petitioner the delayed action on the part of the
admission in the B.Ed. Special scheme, University in cancelling his admission or
for which he was also required to deposit informing about his ineligibility.
Rs.5000/- as fee and was also admitted in
one of the named college namely Atarra 11. For the lapse on the part of the
College Atarra District Banda where he University which has resulted into
had studied one year therefore the wasting of one year precious time of-his -
University be directed to return the fee youth-in pursuing the course of study as it
which was deposited by the petitioner. was the duty of the University to deny
His further argument is that since the admission to the petitioner at the very
petitioner has been dealt with unfairly outset and in fact his form for admission
resulting into loss of precious time, he is should not have been entertained, makes
entitled for appropriate damages from the the petitioner entitled to the refund of fee
University and also from Bhartiya viz., Rs.5000/- from the University.
Shiksha Parishad. Besides the aforesaid amount of fee, the
petitioner is also entitled to the damages,
9. Sri Prakash Padia appearing for for compensating him for the loss that he
the University in response had stated that suffered, by pursing a course, to which he
since the petitioner had studied for one was not entitled, because of the mistake
year therefore there was no question for on the part of the University in admitting
returning the fee or award of damages. him and allowing him to carry on the
studies for one year I assess these
10. From the facts available on damages, to the tune of Rs.5000/-.
record and, the admitted position on
behalf of the University that the petitioner 12. The plea that the petitioner is
did not conceal his basic educational liable to be compensated by Bhartiya
qualification at the time of admission and Shiksha Parishad also, as they did not
disclose that B.A. Program was a course pension 40%-petitioner found guilty of
which was not recognised, however, grave misconduct-causing loss to
government-proceeding initiated after
cannot be accepted, as firstly, the Parishad
retirement without permission of
has not been impleaded as a party and governor-the punishing authority-
secondly, it is not the case of the nowhere-mentioned regarding
petitioner that the Parishad had made any unsatisfactory service-held-impugned
such representation which misled the order unsustainable-impugned order
petitioner. The plea is thus rejected. quashed with all consequential benefit.
Held: Para 12
13. For the aforesaid reasons, though
I hold that the petitioner is not entitled to A perusal of the entire order impugned in
any relief as claimed, and dismiss the writ the writ petition shows that the
petition, but direct that the petitioner shall appointing authority nowhere has
be paid a total sum of Rs.10,000/- only mentioned its satisfaction that the
within a maximum period of one month service of the petitioner was not
thoroughly satisfactory. Therefore, it is
from the date of receipt of a certified copy evident from the entire facts,
of this order by the University. As circumstances and perusal of the record
requested by the learned counsel for the that though the appointing authority has
parties, the said amount be sent at the mentioned and referred to Article 470(b)
address of the petitioner by means of a of CSR in order to pass the impugned
Demand Draft or Banker's cheque under order but in fact has sought to exercise
powers under Article 351-A without
Registered cover. conforming to the conditions of those
provisions. The orders impugned in the
Subject to the above direction, the writ petition are thus ex-facie
petition is dismissed. Costs easy. unsustainable either under Article
--------- 470(b) or 351-A of CSR.
ORIGINAL JURISDICTION Case law discussed:
CIVIL SIDE 1976 L & C 1 cases-1734
DATED: ALLAHABAD 16.11.2006 1993 (1) UPLBEC-251
BEFORE (Delivered by Hon'ble Sudhir Agarwal. J.)

THE HON’BLE SUDHIR AGARWAL, J.
1. Heard Sri K.K. Dubey, learned
Civil Misc. Writ Petition No. 13886 of 2003 counsel for the petitioner and learned
Standing Counsel for the respondents.
Pooran Chandra Jain …Petitioner
Versus
2. This writ petition is directed
The State of U. P. & others …Respondents
against the orders dated 10.10.2002
passed by the District Magistrate, Lalitpur
Sri K.K. Dubey holding petitioner guilty of grave
misconduct causing loss to the
Counsel for the Respondents: Government and therefore reducing his
S.C. family pension to 40%, and, dated
22.11.2002 whereby the order dated
Civil Services Regulations-Regulation 10.10.2002 has been partly modified by
470 (b) and 351-A-Reduction of Family
1 All] Ram Prasad Kushwaha V. Vice Chancelor, Bundelkhand University and others 295
substituting the word “family pension” to 3. The brief undisputed facts giving
“pension”. rise to this petition are that the petitioner
was appointed as Amin on 19.10.1970
and was posted in the office of Special 4. The learned counsel for the
Land Acquisition Officer, Jhansi petitioner vehemently contended that after
wherefrom he was transferred to Lalitpur retirement, inquiry proceedings could not
on 22.4.1984. On 19.10.1987 he was have been held except in accordance with
placed under suspension, a charge sheet the procedure prescribed under Article
was issued and after holding inquiry he 351-A of CSR and since the charges
was reinstated with the punishment of relates to four years prior to the date of
reduction of 10% of salary during the retirement and no sanction was obtained
period of suspension. Thereafter vide from the Hon'ble Governor, hence, the
order dated 19.6.1991 his annual entire proceedings as well as the
increment for the year 1991 was withheld impugned orders are vitiated of law.
with cumulative effect and his
representation against the aforesaid 5. The learned Standing Counsel
punishment was rejected on 31.3.1998. however, disputing the contention
Thereafter he was allowed to cross submitted that Article 351-A of CSR has
efficiency bar by order dated 24.4.1999 no application in this case since
w.e.f. 1.1.1992. The petitioner attained proceedings were initiated under Article
the age of superannuation on 29.2.2000 470(b) of CSR which requires only
and retired on the said date. After approval of the appointing authority and
retirement a charge sheet was issued on no approval of Governor is needed
11.5.2000 under Article 470 (b) of Civil thereunder, therefore the entire
Service Regulations (hereinafter referred proceedings are in accordance with law
to as "CSR") containing charges of and the writ petition deserve to be
causing loss to the Government Revenue, dismissed.
doubtful integrity and misappropriation.
The petitioner submitted reply to the 6. In the light of the rival
charge sheet on 5.6.2000 whereafter submissions the only question required to
Additional District Magistrate (Finance & be answered in this case is whether the
Revenue), Lalitpur was appointed as proceedings in question were rightly
Inquiry Officer who conducted an oral initiated under Article 470(b} of CSR and
inquiry and submitted his report dated whether Article 351-A of CSR has any
28.8.2002 holding charges proved against application or not.
him. The appointing authority i.e. the
Collector, Lalitpur thereafter passed 7. The inter-relationship of Article
punishment order dated 10.10.2002 351-A and 470(b} of CSR came up for
reducing family pension of the petitioner consideration before a Full Bench in
by 40% which order was modified by Murli Sharan Sahai Sinha Vs. The
subsequent order dated 22.11.2002 and State of Uttar Pradesh and others, 1976
instead of "family pension" it was made Labour & Industrial Cases, 1734 and it
"pension". was held that Article 351-A and 470(b)
are not actually exclusive but are
overlapping to some extent. Where a civil
servant is found to have caused pecuniary misconduct or misconduct or negligence

loss to Government or guilty of grave resulting in pecuniary loss to the
misconduct or negligence, the authority government which would warrant action
empowered under Article 470(b) of CSR under Article 351-A."
can resort to exercise such power under
that Article. Similarly on the same set of 8. The aforesaid judgment therefore
facts if the departmental inquiry would leave no doubt where an inquiry and order
have been initiated and an order of of reduction of pension can be passed
reduction of pension could not have been under Article 351-A, the same could have
passed under Article 351-A, there is no been passed under Article 470(b) of CSR.
reason to deduce that such an order may The problem however arise where the
not be passed by resorting to Article proceedings are barred under Article 351-
470(b) of CSR. Para 13 of the judgment A for example if the charges,
which for the purpose of present case in whereagainst it intends to conduct inquiry
my view is relevant may be reproduced as are anterior to four years from the date of
under:- retirement and no proceedings can be held
under Article 351-A, whether even in
"If on a set of facts and such case Article 470(b) would be
circumstances a departmental enquiry or attracted. It would be appropriate at this
judicial proceedings could have been stage to reproduce Article 351-A and 470
taken for establishing grave misconduct of CSR:-
or misconduct or negligence on the part of
a civil servant resulting in pecuniary loss "351-A. The Governor reserves to
to the Government, there is no himself the right of withholding or
compulsion on the Governor to resort to withdrawing a pension or any part of it,
that course. There is no reason why on whether permanently or for a specified
those very facts and circumstances the period and the right of Ordering the
authority sanctioning pension or the recovery from a pension of the whole or
appointing authority should not issue a part of any pecuniary loss caused to
show cause notice to the concerned civil government, if the petitioner is found in
servant, and consider his explanation or departmental or judicial proceedings to
representation. If such authority, on have been guilty of grave mis-conduct, or
considering such explanation or to have caused pecuniary loss to
representation, is satisfied that his service Government by misconduct or negligence,
was not thoroughly satisfactory, there is during his service, including service
no reason why it should not, under Article rendered on re-employment after
470(b) reduce his pension. Neither in retirement:
Article 351-A nor in Article 470(b) is
there any express or implied prohibition Provided that-
against such course of action being taken
by such authority merely because on the (a) such departmental proceedings, if
same set of facts and circumstances a not instituted while the officer was on
departmental enquiry or judicial duty either before retirement or during re-
proceedings could have been taken to employment-
establish that he was guilty of grave
1 All] Pooran Chandra Jain V. The State of U.P. and others 297
(i) shall not be instituted save with the 9. A bare reading of Article 351-A
sanction of the Governor, shows that the Governor has reserved to
himself all the right of withholding and
(ii) shall be in respect of an event which withdrawing a pension or any part of it,
tool place not more than four years whether permanently or for a specified
before the institution of such period and also the right of ordering
proceedings, and recovery from a pension of the whole or
part of any pecuniary loss caused to
(iii) shall be conducted by such authority Government, if the pensioner is found in
and in such place or places as the departmental or judicial proceedings
Governor may direct and in guilty of grave misconduct or to have
accordance with the procedure caused pecuniary loss by misconduct or
applicable to proceedings on which negligence during hii service. However,
an order of dismissal from service Article 470(b) empowers the appointing
may be made, authority to pass an order for reduction of
pension if the service of the Government
(b) judicial proceedings, if not instituted servant has not been thoroughly
while the officer was on duty either before satisfactory. In the case of Article 351-A
retirement or during reemployment shall the order can be passed by the Governor
have been instituted in accordance with while under Article 470(b) the order can
sub-clause (ii) of clause (a), and be passed by the appointing authority. It is
thus clear that in order to attract Article
(c) the Public Service Commission, U.P., 470(b) of CSR, appointing authority have
shall be consulted before final orders are to record its conclusion that the service of
passed. the retired employee was not thoroughly
satisfactory. It is true that to some extent
"470. (a) The full pension admissible both the Articles are overlapping and may
under the rules is not to be given as a run parallel but still the issues require to
matter of course, or unless the service be considered under the two provisions
rendered has been really approved (see are slightly of different magnitude. Where
Appendix 9), on account of any individual or particular
act or omission constituting grave
(b) If the service has not been misconduct or negligence causing loss of
thoroughly satisfactory, the authority the Government servant, the appointing
sanctioning the pension should make such authority intend to exercise power under
reduction in the amount as it thinks Article 470 (b), it has to record a finding
proper. that the service has not been thoroughly
satisfactory. It is not open to the
Provided that in cases where the appointing authority to byepass the
authority sanctioning pension is other provision and where the proceedings are
than the appointing authority, no order otherwise barred under Article 351-A to
reading reduction in the amount of circumvent the same or to resurrect the
pension shall be made without the closed issue, it may resort to Article 470
approval of the appointing authority." (b) without recording any finding that the
service has not been thoroughly
satisfactory. It is a settled legal exposition also be taken under Article 470(b) subject
where something is required to be done in to fulfillment of other conditions under
a particular manner and in specified that Article.
contingencies, the action has to be taken
strictly in accordance therewith and any 11. In Vishwanath Prasad Vs.
deviation thereto shall vitiate the Uttar Pradesh Public Services Tribunal
proceedings. In other words it can be said and others, 1993(1) UPLBEC, 251 a
that where a single act or more than that Single Judge of this Court while
may constitute a grave misconduct or considering Article 470(b) of CSR
negligence or having caused loss to the observed that discretion conferred on the
Government justifying order under Article authority under Article 470(b) though
351-A of CSR, the same would not justify wide cannot be exercised without
an order under Article 470 (b) of CSR assuming thorough satisfaction about the
unless and until the competent authority petitioner's service. In para 14 of the
formed a conclusion that such act or judgment, the court held:-
omission constituting misconduct or
negligence or loss results in making the "In Article 470(b), the discretion of
entire service thoroughly unsatisfactory. reduction of pension-can be exercised
only if it is proved that the service of the
10. A perusal of the entire order pensioner has not been thoroughly
would show that the appointing satisfactory during his tenure as employee
authorities have nowhere mentioned that under the State. The finding with regard
the service of the petitioner is thoroughly to question of service not being
unsatisfactory. The Full Bench in Murli satisfactory of any employee is not left to
Sharan Sahai Sinha (Supra) approved the whim of the authority......”
the proposition that for the same set of
misconduct, order can be passed in either Further in para 16, the Court observed:-
of the provisions but made it clear that
such an order can be passed subject to "For invoking Article 470(b) by any
fulfillment of other conditions under that authority for the purpose of ordering
Article. The answer to question no. 3 by reduction of pension, two considerations
the Full Bench in Murli·Sharan Sahai are inherent in the said Article. Firstly, the
Sinha (Supra) as contained in para 15(3) authority has to satisfy itself on the basis
is reproduced as under:- of material, that the services of a person
who claims pension, were not thoroughly
"15(3) Both Article 351-A and satisfactory. Secondly, while arriving at a
Article 470(b) will apply to a case where conclusion that the service of an
misconduct of a civil servant has resulted employee was not thoroughly satisfactory,
in pecuniary loss to the Government. If the authority has to furnish material,
such misconduct is established in a evidence or any report on which he has
departmental enquiry against him or formed his opinion, to the person
judicial proceedings, action can be taken concerned who is likely to be affected by
under Article 351-A subject to fulfillment his order under Article 470(b) of C.S.R. If
of other conditions under that Article. In these considerations are not expressly
respect of same misconduct, action can incorporated in the said Article, that
1 All] Pooran Chandra Jain V. The State of U.P. and others 299
would not mean that the authority, of reduction of pension in respect of an

empowered to operate the said Article, employee. These two considerations are
has to omit to consider the aforesaid inherent in the said Article and without
considerations, before he issues an order
taking these two considerations implicit in the petitioner shall be entitled for all
the Article, the Article itself would consequential benefit. There shall be no
become arbitrary and violative of Article order as to costs. Petition allowed.
14 of the Constitution. In order to make ---------
this Article 470(b) workable it is ORIGINAL JURISDICTION
necessary that unfettered discretion CIVIL SIDE
conferred by this Article or an authority is
exercised within the limits of law and BEFORE
satisfaction about the service of an THE HON’BLE ARUN TANDON, J.
employee not being satisfactory
thoroughly is assumed on the basis of Civil Misc. Writ Petition No. 49253 of 2006
evidence and before that evidence is acted
upon, employee, likely to be affected by Ishwar Chand …Petitioner
the order in that section is given Versus
opportunity of being heard. These are the State of U.P. and others …Respondents
rudimentary requirements which are to be
followed before the discretion under Counsel for the Petitioner:
Section 470(b) is exercised by any Sri H.P. Singh
authority." Sri Amarendra Pratap Singh

12. A perusal of the entire order
Sri R.P. Dubey
impugned in the writ petition shows that
Sri Ravi Ranjan
the appointing authority nowhere has
Sri P.S. Baghel
mentioned its satisfaction that the service Sri Kailash Nath Singh
of the petitioner was not thoroughly S.C.
satisfactory. Therefore, it is evident from
the entire facts, circumstances and perusal U.P. Secondary Education Service
of the record that though the appointing Selection Board-Section-18-Ad-hoc
authority has mentioned and referred to appointment till the regular selections
Article 470(b) of CSR in order to pass the made-whether the joining of regular
impugned order but in fact has sought to selected candidate can be resisted by
such adhoc-appointee? Held-‘No’-such
exercise powers under Article 351-A adhoc appointee has to give way to the
without conforming to the conditions of regular selected candidate.
those provisions. The orders impugned in
the writ petition are thus ex-facie Held: Para 21
unsustainable either under Article 470(b)
or 351-A of CSR. From the aforesaid, it is apparent that
petitioner has a prima facie case in his
favour, an ad hoc appointee (who has
13. In the result, the writ petition been appointed by an Authority having
succeeds and is allowed. The impugned no jurisdiction to offer such
orders are quashed and it is declared that
appointment) must give way to the Prasad Verma who claims to have been
regularly selected candidate. appointed on Ad-hoc basis against the
The petitioner, is therefore, entitled to
same vacancy of Lecturer (Psychology)
following interim order:
by the Committee of Management of the
institution on 31st August, 1998.
(Delivered by Hon'ble Arun Tandon, J.)
7. On specific query being made to
1. Learned Standing Counsel
represents respondent nos. 1,3 and 4. Sri Sri P.S. Baghel, who represents
respondent no.6, namely, Sri Rajendra
R.P. Dubey, Advocate has accepted notice
Prasad Verma, about statutory provisions
on behalf of respondent no.2 and Sri P.S.
under which he has been offered ad-hoc
Baghel, Advocate has accepted notice on
appointment by Committee of
behalf of respondent no.6.
Management, learned counsel for
respondent no.6 has refused to answer the
2. Issue notice to respondent no.5
same, and. has taken a stand, that this
fixing 14th December, 2006 as the date for
Court has no jurisdiction to enter into the
appearance.
aforesaid dispute, inasmuch as:
Petitioner to take steps by 4th
(a) two writ petitions have been filed
December, 2006.
by respondent no.6 before the Lucknow
Bench of this Court being Writ Petition
3. All the respondents may file
No. 64B2 (8/8) of 1999 and Writ Petition
counter affidavit by the next date fixed.
No. 3920 (S/S) of 2006. In the first writ
petition an interim order has been granted
4. Since serious legal and factual
by the Lucknow Bench of this Court on
issues have been raised in respect of the
17th December, 1999 while in second writ
disposal of the interim application filed
petition an another interim order has been
along with this writ petition, this Court
granted by the Lucknow Bench of this
feels it proper to record reasons in support
Court on 3rd May, 2006.
of the order to be passed on the interim
application. (b) the institution in respect whereof
the petitioner claims appointment and the
5. Petitioner Ishwar Chand, who has respondent no.6 is already working on ad
been selected for the post of Lecturer in hoc basis is situate within the territorial
jurisdiction of Lucknow Bench.
subject of Psychology in Baba Barua Das
Inter College, Paruliya Ashram,
Ambedkar Nagar by the U.P. Secondary 8. For the purposes of adjudication
Education Services Selection Board at upon the aforesaid objections raised by
Allahabad, has filed this petition for a writ Sri P.S. Baghel, learned counsel for
respondent no.6 it would be necessary to
of mandamus commanding the
reproduce the relevant facts, as are
respondents to appoint the petitioner
accordingly. An application for interim admitted to respondent no.6. In paragraph
direction has also been filed. nos. 3,4, 7 and 9 of his writ petition no.
6482 (S/S) of 1999 (hereinafter referred to
as the first writ petition) filed before the
6. This appointment of petitioner is
objected to by respondent no.5, Rajendra
1 All] Ishwar Chand V. State of U.P. and others 301
Lucknow Bench of this Court, it has been of Management the Manager of College
stated as follows: issued appointment letter to the petitioner
and the Principal of College provided the
"3. That the petitioner was initially joining to the petitioner. The copy of the
appointed on the post of Psychology chart of quality points is being annexed
lecturer on 31-8-1998 in Baba Barua Das herewith as the ANNEXURE NO.5 to this
Inter College, Paruliya Ashram, District writ petition."
Ambedkar Nagar (hereinafter mentioned
as College) on adhoc basis against the 9. It may be recorded that in writ
sanctioned post. The copy of appointment petition no. 6482 (S/S) of 1999 an interim
letter dated 31-8-1998 is being annexed order has been granted by the Lucknow
herewith as ANNEXURE NO.1 to this Bench of this Court dated 17th December,
writ petition. 1999 in favour of respondent no.6, which
4. That the petitioner joined on 1-9- reads as follows:
1998 in pursuance of appointment letter in
the College on the post of lecturer of "In the meantime the opposite parties
Psychology and since then he has been shall allow the petitioner to draw the
continuously working in the College with salary of a lecturer as, admissible under
good and efficient servicer. Nothing rules if he is a duly appointed Lecturer in
adverse ever has been communicated accordance with the prescribed
against the petitioner. The copy of the regulations until a regularly selected
joining letter dated 1-9-1998 is being candidate is available.”
annexed herewith as ANNEXURE NO.2
to this writ petition. 10. Respondent no.6 initiated
7. That the post of lecturer of the contempt proceedings before the
Psychology was occurred due to the death Lucknow Bench of this Court being Crl.
of Shiv Shanker Upadhyay regular Misc. Case No. 1338 (C) of 2000, for
lecturer of College on 152-1998. The enforcing the said interim order wherein
work and the post is available. The following order was passed by the
petitioner has been appointed against the Lucknow Bench of this Court on 10th
sanctioned and duly created post. The January, 2001:
petitioner is entitled for payment of salary
under the provision of Salary Act, 1971. "Learned standing counsel appearing
9. That the Selection Committee was on behalf of the opposite parties requests
duly constituted and total ten candidates for three weeks' time to file counter
had participated in the interview for want affidavit. The prayer is granted. List on
of selection as per the advertisement and 19.2.2001. The opposite parties are
the petitioner has been awarded the directed to ensure the compliance of the
highest quality marks and he has been court's order, if appointments similar to
selected and recommended as first that of the petitioner's have been given
candidate. The Selection Committee effect to.
recommended the name of the petitioner
for want of appointment on the post of So far as the subsequent writ petition
lecturer of Psychology and in pursuance being Writ Petition No. 3920 (S/S) of
of the recommendation of the Committee 2006 filed before the Lucknow Bench of
this Court is concerned (hereinafter 1999 before this Hon'ble Court and this
referred to as the second writ petition), Hon'ble Court after considering all the
suffice it to record that this second writ facts and circumstances pleased to pass an
petition is dependent upon the first writ order directing the Opposite Parties to pay
petition filed in the year 1999, reference the salary tot he petitioner for the post of
paragraph nos. 6,7,8,9 and 10 of the Lecturer (Psychology).
second writ petition which read as The Photocopy of the order dated
follows: 17.12.99 passed by this Hon'ble Court, is
"6. That the petitioner was appointed being annexed herewith as Annexure
on the post of Lecturer (Psychology) on No.4 to this writ petition.
31.8.98 by the selection committee 10. That in compliance of the order
constituted by the Committee of dated 17. 12.99 passed by this Hon'ble
Management after due process against the Court, the District Inspector of Schools,
sanctioned and vacant post. A Photocopy Ambedkar Nagar released the salary in
of the appointment letter dated 31.8.98 is favour of the petitioner and since then the
being annexed herewith as Annexure petitioner is getting salary for the post of
No.2 to this writ petition. Lecturer (Psychology) and is discharging
It is also relevant to mention here his duties on the post of Lecturer
that post of Lecturer (Psychology) (Psychology). A Photocopy of the order
occurred on 15.2.98 due to death of Sri dated 14.1.03 passed by the District
Shiv Shankar Upadhyay who was Inspector of Schools, is being annexed
working on the post of Lecturer herewith as Annexure No.5 to this writ
(Sociology). petition."
7. That in respect of the
appointment letter dated 31 .8.98 the 11. In writ petition no. 3920 (8/8) of
petitioner joined his duty on the post of 2006 an interim order has also been
Lecturer (Psychology) on 31.8.98 and granted by the Lucknow Bench of this
since the date of joining the petitioner is Court dated 3rd May, 2006 in favour of
discharging his duties on the aforesaid respondent no.6, which reads as follows:
post with the full satisfaction of the
authorities concerned. A Photocopy of the "Heard Sri Mahendra Singh
joining letter dated 31.8.98 is being Rathore, learned counsel for the
annexed herewith as Annexure No.3 to petitioner and the learned Chief Standing
this writ petition. Counsel for opposite parties no. 1 to 3.
8. That on 21.12.98, the Committee Notice on behalf of opposite party no.4
of Management submitted details in has been accepted by Sri H.S. Jain.
respect of the financial approval in favour Issue notice to opposite parties no. 5
of the petitioner but District Inspector of and 6.
Schools, Ambedkar Nagar but the District Let the counter affidavit be filed by
Inspector of Schools neither approved nor the opposite parties within a period of six
disapproved the appointment of the weeks and the petitioner may file
petitioner. rejoinder affidavit within two weeks
9. That feeling aggrieved due to thereafter.
non payment of salary. the petitioner filed List in the second week of July, 2006
writ petition bearing No. 6482 (S8) of for hearing/admission.
The grievance of the petitioner is that

he was appointed as Lecturer 15. Procedure for ad hoc
(Psychology) in Baba Barua Das Inter appointment by direct recruitment.----(1)
College, Paruliya Ashram, Ambedkar (a) Where ad hoc appointment of the
Nagar on 31.8.1998 and is discharging teachers in respect of the vacancies to be
duties, functions and responsibilities of filled in by direct recruitment are to be
the post. made under section 18 of the Act, the
The grievance of the petitioner is that Deputy Director shall advertise the
opposite party no. 6, Ishwar Chand has vacancies subjectwise, for lecturers grade
been appointed on the post held by the and groupwise for trained graduates
petitioner. The learned counsel for the (L.T.) grade, along with the number of
petitioner has further submitted that the vacancies to be reserved for the
opposite party no.6 has not joined the candidates belonging to the Scheduled
post and the petitioner is still working as Castes, Scheduled Tribes and Other
Lecturer (Psychology) in the institution. Backward Classes of citizens in at least
In view of above, it is provided that two newspapers one of which having wide
the petitioner shall be allowed to continue circulation in the district and the other in
on the post of Lecturer (Psychology) in the State, and invite applications for ad
Baba Barua Das Inter College, Paruliya hoc appointment in the pro forma given in
Ashram, Ambedkar Nagar, till further Appendix 'F'. Such advertisement shall,
orders of this Court." inter alia, mention the pay and
allowances admissible to the posts,
12. From the aforesaid facts it is minimum academic qualifications for
admitted on record that respondent no.6 appointment and such other things as may
was appointed on ad hoc basis against a be considered necessary. The candidates
substantive vacancy which was caused in shall be required to give the choice of not
the institution due to death of the more than three districts in order of
permanent Lecturer, namely, Shiv preference, where, if selected, he may
Shanker on 15th February, 1998. On the wish to be appointed. Where a candidate
relevant date, on which substantive wishes to be considered for any particular
vacancy was caused in the recognised district and for no other district, he may
Intermediate College, there was no mention the fact in his application."
authority with the Committee of
Management of the institution to offer any 13. It is thus apparent from the
ad-hoc appointment. Power to make ad- relevant facts admitted that the ad hoc
hoc appointments against substantive appointment claimed by respondent no.6
vacancies was with the Deputy Director is de hors the aforesaid statutory
of Education under Rule 15 of the U.P. provisions, made by an Authority having
Secondary Education Services Selection no jurisdiction to do so. It has to be
Board Rules, 1995 and subsequent to it treated as nullity in view of Section-16 of
under the U.P. Secondary Education the U. P. Secondary Education Services
Services Selection Board Rules, 1998. Selection Board Act, 1982, which reads as
Rules 15 of 1995 Rules, which is more or follows:
less para mataria to Rule 15 of Rules of "16. Appointment to be made only
1998 reads as follows: on the recommendation of the Board.-
(1) Notwithstanding anything to the 15. It is also apparent that the

contrary contained in the Intermediate Lucknow Bench of this Court provided
Education Act, 1921 or the regulations that respondent no.6 shall be paid salary
made thereunder, but subject to the only if he has been validly appointed in
provisions of sections 12,18,21-B, 21-C, accordance with the rules/regulations
21-D, 33,33-A, 33-B, 33-C, 33-D and 33- applicable and only till regularly selected
F, every appointment of a teacher shall, candidate becomes available.
on or after the date of commencement of 16. The interim order passed in
the Uttar Pradesh Secondary Education second writ petition fails to take note of
Services Selection Board (Amendment) the interim order passed in first writ
Act, 2001 be made by the management petition as also of the fact that respondent
only on the recommendation of the Board: no.6 infact claimed ad hoc appointment
Provided that in respect of retrenched only and such ad hoc appointees cannot in
employees, the provisions of section 16- any way obstruct the appointment of
EE of the Intermediate Education Act, regularly selected candidates, inasmuch as
1921 shall mutatis mutandis apply: their appointment itself has been made in
Provided further that the appointment the contingency till regularly selected
of a teacher by transfer from one candidate is appointed. Such ad hoc
institution to another may be made in appointments have a contingent right to
accordance with regulations made under continue only till the period regularly
clause (c) of sub-section (2) of section 16- selected candidate becomes available.
G of the Intermediate Education Act, Substantial justice requires that the
1921: regularly selected candidate should not be
Provided also that the dependent of a asked to wait at the fence while the ad
teacher or other employee of an institution hoc appointee like respondent no. 6, is
dying in harness who possesses the permitted to continue in the institution.
qualifications prescribed under the
Intermediate Education Act, 1921 may be 17. Learned counsel for respondent
appointed as teacher in Trained no.6 has not answered the query made by
Graduates' Grade in accordance with this Court, the reason is obvious. Learned
regulations made under sub-section 94) of counsel knows that there is no provision
section 9 of the said Act. under which the ad hoc appointment of
(2) Any appointment made in respondent no.6 can be sustained, nor
contravention of the provisions of sub- could he refer to any statutory provisions
section (1) shall be void." under which ad hoc appointment against
the substantive vacancy in the year 1998,
14. The interim order passed by the could be made the Committee of
Lucknow Bench of this Court, in the first Management of the institution. He has
writ petition in favour of respondent no.6 succeeded in misleading the authorities
permitted him to continue as Lecturer for obtaining payment of salary, despite
(Psychology) provided that he was the specific directions of the Lucknow
appointed in accordance with law, only Bench of this Court under order dated 17th
for the period till the regularly selected December, 1999 for which appropriate
candidate becomes available. action may have to be recommended
against the District Inspector of Schools,
who has released the salary in favour of 18. As noticed herein above,
respondent no.6 at the time of final respondent no.6 has not been appointed in
disposal of the writ petition. accordance with the statutory provisions
applicable and therefore, also he has no Put up on 14th December, 2006 as

legal right to object to the legal unlisted matter.
appointment of the petitioner who has
been selected in accordance with 23. In order to avoid conflicting
Statutory provisions. judgments being passed in the writ
petitions filed by respondent no. 6
19. With regard to the second namely, Rajendra Prasad Verma before
objection this Court has no hesitation to the Lucknow Bench of this Court, being
record that this Court has every Writ Petition No. 6482 (S/S) of 1999 and
jurisdiction to entertain the present writ Writ Petition No. 3920 (S/S) of 2006 and
petition, which has been filed for ensuring the present writ petition filed before this
appointment being offered to a candidate Court, it is desirable that The Hon'ble The
selected by the U.P. Secondary Education Chief Justice may consider the transfer of
Services Selection Board, at Allahabad, as the writ petitions filed before the
part of cause of action has arisen at Lucknow Bench of this Court being Writ
Allahabad. Petition No. 6482 (S/S) of 1999 and Writ
Petition No. 3920 (S/S) of 2006 to the
20. In such circumstances both the Allahabad High Court and the same may
objections raised by learned counsel for be tagged along with this writ petition.
respondent n06 are hereby rejected. ---------
CIVIL SIDE
21. From the aforesaid, it is apparent
that petitioner has a prima facie case in
his favour, an ad hoc appointee (who has BEFORE
been appointed by an Authority having no THE HON’BLE M.C. JAIN, J.
jurisdiction to offer such appointment) THE HON’BLE K.K. MISRA, J.
must give way to the regularly selected
candidate. Habeas Corpus Writ Petition No.66525 of
The petitioner, is therefore, entitled to 2005
following interim order: Connected with
Habeas Corpus Writ Petition No.66528 of
22. The District Inspector of 2005
Schools, Ambedkar Nagar who is present
in the Court today is directed to ensure Pappu …Petitioner
that the petitioner is permitted to join in Versus
the institution as Lecturer (Psychology)
within a week from the date a certified
copy of this order is filed before him. This I.M. Khan
appointment shall be subject to the final
orders to be passed in this petition. Counsel for the Respondents:
Sri K.C. Sinha Addl. S.G. of India
Sri Arvind Tripathi Counter and rejoinder affidavits have

Sri A.K. Singh been exchanged.
A.G.A
We have heard Shri I.M. Khan,
National Security Act, 3 (2)-Detention learned counsel for the petitioners and Sri
Order-passed on the allegations-broad
Arvind Tripathi, learned A.G.A. No-body
day light taking the girl-stripped her
naked-tearing her cloths-armed with fire has turned up for the Union of India in
arm-required on hue and cry resulted petition no. 66528/05. But Shri A.K.
breach of peace-no interference. Singh argued for Union of India in
(Delivered by Hon’ble K.K. Misra, J.) petition no.66525/05.
In both these writ petitions the The main contention of the learned
common impugned detention order dated counsel for the petitioners is that the
30.7.05 passed by District Magistrate, incident relied upon for passing the
Rampur, respondent no. 2, under section 3 impugned detention order related only to
(2) of the National Security Act is under the problem of law and order and it had
challenge. nothing to do with the maintenance of
public order.
The ground of detention are
contained in Annexure No. 1 to the writ On the other hand, Sri Arvind
petition. It is stated therein that on Tripathi, learned A.G.A. strongly
22.4.2005 at 10.15 a.m. a report was contended that due to the incident, there
lodged by the complainant Sunil son of was hue and cry in the locality and the
late Ram Saran that when he alongwith force was deployed in the locality for
his wife and his nieces, namely, Ms. maintenance of public order. In short, the
Poonam and Ms. Sundari entered his submission of the learned A.G.A. is that
house on return from temple, the the incident in question gave rise to
petitioner with his associates entered his breach of public order and not of law and
house armed with firearms and they took order.
with them his niece, namely, Ms.
Poonam. They stripped Ms. Poonam Any disorderly behaviour of a person
naked, tearing her clothes. On raising in the public or commission of a criminal
shouts by complainant Sunil and his offence is bound to some extent affect the
family members, many neighbours peace prevailing in the locality and it may
assembled. The petitioners and their also affect law and order but the same
associates threw Miss Poonam naked need not always affect maintenance of
outside the house. Then the petitioner and public order. The question whether a
his associates ran away, firing. An F.I.R. person has only committed a breach of
was registered as case crime No. 145/05 law and order or has acted in a manner
under section 452/354/509/323/506 I.P.C. likely to cause disturbance of the public
The incident had taken place in broad day order, is a question of degree and the
light. There was hue and cry and extent of the reach of the act upon the
atmosphere was exceedingly charged society. The present incident was
which resulted in breach of public order. definitely one which adversely affected
public order.
1 All] Pappu V. State of U.P. and others 307
to question of public order. Consequently

In the above circumstances, we find the detention order passed by the District
that the incident on the basis of which the Magistrate, Rampur does not suffer from
present detention order was passed related any illegality.
In the result, both the writ petitions under section 482 Cr.P.C. is maintainable
are dismissed. for the simple reason that to secure the
--------- ends of justice it is a must that if
REVISIONAL JURISDICTION cognizable offence is disclosed in an
CRIMINAL SIDE
application filed by the aggrieved person
then his such an application must be
DATED ALLAHABAD 17.10.2006
investigated to bring culprits to books
Before
and not to thwart his attempt. to get the
,FIR registered by rejecting such an
application which will not amount to
Criminal Revision No. 5729 of 2006 securing the ends of justice but will
amount to travesty of it.
Chandan ...Revisionist
Versus Thus there was no opinion formed by the
State of U.P. & another...Opposite Parties Magistrate against any body and hence
no body was an accused and. hence
Counsel for the Revisionist: there does not arise any question of
Sri. S.K. Parikh infringment of any "Fundamental Right"
or"legal right" of any person.
From the discussions made above it is
Counsel for the Opposite. Parties:
clear that no revision is maintainable at
A.G.A. the instance of the accused against an
order passed under section 156(3)
Code of Criminal Procedure-S-397(1)- Cr.P.C."
Revision against an order passed under Case Law discussed:
section156(3)-at pre cognizance stage- AIR 1994 SC-1349, 1994 SCC(Crl)-1172, AIR
No doubt a judicial order but 1997 SC-610, 1997 (1)SCC-416, AIR 2004 SC-
administrative in nature under Chapter 7, AIR 1993 SC-1960, 1970(1) SCC-653, 1995
XII of the code-No opinion formed by SCC(Crl)-1059, 2003(6) AWC-4986, 2000(10)
Magistrate against any body-No body is SCC-482, AIR 1958 SC-1986, 2004(5) AWC-
within the meaning of accused-Question 4956, 1998(8) SCC 1, 1980 SCC (Crl)-272,
of infringement of fundamental rights 1997(34) ACC-163. 1991(28) ACC-422, 2004
does not arise-held neither revision nor UPCR-242, JT 1994(4) SC-537, 2003 SCC(Crl)-
application under section 482 of the code 1305, 1963 ISCR-202, 1997(13) ACC-225,
-maintainable by the prospective 1994 ACC-535, 2005 SCC(Crl)-242, 1980 CrCJ-
accused-general direction issued- 258, 1993 SCC(Crl)-36, 2002(44) ACC-143,
1997(34) ACC-687, 2000(46) ACC-1180, 1992
Held: para 20 & 23 SCC(Crl)-426.
To sum up the discussions made above it

is clear that the alleged accused has no
right to challenge an order passed under
section 156(3) Cr.P.C. at pre cognizance This revision has been filed by
stage by a Magistrate and no revision lay Chandan who is aggrieved by the, order
against such an order at the instance of dated 31.8.2006 passed by Civil Judge
the alleged accused under section 397(1) (Junior Division) Judicial Magistrate,
Cr.P.C. being barred by section 397(2)
Chakia, Chandauli in Miscellaneous Case
Cr.P.C. nor at his instance an application
No: Nil of 2006, Manoj Kumar Vs. 156(3) Cr.P. C. before the concerned
Chandan and anothers, under Section Magistrate. Magistrate initially called for
156(3) Cr.P.C, P.S. Chakia, district a report from police and fixed 21.8:2006.
Chandauli. By the impugned order the Subsequently, he again fixed 22.8.2006
Magistrate concerned has ordered for and 25.8.2006. Ultimately on 31.8.2006
registration of the F.I.R. and investigation the Magistrate ordered that the application
in pursuance thereof in the crime by the filed by the applicant discloses
police, on the application under Section commission of a. cognizable offence and
156(3) Cr.P.C.filed by Manoj Kumar therefore, it should be investigated as no
(respondent no.2). F.I.R. was already registered at the police
station. With the aforesaid observation he
2. The facts giving rise to this directed the police to register the F.I.R.
revision are that on 5.9.2006 an and investigate the case and sent a copy of
application under Section 156(3) Cr.P.C. the F.I.R. to him within seven days which
was filed by Manoj Kumar with the order is under challenge in this revision.
allegations that his wife Smt. Usha Devi
was enticed away by Chandan (present 3. I have heard Sri C.K. Parikh,
revisionist) and after exerting undue learned counsel for the revisionist in
influence on her got himself support of this revision and the learned
photographed with her in objectionable AGA in opposition.
poses. His wife Smt., Usha Devi because
of shame could not inform the said fact to, 4. At the very out set the question of
the family members. On 12.8.2006 maintainability of this revision at the
Chandan, (revisionist) sent those instance of the revisionist, against whom
photographs to the applicant Manoj an order u/s 156 (3) Cr. P.C. was passed,
Kumar (respondent no.2) and started came up for consideration, as the learned
blackmailing him for Rs.10000/-on the AGA raised the preliminary objection that
pretext that in case the said amount is not this revision by the revisionist who is a
paid he will defame the couple by proposed accused is not maintainable.
publishing the said photographs in the
village. When the applicant Manoj Kumar 5. Learned counsel for the
objected to the said conduct, revisionist revisionist submitted that since the
Chandan and his maternal uncle Ram Ji, application u/s 156 (3) Cr. P.C. had been
who is said to be a police constable, filed against him and the order will
threatened him with life and also abused definitely affect him prejudicially he has
him filthily. Manoj Kumar wanted to got a right to maintain the revision. He
lodge the report of extortion and further contended that after an order u/s
threatening but his report was not taken 156 (3) is passed the police has got no
down by the Officer-in-charge of the option but to register the FIR against him,
police station. His application to the therefore, the revisionist have got a right
Superintendent of Police, Chandauli, sent to challenge the said order passed by the
through registered post on 17.8.2006 did learned Magistrate in as much as his
not yield any result; consequently, on fundamental right is jeopardized. He
19.8.2006, Manoj Kumar, respondent further contended that the Magistrate
no.2 filed· an application under Section must hear the accused at the stage of 156
1 All] Chandan V. State of U.P. and another 309
(3) Cr. P.C. and therefore also the before me in criminal Miscellaneous
impugned order deserves to be set aside. Application No. 4670 of 2006, Rakesh
He relied upon a reported judgment in Puri and another Vs. State of U.P. and
Ajai Malviya Vs State of U.P.2000 (4) another. In that decision it has been held
ACC 435. as follows-:
6. Learned AGA on the other hand "Section 156 (3) Cr. P.C. falls under
contended that the Magistrate was not Chapter XII, which deals with the power
obliged to hear, the accused at the stage of of police to register and investigate a
156 (3) Cr. P.C. as he was exercising the cognizable offence u/s 154 (1) and 156
administrative power of control over the (1) Cr. P.C. The law has mandated the
police by passing a, judicial order. He police to register all the information’s
submitted that the contentions raised by whether oral or in writing if it discloses
the learned counsel for the revisionists are the commission of a cognizable offence in
against the basic principles of criminal the form and in the manner prescribed by
law and section 156 (3) Cr. P.C. He the respective State Government and to
further submitted that Supreme Court had obtain the signature of the informant after
laid down in many judgments that the its registration. Sub clause (3) of section
accused has no right of hearing, before 154 Cr.P.C. provides that if the Officer
being summoned. He further submitted Incharge of the Police Station refuses to
that passing of an order U/S 156 (3) register such an information which
Cr.P.C the Magistrate had only directed discloses the commission of a cognizable
the registration of the case and its offence the aggrieved person may send,
investigation and the accused has got no through post, the substance of such
right to challenge the aforesaid order of information in writing to the concerned
registration of F.I.R. He can challenge the Superintendent of Police who will either
FIR if it does not discloses commission of investigate into the matter himself or get
a cognizable offence in a writ petition. He it investigated through some officer if it
further submitted that section 397 and 401 discloses the commission of a cognizable
Cr.P:C. is not at all applicable against offence. It further provides that deputed
such an interlocutory order of registration officer after such entrustment of
and investigation and this revision is not investigation by the Superintendent of
maintainable and deserves to be Police will have all the powers of the
dismissed; He also submitted that Ajai Officer Incharge of Police Station as is
Malviya's case (Supra) does not laid down provided to him under the law. Thus
good law and is per-incurium being section 154 (3) Cr.P.C. is the power
contrary to Section 397(1) &(2) Cr.P.C. conferred on Superintendent of Police to
and the law laid down by Apex Court that get the FIR registered in case the same is
order under Section 156(3) Cr.P.C. is a refused by the officer in charge of the
pre-cognizance order. concerned police station when cognizable
offence is disclosed by such information.
7. I have considered the submissions Section 156(1) in conjunction with
raised by both the parties. The bone of section 157(1) Cr.P.C. provides that every
contention in this revision no longer cognizable offence must be investigated if
remains res-integra. It has come up the officer in charge of police station has
got "reason to suspect" that cognizable disclosing a cognizable' offence in

offence is disclosed after registration of compliance with the mandate of section
the FIR. Thus the scheme of the Code 154(1) of the code the concerned police
from section 154 to section 157 Cr.P.C. officer can not embark upon an inquiry as
makes is clear that all information to whether the information laid by the
disclosing commission of cognizable informant is reliable and genuine or
offence must be registered as a FIR at the otherwise and refuse to register a case on
police station and the officer in charge of the ground that the information is not
a police station has got no right to refuse reliable or credible. On the other hand,
it's registration. In case of refusal to the officer in charge of a police station is
register such an information as FIR the statutorily obliged to register a case and
officer in charge of police station is guilty then to proceed with the investigation if
of flouting the mandate of law. he has reason to suspect the commission
Subsequently after it's registration if the of an offence, which he is empowered
officer in charge of the police station has under section 156 of the code to
"reason to suspect" that cognizable investigate subject to the proviso to
offence is disclosed by the said registered section 157... ... ...In case, an officer in
FIR he must investigate it. This aspect of charge of a police station refuses to
the matter has been dealt, exhaustively, by exercise the jurisdiction vested in him and
the Apex Court in the case of State of to register a case on the information of a
Haryana And Others versus Bhajan Lal cognizable offence reported and thereby
And Others;1992 SCC(Cr.) 426. In paras violates the statutory duty cast upon him,
30,31 and 33 the apex court has laid down the person aggrieved by such refusal can
that:- send the substance of the information in
writing and by post to the superintendent
"30. The legal mandate enshrined in of police concerned who if satisfied that
section 154(1) is that every information the information forwarded to him
relating to the commission of a discloses a cognizable offence, ,should
"cognizable offence" (as defined under either investigate the case himself or
section2(c) of the code) if given orally (in direct an investigation to be made by any
which case it is to be reduced into police officer subordinate, to him in the
writing) or in writing to "an officer in manner provided by sub section(3) of
charge of a police station" (within the section 154 of the Code.
meaning of section 2 (o) of the code) and ………………………………………
signed by the informant should be entered ………………………………………
in a book to be kept by such officer in 33. It is, therefore, manifestly clear that if
such form as, the state government may any information disclosing a cognizable
prescribe which form is commonly called offence is laid before an officer-in charge
as “ First Information report" and which of a police station satisfying the
act of entering the information in the said requirements of section 154 (1) of the
form is known as registration of a crime code, the said police officer has no other
or a case. option except to enter the substance
thereof in ,the prescribed form, that is to
31. At the stage of registration of a crime say, to register a case on the basis of such
or a case on the basis of the information information."
(Under line Emphasis Supplied). " investigate the facts and circumstances of
the case should have “ reason to
Further it has been held in the suspect”, the, commission of an offence
aforesaid judgment (Rakesh Puri) that:- which he is empowered under section 156
to investigate. (Under line emphasis
8 "Section 156 (3) provides that the supplied).”
Magistrate “may order such an
investigation as mentioned above". In para 48 and 49 of the same judgment
These words clearly indicate and are the apex court has reiterated the same
relatable to an investigation, which is to view and has concluded the (this) aspect
be conducted by the police under section thus:-
156(1) Cr.P.C. The purview of the power
of the Magistrate conferred under section "Resultantly, the condition precedent
156(3) Cr.P.C. does not travel beyond the to the commencement of the investigation
said scope. It is limited in nature and the, under section 157(1) Cr.P.C. of the code
Magistrate under that subsection, is is the existence of the reason to suspect
empowered only to look to the application the commission of a cognizable offence
or complaint only to, find out as to which has to be, prima facie, disclosed by
whether a cognizable offence is disclosed the allegations made in the first
or not? Let me make it clear that information report laid before the police
registration of a FIR is quite different than officer under section 154(1).
the investigation of the same. It has been,
so held in the case of Bhajan Lal (Supra) 9. In the case of Madhu Bala versus
by the apex court. In para 41 of the said Suresh Kumar and others; 1998 SCC(
judgment the apex court has held:- Cr.) 111 it has been held by' the Supreme
Court in para 10 thereof:-
"We shall now examine as to what
are the requirements to be satisfied by an "The provisions of the code therefore
officer in charge of a police station before do not in any way stand in the way of a
he enters into the realm of investigation of Magistrate to direct the police to register
a cognizable offence after the stage of a a case at the police station and then
registration of the , offence under section investigate into the same. In our opinion
154(1). We have already found that the when an order for investigation under
police have under section 154(1) of the section 156(3) of the code is to be made
code a statutory duty to register a the proper direction to the police would
cognizable offence and thereafter under be " to register a case at the police station
section 156(1) a statutory right to treating the complaint as the first
investigate any cognizable case without information report and investigate into
requiring sanction of a Magistrate. the same". (emphasis supplied).
However the said statutory right to It has been held by the apex court in the
investigate a cognizable offence is , case of Central Bureau Of Investigation
subject to the fulfillment of pre- requisite through S.P .Jaipur versus State of
condition contemplated in section 157(1). Rajasthan and another:2001 SCC(Cr)
The condition is that the officer in charge 524 as follows:- .s
of the police station before proceeding to
"What is contained in sub- section the power of the police to investigate into
(3) of section 156 is the power to order the cognizable offence. Thus at the stage
the investigation referred to in sub- of section 156(3) Cr.P.C. a person against
section (1) because the words " order whom an application under the said·
such an investigation as above section is filed does not come into the
mentioned " in sub- section (3) are in picture at all to participate in the
mistakably clear as referring to the other proceedings. It is preposterous even to
sub- section. Thus the power is to order cogitate that a, person has a right, to
an "officer in charge of a police station" appear before the Magistrate to oppose an
to conduct investigation (Emphasis mine application seeking a direction from him
and Supplied)" for registration and investigation of the
offence when he has got no right to
It has further been laid down in the said participate in the said ex-parte
case Rakesh Puri (supra) that: proceeding. If permitted will amount to
killing of foetus of investigation in the
"The primary responsibility for womb when it was not there at all. Such a
conducting investigation into offences in power has not been conferred under the
cognizable cases vests with such police law on the prospective accused. See Hari
officer ,Section 156(3) of the code Raj Singh versus State of U.P 2000 (46)
empowers a Magistrate to direct such ACC 1180;Brijesh Versus State of U.P.
officer in charge of the Police station to and others 1997 (34) ACC 687; Father
investigate any cognizable case over Thomas versus State of U.P. and others
which such· Magistrate. has jurisdiction. 2002 (44) ACC 143. Further at the stage
"(Emphasis mine and Supplied) of section 156(3) Cr.P.C. which is a pre
cognizance stage there is no body who is
In para 16 thereof the apex court has laid an accused. The, character of being an
down the law, in, respect of the power of accused will be implanted on a person
Magistrate under section 156(3)Cr.P.C: only by registration of the FIR by the
,as, follows: police or by taking cognizance by the
Magistrate of the offence and summoning
"We, therefore reiterate·, that the of the person as an accused under section
magisterial power can not be stretched 204 Cr.P.C. Thus no person can be
under the said sub-section beyond bestowed with a right to challenge an
directing the officer in charge of a police order for registration and investigation of
station to conduct the investigation ". offence passed under section 156(3)
(Emphasis mine and supplied) Cr.P.C. when he is not even an accused."
The above· quoted passages, It has further been held that in that
unequivocally brings out the ambit of judgment:-
power of Magistrate under section 156(3)
Cr.P.C. Under the said section the "Cr.P.C. does not permit the accused
Magistrate does not take the cognizance to challenge any order at every stage of
of the offence himself and the power is proceedings. There are certain stages in
wielded by him, at the pre cognizance which even though judicial orders are
stage falling under chapter XII relating to passed but the person aggrieved has no
right to challenge the order even on the and had issued notice to C.B.I. to show
pretext that his Fundamental Rights are cause as to why the FIR and the
being infringed. As exemplars, I refer, proceeding subsequent thereto be not.
that an accused does not have a right to quashed. The apex court in the concluding
challenge the registration of a complaint part of it's judgment quashed the order of
and taking cognizance on it by the revisional court under section 397 and
Magistrate, recording of statements under 401 read with section 482 Cr.P.C. taking
section 200 and 202 Cr.P.C., issuing of suo motu cognizance. In the same case
bailable and non-bailable warrants, (the)Apex Court has approved the
registration of charge sheet after judgment of Kekoo J.Maneckji versus
investigation under section 173 Cr.P.C., Union Of India;1980 Cr.L.J.258(Bom)
granting of adjournments, exemption of in para 156 thereof in which it has been
accused, fixing dates for evidences, held as follows:-
recording of statement under section 313 "This is admittedly a stage where the
Cr.P.C., directing for further investigation prosecuting agency is still investigating
by the police under section 173(8) Cr.P.C. the offence and collecting evidence
etc. All these types of orders and many against the accused The petitioner, who is
such other orders are all judicial orders accused, has therefore, no locus standi as
passed in a judicial proceeding but they this stage to question the manner in which
are not subjected to the revisional powers the evidence should be collected. The law
of the courts under section 397(1) Cr.P.C. of this country does not give any right to
at the instance of the accused. If an the accused to control, or interfere with,
accused does not have a right to the collection of evidence".
participate in a proceeding at the stage of
section 156(3) Cr.P.C. it is 10. It has been further held in the
incomprehensible that he has power to said case Rakesh Puri (Supra) that Ajai
challenge order passed under that section Malviya Vs. State of U.P. 2000(41)ACC
more so order for registration of FIR 435 does not lay down correct law in the
which is different from investigating the following words:
offences, if any, disclosed by the said "1 have gone through the said
FIR.·In the case of Bhajan Lal (Supra) judgment. With profound respect to the
while laying down the guidelines for Hon'ble· Judges in the said case and with
quashing of the FIR the apex court has not utmost·humility and humbleness at my
conferred the power on the accused to command I find myself unable to agree
challenge the registration of FIR against with said judgment in so far as the
him. This matter has come up before the maintainability of revision at the instance
apex court in the case of Janta Dal versus of the accused against the order passed
H.S.Chowdhary.and others 1993 under section 156(3) Cr.P.C. is concerned
SCC(Cr) 36 (known as Bofor's case) in as much as the said judgment is not
where the apex court denounced the only against the statutory provision of
practice of lower court in issuing of notice section 397 (1) and (2) Cr.P.C. which
on the registration. of FIR under section escaped the notice of the aforesaid
397(1) or 482 Cr.P.C. In the said case the Division Bench but also because it is
revisional court because of various against the very spirit of the provision of
illegalities had taken suo motu cognizance 156(3) Cr.P.C. and law laid down by the
apex court referred to above which is aforesaid Division bench did not at all
binding under Article 141 of the considered the said section before
Constitution Of India and is the law recording a finding that the revision is
declared. Let me list the reasons for my maintainable against the order passed
disagreement. Firstly, Ajai Malviya's case under section 156(3) Cr.P.C. it
(Supra) was decided in a writ jurisdiction concentrated only on one aspect of the
under Article 226 of The Constitution Of matter and that was that the order passed
India where the infringement of under section 156 (3) Cr.P.C. is a judicial
Fundamental Rights was alleged on the order and hence amenable to revisional
ground that no offence is disclosed in the jurisdiction. This view by the said
FIR already registered. (Emphasis Mine); Division Bench, with profound respect, is
The prayer made in the said writ petition indirect conflict with section 397 (2)
is mentioned in the opening part of the Cr.P.C. in as much as all interlocutory
said judgment as follows:- orders are judicial orders passed in a
judicial proceeding but they all are not
"The first information report dated subjected to revisional powers of the
6.8.1998 on the basis of which case crime courts under section 397(1) Cr.P.C.
No.743 of 1998 under section 406/420IPC Registration of a complaint, Ordering for
has been registered at police station further investigation under section 173 (8)
Chakeri, district Kanpur Nagar is sought Cr.P.C by a Magistrate after receiving a
to be quashed by means of this writ report from the police under section
petition under Article 226 of the 173(1), registration of charge sheet
Constitution. A direction not to arrest the submitted by the police under section
petitioner in the case aforestated during 173(2), issuance of non bailable warrant,
the course of investigation has also been issuance of process under section 82-83
sought besides the relief of certiorari. " Cr.P.C., recalling a witness, granting bail
and cancellation thereof asking the
11. Thus the petitioner in that, case complainant to produce evidence under
was seeking an extra ordinary sections 200 and 202Cr:P.C. granting of
Constitutional remedy conferred on him adjournments, exemptions of accused
under Article 226 of The Constitution Of giving dates in the cases, order for
India. He was not seeking a legal. framing of charge, recording of statement
Remedy provided under Cr.P.C. To avail under section 313 Cr.P.C. fixing dates for
(of) a legal remedy it has to be evidences, order for committal of cases to
specifically provided for by the concerned the court of Session's and many more
Statute and such a remedy is governed by such orders are all judicial orders passed
the provisions contained therein. If a in a judicial proceeding but they are not
statute prohibits the claimed legal remedy subjected to revisional powers under
then the aggrieved person cannot avail of section 397/401 Cr.P.C. and in fact are
it. Secondly, the Division Bench in that barred by Section 397(2) Cr.P.C. This
case completely over looked the very important aspect of the matter which
provisions of section 397(1)& (2) Cr.P.C was sine qua non for deciding the
especially sub section (2) thereof which question of maintainability of a revision at
prohibits maintainability of a revision in the instance of accused against the order
cases of interlocutory orders. The passed under section 156(3) Cr.P.C. and
was relevant and germane to the right to challenge the order passed under
controversy was not considered at all by that section. The Apex Court has held that
the said Division Bench. Let me point out the accused has got such a right of
here that under section 156(3) Cr.P.C. challenge only after he has been
there was no proceeding between the summoned as an accused in the case by
litigating parties and no such proceeding the trial court to face the charge after the
was finalised. No inquiry or trial was held charge sheet is submitted against him. See
between two parties. Under that section it Janta Dal versus H.S.
is only an administrative power which is Chowdhary(Supra).The apex court has
being exercised by the Magistrate ex parte held in many other decisions that the
being superior authority to direct the accused has no right to be heard before he
police to register and investigate the is summoned. In Nagawwa versus
offence. Such an order is pure and simple V.S.Konjalgi 1976 (13) ACC 225 The
interlocutory order barred under section apex court has observed thus:-
397(2) Cr.P.C. from being revised. “in proceeding under section 202 the
Thirdly, the said Division Bench also accused has' got absolutely no locus
failed to notice that the word standi and is not entitled to be heard on
"Proceeding" mentioned under section the question whether the process should
397 (I) Cr.P.C. does not embraces within be issued against him or not." ,
it's purview all proceedings even exparte
proceeding in which the other side even 12. In V. Panchal versus D.D
does not have the right to participate and Ghadigaonkar:AIR (1961) ISCR 1 it
to be heard. At the stage of section 156 was also held by the apex court that:-
(3) Cr.P.C. the prospective accused "The section does not say that a
cannot be .heard at all and once he cannot regular trial of adjudging the truth or
be heard how can he challenge the said otherwise of the person complained
order. The word "Proceeding" under against should take place at that stage,
section 397 (1) Cr.P.C. means the for such a person can be called upon to
"Proceedings" which is final in nature and answer the allegation made against him
in which both the sides had got a right to only when a process has been issued.
be heard whether they have in fact been "(Emphasis Mine)
heard or not. It is because of this reason
that recently the Apex court in the case of 13. In the case of Chandra Deo
Subarmaniyam Sethuraman versus Singh versus Prakash Chandra
State of Maharastra; 2005 SCC (Cr) Bose;AIR (1963) ISCR 202 it was
242 has held that even an order of observed by the apex court:-
summoning of an, accused is not
amenable, to revisional jurisdiction. The “Permitting the accused person, to
same view was expressed by this court in intervene during the inquiry would
the case of Atul Kumar Mathur and others frustrate its very object and that is why
versus State of UP ,and others: 1994ACC legislature has made no specific
535. Thus the accused who does not have provision, permitting an accused person
a legal right to participate in the to "take part in the inquiry"
proceeding under section 156(3) Cr.P.C.
certainly can not be conferred with the
14. In the case of Superintendent have any other option. Reference is to be

Of Police. C.B.I. And Others Versus made to the following judgments of this
Tapan Kumar Singh: 2003 SCC (Cr) court:-
1305 dealing with registration of FIR by Bahadur Singh Versus State of U.P;
the police it has been held by the apex 2005 (51) ACC 901 and Smt. Roopa
court:- Versus State of U.P. and others: 2004
U.P. Cr. R 242.s
“The true test is whether the 16. In the case of Samardha
information furnished provides a reason Sreepada Vallabha Venkata
to suspect the commission of an offence, Vishwadaha Maharai versus State of
which the police officer concerned is Andhra Pradesh : JT 1999 (4),SC 537 it
empowered under section 156 of the Code has been held by the apex court:-
to investigate. 1f it does, he has no option “There is nothing in section 173(8)
but to record the information and proceed to suggest that the court is obliged to hear
to investigate the case either himself or the accused before any such direction is
depute any other competent officer to made. Casting of such obligation on the
conduct the investigation. The question as court ',would only result in encumbering
to whether the report is true whether it the court with the burden of searching for
discloses full details regarding the all the potential accused to be afforded
manner of occurrence whether the with the 'opportunity of being heard. "
accused, is named . and whether there is
sufficient evidence to support the 17. In the case of Pratap versus
allegation, are all matters which are alien State of UP: 1991(28)ACC 422 it was
to the consideration. of the question held by Hon'ble G.P. Mathur J. as his
whether the report discloses, the lordship then was as follows :-
commission of cognizable offence. Even if
the information does not give, full details “Neither under the code of Criminal
regarding these matters the investigating Procedure nor under any principle of
officer is not absolved of his duty to natural justice the Magistrate is required
investigate the case and discover the true to issue notice or afford an opportunity of
facts, if he can. "(Emphasis Mine) hearing to an. accused in a case where
the police has submitted final report but
15. It is under such power of police on consideration of material on record
that the order under section 156(3) is to be the Magistrate cognizance of the offence
passed by the Magistrate when he is in exercise of his power under section 190
approached by the aggrieved person. It is (1)(b) and direct issue of process to the
the duty of the Magistrate to get the accused. The code does not contemplate
mandate of law observed by the police holding of two trials one before issue of
and not to get flouted by it. Therefore the process and the other after the process is
natural corollary is that if an application issued " (emphasis Mine)
or a complaint disclosing commission of a
cognizable offence is filed and the 18. The said observations in Pratap'
Magistrate is prayed for a direction to s case has been quoted with approval in
order for an investigation he has to order the case of Karan Singh versus State
for such an investigation and he does not
:1997(34)ACC 163 where in it has been any objection till the stage of summoning
observed by this court as follows:- and resultantly he can not be conferred
with a right to challenge order passed
"Where an order is made under prior to his summoning ignoring the
Section 156(3)Cr.P.C. Directing the provisions of Code. Further if the accused
police to register FIR and investigate. the· does not have a right to install the
same, the Code no where provides that investigation, but for the limited grounds
the Magistrate shall hear the accused available to him under the law. it
before issuing such a direction. nor any surpasses all suppositions to comprehend
person can be supposed to be having a that he posses a right to resist recording of
right asking the court of law for issuing a the FIR.
direction that an FIR should not be
registered against him. Where a person 20. To sum up the discussions made
has no right of hearing at the stage of above it is clear that the alleged accused
making an order under section 156(3) or has no right to challenge an order passed
during the stage of investigation until under section 156(3) Cr.P.C. at pre
courts takes cognizance and issues cognizance stage by a Magistrate and no
process, he can not be clothed also with a revision lay against such an order at the
right to challenge the order of the instance of the alleged accused under
Magistrate; by preferring a revision section 397(1) Cr.P.C. being barred by
under the Code. He cannot be termed as section 397(2) Cr.P.C. nor at his instance
an “aggrieved person" for the purpose of an application under section 482 Cr.P.C.
section 397 of the Code". is maintainable for the simple reason that
to secure the ends of justice it is a must
19. Thus at the stage of section that if cognizable offence is disclosed in
156(3)·any order made by the Magistrate an application filed by the aggrieved
does not adversely affect the right of any person then his such an application must
person since he has got ample remedy to be investigated to bring culprits to books
seek relief at the appropriate stage by and not to thwart his attempt. to get the
raising his objections. Further the ,FIR registered by rejecting such an
observations of the apex court in case of application which will not amount to
Bhajan Lal (Supra) quoted above applies securing the ends of justice but will
with full force in negation of the right of a amount to travesty of it. It is out side the
prospective accused to challenge an order purview of scope of section 397 (1)
under section 156(3) .Cr.P.C. It is Cr.P.C. to embrace any proceeding which
incomprehensible that the accused can not is not final in nature and in which the
challenge the registration of FIR by the other side has no right to be heard.
police directly but can challenge the order Proceeding under section 156(3) Cr.P.C;
made by the Magistrate for the is not such a proceeding and it is
registration of the same with the same conducted only for a limited purpose of
consequences. Thus from the discussions ordering for an investigation by the
made above it is clear that an accused police, ex- parte, if cognizable offence is
does not have any right to be heard before disclosed through such an application.
he is ·summoned by the court under the The Magistrate under that section is
code and that he has got no right to raise required to scan the application or the
complaint only to find out as to whether 21. Such a nature of order is not
any cognizable offence is disclosed or not revisable under section 397(1) Cr.P.C.
and no further. No. doubt, as has been and is barred under section 397 (2)
held by me herein before, that the order Cr.P.C. Sixthly, because section 156(3)
under section 156(3) Cr.P.C. is a judicial Cr.P.C. embraces into it's purview those
order but it is administrative in nature cases also where the police on it's own has
because of it's placement-under chapter registered the FIR and had investigated
XII Cr.P.C. relating to power of the police the matter and after investigation has
to investigate a matter. The Division submitted a report to the concerned
Bench in Ajai Malviya's case (Supra) did Magistrate. Magistrate in such cases
not at all addressed itself to the said enjoins the same power which the,police
aspect of the matter in·conjunction with enjoins under section 173(8) Cr.P.C. to
the scope of section 154 (1) and 156(1) direct for further investigation even
Cr.P.C. and the law laid down by the apex though the police had already investigated
court in the case of State of Haryana the matter and had submitted it's report to
versus Bhaian Lal;1992 SCC (Cr) the Magistrate. It has been held by the
347(Supra) and also in the case of Supreme Court in the case of State of
Central Bureau of Investigation. Bihar and another versus J.A.C.
Through S.P.Jaipur versus State of Saldanha and others: 1980 SCC
Rajasthan and another: (Cr).272·as follows:-
2001SCC(Cr)524 (Supra).Fourthly, the
accused can not be allowed to challenge “The power of the Magistrate under
each and every order at every stage of section 156(3) to direct further
judicial proceedings as has been' investigation is clearly an independent
discussed by me in this judgment herein power and does not stand in conflict with
before. Fifthly, the order undersection1 the power of the State Government as
56(3) Cr.P.C. is a pre cognizance stage spelt out herein before. The power
order as has been held by the Apex court conferred upon the Magistrate under
in the case of Devarapalli section 156(3) can be exercised by the
Lakshaminarayana Reddy and others Magistrate even after submission of a
versus V.Narayana Reddy and others: report by the investigating officer which
1976 ACC 230 and recently in the case of would mean that it would be open to the
Suresh Chand Jain versus State of Magistrate not to accept the conclusion of
Madhya Pradesh and another: JT the investigating officer and direct further
2001(2) SC 81. In the case of Devarapalli investigation. This provision does not in
(Supra) the Apex Court has gone to the any way affect the power of the
extent in observing that the nature of investigating officer to further investigate
order under section 156(3) Cr.P.C. is:- the case even after the submission of the
report as provided in section 173(8)."
“Peremptory reminder or intimation (Emphasis Mine).
to the Police to exercise their plenary
powers of investigation under section 22. The Supreme Court has spelt out
156(1)” the same law earlier also in the case of
Abhinandan Jha versus Dinesh Misra:
AIR 1968 SC 117 in the following the case of Devarapalli

terms:- Lakshaminarayana Reddy and others
but went contrary to it in holding that the
“But there may be instances when revision lay against an order under section
the Magistrate may take the view, on a 156(3) Cr.P.C. at the instance of an
consideration of a final report that the accused, which view is the very ante
opinion formed by the police is not based thesis of the observation made by the
on full and complete investigation, in Apex Court in the said Judgment. With
which case, in our opinion, the Magistrate due respect to the Judges of the said
will have ample jurisdiction to give division bench case they have made a
direction to the police, under section casual observation, even with out looking
156(3), to make a further investigation" to section 397 Cr.P.C. which deals with
(Emphasis Mine)." revisional· powers of the High. Court as
well as of the Session's Court, that the
It has further been held Rakesh Puri's case revision lay against the order passed
(Supra):- under Section 156(3) Cr.P.C. The
Division Bench, with profound respect
"Thus it is clear the under section did not examine the scope of revisional
156(3) Cr.P.C. the Magistrate can only powers of the courts at all. In the case of
direct registration and investigation of Suresh Chand Jain (Supra) has been
the offences by the Police. (Is) can such held by the Apex court that:-
an order revisable under section 397
Cr.P.C.? The answer is emphatic No. "But the significant point to be
The accused no where comes into noticed is when a Magistrate orders
picture at that stage. Such a nature of investigation under chapter XII he does
order if allowed to be subjected to. the so before he takes cognizance. "
revisional powers of the court under (Emphasis Mine)
section 397 Cr.P.C. then it will defeat
the very purpose of section 156(3) 23. Thus there was no opinion
Cr.P.C. for which it has been enacted in formed by the Magistrate against any
the Code and will open 'Tsunamis' for body and hence no body was an accused
the revisional courts and. no and. hence there does not arise any
investigation will be allowed to proceed. question of infringment of any
This was never the intention of the "Fundamental Right" or"legal right" of
Legislature and framers of law. The any person.
aggrieved accused has been conferred From the discussions made above it
the right to be heard at the appropriate is clear that no revision is maintainable at
stage by the Cr.P.C. and that certainly the instance of the accused against an
does not include the stage of Section order passed under section 156(3)
156(3) Cr.P.C. Resultantly an order Cr.P.C."
under section 156(3) is not revisable
under section 397(1) Cr.P.C. The Division 24. In the decision (Rakesh Puri's
Bench in Ajai Malviya's case (Supra) Case) another aspect of the matter of
even though took a note of the maintainability of writ petition of the
observations made by the Apex Court m instance of accused when the F.I.R. has
been registered under order of Magistrate abridges and /or divest the aggrieved
under Section .156(3) Cr.P.C. has also person to approached the High Court in
been dealt with as follows:-. it's extra ordinary constitutional writ
Jurisdiction to show that the FIR does not
"Now coming to the last submission, discloses commission of any cognizable
which has been argued during the course offence and therefore it deserves to' be
of the argument that a writ petition is not quashed or that proceedings are tainted
maintainable for quashing of a FIR unless with malafides and is vexatious. The
and until an order under section 156(3) is passing of an order under section 156 (3)
challenged by the aggrieved person. In Cr.P.C. by a Magistrate does not in any
this respect I am of the view that the said way even slightly takes away extra-
aspect the matter should not vex the mind ordinary powers of this court under
at all. 'Legal rights' are different from Article 226 of the constitution to examine
'Constitutional Rights'. The code of the contentions of the petitioner accused
criminal procedure confers a Legal Right' within the periphery of the guide lines
where as Article 32 and 226 of The laid down by the apex court in Bhajan
Constitution Of India confers a Lal's case (Supra). It will be dichotomical
'Fundamental' and a 'Constitutional Right'. even to ponder that a FIR registered by
Article 32 by itself is a 'Fundamental the police under section 154(3) of the
Right'. Because a person does not possess code or on it's own is amenable to the writ
a legal right does not divest him from jurisdiction of this court but this court will
wielding his constitutional rights. More have no such constitutional power. if the
over prior to the lodging of the FIR a FIR is registered under the order passed
person against whom an application or by the Magistrate in an administrative
complaint under section 156(3) Cr.P.C. capacity under chapter XII Cr.P.C. though
has been filed is not entitled to be heard the power under section 154(3) and
nor he can challenge any order passed on 156(3) are, in essence, similar to each
the said application but as soon as the FIR other having the same result The writ
is registered he gets a constitutional right power of this court under Article 226 of
to challenge the same as he is anointed as The Constitution is not dependent upon
an accused and hence can always show the power or authority of the subordinate
that his Fundamental Rights conferred courts. Further an alternative remedy is no
under Article 14, 19 and 21 of The bar to entertain a petition under Article
Constitution Of India are jeopardized as 226 of The. Constitution as pas been held
no offence is disclosed through the said in voluminous judgments both by this
FIR and registration of the same by the court as well as by the Apex Court.
police is illegal. Since the aggrieved Reference may be had to Whirlpool
person does not have any right to Corporation versus Registrar of Trade
challenge and raise his grievance before Marks, Mumbai And others;(1998) 8
the court of law prior to the registration of SCC 1, Committee Of Management,
FIR his said disability vanishes with S.P.G. Inter College, Eka, Firozabad
registration of the same against him. And Another versus Regional Joint
Merely because the Magistrate has director of Education And others;
ordered for registration and investigation 2004(5) A WC 4956, State of U.P. versus
of the case that does not takes away or Mohd Mooh; AIR 1958 SC 86, M/S
Canon India Pvt Ltd versus State of malafide, no legal evidence, lack of
U.P.; 2003 UPTC 10, Hidustan admissible evidences etc. Thus the writ
Aluminium Corporation Ltd versus State petitioner can not be thrown out of the
of U.P. 1977 UPTC 81., Union If India court merely because the FIR is registered
And another versus State of Haryana under the orders of the Magistrate passed
and another(2000)10 SCC 482, Sophia under section 156(3) Cr.P.C. It has been
Girls School, Meerut, Cantt versus held by the apex court in the case of S.N.
Cantonment Board, Meerut And Sharma versus Bipen Kumar Tiwari:
Another;2003 (6) A WC 4986. (1970) 1 SCC 653 in para 10 as follows:-
25. Further maintainability of a writ "It appears to us that the, though the
petition is not dependent upon an order code of Criminal Procedure gives to the
passed by the Magistrate under section police unfettered power to investigate all
156(3) Cr.P.C. because even cases where they suspect that cognizable
administrative action are subject to writ offence has been committed in
jurisdiction of this court. Exercise of appropriate cases an aggrieved person
Constitutional power under Article 226 can always seek a remedy by invoking the
Of The Constitution in the context of power of the high court under Article 226
present controversy depends more upon of the Constitution under which . if the
factual aspect of the matter-discloser of high could be convinced that the power of
offence by the FIR and not on the fact that investigation has been exercised by a
the FIR was registered . under police officer malafide the High Court
Magistrate's direction. The order passed can always issue a writ of mandamus
by the Magistrate under section 156(3) restraining the police from misusing his
Cr.P.C. does not diminishes the legal powers. "s
Fundamental Rights under Chapter III of
the Constitution conferred on it's citizens. 26. The above quoted passage of
It is to be noted that while dealing with S.N. Sharma's case (Supra) has been
power to quash the FIR by High Court the quoted with approval in Bhajan Lal's
Supreme Court in Bhajan Lal's case case (Supra) by the apex court and it has
(Supra) as well as in.B.R. Bajaj versus been observed thus:
State of Punjab; 1995 SCC(Cr.) 1059 has
not said that the prospective accused has "But if a police officer transgresses
got no right to challenge the FIR. It had the circumscribed limits and improperly
laid down various criterion's for quashing and illegally exercises his investigatory
of the FIR and one of such ground is that powers in breach of any statutory
the FIR does not discloses commission of provision causing serious prejudice to the
cognizable offence of any kind. The personal liberty and also property of a
Magistrate under section 156(3) Cr.P.C. is citizen then the court on being
concerned only with this guide lines and approached by the person aggrieved for
not with other guide lines enumerated by the redress of any grievance, has to
the apex court in those cases whereas a consider the nature and extent of the
writ for quashing of the FIR is also breach and pass appropriate orders as
maintainable on other grounds as well may be called forwithout leaving the
which include legal bar from prosecution, citizens to the mercy of police echelons
since human dignity is a dear value of our section 482 Cr.P.C. lay against such an
Constitution." order at his instance being barred by
section 397(2) Cr.P.C. and on the simple
Moreover, the Apex Court has taken a reason that to secure the ends of justice it
good care in the cases of arbitrary is a must that if cognizable offence is
exercise of power by the police in the law disclosed in an application or complaint
laid down in Joginder Kumar Vs. State of filed by a victim then his such an
Uttar Pradesh: AIR 1994 SC 1349: 1994 application must be ordered to be
SCC(Cr) 1172; D.K.Basu versus State investigated by the Magistrate to bring the
ofW.B.: AIR 1997 SC 610 : (1997) 1 culprits to books and not to thwart his
SCC 416; State of Maharastra versus attempt to get the FIR registered against
Christian Community Welfare prospective malefactors by rejecting his
Council:AIR 2004 SC 7 and in Smt. such an application which will not amount
Nilabati Behera versus State of Orrisa to securing the ends of justice but will
:AIR1993 SC1960: 1993 Cr.LJ.2899. result in travesty of it. "
27. Thus the residue of the 29. Resultantly, from the discussions
discussion made above is that a writ made above it is clear that Ajai Malvia's
petition under Article 226 of The case is contrarily to Section 397 (1) and
Constitution Of India. Is maintainable at (2) Cr.P.C. which deals with the
the instance of the accused challenging revisional powers of this Court. In the
the FIR within the periphery of guide aforesaid judgment the Division Bench
lines laid down by the apex court in has not at all taken into consideration the
Bahajan Lal's case (Supra).S.N. aforesaid Section which deals with
Sharma's case (Supra) as well as in other revisional power of this Court as well as
binding judicial pronouncements by it and Sessions Judge. Consequently, it does not
also by this court whether the FIR has lay down a binding precedent and is
been registered by the police itself or declared per incurium. In holding so I am
under the orders of the Superintendent Of fortified by the following judgments in
Police(Section 154(3) or Under orders of the Apex Court:-
Magistrate. under section 156(3) Cr.P.C.
State through S.P. New Delhi and
28. Summing up the discussion the another Vs. Rattan Lal Rora (2004) 4
judgment of the division bench in Ajay SCC 590; State of U;P. and another Vs.
Malviya's case (Supra) does not lay down Synthetics and chemicals Ltd. and another
the correct law and it's opinion is contrary (1991)4 SCC 139; Nirmal Jeet Kaur Vs.
to the law laid down by the apex court as State of M.P. (2004) .7 SCC 558;N.
well as against the statutory provision Bhargavan Pillai Vs. State of Kerala AIR
under section 397(1)&(2) Cr.P.C. and 2004 SC 2317.
hence it does not have any binding effect.
The alleged accused has no right to It has been held by the Apex Court in
challenge an order passed under section 2006 in the case of Mayuram
156(3) Cr.P.C. at a pre cognizance stage Subramnian Srinivasan Vs. C.B.I as
by a Magistrate and no revision under follows;
section 397/401 Cr.P.C. or petition under
"The effect of Order XXI Rule 13A of Pillai; (dead) by, Lrs. And. Anr. v. State
the Rules does not appear to have been of Kerala (AIR 2004 SC 2317).
brought to the notice of the Court while It was observed in para 14 of the said
dealing with the application for stay of judgment as, follows:
the judgment of the High Court in orders "14- Coming to the plea relating to
on which reliance is placed by learned benefits under the, Probation Act, it is to
counsel for the appellants. The be noted that Section 18 of the said Act
consequences which flow from such non clearly rules out application of the
reference to applicable provisions have Probation Act to a case covered under
been highlighted by this Court in many Section 5(2) of the Act. Therefore, there is
cases., In State through S.P. New Delhi v. no substance, in the accused-appellant's
Ratan Lal Arora (2004) 4 SCC(590) it plea relating to grant of benefit under the
was held that where in a case the decision Probation Act. The decision in Bore
has been rendered without reference to Gowda's case (supra) does not· even
statutory bars, the same cannot have any indicate that Section 18 of the Probation
precedent value and shall have to be Act was taken note of. In view of the
treated as having been rendered per specific statutory bar the view.' if any.
incuriam. The present case stands at pat, expressed without analyzing the statutory
if not, on a better footing. The provisions provision cannot in our view be treated as
of Section 439 do not appear to have been a binding precedent and at the most is to
taken note of. be considered as having been rendered
"Incuria", literally means "carelessness". per incuriam. Looked at from any angle,
In practice per incuriam is taken to mean the appeal is sans merit and deserves
per ignoration. English Courts have dismissal, which we direct.
developed this principle in relaxation of (underline emphasis supplied)"
the rule of stare decisis The "quotable in
law", as held in Young v. Bristol 30. Thus, the residue from the
Aeroplane Co. Ltd. (1944) 2 All E.R. 293, discussion made above brings out that the
is avoided and ignored if it is rendered, accused does not have any right to
"in ignoratium of a statute or other challenge an order passed under Section
binding authority". Same has been 156(3) Cr.P.C and therefore, the present
accepted, approved and adopted by this revision at the instance of Chandan, who
Court while interpreting Article 141 of the is a prospective accused in an application
Constitution of India, 1950 (in short the under Section 156(3) Cr.P.C. is not
'Constitution') which embodies the maintainable and therefore, this revision
doctrine of precedents as a matter of law. is dismissed as being not maintainable.
The above position was highlighted in
State of U.P. and another v. Synthetics 31. Since, this Court is burdened
and Chemicals Ltd. and another (1991) 4 with a spate of such revisions every day,
SCC (139). To perpetuate an error is no therefore, I consider it appropriate to
heroism. To rectify it is the compulsion ,of direct the Registrar General of this Court
the judicial conscience. The position was to circulate a copy of this order to all the
highlighted in Nirmal Jeet Kaur v. State Judicial Officers in the State for their
of MP. (2004 (7) SCC 558). The question information and follow up action.
was again examined in N. Bhargavan
This revision stands dismissed. No.2385 of 2006, With Criminal Misc.

---------- Application No.2516 of 2006, With
Criminal Misc. Application No.2773 of
2006
Counsel for the Applicant:

Sri Rajesh Dwivedi

A.G.A.
APPELLATE JURISDICTION
CRIMINAL SIDE Code of Criminal Procedure-Section 156
DATED: ALLAHABAD 25.09.2006 (3)-Power of Magistrate-when aggrieved
person approach to Magistrate-only
BEFORE requirement to consider whether any
cognizable offence made out or not-
should not saddle himself with additional
burden of the function of Police-held-the
Criminal Misc. Application No. 6152 of view taken by Magistrate-illegal-order
2006 Quashed-direction issued for fresh
consideration.
Smt. Masuman …Applicant
Versus Held: Para 49
State of U.P. & others…Opposite Parties
At this stage it may be pointed out that
Connected the Magistrate is not required to conduct
With Criminal Misc. Application No.1442 an enquiry under section 156(3) of the
code and he should not saddle himself
of 2006, With Criminal Misc. Application
with additional burden of discharging
No.3420 of 2006, With Criminal Misc. the function of police as crime
Application No.3313 of 2006, With prevention and crime detection is the
Criminal Misc. Application No.3207 of primary and foremost duty of the later
2006, With Criminal Misc. Application and so it must be left to it to perform this
No.3275 of 2006, With Criminal Misc. part of his duty
Application No.3184 of 2006, With Case law discussed:
Criminal Misc. Application No.3617 of 2002 (44) ACC-670, 2002 (1) JCC-853, 2001
2006, With Criminal Misc. Application (2) JIC-231, AIR 1961 SC-896, 1977 ACC-364,
2001 (42) ACC-459, 2002 LCR-2907, 2001 (2)
No.3611 of 2006, With Criminal Misc.
320, 2005 (52) ACC-568, AIR 1950 Cal.-437,
Application No.3637 of 2006, With 2006 J.T. (1) SC-10, 1951 SCR-312, 2006 J.T.
Criminal Misc. Application No.3725 of (1) SC-10, ILR 36 Alld.-222, AIR 1951 Cal.-2,
2006, With Criminal Misc. Application ILR 19 Ban-51, ILR-35 Alld. 102, 2003 (47)
NO.3106 of 2006, With Criminal Misc. ACC-140, 2001 ACC-(Suppl.)-277, AIR 1929
Application No.2290 of 2006, With Pat-473, AIR (36) 1949 Cal-55, AIR 1988 SCC-
Criminal Misc. Application No.2298 of 111, 2001 J.T. (2) SC-81, AIR 1961 SC-986,
2006, With Criminal Misc. Application 1976 ACC-230, 1997 (8) SCC-476, 2001 (50)
No.2199 of 2006, With Criminal Misc. SCC-264, J.T. 1990 (4) SC-650, 2003 JIC (2)-
126, 2001 SCC (Crl.)-524, 2002 (44) ACC-248,
Application No.2093 of 2006, With
2003 C.B.C.-934
Criminal Misc. Application No.2301 of
2006, With Criminal Misc. Application
(Delivered by Hon'ble Vinod Prasad. J.)
as well in getting their FIR registered

1. This cluster of petitions have been under section 156(3) Cr.P.C. (herein after
filed by the aggrieved persons who have referred to as the code). The applicants in
been rebuffed by the Magistrate and in all these applications are victims of the
some cases by the lower revisional court alleged malefactors and all these
applications raises a common question of 20.9.2005, through an application under
law and argument. In all these petitions section 156 (3) Cr.P.C. with the
the applicants have questioned the scope allegations that Kallu Pal, Ram Pal, Raju ,
of section 156(3) Cr.P. C. and the power Munshi Lal, Vipin, Suresh, Jaggi Lal
of the Magistrate there under. The prayer Kushwaha, and Chunna, alleged accused
in all these applications are that the persons are her co-villagers. Her's is 'the
impugned orders passed by the concerned only Mohammadan family in the village.
Magistrates, and in some cases also by the Her husband is old, and fragile. The
lower revisional court, refusing to order family earns it's livelihood by labouring.
for registration of FIR on the application In the village Pradhan election in the
filed by various applicants under section recent past her family had supported the
156(3) Cr.P.C. be set aside and the candidature of one Rajjan Singh who had
concerned Magistrates be directed to defeated Sanjai in the said election. This
reconsider the said applications afresh and had generated a feeling of revenge in the
pass orders in accordance with law. The minds of alleged malefactors Kallu Pal,
applicants have also challenged the Ram Pal, Raju, Munshi Lal, Vipin,
correctness of the law laid down in Gulab Suresh, Jaggi Lal Kushwaha, and Chunna
Chand Upadhyay Vs. State of UP. 2002 who all are either relatives or well wishers
(44) ACC 670 as in their submissions it is of aforesaid Sanjai. Bubbling with feeling
per-incurium. Since the arguments and of revenge, on 7.9.2005 at 8 P.M when all
the prayer made in all these cases are the family members of the applicant
similar and identical therefore these except Iqrar, the younger son, were
applications were clubbed together and present in the house the aforesaid persons
are being disposed of by this common surrounded the house of the applicant
judgment. vituperising the family. Faiz Mohd. and
Mister, husband and elder son of the
2. Before coming to the contentions applicant Masuman were belaboured by
raised a narration of the facts are inked raiders when they protested against the
below. hurled abuses. Masuman, the applicant,
her daughter Iskiman and grand daughter
Criminal Misc. Application No. 6152 of Afsana tried to save them but Iskiman
2006 was thrown on the ground by the alleged
Smt. Masuman vs State of UP and Others accused . Kallu, Raju and Chunna caught
hold of her hands and Juggi Lal by sliding
her clothes above her waist attempted to
The applicant Smt. Masuman wife of Faiz rape her. Iskiman was also sexually
Mohmmad resident of village Rasoolpur assaulted and molested by Munshi Lal
police station Billhor district Kanpur who pressed her breasts and after putting
Dehat invoked the power of the Chief his hands on her private parts tried to lift
Judicial Magistrate, Kanpur Dehat on her. On hue and cry being raised by the
victim's family they were saved by the co- impugned orders and for a direction for
villagers who had collected there. The fresh consideration of her application
accused left the place of the incident under Section 156(3) Cr.P.C. by the Chief
threatening the family with dire Judicial Magistrate, Kanpur Dehat.
consequences. Masuman could not get her
FIR registered as she was surrounded in Criminal Miscellaneous Application
the way by the malefactors and was No. 1442 of 2006
threatened for her life. Next day morning Uma Dutta Diwedi versus State ofU.P.
her husband and son were picked up by
the alleged accused persons and were got 3. This application has been filed by
implicated in a false case of theft. Injured the applicants for quashing of the order
Iskiman and Kumari Afsana got dated 18.1.2006 passed by Judicial
themselves medically examined in Ursala Magistrate, Mau in Case no. 315 of 2006.
hospital, district Kanpur Nagar. The By the aforesaid order, annexure no.7 the
application of the applicant to the Senior trial court has rejected the prayer for
Superintendent of Police, Kanpur Nagar, registration of FIR on application of the
dated 13.9.2005 yielded no results and applicant filed under Section 156(3)
therefore the applicant approached the Cr.P.C. on the ground that the applicant is
Chief Judicial Magistrate, Kanpur Dehat , in the knowledge of complete facts about
through an,application under section 156 the incident including the names of the
(3) Cr.P.C. against the respondents accused and therefore, in view of the
alleged accused to get her FIR registered judgment in Gulab Chand Upadhyay Vs.
for offences under sections State of U.P. 2002 (1) JIC 853, Allahabad
376/511/354/323/504/506 IPC and get it and Ram Babu Gupta Vs. State of U. P.
investigated by the police. She appended 2001 (2) JIC 203 the said application was
the injury reports of the two injured, her registered as a complaint case and an
own affidavit and a copy of her order for getting statement under Section
application to SSP, Kanpur Nagar along 200 Cr.P.C. recorded was passed. The
with her application which are filed as facts of the case were that the applicant
annexure no. 1, 2 and 3 to the affidavit who is retired railway government servant
filed in support of this application. The had very good relations with Virendra
aforesaid application of the applicant Singh, Vinod Kumar Singh and Iftikhar
under section 156 (3) Cr.P.C. was Ahmad. Seema Singh wife of Virendra
however rejected by the Chief Judicial Singh, who is grand daughter of Jagdish
Magistrate, Kanpur Dehat by the Singh was a teacher in the school started
impugned order dated 9.11.2005 by his grand father. Virendra Singh
(Annexure no. 4) by passing an order as aforesaid, who is a land mafia had
if, he was deciding the case finally. The misappropriated Rs.125000/= which was
revision preferred by Masuman being given to him by the applicant to start a
Criminal Revision No. 145 of 2005, too brick kiln. He also got a tractor financed
also rejected by the lower revisional court in the name of Vinod Kumar Singh,
vide it's impugned order dated 24.2.2006 brother of applicant Uma Dutta Diwedi by
(Annexure no.6) Hence this application to deceiving Union Bank, Mazawara Branch
this court under section 482 Cr.P.C. by and had also obtained signature of the
the applicant for quashing both the applicant on papers to grab his property
1 All] Smt. Masuman V. State of U.P. and others 327
and had also, committed theft of when the applicant along with his father
applicant's suit case. The applicant Bas Deo Sahai Gautam was going on his
dispatched many registered letters on motor cycle to Aligarh to deposit the
24.12.2004, 27.12.04, 30.12.04 and installments of his Ambassador car then
31.12.04 but no action was taken against near Nala crossing an attempt to murder
alleged accused so much so that his him was attempted by shooting at him by
registered letter dated 24.12.04 to S.S.P. the alleged accused Ramesh Chand
Mau, D.I.G. Azamgarh and I.G. Varanasi Sharma, Subhash, Vinod and Kuldeep
range also proved futile in getting the FIR because his brother was a witness against
registered. Hence he filed application these persons in a case for offence under
under section 156(3) Cr.P.C. on 14.3.2005 section 392 IPC. The aforesaid persons
annexing therewith the photocopy of were also threatening him on phone to
forged stamp papers, the copy of the annihilate him since last fifteen days, as a
application sent to S.S.P. on 24.12.04 and result of which he was unable to go to the
the registry receipts. The Magistrate police station to get his F.I.R lodged.
however turned down his prayer by Even though he had intimated the incident
passing the impugned order on 18.1.2006. to S.S.P. Aligarh through registered post
Hence this application. on 25.6.05 his FIR was not registered and
hence he had filed application under
Criminal Miscellaneous Application section 156(3) Cr.P.C. on 29.6.2005
No.3420 of 2006 which was ordered to be registered as
Indra Mohan Gautam versus State of U.P. complaint by ACJM Court No.1, Aligarh
And Others on the ground that the police report,
which was called for on the said
4. In this application order dated application under Section 156(3)
7.7.05 passed by A.C.J.M. Court no.1 mentioned that there was enmity between
Aligarh in Miscellaneous Application the applicant and Rarnesh Chandra
No.838 of 2004 Indra Mohan Gautam Vs. regarding the land dispute and that no
Ramesh Chandra and others as well as injury report was filed by the applicant in
order dated 24.3 .06 passed by Additional the court . The revisional court also
Sessions Judge, court no.5 Aligarh in rejected his revision hence this Criminal
Criminal Revision No. 531 of 2005, under Miscellaneous Application.
section 156(3) of the code is under
challenge. Criminal Miscellaneous Application
No.3313 of 2006
5. By order dated 7.7.05 the Pradeep Kumar versus State ofU.P.and
application under Section 156(3) filed by others
the applicant was ordered to be registered
as a complaint case and 30.7.05 was fixed 6. In this application the order dated
for recording of the statement under 3.12.05 passed by A.C.J.M court no.1
Section 200 Cr.P.C. By order dated Kanpur Dehat in criminal case no. 3096
24.3.06, lower revisional court has of 2005, Pradeep Kumar Vs. Rams
rejected the revision also filed by the Shanker and others as well as order dated
applicant. The facts of the case in nut 20.12.05 passed by District Judge Kanpur
shell were that on 3.6.2005 at 9 AM, Dehat in criminal revision
no. Nil of 2005 have been challenged. By Criminal Miscellaneous Application

the aforesaid orders the application under No.3207 of 2006
Section 156(3) Cr.P.C. by the applicant Dimi versus State of Uttar Pradesh
has been rejected by both the courts.
A.C.J.M. court no.1 has observed in his 7. In this case application under
impugned order that a report from police Section 156(3) dated 17.1.06 filed by the
station has been received and he has applicant was rejected on 25.1.06 by
perused the application and the annexure Additional Civil Judge (Senior Division)
appended therewith. It seems just to get Room No. 13, Allahabad. The facts of the
the application under Section 156(3) case were that the respondents Rashid,
registered as complaint in register no. 9 Sadhu, Dildar, Liyakat Ali and Shaukat
and hence he fixed 7.1.06 for recording of Ali armed with lathi and danda looted the
statement under Section 200 Cr.P.C. The house of the applicant on 5.1. 06 at 9.00
lower revisional court relying upon the P.M. and belaboured the application
judgment reported in 2001(2) JIC 231 inside his house. He was saved by the
Ram Babu Gupta Vs. State of U.P. has intervention of the villagers. The accused
rejected the revision only on the ground had left the spot threatening him. It is
that application under Section 156(3) mentioned in the impugned order by the
Cr.P.C. can be registered as a complaint Magistrate that according to the police
as well. The allegations in nutshell were report both the rival fractions assaulted
that Mahabir was assaulted with Kulhadi each other 5. 1.06 in which Saukat Ali
and lathi by the alleged accused Rama respondent had lodged a NCR No. 6/06,
Shanker and Manoj on the pretext that he under Sections 323, 504 I.P.C. The
had bet his pigs on 6.11.05 at 9 A.M. A.C.J.M. has referred various ruling
Injured Mahavir had received injuries. reported in AIR 1961 S.C. 896 Gopal Das
The incident was witnessed by the Vs. State of Assam, 1977 ACC 364 (HC)
applicant and Anil Kumar. The Tula Ram Vs. Kishore Singh 2001 (42)
application to S.S.P. Kanpur Nagar dated ACC459 (HC) Suresh Chandra Jain Vs.
7.11.2005 proved futile hence the State of M.P. and ultimately ordered that
application under Section 156(3) was the application be registered as complaint
filed on 9.11.05. Along with it the as there was no reason to direct the police
affidavit of the applicant Pradeep Kumar, to register the F.I.R.
copy of application sent to S.S.P. Kanpur and investigate the case. He had fixed 27.2.06
Nagar ,registry receipt and the injury for recording of statement under Section 200
report dated 7.11.05 were annexed. Injury Cr.P.C.
report indicated one incised wound and
three contusions caused by sharp edged Hence, this application.
weapon and blunt object respectively
were sustained by the applicant. Since the Criminal Miscellaneous Application
prayer for getting the FIR registered was No.3275 of 2006
denied by both the courts below hence, Mahakar Singh versus State of U.P.
this application for setting aside the two
orders and for a fresh consideration of the 8. In this Criminal Miscellaneous
application under section 156(3) Cr.P.C. Application order dated 22.3.06 passed by
Judicial Magistrate/Additional Civil
Judge Junior Division, Court no.2, Criminal Miscellaneous Application

Meerut, passed in case no. 461/06 has No.3184 of 2006
been challenged by which the application Smt. Suman Kumari versus State of
under Section 156(3) Cr.P.C. has been U.P.And Others
rejected by the trial court. The synopsised
facts of the case were that the applicant 9. In this Criminal Miscellaneous
Mahkar Singh had enmity with Application order dated 16.2.06 passed by
respondents Raj Karan because of land Additional Chief Judicial Magistrate,
dispute. On 2.3.06 at 4.30 P.M. the Moradabad, passed in Miscellaneous Case
applicant accompanied with his cousin No. 82/9/06 has been challenged.
brother Harveer had gone to Bally Bazar 10. The facts were that on 2.1.06 at
Meerut for purchasing and while 9.45 A.M. when Pankaj son of applicant
returning at 8 P.M. he met his friend Suman Kumari was going to school Asgar
Bhanu Pratap Chandel. When they were Hussain (Constable in G.R.P.) started
chatting alleged accused, namely, abusing him. On protest being raised by
Rajkaran, Prem Singh with one person, the applicant, Asgar Hussain aforesaid,
who was driving the motorcycle, with knife and his wife Afrosh and others
surrounded them and Rajkaran assaulted bet Smt. Suman Kumari. The applicant
the applicant with knife on the chest and was saved by the neighbors. Since the
head. When the applicant tried to escape, F.I.R. of Smt. Suman Kumari was not
Prem Singh assaulted him with Saria as a taken down and she was arrested falsely
result of which the applicant sustained under Section 151 Cr.P.C. therefore, she
injuries. On hue and cry being raised the filed an application under Section 156(3)
accused escaped on the motorcycle. The Cr.P.C. The said application and her
F.I.R. of the applicant was not registered prayer for registration of FIR was rejected
at P.S. Delhi Gate and the applicant was by the Magistrate by passing the
directed to get his medical examination impugned order on the ground that no
done. The applicant was got admitted in medical report was filed and the incident
P.L. Sharma Hospital and after two days was known to her and no new fact can
of hospitalization he was discharged. come to light. Therefore, in view of
Since the F.I.R. of the applicant was not Gulab Chand Upadhyay Vs. State 2002
registered, therefore, he filed an LCR Page 2907 and 2001(2) 320 Joseph
application under Section 156(3), for Madhuri Vs. Sachidanand Hari Shashtri
offences under section 307, 324, 506, the application was ordered to be
120B I.P.C. before the Magistrate ACJM registered as complaint. Hence, challenge
II (JD), Meerut, on 13.3.06, which was has been thrown to the aforesaid order
rejected by the impugned order on the dated 6.2.06 by this application.
ground that the place of the incident is
populated and the applicant has not filed Criminal Miscellaneous Application
any affidavit of witnesses, who had No.3617 of 2006
reached on the spot. Hence, this Asraf AU versus State of U.P. and Others
application challenging the aforesaid
rejection. 11. In this case application under
Section 156(3) Cr.P.C. was ordered to be
registered as a complaint vide impugned
order dated 4.8.05. The facts were that an Criminal Miscellaneous Application
application under Section 156(3) Cr.P.C. No.3611 of 2006
was filed on 15.3.05 before Judicial Bobby Khan versus State of U.P. and
Magistrate first, Allahabad being another
Miscellaneous Case No. 750 of 2005 on
the facts that on 14.2.05 at 2.30 P.M. the 12. In this application the impugned
accused respondents Raja @ Irfan, Nafees order is dated 13.3.06 passed by C.J.M.
Khan, Muzibulla @ Majjan, Mohd. Jaunpur by which the application under
Rijwan Khan, Farooq, Jameel, Ramjaan, Section 156(3) Cr.P.C. of the applicant
Laddan, Imran, Zulifikaar attacked the was rejected and the same has been
complainant the other villagers and ordered to be registered as complaint on
caused injuries to the applicant Ashraf the ground that there is no need for
Ali, Shakil, Imran @ Guddu. Two other investigation by the police and the
person Suhail and Jameel also received complainant can produce the evidence,
injuries while trying to save the which is available to him. The facts in
applicants. The police had connived with nutshell were that the respondent Rakesh
the accused. Applicant Ashraf Ali, Shakil Kumar Srivastava had taken away
and Imran @ Guddu have received Marshal Jeep No. MP 18BB 1372
serious injuries including fracture. Suhail belonging to the applicant and thereafter
and Mohd. Jameel had also received was threatening him to get him murdered
serious injuries. Since the police has not through anti-social elements and was not
taken down the F.I.R. in spite of sending returning his aforesaid vehicle. The
registry to the S.S.P. Allahabad and alleged accused had wrongly detained the
giving an application to him, therefore, vehicle and it was not possible to get the
the applicant Asraf Ali filed an vehicle recovered without the help of
application under Section 156(3) Cr.P.C. police. Since his prayer for getting the
It is relevant to mention here that the matter investigated by the police was
police in respect of this very incident had rejected by the impugned order therefore,
registered the F.I.R. being crime no. 41 of this application under Section 482 Cr.P.C.
2005, under Section 307 I.P.C., crime no. for setting aside that order.
42 of 2005, under Section 25 Arms Act,
crime no. 43 of 2005, under Section 4/5 Criminal Miscellaneous Application
Explosive Act, crime no. 44 of 2005, No.3637 of 2006
under Section 4/5 Explosive Act against Om Prakash versus State of U.P. and
the applicant Asraf Ali and injured others
Shakeel, Imran etc. Since the Magistrate
refused to get the F.I.R. registered for the 13. In this case the impugned order
applicant's version of the incident hence is dated 20.3.06 passed by Additional
this application under Section 482 Cr.P.C. Chief Judicial Magistrate, Bijnor in
for quashing of the aforesaid order. Miscellaneous Application No. Nil of
2006. In this case also the application
under Section 156(3) Cr.P.C. has been
ordered to be registered as complaint on
the ground that all the facts are clear
including the names of the accused with
their addresses and hence there was no rejection. The facts in nutshell were that
need to order for investigation by the Subhash Chandra @ Lalla son of
police on the basis of judgment in Gulab applicant Gaya Prasad was fired at when
Chand Upadhyay and Ram Bahadur he was sitting at his door by Sunil son of
Gupta (Supra). Suresh Chand, who was accompanied by
The facts in nutshell were that the Rajendra @ Lakhan, Sunil son of
applicant Om Prakash son of Ram Dayal Rajendra and Babloo, who all were armed
was cheated to a tune of Rs. 50,000/- by with lathi, kanta and barehi. This incident
Mohd. Arif, which was entrusted to him was witnessed, by Puttu, Jamaluddeen,
by the applicant on 4.4.05 and repeated Rambali and others including the
demand of the same resulted in his applicant. The son of the applicant was
beating by Mohd. Arif aforesaid , his sent for medical treatment to Kanpur. The
brother Malwa, and father Mujareen police had arrested the three accused but
Ahmad with one more person inside his later on released them. The accused
house with lathi and Dandas. The persons were threatening the applicant
applicant had received injuries and got with dire consequences. The injured son
himself medically examined in district of the applicant was admitted in Hallet
hospital yet his F.I.R. was not taken Hospital. Since the F.I.R.of the applicant
down. Aggrieved by the said refusal by was refused to be registered the applicant
the Magistrate in getting the FIR filed an application under Section 156(3)
registered and investigated by the police Cr.P.C. but the registration of case by the
this application under section 482 Cr.P.C. police was denied by the Magistrate as
to set aside the said impugned order has well and also by lower revisional court.
been filed. Hence, this application under Section 482
Cr.P.C. to set aside both the orders.
Criminal Miscellaneous Application
No. 3725 of 2006 Criminal Miscellaneous Application
Gava Prasad versus State of U.P. and No.3106 of 2006
others Radhey Shyam Versus State of U.P. and
others
14. In this case the impugned order
is dated 17.2.06 passed by A.C.J.M. court 15. In this case the impugned order
no.1 Kanpur Dehat in Case Gaya Prasad is dated 18.2.06 passed by C.J.M.
Vs. Rajendra Singh @ Lakhan. By the Farrukhabad in Miscellaneous Case No.
impugned order the application under Nil of 2005, Radhy Shyam Vs. Rakesh
Section 156(3) Cr.P.C. by the applicant and others by which application under
has been ordered to be registered as Section 156(3) Cr.P. C. filed by the
complaint fixing 1.3.06 for recording of applicant has been rejected by C.J.M.
statement under Section 200 Cr.P. C. The Farrukhabad on the ground that all the
challenge has also been made to the facts were known to the applicant
revisional court's order dated 25.3 .06 by including the names of witnesses. Hence,
which the revision has also been on the basis of case of Glulab Chand
dismissed mentioning cases of Ram Babu Upadhyay there was no need for
Gupta and Gulab Chand Upadhyay which investigation. The facts were that the
was filed against the said order of application under Section 156(3) Cr.P.C.
was filed on 16.12.05 by applicant by preparation of forged and false

Radhey Shyam for offences under Section documents, sale deeds, agreements to sell
147, 148, 323, 452, 504 and 506 I.P.C. etc. by the accused. Since the registration
and SC/ST Act. The occurrence alleged in of F.I.R. was denied by the Magistrate
nutshell were that on 28.11.05 at 7.30 hence this application under Section 482
P.M. the accused, ten in number armed Cr.P.C. for quashing and direction for
with lathi and danda and one accused fresh consideration in accordance with
armed with licensee gun raided the house law of the application under Section
of the applicant making utterances of 156(3) Cr.P.C.
filthy abuses relating to castes and bet the
wife of the applicant Sushila Devi and Criminal Miscellaneous Application
Shyam Singh. The accused left the spot No.2298 of 2006
threatening the family members. Since the Naresh Kumar Tanjia versus State of U.P.
registry sent to the administrative
authorities and the other applications did 17. In this case the impugned order
not yielded any result in getting the F.I.R. is dated 29.1l .2005 by which the
lodged therefore, the application under application under Section 156(3) Cr.P.C.
Section 156(3) was filed by the applicant. of the applicant has been ordered to be
The medical examinations of the injured registered as complaint and the
was done in Dr. Ram Manohar Lohia registration of F.I.R. and investigation has
Government Hospital Farrukhabad on been denied by the Judicial Magistrate II,
1.12.2005. Since the F.I.R. was not court No. 15, Saharanpur. The aforesaid
ordered to be registered by the impugned application was for offences under
order hence this application under Section Section 323, 504,506,441, 120B, 427,
482 Cr.P.C. for quashing the said order 327, 341, 342 I.P.C. The incident
and direction for fresh consideration. incapisulated was that the applicant
Naresh Kumar Taneja was assaulted on
Criminal Miscellaneous Application 2.10.05 at 11.00 A.M. and the accused
No.2290 of 2006 had grabbed the plot belonging to the
Mahendra Singh versus State of U.P. applicant by opening a way on the said
plots. The accused also snatched away his
16. In this case the impugned order licensee revolver and had illegally
is dated 7.1.06 passed in Miscellaneous captured the plot belonging to the nephew
Case No. 15 of 2005, Mahendra Singh Vs. of the applicant. The police had registered
State of U.P. by which order of a false case against the applicant under
registration of F.I.R. and investigation by Section 307 I.P.C. and had taken his
the police has been refused by A.C.J.M. licensee revolver as well. The applicant
Ghaziabad and the application under was got medically examined by the
Section 156(3) Cr.P.C. was ordered to be police. Since the applicant's efforts to get
registered as complaint. The incident in the F.I.R. registered failed he filed an
short were that a fraud has been application under Section 156(3) for
committed regarding a land scam in getting his F.I.R. registered, which was
respect of Gram Sabha land relating denied by the Magistrate on the basis of
which the civil suit is already pending. cases of Glulab Chand Upadhyay Vs.
The said land scam has been committed State and Vinay Pandey Vs. State 2005
(52) ACC 568. Since the effort to get his allegations were that on 1.1.06 at 7.30
F.I.R. registered failed hence, this P.M. the accused armed with country
application under Section 482 Cr.P.C. by made pistol entered into the house of the
the applicant. applicant Anil and committed a decoity of
motorcycle, colour T.V., Fridge, C.D.
Criminal Miscellaneous Application Player, Almirah, Dressing table, Mixy etc.
No. 2199 of 2006 when the applicant was in jail. The
Badshah versus State of U.P.& others registration of the F.I.R. was denied on
the basis of judgment reported in 2005
18. In this case the impugned order (52) ACC 568 by the A.C.J.M. (2)
is dated 19.4.05 passed by A.C.J.M court Meerut. Hence, this application under
no.8, Aligarh in case no. 1100 of 2004 Section 482 Cr.P.C. for quashing the said
Badhshah Vs. Netrapal Singh and others order and for a direction for
wherein application under Section 156(3) reconsideration of the application under
Cr.P.C. was ordered to be registered as Section 156(3) afresh by the Magistrate
complaint and the revision against the concerned A.C.J.M. II, Meerut.
said order was also dismissed by
Additional Sessions Judge court no.5, Criminal Miscellaneous Application
Aligarh vide impugned order dated No.2301 of 2006
29.8.05 in revision no. 373 of 2004. The Rajendra Singh versus State of U.P. And
facts indicated that the applicant was Others
defrauded of his land as well as of an
amount of more than Rs. 3 lakhs on the 20. In this case" the impugned order
basis of a false sale deed, which had been is dated 16.1.06 passed by Special Judge
registered in the name of Rosh Kumar, (D.A.A.) Etawah in Miscellaneous Case
Sunil Kumar and Subhash Kumar by the No. 7 of 2006, under Sections 395 I.P.C.
power of attorney holder Netra Pal Singh. By the impugned order the registration of
Because of the aforesaid fact Badshah the F.I.R. has been denied by the Special
was threatened on 17.10.03 at 8.00 P.M. Judge D.A.A. Etawah the ground that the
for being annihilated by the said Netra Pal applicant knew the accused, who are
and his sons and hence he had filed resident of his village and all the facts
application under section 156(3) Cr.P.C. regarding the incident is known to the
The rejection of his prayer to order for him. The impugned order mentions the
registration of FIR by the Magistrate is rulings of Ram Babu Gupta reported in
under challenge in this application. 2001 (43) A.C.C. page 50. The
application under Section 156(3) Cr.P.C.
Criminal Miscellaneous Application has been ordered to be registered as
No.2093 of 2006 complaint. Since the registration of F.I.R.
Anil Versus State of U.P. was denied and hence this application for
quashing and direction for fresh
19. In this case the impugned order consideration by the Special Judge D.A.A
is dated 7.2.06 passed by A.C.J.M. II, of the application filed by the applicant.
Meerut by which the application under
Section 156(3) Cr.P.C. had been ordered
to be registered as complaint. The
Criminal Miscellaneous Application Criminal Miscellaneous Application

No.2385 of 2006 No.2516 of 2006
Brij Kishore Diwedi versus State of U.P. Naimuddin versus State of U.P. and
and others another
21. In this case the impugned order 22. In this case the impugned order
is dated 16. 1. 06 passed by A.C.J.M. is dated 4.2.06 passed by A.C.J.M. 1st
Court no.2 Kanpur Dehat by which the Bulandshahar in Miscellaneous Case No.
application under Section 156(3) Cr.P.C. 31 of 2006 Naimuddin Vs. Shamsu by
filed by the applicant Brij Kishore being which application under Section 156(3)
case No. 24 of 2006 has been ordered to Cr.P.C., which was filed by the applicant
be registered as complaint. The Naimudeen has been ordered to be
application under Section 156(3) was registered as complaint by the impugned
filed for offences under Section 323, 324, order. The facts in short were that the
325, 452, 504, 506 I.P.C. on the applicant is litigating with the family
synopsized allegations that on 22.8.05 at members of his wife and because of the
10.30 A.M. the accused filthily abused the aforesaid enmity on 12.1.06 at 4.30 P.M.
applicant on the ground of washing of the accused armed with knife, country
clothes and after entering into his house made pistol and danda assaulted the
bet the applicant and his wife Madhu applicant Naimuddin, who sustained
Dwivedi with lathi, danda and Kurphi as injuries. Since his F.I.R. was not
a result of which they sustained injuries. registered he filed application under
The applicant got themselves medically Section 156(3) Cr.P.C. but the Magistrate
examined on 24.8.05 and 25.8.05. also denied passing an order for
Fractures were found in their injuries. registration of the F.I.R. by the impugned
Along with the application the applicant order. Hence, this application under
had appended the medical reports as well Section 482 Cr.P.C. for quashing of the
as the X-ray reports. Inspite of the fact impugned order and a direction for
that the application disclosed cognizable registration of the F. I.R. and
offences his F.I.R. was not registered and investigation thereon.
therefore, he filed application under
Section 156(3) Cr.P.C. for registration of Criminal Miscellaneous Application
his F.I.R., which was denied by the No.2773 of 2006
Magistrate, ACJM Kanpur Dehat , Court Ram Prasad Tiwari versus State of U.P.
no.1 and the application under Section And Others.
156(3) was ordered to be registered as a
complaint. Hence, this application under 23. In this case the impugned order
Section 482 Cr.P.C. for quashing of the is dated 3.3.06 passed by civil Judge,
aforesaid order and for a direction to the Judicial Magistrate, court no.6, Allahabad
Magistrate concerned to proceed in in Miscellaneous Case No. 34/XII/06. The
accordance with law. order for registration of F.I.R. was not
made by the Magistrate on the basis of the
case of Gulab Chand Upadhyay. The facts
were that the tractor and trolley belonging
to the applicant Ram Prasad Tiwari had
been stolen but his F .I.R. was not taken with force that the order passed by the
down by the police nor his aforesaid Magistrate is wholly illegal without
tractor being tractor no. U.P. 70 V 9289 jurisdiction and de horse the law. They
and the trolley have been recovered by the contended that the application under
police. The Magistrate had refused to Section 156(3) Cr.P.C. disclosed
order for registration of the FIR on the commission of cognizable offences and
ground that there is no need of hence the Magistrate had no jurisdiction
investigation and ordered that the to refuse passing of an order for
application under Section 156(3) be registration and investigation of the FIR.
registered as complaint. Hence this The counsels contended that the
application under section 482 to set aside Magistrate has to act in accordance with
the said order and for a direction for law and he cannot travel beyond the scope
reconsideration of the application under of the power, which has been conferred
section 156(3) Cr.P.C. afresh by the on him under Section 156(3) Cr.P.C.
Magistrate. They harangued that once a cognizable
offence is disclosed in the application
24. From the facts mentioned above filed under section 156(3) Cr.P.C. the
there is a comity of prayer and legal Magistrate is left with no other option but
question which is engulfing all these to order for investigation as the applicants
cases. All these applications are filed by had invoked the administrative
victims who had earlier approached the jurisdiction of the Magistrate for a
concerned Magistrates under section direction to the police to register the FIR
156(3) CLP.C. for getting their FIR under chapter XII of the code and the
registered by the police but the said Magistrate acted illegally in not granting
prayer has been rebuffed by the concerned the said relief. They further argued that
Magistrates and in some cases even by the the Magistrate who is not in a position to
lower revisional courts mainly on two deal with the cases already pending before
grounds, in some cases by ordering the him further saddled himself to inquire into
applicant to file a complaint as he is in the matter under chapter XV Cr.P.C.
full knowledge of all the facts and when the applicants never wanted it from
investigation is not required on the basis him under chapter XII of the code. They
of Gulab Chand Upadhyay's and Ram urged that the Magistrate has acted on his
Lal's case and in others by rejecting his own by passing the impugned orders and
application under Section 156(3) Cr.P.C. it is he who has started the lis by taking
Thus, in all these cases a common cognizance under chapter XV which was
grievance and a common question of law never prayed for by the applicants and
have been raised. which is not permissible under the law.
According to their submission the power
25. I have heard respective counsels of investigation lies with the police and
for the applicants in all these applications not with the Magistrate and hence he is
in support of their case as well as learned incompetent to decide as to whether a
A.G.A. in opposition cognizable offence is investigable or not
and it is only the police who can decide it
26. Learned counsels for the under section 157 (1) &(2) Cr.P.C. and if
applicants in all these cases contended the police decides not to investigate the
FIR then it has to record it's reasons for passed by the concerned Magistrate is
the same and communicate it to the illegal and deserves to be set aside and
informant. They contended that the they - the Magistrate in all these cases
Magistrate by usurping the power of the deserves a direction from this court to
police has acted de-hors the law and reconsider the application of the
without jurisdiction. They further applicants under section 156(3) Cr.P.C.
submitted that it was choice of the afresh in accordance with the law and
applicants to decide as to under, which decide the same within a stipulated period
forum he wants the redressal of his of time. They seriously questioned the
grievances and start the lis. They further correctness of the law laid down in Gulab
contended that the Magistrate cannot be a Chand Upadhyay Vs. State of U.P:
party to a lis and he cannot decide the 2002(44) ACC page 670 and contended
forum for it, which is the right of the that it is per- incurium and should be
victim. The Magistrate does not have the declared as such. They further contended
advisory jurisdiction to direct them to file that in ‘full Bench decision of this Court
a complaint they harangued. In some reported in Ram Babu Gupta versus State
cases the counsels even went on to argue of U.P. 2001 (43) ACC 50, it is no where
that the Magistrate by directing the laid down that if a cognizable offence is
applicants to file a complaint has sided disclosed the Magistrate even then can
with the accused as they will never be refuse to direct registration of FIR and
arrested for committing the cognizable follow up investigation and further that
offences and there by the Magistrate has the Magistrate can suo motu on his own
circumvented the power of the police convert an application under Section
under section 41 of the code and thus the 156(3) Cr.P.C. into one as "complaint". In
applicants can bring the culprits before support of their contentions, the learned
the court only after a gap of many days counsels relied upon many judgments of
when the summoning order is issued apex court as well as of this Court which
against them and even after that the will be 'referred to at the appropriate stage
accused will be released on bail under the subsequently in this judgment. Learned
normal procedure. The counsels further AGA on the other hand contended that
submitted that no justice has been done by since in all these cases the Magistrate
the Magistrates by passing the impugned thought it essential not to order for an
orders and he has given a further blow to investigation, therefore, the order can not
victim, the injured and aggrieved which is be faulted with. He contended that the
nothing but adding insult to injury. The Magistrate can treat the application under
counsels further contended that the section 156(3) Cr.P.C. as a "Complaint".
Magistrate in fact has made himself a He submitted that since that the
party to the litigation by starting the Magistrate felt that there is no
litigation under chapter XV against the requirement of investigation in view of
mandate of law ignoring the definition the law laid down in Ram Babu Gupta
clause of the "complaint" under Section and Gulab Chand Upadhyay(Supra ),
2(d) Cr.P.C. With other collateral therefore , he has passed the impugned
submissions the counsels in chorus in all orders which should be upheld. He further
theses cases concluded their arguments by contended that the Magistrate under
submitting that the impugned orders section 156(3) of the code on his own can
order the registration of an application taking action (Emphasis Supplied).

under that section as a "complaint" and Under the code there is no definite format
that power vests in him. for lodging of the "Complaint”. It is the
prayer made and intention shown, of the
27. Cogitating over the rival person making it, that will determine the
contentions raised by the contesting rival document to be a "Complaint" or not?
sides it is clear that the contentions raised This ingradient of taking action by the
by both the sides mainly rotates around Magistrate himself” in a definite manner
the Controversy as to what is the scope of provided under chapter XV of the code is
section 156(3) Cr.P.C. and what are the the sine qua non for any Magistrate to
powers of the Magistrate there under and take action on a complaint. For a
whether the Magistrate on his own, document to be "Complaint" under
without prayer being made by the section 2(d) of the code there has to be an
aggrieved persons, direct the applicant to express or implied intention of the person
take recourse to a particular forum of concerned for the Magistrate to take
litigation and to refuse his prayer for the action himself . It does not Include a
other forum by starting a lis The last bone police report, which is defined under
of contention is as to whether the decision section 2(r) Cr.P.C. The actions which a
in Gulab Chand Upadhyay's case(Supra) Magistrate is required to take on a
is against the provision of section 2(d) & complaint are provided under chapter X V
156(3) Cr.P.C. and is per incurium. titled as "COMPLAINT TO A
MAGISTRATE". The action is to record
For an indepth analysis and for statement of the complainant under
determination of the rival submissions a section 200 and that of his witnesses
glimpse of the various relevant provisions under section 202 of the code. However if
of the Code seems to be an indispensable the prayer is of any other kind then that
must. To start with section 2(d) Cr.P.C. will not be a complaint as is defined under
describes the "complaint" thus:- section 2(d) Cr.P.C. Let me clear a doubt
here. The word "Complaint" as is used in
"Complaint” means any allegation common parlance in a generic Sense is
made orally or in writing to a Magistrate, different from the word "Complaint"
with a view to his taking action under this under section 2(d) Cr.P.C. An application
Code, that some person, whether known for issuing a warrant or for recovery of a
or unknown, has committed an offence, thing or article or for registration of a case
but does not include a police report. under section 156(3) Cr.P.C. or for
issuance of search warrants etc. falls out
28. This definition of "Complaint" side the periphery of the definition of
reproduces, with adjustments in sequence "Complaint" under section 2(d) of the
of words, old section 4(h) Cr.P.C. of 1898 code. In the case of Superintendent and
(Old Code) and it brings out the salient Remembrancer of legal affairs, West
features of "complaint". A complaint is an Bengal Vs. Abani Kumar Banerjee,
allegation made orally or in writing to a AIR 1950. Cal 437 while explaining
Magistrate in respect of some person taking of cognizance on a "complaint"
whether known or unknown who has Calcutta High Court has observed thus:-
committed an offence with a view to his
"When the Magistrate applies his 156(3) or issuing a search warrant for
mind not for the purposes of proceedings the purpose of the investigation, he
under the subsequent sections of this cannot be said to have taken cognizance
chapter, but for taking action of some of the offence. " (Emphasis Mine)
other kind, e.g. ordering investigation
under section 156(3), or issuing a search In Haidar Raza versus King Emperor:
warrant for the purpose of the ILR 36 All 222: 12ALJ 306 it has been
investigation, he can not be said to have held by this court that:-
taken cognizance of the offence”. "Now the original statement made by
Sukhari to the Honorary Magistrates, by
29. The aforesaid judgement has the which their attention was first drawn to
approval of the apex court in case of the commission of an offence punishable
Mohd. Yousuf versus Afaq Jahan and under Section161 or the Indian Penal
Another: 2006 JT (1) (SC) 10 and R.R. Code, was certainly not a "complaint"
Chari versus State of U.P.: 1951 SCR within the meaning of the definition given
312. Thus it is clear that the prayer made in section 4 of the Criminal Procedure
before the Magistrate by an aggrieved Code. It is clear to me that Sukhari had
person of any other kind or with the no intention of asking the Magistrates to
prayer to direct the police to register the take action under the Criminal Procedure
case and investigate is not a "Complaint", Code. When he made that statement, he
In Mohd. Yousuf versus Afaq Jahan was merely explaining to them why he
and Another: 2006 JT (1) (SC) 10 the was holding out for certain terms before
apex court has observed thus:- he could consent to compound the offence
in the case in which he appeared as
“What is taking cognizance has not complainant. If, therefore, the Honorary
been defined in the Criminal procedure Magistrates proceeded to take cognizance
Code and I have no desire to attempt to of this offence, they could only do so
define it. It seems to me clear however under section 190, clause 1(c). The
that before it can be said that any learned Sessions Judge's view of the
Magistrate has taken cognizance of any proceedings which followed seems either
offence under Section 190(1) (a), to be coloured by the assumption that the
Criminal Procedure Code, he must not Honorary Magistrates, being empowered
only have applied his mind to the by law to take cognizance of the matter
contents of the petition but he must have under the clause aforesaid, were legally
done so for the purpose of proceeding in bound to do so, and to do so immediately,
a particular way as indicated in the or else to rest on the supposition that their
subsequent provisions of this Chapter- examination of Sukhari on solemn
proceeding under Section 200 and affirmation shows that they had so taken
thereafter sending it for inquiry and cognizance. I am not prepared to admit
report under Section 202. When the either of these propositions."
Magistrate applies his mind not for the
purpose of proceedings under the 30. The same view has been
subsequent sections of this Chapter, but reiterated in Durga Dutto versus State:
for taking action of some other kind, e.g. AIR 1951 Cal 2: Bhagwan Singh versus
ordering investigation under Section Hanuman Mandal: ILR 19 Bom. 51;
Emperor versus Phu Lal: ILR 35 All 102: under Section 190 Cr.P.C. or for drawing
11 ALJ 15 and many other decisions. of proceedings under Chapter XV and
Thus there does not remain any doubt that XVI. (Emphasis mine)
any or all and sundry application is not a
complaint and the Magistrate does not 31. It has been held in the case of
have the power to take cognizance on Mahboob Ali Vs. State of U.P. and
such an application under section 190(1) others 2001 ACC(suppl.) 277 that:-
(a). An application under Section 156(3)
Cr.P.C. falls within the category of one of "The scope and procedure of
such applications as is clear from the application under Section 156(3) Cr.P.C.
above judgments. The said matter has also and the complaint are totally different.
come up before this Court on numerous The provisions of 156(3) Cr. P. C. are
occasions in Ram Anuj Dubey Vs. State contained in Chapter XII of Code of
of U.P. 2003 (47) ACC page 140, Criminal Procedure which deals with the
Mahboob Ali Vs. State of U.P. and others information to the police officers and
2001 (supplement) ACC page 277, their powers to investigate. Subsection(1)
Dinesh Chandra and others Vs. State of of Section 156 Cr.P.C. empowers Officer
U.P.2001(1) JIC 942 (Allahabad) and In-Charge of a police station to
Madhubala vs. Suresh Kumar and others investigate any cognizable case without
1997 (35) ACC 371. It has been held in the order of the. Magistrate. Section
Dinesh Chandra and other as follows:- 156(3) empowers a Magistrate to order
investigation of a cognizance offence.
“The Apex Court has definitely not Therefore, the provisions of Section 156
used the term complaint to thwart or are concerned with the investigation of a
defeat the purpose behind the enactment case and since there can be no
of Section 156(3) itself. The term was investigation without registering of a
never used with any intention that the case, it may be said that the above
reference order appears to channelise. provisions of Section 156(3)relate to the
Thus, in my view it should be an registration and investigation of a case.
application and not a complaint.” In case any order is passed under Section
(Emphasis mine) 156(3) Cr.P.C. the police will follow the
procedure contained under Section 156(1)
It has been further held in the same Cr.P.C. and after investigation submit a
case that:- report under Section 173 Cr.P.C. The
procedure for taking cognizance on the
"It is, therefore, abundantly clear report submitted under Section 173
from the above analysis that the Cr.P.C. shall be separated i.e. cognizance
application given under Section 156(3) on a police report under Section 190 (b)
has only a limited purpose i.e. to seek the Cr.P. C. Separate procedure for trail of
interference of the court of concerned such cases is also provided in the Cr.P.C.
Judicial Magistrate for an order to the While on a filing a complaint the
police to register and investigate the Magistrate had to adopt a procedure
cognizable case, facts of the which are under Chapter XIV of Cr.P.C. If the
disclosed in such an application. Such an Magistrate takes cognizance on a
application is never meant for cognizance complaint, it would be under Section
190(a) Cr.P.C. and separate procedure is to action being taken under the Code, that
also provided for trial of a complaint is to say action being taken for the
case. Thus, the legislature had prosecution of the offender far having
intentionally made to separate procedures committed the specific offence, and it
to be followed and therefore, the must be made to the Magistrate in his
Magistrate cannot convert one procedure Judicial capacity so that he may exercise
into other. It has also been held in several his power of taking cognizance of that
cases of this Court that Magistrate has no specific offence and proceed in respect of
power to register. an application under it against the person accused. In this case
Section 156(3) Cr.P.C. as complaint. and examination of the petition shows
Moreover. the definition of complaint clearly that the object of the "'petition was
given in Section 2(d) says that 'complaint' not that the particular offence should be
means any allegation made orally or in punished but rather the mention of the
writing to a Magistrate with a view to his particular offence is put in with a view to
taking action under this Code, that some illustrate the kind of conduct which is the
person, whether known or unknown, has accused person is supposed to be
committed an offence, but does not following and against which kind of
include a police report. Thus, the scope of conduct the petitioner seeks protection.
application under Section 156(3) Cr.P.C. The whole tenor of the petition shows that
and that of a complaint are also different. what is super most in the mind of the
(Emphasis Mine) petitioner is the anticipated conduct of the
person whom he mentions and against
32. It is further been held in the case that conduct he asked the Deputy
of Bharat Kishore Lal Singh Deo Commissioner in his executive capacity to
Versus Judhistir Modak: AIR 1929 make enquiry and protect him against a
Patna 473as follows:- repetition of such conduct. "(Emphasis
Mine)
"The definition of a complaint is to
be found in Section4 (h), Criminal P. C. 33. It has been held in the case of
and is as follows: Subodh Chandra Vs. Jamser Mandal:
AIR (36) 1949 Calcutta( page 55) as
"Complaint means the allegation follows:-
made orally or in writing to a Magistrate,
with a view to his taking action under this "It has been urged by Mr. Mukherjee
Code, that some person, whether known on behalf of the petitioner that the so-
or unknown has committed an offence, but called petition was not a complaint within
it does not include the report of a police the meaning of Section 4(1) (h), Criminal
officer. " P.C. "Complaint" is there defined as an
allegation made orally or in writing to a
In my opinion these words mean this. Magistrate with a view to his taking
First of all there must be an allegation of action under this Code, that some person
an offence, and it is true that the petition whether known or unknown had
in this case does contain that committed an offence, but it does not
requirement, but secondly, the allegation include a report by a police officer. In
of the specific offence must be with a give short to amount to a complaint the
allegation must be made with a view to that the blanket order of treating every
the recipient taking action under the Code application with a prayer for a direction to
charging some person with a particular register and investigate the FIR cannot, be
offence. registered as a "complaint" by the
It is clear that the petition or Magistrate and in case he does so the
complaint of the opposite party was not action will be unsanctified by law. The
presented to the Sub Divisional purpose of a "complaint" and an
magistrate with a view to the latter taking application for investigation under
action under the Criminal Procedure Section 156(3) Cr.P.C. are entirely
Code. The learned Magistrate is in terms different. In this view of the matter, the
asked to take administrative action. contention of the learned counsel for the
Therefore, the petition or complaint was applicants that an application under
not such a complaint as a Magistrate Section 156(3) cannot be treated to be a
could act upon under Section 190 (1), complaint on its own by the Magistrate is
Criminal P.C. "(Emphasis Mine). well founded and has to be upheld. I am
fortified in my view from the above
34. Thus, it is clear that a document judgements of this court.
to be a "complaint" must be made before
the Magistrate for his taking action in a 35. Coming to the second aspect of
defined manner under Chapter XV of the the argument which was elaborately
Code after taking cognizance of the submitted regarding the registration of
offence under Section 190 (1)(a). Hence, FIR and it's investigation by the police it
there is a scuttle but well perceptible is to be noted that the FIR is registered
distinct between a “complaint” and an under section 154(1) or under the
application under Section 156(3) Cr.P.C. directions section 154(3) or 156(3) of the
and that difference lies between the code. All information which discloses
intention and prayer of the applicant. If he commission of a cognizable offence has
wants the Magistrate to take action to be mandatorily registered under section
against the culprits then that is a 154(1) Cr.P.C. and the same has to be
"complaint". If the aggrieved person does investigated under section 156(1) of the
not want to Magistrate take action code unless the officer in charge of the
himself, but he wants a different kind of police station decides not to investigate it
action from him Such as a direction to the under section 157(2) of the code for
police to take action then it is not a which the officer in charge has to mention
"complaint". I do not mean to say that if a his reasons for not entering into such an
"complaint" covered by section 2(d) is investigation and inform the informant
filed before the Magistrate, he cannot regarding the said decision. Informant
direct for an investigation. The Magistrate thereafter can take recourse to the remedy
certainly can send a "complaint" for available to him under the law. This
investigation but that he has to send to the aspect of the matter has been dealt with
police before he takes cognizance of the exhaustively by the apex court in the case
offence under section 190(1) (a) but after of State of Haryana And Others versus
being satisfied that the application Bhajan Lal And Others; 1992 SCC(Cr.)
discloses, prima facie, commission of a 426. In paras 30,31 and 33 the apex court
cognizable offence. Thus, it is amply clear has laid down that:-
police concerned who if satisfied that the

"30.The legal mandate enshrined in information forwarded to him discloses a
section 154(1) is that every information cognizable offence, should either
relating to the commission of a investigate the case himself or direct an
“cognizable offence” (as defined under investigation to be made by any police
section2(c) of the code) if given orally (in officer subordinate to him in the manner
which case it is to be reduced into provided by sub section (3) of section 154
writing) or In writing to “an officer in of the Code.
charge of a police station” (within the ……………………
meaning of section 2 (o) of the code) and ……………………
signed by the informant should be entered 33. It is, therefore, manifestly clear that
in a book to be kept by such officer in if any information disclosing a cognizable
such form as the state government may offence is laid before an officer in charge
prescribe which form is commonly called of a police station satisfying the
as “First Information Report” and which requirements of section 154 (1) of the
act of entering the information in the said code, the said police officer has no other
form is known as registration of a crime option except to enter the substance
or a case. thereof in the prescribed form, that is to
31. At the stage of registration of a crime say, to register a case on the basis of such
or a case on the basis of the information information”. (Under line Emphasis
disclosing a cognizable offence in Supplied).
compliance with the mandate of section
154(1) of the code, the concerned police Section 156(3) provides that “Any
officer cannot embark upon an enquiry as Magistrate may order such an
to whether the information, laid by the investigation as mentioned above”. These
informant is reliable and genuine or words "Any Magistrate" includes
otherwise and refuse to register a case on Executive Magistrates as well besides
the ground that the information is not Judicial Magistrates. This sub section
reliable or credible. On the other hand, does not create any distinction between
the officer in charge of a police station is these two types of Magistrates. Further
statutorily obliged to register a case and words "an investigation as mentioned
then to proceed with the investigation if above" relates to an investigation which is
he has reason to suspect the commission to be conducted by the police under
of an offence which he is empowered section 156(1) Cr.P.C. The purview of the
under section 156 of the code to power of the Magistrate conferred under
investigate, subject to the proviso to section 156(3) Cr.P.C. does not travel
section 157. In case, an officer in charge beyond the said scope. It is limited in
of a police station refuses to exercise the nature and the Magistrate under that sub-
Jurisdiction vested in him and to register section is empowered only to look to the
a case on the information of a cognizable application or complaint only to find out
offence reported and thereby violates the as to whether a cognizable offence is
statutory duty cast upon him, the person disclosed or not? Let me make it clear that
aggrieved by such refusal can send the registration of a FIR is quite different than
substance of the information in writing the investigation of the offence disclosed.
and by post to the superintendent of It has been so held in the case of Bhajan
Lal (Supra) by the apex court in para 41 36. In the case of Madhu Bala
of the said judgment. versus Suresh Kumar and Others: 1998
SCC (Cr.)111 it has been held by the
The apex court has held:- Supreme Court in para 10 thereof;-
“The provisions of the code,
“We shall now examine as to what therefore, do not in anyway stand in the
are the requirements 'to be satisfied by an way of a Magistrate to direct the police to
officer in charge of a police station before register a case at the police station and
he enter into the realm of investigation of then investigate into the same. In our
a cognizable offence after the stage of opinion when an order for investigation
registration of the offence under section under section 156(3) of the code is to be
154(l ). We have already found that the made the proper direction to the police
police have under section 154(1) of the would be “to register a case at the police
code a statutory duty to register a station treating the complaint as the first
cognizable offence and thereafter under information report and investigate into
section 156(1) a statutory right to the same”.
investigate any cognizable case without
requiring sanction of a Magistrate. 37. The above quoted passage in
However, the said statutory right to unequivocal terms brings forth the ambit
investigate a cognizable offence is subject of power of Magistrate under section
to the fulfillment of pre-requisite 156(3) Cr.P.C. Under the said section the
condition, contemplated in section 157(1). Magistrate does not takes the cognizance
The condition is that the officer in charge himself and the said power is wielded at
of the police station before proceeding to the pre cognizance stage falling under
investigate the facts and circumstances of chapter XII relating to the power of the
the case should have "reason to suspect " police to investigate into the cognizable
the commission of an offence which he is offence. In the case of Suresh Chand
empowered under section 156 to Jain versus State of Madhya Pradesh:
investigate ". (Emphasis Supplied) JT 2001(2) SC 81 (Supra) it has been
held by the Apex court that: -
In para 48 and 49 of the same
judgement the apex court has reiterated “But the significant point to be
the same view and has held thus:- noticed is when a Magistrate orders
“Resultantly, the condition precedent investigation under chapter XII he does so
to the commencement of the investigation before he takes cognizance.” (Emphasis
under section 157(1) Cr.P.C. of the code Supplied)
is the existence of the reason to suspect
the commission of a cognizable offence The Apex Court in the same judgment has
which has to be, prima facie, disclosed by approved the following observations
the allegations made in the first made by it in the case of Gopal Das
information report laid before the police Sindhi versus State of Asaam: AIR 1961
officer under section 154(1)." (Emphasis SC 986 : 1961(2) Cr.L.J.39 :-
Supplied)
“There is no reason why the time of
the Magistrate should be wasted when
primarily the duty to investigate in a case a cognizable offence is disclosed through

involving cognizable offence is with the an application under Section 156(3)
police”. (Emphasis mine). Cr.P.C. the Magistrate has no option but
to order for registration and investigation
Nothing can depict the scope of the power of the case. So far as injustice to accused
of the Magistrate under the section 156(3 is concerned if he is aggrieved by the
) of the code more clearly than the words registration of F.I.R. he can challenge the
of the apex court in Devarapalli same by filing a writ petition under
Lakshaminarayana Reddy and others Article 226 of the Constitution of India
versus V. Narayana Reddy and others: with in the ambit of the guidelines laid
1976 ACC 230 where the apex court has down by the apex court in the case of
observed thus:- Bhajan Lal (Supra). Moreover, the Apex
Court has taken a good care in cases of
“Peremptory reminder or intimation arbitrary exercise of power by the police
to the police to exercise their plenary through judgements in cases of Joginder
powers of investigation under section Kumar Vs. State of Uttar Pradesh: AIR
156(1)” (Emphasis mine) 1994 SC 1349: 1994 SCC(Cr) 1172 ;
38. Thus if an application is filed by D.K.Basu versus State of W.B.: AIR
an aggrieved person under Section 156(3) 1997 SC 610 : (1997) 1 SCC 416; State
Cr.P.C., his prayer is to be decided within of Maharastra versus Christian
the ambit of the aforesaid section by the Community Welfare Council : AIR 2004
Magistrate as is mentioned above. SC 7; Smt Nilabati Behera versus State
Magistrate cannot travel beyond the scope of Orissa :AlR1993 SC 1960: 1993
of the said section on his own. The Cr.L.J.2899;and also in State of Haryana
Magistrate under that section cannot Versus Bhajan Lal (Supra) where it has
transform an application to one under been held as such:-
Section 2 (d) Cr.P.C. as a “complaint”. “But if a police officer transgresses
There is yet another difficulty in allowing the circumscribed limits and improperly
the Magistrate take cognizance suo motu and illegally exercises his investigatory
by transforming application under section powers in breach of any statutory
156(3) Cr.P.C to one under section 2(d) provision causing serious prejudice to the
and 190 (1) (a) Cr.P.C. and that is that the personal liberty and also property of a
Magistrate cannot start the lis on his own. citizen then the court on being
It is for the aggrieved person to engineer approached by the person aggrieved for
it and that too in the form and forum he the redress of any grievance, has to
deems fit and proper. I may note a word consider the nature and extent of the
caution here. It has been noticed by this breach and pass appropriate orders as
Court that in some cases where the may be called for without leaving the
cognizable offences are disclosed the citizens to the mercy of police echelons
Magistrates does order for registration since human dignity is a dear value of our
and investigation but in some cases they Constitution.”
refuses it. The learned A. G .A. has
pointed out that this gives a dis-advantage 39. These judgements by the apex
to the accused and fosters arbitrariness at court obliterates the anxiety shown by the
the hands of the Magistrate. In my view if learned A.G.A. during the course of his
argument regarding the misuse of power directed to be registered. Such type of

by the police and malicious prosecution of orders are wholly illegal and are glaring
citizens. It is to be reminded that examples of injustice. Further under that
investigation is the province of the police section 156(3), the aggrieved person
and not of the Magistrate. What cases are never wanted the Magistrate to take
to be investigated and what are not to be cognizance of the offence and inquire into
investigated is to be judged by the the matter himself. The Magistrate by
investigating agency under section 157 (l) refusing the registration of FIR has done
&(2) of the code and the Magistrate can great injustice to the victim who is the
not dwell upon the said question at all as worst sufferer.
it is not for him to decide whether the
investigation is required or not. To be 41. From a third point of view also
brief, he lacks the power to investigate such types of orders cannot be sustained.
and thereby lacks ancillary power to Filing of a complaint and prosecuting it
decide any question relating to it. many times is not viable. The
complainant may be at a loss to lead the
40. Another point is that the evidences because of so many reasons
Magistrate can not pre-judge the issue of political as well as social. Normally the
investigation merely on the basis of an police does not register the FIR against
allegations leveled in an application under politically and socially influential persons
Section 156(3) Cr.P.C. that the matter and the witnesses are not ready to give
does not require an investigation and he evidences against them. The poor
will inquire it himself. If the Magistrate is aggrieved person who cannot arrange for
of the opinion that a cognizable offence bringing witnesses to the court and launch
does not require investigation then what a successful prosecution, or the accused
he is going to inquire himself is a big may be so powerful so as to detest the
question as the law is that all cognizable complaint from bringing his witness or
offence must be investigated subject to they may be politically so strong that the
exception under section 157(2) of the witnesses may not come forward to
code. In most of the cases the Magistrate support complainant's case in the Court
has rejected the prayer by holding that the are some of such examples, which are not
applicant is in the knowledge of all the exhaustive in nature but where the
facts and therefore, he will not order for insensitiveness of the Magistrate may
an investigation. This, to me, seems to be result in total miscarriage of justice. Thus,
a totally perverse and injudicious there may be thousands of other reasons
approach. For example in cases of for an aggrieved victim not to file a
murder, loot, decoity, rape etc. the complaint but to resort to the power of
informant is in the knowledge of all the Magistrate under Section 156(3) Cr.P.C.
facts of the incident but this does not
mean that the Magistrate should not direct 42. Moreover by not allowing the
an investigation under section 156(3) prayer for registration of FIR and
Cr.P.C. It is preposterous even to cogitate investigation of cognizable offence the
that merely because the victim applicant Magistrate in fact has made Section
/complainant is in the knowledge of all 156(3) of the code otiose. It has been held
the facts therefore his F.I.R. should not be
by the Apex Court in the case of Suresh held in the case of K.S. Bhoir versus
Chand Jain (Supra) as follows:- State of Maharastra: (2000) 10 SCC
“Section 156, falling within Chapter 264:-
XII, deals with powers of the police “It is not permissible of the High
officers to investigate cognizable offences. Court to direct an authority under the Act
True, Section 202, which falls under to act contrary to the statutory
Chapter XV, also refers to the power of a provisions”.
Magistrate to “direct an investigation by
a police officer”. But the investigation 45. It has been held by the Apex
envisaged in Section 202 is different from Court in the case of State of Haryana and
the investigation contemplated in Section others Vs. Bhajan Lal and others: JT
156 of the Code.” 1990 (4) SC 650: 1992 Supp (1) SCC
335, that:-
43. It has been further held by the “At the stage of registration of a
Apex Court in the same judgment “But crime or a case on the basis of the
the significant point to be noticed is when information disclosing a cognizable
a Magistrate orders investigation under offence in compliance with the mandate of
chapter XII he does so before he takes Section 154(1) of the Code, the concerned
cognizance.” (Emphasis Mine). police officer cannot embark upon any
enquiry as to whether the information laid
It has been held by the Apex Court in by the informant is reliable and genuine
case of Madhu Bala vs. Suresh Kumar or otherwise and refuse to register a case
and others (J997) 8 Supreme Court on the ground that the information is not
Cases 476 as follows:- reliable or credible. On the other hand,
“Indeed, even if a Magistrate does the officer-in-charge of a police station is
not pass a direction to register a case, statutorily obliged to register a case and
still in view of the provisions of Section then to proceed with the investigation if
156(I) of the Code which empowers the he has reason to suspect the commission
police to investigate into a cognizable of an offence which he is empowered
“case” and the Rules framed under the under Section 157 of the Code to
Indian Police Act. 1861 it (the police) is investigate, subject to the proviso to
duty-bound to formally register a case Section157 (As we have proposed to make
and then investigate into the same.” a detailed discussion about the power of a
(Emphasis Supplied) police officer in the field of investigation
of a cognizable offence within the ambit
44. Thus from the above it is clear of Sections 156 and 157 of the Code in the
that the Magistrate by nor directing insuing part of this judgment, we do not
investigation under section 156(3) Cr.P.C. propose to deal with those sections in
gives a long rope to the police to act on extenso in the present context).In case, an
it's whims and caprice and fosters offence incharge of a police station
illegality of inaction by the police in refuses to exercise the jurisdiction vested
registration of information of cognizable in him and to register a case on the
offences. It is not permissible for any information of a cognizable offence
Magistrate under the code to act contrary reported and thereby violates the
to the provisions of the code. It has been statutory duty cast upon him, the person
aggrieved by such refusal can send the modified by Section 112 of the Code of
substance of the information in writing 1872(Act 10 of 1872) which thereafter
and by post to the Superintendent of read that 'every complaint' preferred to
Police concerned who if satisfied that the an officer-incharge of a police station
information forwarded to him discloses a shall be reduced in writing. The word
cognizable offence, should either 'complaint' which occurred in previous
investigate the case himself or direct an two Codes of 1861 and 1872 was deleted
investigation to be made by any police and in that place the word ‘information’
officer subordinate to him in the manner was used in the Codes of 1882 and 1955
provided by sub-section(3) of Section 154 which word is now used in Sections 154,
of the Code. 155, 157 and 189 (c) of the present Code
Be it noted that in Section 154(1) of of 1973 (Act 2 of 1974). An overall
the Code the legislature in its collective reading of all the Codes makes it clear
wisdom has carefully and cautiously used that the condition which is sine qua non
the expression “information” without for recording a first information report is
qualifying the same as in Section 41(1)(a) that there must be an information and that
or (g) of the Code wherein the information must disclose a cognizable
expressions, "reasonable complaint" and offence.”
"credible information" are used. “It is therefore, manifestly clear
Evidently, the non-qualification of the that if any information disclosing a
word "information" in Section 154(1) cognizable offence is laid before, officer-
unlike in Section 41(1)(a) and (e) of the in-charge of a police station satisfying
Code may be for the reason that the the requirements of Section 154 (1) of
police officer should not refuse to record the Code, the said police officer has no
an information relating to the other option except to enter the
commission of a cognizable offence and substance thereof in the prescribed form,
to register a case thereon on the ground that is to say, to register a case on the
that he is not satisfied with the basis of such information”. (Emphasis
reasonableness or credibility of the mine)
information. In other words,
'reasonableness' or 'credibility' of the 46. The aforesaid quoted portions of
said information is not a condition the said judgment of Bhajan Lal (Supra)
precedent for registration of a case. A has been quoted with approval in
comparison of the present Section 154 following judgments of apex court -
with those of the earlier Codes will Ramesh Kumari Vs. State NCT of
indicate that the legislature had purposely Delhi and others :JT 2006 (2) SC 548;
thought it fit to employ only the word Superintendent Of Police, C.B.1. &
"information" without qualifying the said Others versus Tapan Kumar Singh
word. Section 139 of the Code of Criminal 2003 (2) JIC 126 (para 20) where it has
Procedure of 1861 (Act 25 of 861) passed been observed by the apex court as
by the Legislative Council of 1ndia read follows:-
that 'every complaint or information' "The true test is whether the
preferred to an officer-in-charge of a information furnished provides a reasons
police station should 'be reduced into to suspect the commission of an offence
writing which provision was subsequently which the concerned police officer is
empowered under section 156 of the code "What is contained in sub-

to investigate. If it does he has no option section (3) of section 156 is the power
but to record the information and proceed to order the investigation referred to
to investigate the case either himself or in sub-section (1), because the words
depute any other competent officer to
" order such an investigation as
conduct the investigation. The question as
to whether the report is true, whether it
above mentioned “in sub- section (3)
discloses full details regarding the are inmistakably clear as referring to
manner of occurrence, whether the the other sub- section. Thus the
accused is named and whether there is power is to order an “officer in
sufficient evidence to support the charge of a police Station” to
allegations are all matters which are conduct investigation” (Emphasis mine
alien to the consideration of the question and Supplied)
whether the report discloses commission
of a cognizable offence. Even if the It has further been laid down in the
information does not give full details same judgement:-
regarding these matters, the investigating "The primary responsibility for
officer is not absolve of his duty to conducting investigation into offences in
investigate the case and discover the true cognizable cases vests with such police
facts, if he can. " officer. Section 156(3) of the code
47. The above quoted portion of the empowers a Magistrate to direct such
two judgements Bhajan Lal and Tapan officer in charge of the police station to
Kumar Singh (Supra) (Under Line ones) investigate any cognizable case over
provides the ample guide lines for the which such Magistrate has
Magistrates to act under section 156(3) jurisdiction."(Emphasis mine and
Cr.P.C. since under that section he is Supplied)
required to order the same investigation
which the officer in charge of the police In para 16 thereof the apex court has laid
station was required to conduct under down the law, in respect of the power of
section 156(1) within the scope of section Magistrate under section 156(3)Cr.P.C. as
157(2) of the code. The investigation follows:-
under section 154(3) or under Section "We. Therefore, reiterate that the
156(3) are the same which the officer in magisterial power can not be stretched
charge of the police station is required to under the said sub-section beyond
conduct. Once an order under these two directing the officer in charge of a police
sections are passed the power of the station to conduct the investigation ".
investigation under section 156(1) of the (Emphasis mine and supplied)
code is infused with life and the
investigation by the police is conducted 48. This, leads us to the case of
under that section alone. It has been held Gulab Chand Upadhyay and others Vs.
by the apex court in the case of Central State of U.P. :2002(1) JIC 853. In the
Bureau Of Investigation through aforesaid judgment Hon'ble Sushil
S.P.Jaipur versus State of Rajasthan Harkauli, J. had relied upon the judgment
and another:2001 SCC(Cr) 524 as rendered by Hislordship in Masuriyadin
follows: alia Note and others Vs. Additional
Session's Judge, Allahabad :2002 (44) police to register the FIR and investigate
ACC 248. The aforesaid judgment of the offence. (Emphasis Mine)
Masuryiadin's case was however over
ruled by a Division Bench of this Court in 49. At this stage it may be pointed
the case of Govind and others vs. State out that the Magistrate is not required to
of U.P. And others : 2003 Current Bail conduct an enquiry under section 156(3)
Cases 934 (DB) . Since Masuriyadin's of the code and he should not saddle
case was over ruled by a Division Bench himself with additional burden of
of this Court therefore, the law laid down discharging the function of police as
in the case of Gulab Chand (supra), in my crime prevention and crime detection is
humble view and with utmost respect to the primary and foremost duty of the later
the Hon'ble Judge, does not lay down the and so it must be left to it to perform this
correct law. In the aforesaid judgment part of his duty. It has been held by Privy
Gulab Chand Upadhyay (Supra) Council in the case of Emperor versus
Hislordship has taken a view that if the Khwaja Nazir Ahmad:1945 PC 17
complainant is in the knowledge of all the thus:-
details of an incident and where no "The function of the judiciary and
investigation is required the investigation the police are complementary and not
should not be ordered by the Magistrate overlapping and the combination of
under section 156(3) Cr.P.C. With utmost individual liberty with a due
respect and humility at my command, I
observance of law and order is only to
am unable to agree with the, aforesaid
reasoning of the Hon'ble Judge being
be obtained by leaving each to
contrary to the section 156(3) of the code exercise it 's own function, always, of
itself and also being contrary to the course, subject to the right of the court
judgement of the apex court in cases of to intervene in appropriate case when
Bhajan Lal(Supra), Suresh Chand Jain moved under section 491, Criminal
(Supra), B. C Govind (Supra) and Tapan Procedure Code, to give direction in
Kumar Singh (Supra). It is the the nature of Habeas Corpus."
responsibility of the Magistrate to direct
the police to follow the mandate of law Further the observations in Gopal Das
and it will be a travesty of justice that the Sindhi's case(Supra) that:- "There is no
Magistrate instead of directing the police reason why the time of the Magistrate
to follow the statutory mandate of law should be wasted when primarily the
gives it a long rope to act arbitrarily at it's duty to investigate in a case involving
whims. Thus when ever the Magistrate is cognizable offence is with the police" is
approached by an aggrieved person with the law of the land. This observation by
the prayer that the police has refused to the apex court, with due respect and
register his FIR of cognizable offence the humility, in my view, runs counter to the
Magistrate is required to look into his following observations made by this court
such prayer only to determine as to in Gulab Chand Upadhyay's case
whether any cognizable offence is (Supra):- "it must be kept in mind that
disclosed thereby or not, and if it does, adding unnecessary cases to the diary of
then he has no option but to direct the the police would impair their efficiency in
respect of cases genuinely requiring
investigation" . A reading of Gulab Miscellaneous Application No.3207 of

Chand Upadhyay and others Vs. State of 2006 Dimi versus State of Uttar Pradesh;
U.P.:2002 (1) JIC 853 I find that the Criminal Miscellaneous Application
above quoted passage in the judgements No.3275 of 2006 Mahakar Singh versus
in Bhajan Lal)(Supra), Central Bereau State of U.P.; Criminal Miscellaneous
Of Investigation through S.P.Jaipur Application No.3184 of 2006 Smt. Suman
versus State of Rajasthan and Kumari versus State of U.P. And Others;
another:2001 SCC(Cr) 524 (Supra) and Criminal Miscellaneous Application
observations of the apex court in Gopal No.3617 of 2006 Asraf Ali versus State of
Das Sindhi's case (Supra) were not U.P. And Others; Criminal Miscellaneous
placed before His lordship and he had no Application No.3611 of 2006 Bobby Khan
occasion to consider the same which is versus State of U.P. and another; Criminal
clear from the following observation by Miscellaneous Application No.3637 of
His lordship:- "No decision was cited 2006 Om Prakash versus State of U.P. and
before me to throw any light upon the others; Criminal Miscellaneous
consideration which should weight with Application No. 3725 of 2006 Gaya Prasad
the Magistrate to guide his discretion". versus State of U.P. and others; Criminal
Since in the aforesaid judgement the law Miscellaneous Application No.3106 of
as is spelt out by the apex court, 2006 Radhey Shyam Versus State of U.P.
mentioned above was not placed before And Others; Criminal Miscellaneous
His lordship and he did not dwelled upon Application No.2290 of 2006 Mahendra
it, I with utmost respect and humility and Singh versus State of U.P.; Criminal
humbleness, is bound by the law laid Miscellaneous Application No.2298 of
down by the apex court and therefore is of 2006 Naresh Kumar Taneja versus State of
the opinion that the said judgement in U.P.; Criminal Miscellaneous Application
Gulab Chand Upadhyay and others Vs. No. 2199 of 2006 Badshah versus State of
State of U.P.: 2002(1) JIC 853 does not U.P.& others; Criminal Miscellaneous
lay down the correct law and have no Application No.2093 of 2006 Anil Versus
binding effect so far it runs contrary to the State Of U.P.; Criminal Miscellaneous
law laid down by the apex court. Application No.2301 of 2006 Rajendra
Singh versus State of U.P. And Others;
50. Resultantly all the above Criminal Miscellaneous Application
Criminal Misc. Applications, in this cluster No.2385 of 2006 Brij Kishore Diwedi
of petitions, under section 482 Cr.P.C., versus State of U.P. And Others; Criminal
filed by various applicants being Criminal Miscellaneous Application No.2773 of
Misc. Application No. 6152 of 2006 Smt. 2006 Ram Prasad Tiwari versus State of
Masuman vs. State of UP and Others; U.P. And Others; all are allowed. The
Criminal Miscellaneous Application No. impugned order/orders passed by
1442 of 2006 Uma Dutta Diwedi versus concerned Magistrates, and in concerned
State of U.P. Criminal Miscellaneous cases, also by the lower revisional courts,
Application No.3420 of 2006 Indra Mohan in all the above Criminal Misc.
Gautam versus State of U.P. And Others Applications are quashed. Concerned
Criminal Miscellaneous Application Magistrates are directed to take up the
No.3313 of 2006 Pradeep Kumar versus applications under section 156(3) Cr.P.C.
State of U.P. and others; Criminal filed by respective applicant afresh and
decide it in accordance with the law within

one month from the receipt of the copy of
this judgement by them.
51. Concludingly, in view of what

has been stated above, all these Criminal
Misc. Applications, mentioned above,
under Section 482 Cr.P.C. are allowed in
terms of observations mentioned above.
52. Let a copy of this judgment be

sent to the Registrar General of this Court
to be circulated to all the Magistrates and
other Judicial Officers in the State for their
intimation, guidance and compliance.
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1 All] Praveen Kumar V.

Union of India and others 183

ORIGINAL JURISDICTION before Central Government in terms of

4. As regards the scope of a review

ORIGINAL JURISDICTION aforesaid authority has not at all cared

Rajesh Kumar …Petitioner

dependants of a deceased Government post which is within the purview of the

4. Heard learned counsel for the (ii) is otherwise qualified for

(i) was permanent in such employment: "discharging duty in the course of

ORIGINAL JURISDICTION From the facts as have been noticed

Gyanendra Kumar …Petitioner (Delivered by Hon’ble Arun Tandon, J.)

3. This Court required the District District Inspector of Schools,

Counsel for the Appellant: of his family started embarrassing,

instance of his father administered poison Government Appeal No.2811 of 1980

The accused cannot be convicted on Having visualized, envisioned,

11. Office is directed to decreed ex-parte. It was filed and

5. From perusal of the said 7. In my opinion, therefore

for the State representing respondents 1,2 Held: Para 5

Narendra Prasad Rai …Petitioner 2. The petitioner has made a prayer

8. The writ petition is disposed of as Case law discussed:

BEFORE The opposite party no. 1, i.e. the

*(Provided also that where a proceeding issuance of Commission was required. In

since the order under challenge did not Held: Para 3

Held: Para 8 of 2002 State Vs. Lok Bahadur and

Constitution of India, Art. 226-Practice 3. Learned counsel for the petitioner

petitioner has placed reliance on a calculating the amounts. The Allahabad

5. After hearing the learned counsel "16. Therefore, we have no doubt

Counsel for the Applicant: Heard learned counsel for the

petitioner's husband earlier to the such accusation made against a Judicial

6. On all these aspect of the matter 9. I have considered the submissions

bail was because of extraneous reasons REVISIONAL JURISDICTION

2. Learned counsel for the

5. From the bare reading of the said BEFORE

AIR 1967 SC-3985 4. The submission of the learned

filed on 3.10.2002 and-the cause of REVISIONAL JURISDICTION

creating a vested interest and perpetuating In State of Punjab Vs. Raghbir

of fundamental rights guaranteed under Committee of Management through the

event a candidate is unable to join against to the District Inspector of Schools as he

33. Therefore, it is evident that should be sent back to the appropriate

diligence in pursuing the matter. If the "It is axiomatic that condonation of

7. In N. Balakrishnan Vs. M. Rules of limitation are not meant to

remedy is to repair the damage caused by Collector,LandAcquisition v. Katiji [JT

table and keeping it on table for 9. To the same effect is the

thereof is satisfactory. Once the court employee, some responsibility should

evidence about injury-out of 13 wheat etc. Many persons witnessed the

Shivalingappa Konjalgi and others by Counsel for the Revisionists:

revisional power specially when the 2. The revisionist is admittedly a

of the punishment which can have an Sri Lav Srivastava

7. Considering the facts that the Held: Para 3

of eviction. The amount of Rs.11400/- 3. There are some authorities of this

appointment of the petitioner was on petitioner was sponsored for training by

principles of natural justice are not Counsel for the Respondent:

(Delivered by Hon'ble Vinod Prasad, J.) subjected to torture. Kusum made a

4. Sri Rahul Chaturvedi contended 6. In view of rival contentions and

filed a case of restitution of conjugal "6. Before we proceed to deal with

proceedings must be re-commenced from be harassed without any specific

Sri Awadhesh Rai (Delivered by Hon'ble Yatindra Singh, J.)

We would have, either finally decided 3. The plaintiff-appellant was

• An injunction be issued Single Judge by his order dated

POINT NO. 1: THREE EXCEPTIONS (i) where a public servant is sought to

amendment made in Regulation 31 by the amendments in the case of Ali Ahmad

26. Regulation 31 as it was 28. In view of above we hold that

• There is no violation of principle (iv) Where a body which is non-