# (2009) 2 ILRA 332

- **Citation:** (2009) 2 ILRA 332
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-03-30
- **Case number:** Civil Misc. Writ Petition No.17343 of 2009
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2009-2-ilra-332-41378
- **Pages:** 4

## Headnote

Constitution of India Article-226-Election
of village Pradhan-by impugned order
the S.D.O. directed for recounting by
deciding all of 10 issues jointly-without
discussion of evidence of parties-held
totally unjustified.

Held: Para 6

If the issue are framed in a case, then
the same should be decided either
individually or two or more any be
grouped, if they are inter related. In the
present case, all the ten issues have
been decided merely in one stroke
without discussing the evidence of the
parties. The same appears to be totally
unjustified. An election petition is to be
decided strictly in terms of the rules and
even though there may be difference of
one vote and the order of recounting has
been passed only on the basis of
evidence adduced and by a reasoned
order, when a case of irregularity in
recounting of votes has been made out.
2 All] Shashi Kala Patel V.S.D.M., Bindki, Fatehpur and others
333

## Text

332 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
medically examined on 10.07.2007. This
report shows that injuries were found on
private part (anus) of the victim. In his
statement
recorded
under
section
161Cr.P.C, the victim has supported the
case of the prosecution. Therefore, having
regard to all these facts, but without
expressing any opinion of merit, in this
heinous crime, the applicant does not
deserve bail.

8. In my considered opinion, on the
basis of the long incarceration in jail also,
the applicant can not be admitted to bail
in this heinous crime of unnatural offence.
In this context, reference may be made to
the case of Pramod Kumar Saxena vs.
Union of India and others 2008 (63)
ACC 115, in which the Hon'ble Apex
Court has held that mere long period of
incarceration in jail would not be pre-se
illegal. If the accused has committed
offence, he has to remain behind bars.
Such detention in jail even as an under
trial prisoner would not be violative of
Article 21 of the Constitution.

9. Consequently, the bail prayer of
the applicant Pankaj Kashyap is hereby
rejected.

10. The trial court is directed to
conclude the trial of the applicant within a
period of six months applying the
provisions of section 309 Cr. P.C. by
making sincere efforts and avoiding
unnecessary adjournment.

11. Office is directed to send a copy
of this order within a week to the trial
court concerned for necessary action.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2009

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No.17343 of 2009

Shashi Kala Patel

...Petitioner
Versus
Sub Divisional Magistrate, Bindki, District,
Fatehpur and others
 ...Respondents

Counsel for the Petitioner:
Sri Awadhesh Kumar
Sri Manish Goyal

Counsel for the Respondents:
Sri Vishal Tandon
S.C.

Constitution of India Article-226-Election
of village Pradhan-by impugned order
the S.D.O. directed for recounting by
deciding all of 10 issues jointly-without
discussion of evidence of parties-held
totally unjustified.

Held: Para 6

If the issue are framed in a case, then
the same should be decided either
individually or two or more any be
grouped, if they are inter related. In the
present case, all the ten issues have
been decided merely in one stroke
without discussing the evidence of the
parties. The same appears to be totally
unjustified. An election petition is to be
decided strictly in terms of the rules and
even though there may be difference of
one vote and the order of recounting has
been passed only on the basis of
evidence adduced and by a reasoned
order, when a case of irregularity in
recounting of votes has been made out.
2 All] Shashi Kala Patel V.S.D.M., Bindki, Fatehpur and others
333
(Delivered by Hon'ble Vineet Saran, J.)

1. Considering the urgency in the
matter as the recounting of votes has been
ordered to be conducted today, which is
by the impugned order dated 23.3.2009
passed by the respondent no. 1, the SubDivisional Magistrate, this case has been
taken up on board today in the presence of
the learned counsel for the parties.

2. Heard learned counsel for the
petitioner as well as learned Standing
Counsel appearing for the respondent no.
1, 6 & 7 and Sri Vishal Tandon for the
contesting respondent no. 2, Smt. Sobha
Devi. With consent of learned counsel for
the parties, this writ petition is being
disposed of finally at this stage without
calling for a counter affidavit.

3. The brief facts of the present case
are that in an election of Gram Pradhan
held in the year 2005, the petitioner was
declared election as Gram Pradhan.
Challenging
the
said
election,
the
respondent no. 2, Smt. Sobha Devi filed
an election petition bearing Election
Petition No. 03 of 2005 with the prayer of
recounting of votes. By means of the
impugned order dated 23.3.2009 passed
by the respondent no. 1, the SubDivisional Magistrate, the prayer of
recounting of votes has been granted.
Challenging the said order, this writ
petition has been filed.

4. The submission of learned
counsel for the petitioner is that the
impugned order has been passed without
deciding the issues involved in the case
and without assigning any reason for
directing recounting of votes.

5. From perusal of the record, it is
clear that the ten issues have been framed
and the same have been decided in one
paragraph in the end without considering
the evidence adduced by the parties and
without deciding each issue individually.
All that has been stated in the impugned
order is that all the issues are decided
accordingly.

6. If the issue are framed in a case,
then the same should be decided either
individually or two or more any be
grouped, if they are inter related. In the
present case, all the ten issues have been
decided merely in one stroke without
discussing the evidence of the parties. The
same appears to be totally unjustified. An
election petition is to be decided strictly
in terms of the rules and even though
there may be difference of one vote and
the order of recounting has been passed
only on the basis of evidence adduced and
by a reasoned order, when a case of
irregularity in recounting of votes has
been made out.

7. Sri Vishal Tandon, learned
counsel appearing for the respondent no.
2, Smt. Sobha Devi, has however not been
able to justify the order and has also not
been able to point out the grounds and
reasons on the basis of which the same
has been passed. He has however
submitted that since there was difference
of only one vote, it was perfectly justified
for the prescribed authority to have
directed for recounting of votes.

8. A full bench of this Court, in the
case of Ram Adhar Singh Vs. District
Judge, Ghazipur, 1985 UPLBEC 317,
has held in paragraph 19 as follows:
334 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

"19. Applying the principle with
regard to inspection of ballot paper
enunciated by the Supreme Court in cases
arising under the Representation of
People Act to the election petition dealt
with under the provisions of the U.P.
Panchayat Raj Act, there is no escape
from the conclusion that before an
authority hearing the election under the
said Act can be permitted to look into or
to direct inspection of the ballot papers,
following two condition must co-exist.

(1) that the petition for setting aside
an election contains the grounds on which
the election on the respondent is being
questioned as also summary of the
circumstances alleged to justify the
election
being
questioned
on
such
ground; and
(2) the authority is, prima facie,
satisfied on the basis of the materials
produced before in that there is ground
for believing the existence of such ground
and that making of such an inspection in
imperatively necessary for deciding the
dispute
for
doing
complete
justice
between the parties.

It is, therefore, follows that in the
absence of any specification with regard
to the ground on which the election of the
respondent is being questioned together
with summary of the circumstances
alleged to justify the election being
questioned on such ground, it is not open
to
the
authority
dealing
with
an
application under Section 12-C of the
U.P. Panchayat Raj Act, either to look
into or direct inspection of ballot papers
merely on the ground that it feels that it
would be in the interest of justice to look
into or permit inspection of the ballot
papers. In the context, such satisfaction
has necessarily to be based on specific
averments made in and the materials
indicated in the election petition which
could, prima facie, satisfy the authority
about the existence of the ground on
which the election is sought to be
questioned.

9. In such view of the matter, since
no reasons have been recorded for
directing the recounting of votes and the
issues framed by the prescribed authority
have not been decided properly and all the
ten issues have been decided together, in
my view, the impugned order dated
23.3.2009 passed by the respondent no. 1
cannot be justified under law.

10. Accordingly, this writ petition
stands allowed. The order dated 23.3.2009
passed by the respondent no. 1 is quashed.
The prescribed authority is directed to
decide the matter afresh, after giving an
opportunity of hearing to the parties and
pass a reasoned speaking order after
considering the evidence adduced by the
parties. Since more than three and half
years have passed after filing the election
petition, it is further directed that the
matter may be decided, expeditiously,
preferably within a period of four months
from the date of filing of a certified copy
of this order, without granting any
unnecessary adjournment to either of the
parties.

There shall be no order as to costs.
---------
2 All] Abhishekh Pushkar V. State of U.P. and others
335
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.05.2009

BEFORE
THE HON'BLE RAVINDRA SINGH, J.
THE HON'BLE NAHEED ARA MOONIS, J.

Criminal Misc. Writ Petition No. 7979 of
2009

Abhishekh Pushkar

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Virendra Bhatia
Sri Vijay Shanker Mishra

Counsel for the Respondents:
A.G.A.

Constitution of India Art. 226-Quashing
F.I.R.-offence under Section 306 IPCfrom suicide note name of petitioner
disclosed- prima facie offence made outFIR cannot be quashed-however in the
light of Supreme Court direction in Smt.
Amrawati case-petition disposed of.

Held: Para 6 & 7

The FIR is not Encyclopaedia of the facts
and circumstances, the same may be
collected
by
the
I.O.
during
investigation. So far as constitution of
the offence under section 306 IPC is
concerned, prima facie it is made out on
the basis of the allegations made in the
impugned
FIR,
the
allegations
are
disclosing
the
commission
of
a
cognizable offence and there is no
ground for quashing the FIR and its
investigation, therefore, the prayer for
quashing the FIR and its investigation is
refused.

However,
considering
the
facts,
circumstances of he case and academic
career of the petitioner, it is directed
that in case petitioner appears before
the court concerned within 30 days from
today and applies for bail, the same shall
be heard and disposed of
Case law discussed:
2005 Cr.L.J. 755, Lal Kamlendra Pratap Singh
Versus State of U.P.

(Delivered by Hon'ble Ravindra Singh, J.)

1. This writ petition has been filed
by the petitioner Abhishekh Pushkar with
a prayer to issue a writ, order or direction
in the nature of certiorari, quashing the
FIR of case crime, No. 217 of 2009 under
section 306 IPC, P.S. Link Road, District
Ghaziabad and its further investigation.
The next prayer is to issue a. writ, order
or direction in the nature of mandamus
directing the respondents not to arrest the
petitioner in the above mentioned case or
to pass any order which is deemed fit and
proper in the circumstances of the case.

2. The facts in brief of this case are
that the FIR, of this case has been lodged
by respondent No. 3 Pankaj Kumar
Agrahari on 15.4.2009 at 8.15 P.M. in
respect of the incident which had occurred
on 15.4.2009 after 3.18 P.M. It is alleged
in the FIR that the deceased Km. Sarika
Agrahari, the niece of the respondent no.
3 was student of B.Tech. IV year (E.C.
Branch) of Indraprastha Engineering
College, Site-IV, Sahibabad and she was
Inmate of-the girl hostel of the college
where she was residing in room No. 315.
The deceased gave a telephonic message
to respondent no.3 on 15.4.2009 at 3.18
P.M. to bring a lock and rupees, thereafter
the respondent No. 3 came to the
Indraprastha college to meet the deceased
and he tried to contact by his mobile,
phone, with the deceased from the guard
room of the college but calls sent by the
Respondent No. 3 of the deceased's
mobile' phone were unattended. It was