# Ambrish Kumar Verma v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 1995
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-30
- **Case number:** J. Criminal Misc. Writ Petition No. 1915 of 2024
- **Bench:** Vivek Chaudhary, Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ambrish-kumar-verma-v-state-of-u-p-ors-51917
- **Pages:** 3

## Headnote

Art. 226 of the Constitution of India -F.I.R.
Quashing-Petitioner was initially appointed on
the temporary post of Stenographer -thereafter
the post of stenographer was abolishedtemporary post of camp clerk was created and
the

## Text

5 All. Ambrish Kumar Verma Vs. State of U.P. & Ors.
1995
While exercising such powers the High
Court has no authority to appreciate the
evidence in the manner as the trial and the
appellate courts are required to do.
Revisional powers could be exercised only
when it is shown that there is a legal bar
against the continuance of the criminal
proceedings or the framing of charge or the
facts as stated in the First Information
Report even if they are taken at the face
value and accepted in their entirety do not
constitute the offence for which the accused
has been charged."

56. In the case of Km. Phooldali
vs. State of U.P. and another16, the Single
Bench of this Court has held that while
exercising the revisional jurisdiction, any
court cannot sit in appeal and re-appreciate
the evidence.

57. In the present case, relying upon
the material evidence placed before him, the
Magistrate has duly recorded his satisfaction
comprehensively that it was a case where the
complicity of the revisionist was not found in
the incident, therefore, the revisional court
has committed error in setting aside the order
dated 05.05.2022 remitting the matter back to
the Magistrate to decide it afresh. It is settled
law that the revisional jurisdiction should be
exercised by any court in exceptional cases
only when there is some glaring defect in the
procedure or a manifest error on a point of
law resulting in flagrant miscarriage of
justice. In the present case, the Revisional
Court has committed error in passing the
order impugned while it cannot sit in appeal
and re-appreciate the evidence as per the
settled position of law.

CONCLUSION

58. Having gone through the above
proposition of law, I find that the jurisdiction
of Revisional Court is severely restricted and
it cannot embark upon a re-appreciation of
evidence as has been done by the Revisional
Court in the present case while passing the
order impugned dated 30.09.2023. The court
concerned has not been able to show that the
order passed by the concerned Magistrate is
contrary to record or perverse or that any
material evidence has been ignored or
misread.

59. Considering the submissions
advanced by the learned counsel for the
parties and law as settled on the issue,
enumerated above, the order impugned dated
30.09.2023 passed by the Additional Sessions
Judge/Special Judge, P.C. Act (U.P.S.I.B.),
Gorakhpur is unsustainable. Thus, it is set
aside.

60. However, this Court observes
that the informant will have opportunity to
file a complaint afresh, if so advised, in
accordance with law.

61. The criminal revision stands
allowed, accordingly.
----------
(2024) 5 ILRA 1995
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.05.2024

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE NARENDRA KUMAR JOHARI,
J.

Criminal Misc. Writ Petition No. 1915 of 2024

Ambrish Kumar Verma ...Petitioner
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Petitioner:
Yogeshwar Sharan Srivastava
1996 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Parties:
G.A.,
Arvind
Kumar
Tripathi,
Pranjal
Krishna, Ravi Kant Pandey

Art. 226 of the Constitution of India -
Premature
release-Order
of
premature
release of opposite party impugned-pursuant to
order of the Division bench of the High Court in
Criminal Appeal-that where the Remission
Application is pending for more than six months
after recommendation by the Superintendent of
Jail-the CJM shall release the convict-reference
was made in this writ with regard to correctness
of the order of division bench-the larger bench
held the direction of division bench is not as per
law-impugned order set aside.

W.P. allowed. (E-9)

List of Cases cited:

Ganesh Vs St. of U.P. -Criminal Appeal No.165 of
2016

(Delivered by Hon'ble Vivek Chaudhary, J.
&
Hon'ble Narendra Kumar Johari, J.)

1. Short counter affidavit filed today
is taken on record.

2. Heard learned counsel for the
petitioner, learned A.G.A. for the State, Sri Ravi
Kant Pandey, learned counsel for opposite party
no.3, Sri Arvind Kumar Tiwari, learned counsel
for respondent no.4 and perused the record.

3. Present writ petition is filed by the
petitioner challenging the order of premature
release of opposite party no.3-Shyampal Verma
dated 2.3.2024 in Sessions Trial no.90 of 2007
in Case Crime No.52 of 2006, under Sections
147, 148, 307, 302, 427 & 504 of I.P.C., Police
Station Motiganj, District Gonda.

4. Facts of the case are that a
Division Bench of this Court passed detailed
directions in Criminal Appeal No.165 of
2016 (Ganesh vs. State of U.P.) in its
judgment
and
order
dated
10.1.2024
providing
that
where
the
remission
application is pending for more than six
months after recommendation by the
Superintendent of Jail, the Chief Judicial
Magistrate concerned shall forthwith release
the convict as per the the directions contained
in the said judgment. Opposite party no.3 had
filed an application for his release, which was
allowed by the Chief Judicial Magistrate
concerned by the impugned order dated
2.3.2024 while similar application of
opposite party no.4 was pending before the
Chief Judicial Magistrate concerned.

5. A Reference was made in the
present writ petition by a Division Bench of
this Court by order dated 21.3.2024 with
regard to correctness of the view taken in
the case of Ganesh (supra). The following
questions were referred to the Larger
Bench.

"(1)
Whether
the
directions
issued by the Division Bench in Ganesh
(supra)
that
too general
directions,
commanding
the
Chief
Judicial
Magistrates to release convicts whose
applications
for
remission/premature
release have remained pending beyond a
particular period, as interim measure, till
disposal of the said applications, is in
accordance with law especially in view of
the Constitution Bench decision in V.
Sriharan @ Murugan and others (supra)
and H. Nilofer Nisha (supra)?

(2) Whether the High Court in
exercise
of
its
criminal
appellate
jurisdiction under the Code of Criminal
Procedure read with Section 482 Cr.P.C.
can confer jurisdiction upon the Chief
Judicial Magistrates/Magistrates in the
District Courts which the law otherwise
does not confer upon them?"
5 All. Gopesh Chandra Saxena Vs. State of U.P. & Ors.
1997

6. The aforesaid questions were
replied by the Larger Bench by order dated
25.5.2024, which reads as follows:

"(1) The Division Bench in
Ganesh (Supra) could not have issued any
direction
for
granting
the
general
directions of bail commanding the Chief
Judicial Magistrates to release convicts
whose
applications
for
remission/premature
release
have
remained pending beyond a particular
period, as interim measure, till disposal of
the said applications.
 (2) Learned AGA submits that
there is no power vested by the High Court
in the Chief Judicial Magistrates for grant
of bail. The said power is already exercised
by granting bail to all such persons and the
Chief Judicial Magistrate is directed only
to
release
such
person(s)
whose
applications
are
pending
beyond
a
particular
time
by
accepting
their
bail/surety bonds. However, we leave the
said question unanswered as in QuestionA, we have already held that the directions
of the Division in Ganesh (Supra) are not
as per law."

7. In view thereof, since the Larger
Bench has already held that the Division
Bench in Ganesh (supra) could not have
issued any direction for issuing general
directions of bail commanding the Chief
Judicial Magistrate to release the convicts,
the impugned order passed by the Chief
Judicial Magistrate, Gonda based upon the
said directions in the case of Ganesh (supra)
cannot stand.

8. Therefore, the impugned order dated
2.3.2024 cannot stand and is set aside.

9. The Registrar General is
directed to forthwith communicate a copy
of this order along with the order passed by
the Large Bench dated 25.5.2024 to all the
Judicial Officers.

10. With the aforesaid, present writ
petition is allowed.
----------
(2024) 5 ILRA 1997
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE SURENDRA SINGH-I, J.

Criminal Misc. Writ Petition No. 7132 of 2023

Gopesh Chandra Saxena ...Petitioner
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Petitioner:
Awadh Behari Singh

Counsel for the Opposite Parties:
G.A.

Art. 226 of the Constitution of India -F.I.R.
Quashing-Petitioner was initially appointed on
the temporary post of Stenographer -thereafter
the post of stenographer was abolishedtemporary post of camp clerk was created and
the Petitioner was appointed thereon-the said
post was discontinued-even after abolition of
aforesaid post the Petitioner continued on the
said post until his superannuation- F.I.R. lodgedFrom the evidences it transpires that at the time
of abolition of post of Camp Clerk on 26.12.1995
and thereafter, the petitioner did not hold the
post
of
Incharge
of
seat
(Patal)
of
establishment-no occasion for him to have the
custody of the letter which communicated the
discontinuance of such post-F.I.R. is misuse of
law-quashed.

W.P. Allowed. (E-9)

List of Cases cited: