# and V.N.Kasturi v. Managing Director, State Bank of India, Bombay and another 1988 (8) SCC 30.}"

- **Citation:** (2008) 3 ILRA 799
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-13
- **Case number:** Criminal Appeal No. 875 of 1979
- **Bench:** Amar Saran, R.K. Rastogi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/and-v-n-kasturi-v-managing-director-state-bank-of-india-bombay-and-another-1988-41217
- **Pages:** 2

## Headnote

Code-Section
302/34Criminal Appeal-against the conviction of
life imprisonment-record of session Trail
summoned-reported by District Judge
burnt out-retrial also not possible in
absence
of
basic
document-No
alternative except to allow the appeal by
setting aside the conviction order.
800 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Held: Para 4

Under
these
circumstances,
when
reconstruction of the record is not
possible and when retrial is also not
possible in the absence of the basic
documents, there is no other alternative
but to allow this appeal and acquit the
accused as laid down by the Hon'ble
Apex Court in the aforesaid ruling in the
case of Abhay Raj Singh (Supra).
Case law discussed:
2004 SCC Crl. 901

## Text

3 All] Nanku V. State of U.P.
799
months' salary which preceded the date of
retirement.
The
liberalised
formula
provided for i) average emoluments with
reference to the last 10 months of service;
ii) a higher minimum ceiling on the
pension payable and iii) introduced a slab
system for computation of pension. After
an exhaustive review of decisions relating
to Article 14 of the Constitution, the Court
held
that
pension
was
not
only
compensation for loyal- service rendered
in the past but was a measure of socio
economic justice, and that there was no
reason given for choosing 1.4.1979 as a
cut-off date for applying the formula. In
coming to the conclusion that the cut off
date was invalid and must be struck down
and that the liberalised formula must be
made available to all pensioners, the
Court noted that it was not a case of
contributable scheme or a pension fund
from which alone the pension was to be
disbursed neither was it a new retiral
benefit but it was an "upward revision of
an existing benefit". The argument of the
Government
regarding
the
non-
availability
of
funds
was
found
unacceptable since, it was said, that
application of the same pension formula
to all pensioners would only make a
marginal difference in the case of past
pensioners because the emoluments were
not revised and all that the old pensioners
would get by reason of computation on
the liberalised formula would be a slightly
higher pension.

14. Illustrative of another aspect of
the Nakara principle, is the decision in
Commander Head Quarter, Calcutta and
Others V. Capt Biplabendra Chanda,
which said that the requirement of
equality prescribed by Nakara did not
extend to a new retiral benefit but was
limited only to an upward revision of an
existing benefit. It was held therefore that
a person who was not entitled to receive
pension on the date of his retirement
could not claim a grant of pension
because of a subsequent change in the
criteria of eligibility for such grant. [See
also Union of India and Others V. Dr.
Vijaypurapu Subbayama 2000 (7) SCC
662
and
V.N.Kasturi
V.
Managing
Director, State Bank of India, Bombay
and another 1988 (8) SCC 30.}"

12. In view of the aforesaid, we do
not find any error in the order of learned
Single Judge dismissing the writ petition,
however, for the reasons as noted above.

13. The special appeal is dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.08.2008

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE R.K. RASTOGI, J.

Criminal Appeal No. 875 of 1979

Nanku

...Appellant (In Jail)
Versus
State of U.P.

...Respondent

Counsel for the Appellant:
Sri G.S. Chaturvedi
Kumari Meena

Counsel for the Respondent:
A.G.A.

Indian
Penal
Code-Section
302/34Criminal Appeal-against the conviction of
life imprisonment-record of session Trail
summoned-reported by District Judge
burnt out-retrial also not possible in
absence
of
basic
document-No
alternative except to allow the appeal by
setting aside the conviction order.
800 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Held: Para 4

Under
these
circumstances,
when
reconstruction of the record is not
possible and when retrial is also not
possible in the absence of the basic
documents, there is no other alternative
but to allow this appeal and acquit the
accused as laid down by the Hon'ble
Apex Court in the aforesaid ruling in the
case of Abhay Raj Singh (Supra).
Case law discussed:
2004 SCC Crl. 901

(Delivered by Hon'ble Amar Saran, J.)

1. The facts relevant for disposal of
this appeal are that the appellant and two
others named Ram Kumar and Uttam
were charged under Section 302/34 IPC
and tried for the offence. The trial court,
after hearing of the case, came to the
conclusion
that
the
charge
was
sufficiently proved against Uttam. Hence,
Uttam was acquitted of the charge but
Ram Kumar and Nanku were convicted
under Section 302/34 IPC and sentenced
to life imprisonment. Aggrieved with that
judgment and order Nanku filed this
appeal.

2. When the record of the trial court
was summoned for hearing of this appeal,
it was reported that the record had been
burnt in the incident of fire in the Record
Room of the District Court. Thereafter
steps were taken for reconstruction of the
record but the record could not be
reconstructed as no documents were
available either with the prosecution, or
with the accused or with the police or
with the complainant. As reported by Sri
S.K. Pandey, District Judge, Bareilly vide
his letter No. 55 (v)-Cri. Dated 27.7.07
that reconstruction of the record is not
possible.

3. Thereafter directions were issued
to the Distt. and Sessions Judge to take
steps for retrial of the case in accordance
with the directions of the Hon'ble Apex
Court in the case of State of U.P. Vs.
Abhay Raj Singh 2004 SCC Crl. 901
vide order dated 2.11.07 In compliance
thereof a report has been received from
the District Judge, Bareilly vide Letter
No. 75/v-Crl. Dated 29.11.07 that no
document is available for retrial and so it
is not possible to conduct retrial of the
case.

4. Under these circumstances, when
reconstruction of the record is not
possible and when retrial is also not
possible in the absence of the basic
documents, there is no other alternative
but to allow this appeal and acquit the
accused as laid down by the Hon'ble
Apex Court in the aforesaid ruling in the
case of Abhay Raj Singh (Supra).

5. The appeal is, therefore, allowed
and the accused appellant is acquitted of
the charge under Section 302/34 IPC. He
is on bail and he need not to surrender.
His bail bonds are cancelled and his
sureties are discharged.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 45307 Of
2003

Chandrahas

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