# Committee of Management v. Prescribed Authority/ Upzila Magistrate and others

- **Citation:** (2001) 1 ILRA 350
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-12-18
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/committee-of-management-v-prescribed-authority-upzila-magistrate-and-others-39732
- **Pages:** 4

## Text

1All] Committee of Management V. Prescribed Authority/ Upzila Magistrate and others
350
cannot decide the dispute about the
validity of the election. He has placed
reliance on the decision of learned Single
Judge in Abdul Kalam and another v. the
prescribed Authority/SDM, Phoolpur and
others 2000 (3) UPLBEC 2499. On the
other hand Sri Krishna Prasad the learned
standing counsel has urged that the
Prescribed Authority can examine the
validity of the elections. He has placed
reliance on a division Bench decision of
this court in Jai Prakash Agarwal V.
Prescribed Authority (Sub Divisional
Officer), Sadar, District Deoria and others
1999 (1) UPLBEC 697.

3. On the arguments advanced by
the learned counsel for the parties, the
question
is
whether
the
Prescribed
Authority function as a Tribunal and
could go into the question of validity of
the elections. The Division Bench in Jai
Prakash Agarwal (supra) has considered
this question and has held that the
Prescribed Authority decides important
dispute of election and continuance in
officer of an office bearer, which is
essentially a dispute of civil nature. From
the provisions of section 25 (1) and (2), it
is clear that the Prescribed Authority
decides the dispute in exercise of inherent
power of the State vested in him by the
State Government. In further held that the
Prescribed Authority under Section 25 of
the Societies Registration Act, 1860, as
applicable in Uttar Pradesh, is a Tribunal
and the orders passed by the Prescribed
Authority can be challenged in writ
petition
under
Article
26
of
the
Constitution and Special appeal under
Rule 5 of Chapter VIII of the Rules of the
Court would not lie against the order of
the Single Judge passed in a writ petition.
It appears that this decision of the
Division Bench was not placed before the
learned Single Judge in Abdul Kalam's
case were in he has held that the
Prescribed Authority does not act as an
Tribunal. The decision in Abdul Kalam's
case in of no help to the petitioner.
Therefore, the prescribed Authority in
exercise of his judicial function as
Tribunal has held by the impugned order
dated 18.12.2000 that election of the
petitioner and respondent no. 4 were
illegal, contrary to bye-laws of the society
and it directed for holding fresh election. I
do not find any illegality in the impugned
order passed by the Prescribed Authority.

4. The writ petition has no merit and
is accordingly dismissed.
Petition Dismissed.

$33(//$7( -85,6',&7,21
$33(//$7( -85,6',&7,21
&5,0,1$/ 6,'(
&5,0,1$/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 86 75,3$7+, -
7+( +21·%/( 86 75,3$7+, -

&ULPH 0LVF %DLO $SSOLFDWLRQ 1R RI

&DVH
&ULPH
1R

RI

8QGHU
VHFWLRQ ,3& 3ROLFH 6WDWLRQ
/RQH 'LVWULFW *KD]LDEDG

%LMHQGUD 6LQJK DOLDV 3LQWRR «$SSOLFDQW
,Q MDLO
9HUVXV
6WDWH RI 83
«2SSRVLWH SDUW\

&RXQVHO IRU WKH $SSOLFDQW
6KUL -DL 6KDQNHU $XGLFK\D
&RXQVHO IRU WKH 5HVSRQGHQW
6UL 56 6KXNOD
$*$

&RGH RI &ULPLQDO 3URFHGXUH &RGH
6 %DLO*UDQW RI ± )LUVW UHPDQG
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
351
RI
DFFXVHG
JUDQWHG
E\
$&00
RQ
 ± 6WDWXWRU\ SHULRG RI GD\V
IRU VXEPLVVLRQ RI FKDUJH VKHHW H[SLUHG
RQ ± &KDUJH VKHHW VXEPLWWHG
RQ DV PHQWLRQHG LQ &-0¶V
RUGHU GDWHG &RQWHQWLRQ WKDW
SHULRG RI GD\V VKRXOG EH FRQWHQG
IURP GDWH RI QG UHPDQG E\ WKH &-0
*KD]LDEDG
DIWHU
H[SLU\
RI

GD\V
UHMHFWHG ± +HOG WKDW UHOHYDQW SHULRG
XQGHU 6 VKDOO EH FRXQWHG IURP
GDWH RI ILUVW UHPDQG LH RQO\
+HOGSDUD
,Q WKLV ZD\ WKH OLJKW RI DFFXVHG WR EH
HQODUJHG DQ EDLO XQGHU WKH SURYLVR WR
6HFWLRQ

&U
3&
DFFUXHG RQ
 KDV QR HIIHFW DV KHOG E\ WKH
$SH[ &RXUW LQ WKH FDVH RI WKH DFFXVHG LQ
HQWLWOHG WR EDLO XQGHU WKH SURYLVR WR
6HFWLRQ &U 3&
&DVH ODZ 'LVFXVVHG
 -&& &VW
 6&&
 ± -,& 6&

By the Court

1. The applicant Bijendra @ Pintoo
had moved this bail application mainly on
the ground that he was arrested in this
case and was produced before Additional
Chief Metropolitan Magistrate, Delhi on
08.09.2000 from, where he was granted
judicial remand. But the charge sheet in
the case was not filed till 12.12.2000 i.e.
even after lapse of 95 days and thereafter
he away entitled to bail under the
mandatory provision of Section 167(2)
Cr. P.C.

2. Initially the bail application of the
applicant was rejected by the learned
Sessions Judge, Ghaziabad on merit on
03.11.2000. Thereafter, the applicant
moved this bail application before this
Court on 07.12.2000. During tendency of
this bail application before this Court he
applied for bail under the provision of
Section 167(2) before Chief Judicial
magistrate, Ghaziabad on 12.12.2000. The
learned Chief Judicial magistrate rejected
the bail application on 14.12.2000 on the
ground that the applicant was remanded to
judicial custody on 21.09.2000 and
therefore, the statutory limit of 90 days
for completion of investigation have not
expired till 12.12.2000 and charge sheet
was
submitted
in
the
Court
on
12.12.2000. Therefore, the applicant was
not entitled to bail under Section 167(2)
Cr. P.C. the applicant, therefore filed
supplementary affidavit and also claimed
his bail under the provision.

3. Heard the learned counsel for the
applicant and the learned A.G.A.

4. It is not disputed that initially
report of the occurrence was lodged at
P.S. Sahadara, district North East (Delhi)
by Sub Inspector Guru Sewak Singh
Sahib and the applicant was also arrested
by police of P.S. Sahadara on 7/8.9.2000.
Certified copy of order of A.C.M.M.,
Delhi shows that he was remanded to
judicial
custody
till
22.09.2000
on
08.09.2000 in F.I.R. no. Nil of 2000 under
section 364, 302/34 I.P.C. P.S. Sahadara.
It is also not disputed that charge sheet in
this case was submitted on 13.12.2000 as
it is apparent from the order of the Chief
Judicial Magistrate dated 14.12.2000.

5. Proviso to Section 167 (2) Cr.
P.C. provides that the Magistrate may
authorise the detention of the accused
persons, otherwise than in the custody of
the police, beyond the period of fifteen
days, if he is satisfied that adequate
ground exist for doing so, but no
Magistrate shall authorise the detention of
the accused person in custody under this
1All] Bijendra Singh @ Pintoo V. State of U.P.
352
paragraph
for
a
total
period
exceeding
ninety
days,
where
the
investigation
relates
to
an
offence
punishable with death, imprisonment for
life or imprisonment for a term of not less
that ten years and on the expiry of the said
period of 90 days, the accused persons
shall be released on bail if he is prepared
to and does furnish bail, and every person
released on bail under this sub-section
shall be deemed to be so released under
the provisions of Chapter XXXIII for the
purposes of that Chapter.

6. The Apex court held in the case of
Sanjay Vs. State through C.B.I., Bombay
(II),
1994
SCC
(Cri)
1433
that
"indefeasible right" of that accused to be
released on bail in accordance with
Section 20(4) (Bb) of he TADA Act read
with Section 167 (2) of the Code of
Criminal
Procedure
in
default
of
completion of the investigation and filing
of the challan within the time allowed, as
held in Hitendra Vishnu Thakur, (1994) 4
SCC, 602 is a right which ensures to, and
is enforceable by the accused only from
the time of default till the filing of the
challan being filed. If the accused applied
for bail under this provision on expiry of
the period of 180 days or the extended
period, as the case may be, then he has to
be released on bail forthwith. The
accused, so released on bail may be
arrested
an
committed
to
custody
according tot he provision of the Code of
Criminal procedure. The right of the
accused to be released on bail after filing
of the challan, notwithstanding the default
in filing it within the time allowed, is
governed from the time of filing of the
challan only by the provision relating to
the grant of bail application at the state. It
is also mentioned in paragraph 48 of the
said judgement than the indefeasible right
accruing to the accused in such a situation
in enforceable only prior to the filing of
the challan and it does not survive or
remain enforceable on the challan being
filed, if already not availed of. Once the
challan has been filed, the question of
grant of bail has to be considered and
decided only with reference to the merits
of the case under the provisions relating
to grant of bail to an accused after the
filing of the charge sheet.

7. It has also been held by the Apex
court in the case of Mohammad Iqbal
Madar Shekh and other vs. State of
Maharashtra, 1996 JIC 499 (SC) that
unless applications had been made on
behalf of the appellants, there was no
question of their being released on ground
of default in completion of investigation
within the statutory period. It is now
settled that this right cannot be exercised
after the charge-sheet has been submitted
and cognizance has been taken.

8. It is clear from the remand order
passed by Additional Chief Metropolitan
magistrate, Delhi on 08.09.2000 that first,
that first remand of the accused was
granted on 08.09.2000. the statutory
period of 90 days for completion of
investigation and submission of charge
sheet
thus
expired
on
09.12.2000
Admittedly, the accused applicant applied
for bail before Chief Judicial Magistrate
under Section 167 (2) Cr. P.C. on
12.12.2000 and charge sheet in this case
was submitted on 13.12.2000 as it is clear
from the order of the Chief Judicial
Magistrate dated 14.12.2000. The learned
A.G.A. contended that period of 90 days
shall be counted from the date of remand
given by Chief Judicial Magistrate,
Ghaziabad i.e. 21.09.2000. this contention
has no force as the applicant was
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
353
remanded to judicial custody for the first
time on 08.09.2000 and second remand on
the expiry of 14 days was granted by the
Chief Judicial Magistrate, Ghaziabad. The
relevant period for the purposes of
proviso of Section 167 (2) Cr. P.C. shall
be counted from the date of first remand
to judicial custody and not drawn
subsequent or second remand.

9. In this way, the right of accused
to be enlarged on bail under the proviso to
Section 167 (2) Cr. P.C. accrued on
09.12.2000 and he availed that right
12.12.2000, by which date, no charge
sheet was filed. The passing of the order
on the bail application on 14.12.2000 has
no effect as held by the Apex court in the
case of Mohammad Iqbal Madar Sheikh
and other (supra). Therefore, the accused
in entitled to bail under the proviso the
Section 167 (2) Cr. P.C.

10. Let the accused applicant
Bijendra @ Pintoo involved in case crime
no. 820 of 2000 under Section 364/302/34
I.P.C., P.C. Lone, District Ghaziabad be
enlarged on bail on his furnishing a
personal bond and two sureties each in the
like amount to the satisfaction of Chief
Judicial Magistrate, Ghaziabad.
Application Allowed.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/(
7+( +21·%/( 6. $*$5:$/ -
6. $*$5:$/ -

&LYLO 0LVF $SSOLFDWLRQ 1R RI

6DPD\GLQ
«3HWLWLRQHU
9HUVXV
6WDWH RI 83 DQG RWKHUV «5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL 6XQLO .XPDU
&RXQVHO IRU WKH 5HVSRQGHQWV
$*$

&RGH RI &ULPLQDO 3URFHGXUH 6
 ± 0DLQWHQDQFH *UDQW RI WR ZLIH ±
IURP
GDWH
RI
DSSOLFDWLRQ
±
ZLWKRXW
UHFRUGLQJ DQ\ UHDVRQV ± 2UGHU LOOHJDO
+HOG ± 3DUD
)URP DQ H[DPLQDWLRQ RI WKH ODQJXDJH RI
VXEVHFWLRQ RI VHFWLRQ LW FOHDUO\
IROORZV WKDW LQ QRUPDO FLUFXPVWDQFHV WKH
PDLQWHQDQFH PXVW EH JUDQWHG IURP WKH
GDWH RI WKH RUGHU ,1 RQO\ H[WUDRUGLQDU\
FLUFXPVWDQFHV LW PD\ DOVR EH RUGHUHG WR
EH SDLG IURP WKH GDWH RI DSSOLFDWLRQ IRU
PDLQWHQDQFH ,W LV WKXV FOHDU WKDW WKHUH
PXVW
EH
D
GLVFXVVLRQ
RI
VXFK
FLUFXPVWDQFHV ZKLFK ZDUUDQW WKH FRXUW
WR DOORZ LW IURP WKH GDWH RI DSSOLFDWLRQ
1R RWKHU LQIHUHQFH LV SHUPLVVLEOH IURP
WKH ODQJXDJH RI VXEVHFWLRQ 2QH
VXFK H[WUD RUGLQDU\ FLUFXPVWDQFHV PD\
GLODWRU\
WDFWLFV
DGKHUHG
WR
E\
WKH
KXVEDQG
LQ
WKH
GLVSRVDO
RI
WKH
SURFHHGLQJ 7KH RWKHU RQH PD\ XQWROG
FUXHOW\ SUDFWLVHG DJDLQVW KLV ZLIH 7KH
OHDUQHG
0DJLVWUDWH
GDWH
RI
WKH
DSSOLFDWLRQ
1R
ZKHUH
LQ
MXGJHPHQW
EHIRUH GHOLYHULQJ WKH RSHUDWLYH SRUWLRQ
KH KDG VKRZQ DQ\ VXFK LQFOLQDWLRQ $V D
PDWWHU RI IDFW WKH FRXUW KDV WDNHQ WKH
KXVEDQG E\ VXUSULVH E\ PDNLQJ VXFK D
GLUHFWLRQ
IRU
WKH
ILUVW
WLPH
LQ
WKH
RSHUDWLYH SRUWLRQ RI WKH MXGJHPHQW ,
DP XQGHU WKH FLUFXPVWDQFHV LQFOLQHG WR
DFFHSW WKLV FRQWHQWLRQ DQG PRGLI\ WKH
RUGHU DQG PDNH LW SD\DEOH IURP WKH GDWH
RI RUGHU 7KH PDLQWHQDQFH DOORZDQFH
VKDOO EH SD\DEOH IURP WKH GDWH RI WKH
RUGHU

By the Court
1. Heard learned counsel for the
applicant and learned A.G.A. Sri Anoop
Ghosh and have perused bot the orders
also.