# Dalveer Singh v. State of U.P. & Anr

- **Citation:** (2022) 11 ILRA 59
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-18
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dalveer-singh-v-state-of-u-p-anr-47885
- **Pages:** 5

## Headnote

A. Constitution of India, 1950-Article 227Indian Penal Code, 1860-Sections 419,420
& 406-petitioners with his associates
made the victim to believe that he will get
them employed in B.S.F.-On this pretext,
he
extorted
money-a
forged
and
fabricated joining letter was provided-
60 INDIAN LAW REPORTS ALLAHABAD SERIES
After investigation, I.O. submitted final
report, however, the court proceed as a
complaint case on the basis of protest
petition-Petitioner was summoned after
considering the material on record-Defect
in the format or form of the protest
petition or for the reason that the list of
witnesses was not submitted cannot be
given importance out of proportion at this
stage, if done, it will tantamount to taking
too technical view-Hence, no interference
requires.(Para 1 to 10)

The writ petition is dismissed. (E-6)

## Text

11 All. Dalveer Singh Vs. State of U.P. & Anr.
59
be flouted and even a covert disrespect to
Court's order cannot be tolerated. But if
orders are challenged and the appeals are
pending, one cannot permit a swinging
pendulum
continuously
taking
place
during the pendency of the appeal, Mr.
Manoj Swarup may be wholly right in
submitting
that
there
is
intentional
flouting of the" Court's order. We are not
interdicting that finding. But judicial
approach
requires
that
during
the
pendency of the appeal the operation of an
order having serious civil consequences
must be suspended. More so when appeal
is admitted. Previous history of litigation
cannot be overlooked. And it is not
seriously disputed that the whole of the
building, Hari Bhawan, except one room
in dispute is in possession of the
Corporation. We accordingly suspend the
operation of the order dated 6th August
1982 directing the appellants to handover
the possession of the room to the
respondents till the disposal of the first
appeal against that order pending in the
High Court of Allahabad. Mr. Manoj
Swarup requests that both the earlier and
later Appeals should be heard together as
early as possible, We order accordingly
and request the High Court if it considers
proper in its own discretion to hear both
the appeals as expeditiously as possible in
order to avoid the continuance of the
boiling situation. The appeal stands
disposed of. There shall be no order as to
costs."

 (emphasis added)

11.

Nobody
would
doubt
if
unauthorized occupants are liable to be
evicted but Rule of Law demands that the
procedure prescribed for, must be followed.

12. In view of the above, therefore, it
would be appropriate that the admitted
appeals of the defendants- petitioners are
directed to be disposed of within a time
bound period and until such decision, the
orders of prescribed authority appealed
against are put in abeyance.

13. Accordingly, all these petitions are
disposed of with a direction to the appellate
authority under the Act, 1971 to dispose of
the pending appeals of the respective
petitioners before it positively within a
period of three months from today and
petitioners
undertake
through
their
respective counsel to cooperate in the
disposal of appeal and until such disposal,
the effect and operation of the orders
passed by the prescribed authority which
have been appealed against, shall remain in
abeyance.
----------
(2022) 11 ILRA 59
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2022

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters U/A 227 No. 8844 of 2022 (Criminal)

Dalveer Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Arvind Prabodh Dubey

Counsel for the Respondents:
C.S.C.

A. Constitution of India, 1950-Article 227Indian Penal Code, 1860-Sections 419,420
& 406-petitioners with his associates
made the victim to believe that he will get
them employed in B.S.F.-On this pretext,
he
extorted
money-a
forged
and
fabricated joining letter was provided-
60 INDIAN LAW REPORTS ALLAHABAD SERIES
After investigation, I.O. submitted final
report, however, the court proceed as a
complaint case on the basis of protest
petition-Petitioner was summoned after
considering the material on record-Defect
in the format or form of the protest
petition or for the reason that the list of
witnesses was not submitted cannot be
given importance out of proportion at this
stage, if done, it will tantamount to taking
too technical view-Hence, no interference
requires.(Para 1 to 10)

The writ petition is dismissed. (E-6)
(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Arvind Prabodh Dubey,
learned counsel for the petitioner and
learned AGA for the State.

2. This petition under Article 227 of
the constitution has been filed with a
request to set aside the order dated
24.09.2021 passed in Criminal Revision
No. 143 of 2017 (Tarkeshwar Prasad and
Others vs. State of U.P. and Others), Police
Station-Cantt, District-Gorakhpur as well
as order dated 03.03.2017 passed by the
Chief Judicial Magistrate in Complaint
Case No. 2861 of 2016 (Prakash vs.
Tarkeshwar and Others) under Sections
419, 420, 406 IPC.

3. The facts relevant leading to this
petition are as below.

A FIR Case Crime No. 1414 of
2010 was lodged against the petitioner and
five other persons with the allegations that
the informant-Prakash (respondent no. 2 in
the present petition), and the petitioner
Dalveer Singh were friendly with each
other. Dalveer Singh and his associates
made the respondents to believe that he will
get them employed in B.S.F. On this
pretext, he extorted different amounts from
the respondent no. 2, his brother and
several other victims (named in the FIR)
and the money was deposited in Bank
account of Dalveer Singh. They received a
joining letter, which turned out to be forged
and fabricated. When protested, he assured
to return the money and asked them not to
take any legal action lest he may not be in a
position to return the same, however, after
eliciting lot of time on different excuses,
Dalveer Singh and his associates ultimately
refused to return the amount. In this way,
several persons including the informant
were cheated of their hard earned lakhs of
rupees. On the basis of this FIR, the
investigation was conducted, however, the
investigating officer was of the opinion that
the real dispute was something else and
submitted a final report. Against the final
report, a protest petition was filed by the
respondent no. 2-Prakash. The petition was
ordered to be registered as a complaint
case. The statement under Sections 200 and
202 Cr.P.C., were recorded and the learned
trial court passed a summoning order dated
03.03.2017 under Section 419, 420, 467,
468, 471, 406, 323, 504 and 506 IPC. This
summoning order was challenged by
Dalveer Singh-the petitioner and one
Tarkeshwar Prasad by filing a Criminal
Revision No. 143 of 2017, however, the
same was dismissed by order dated
24.09.2021 and the order of the trial court
was affirmed. Against the order passed by
the revisional court, the petitioner has come
before this Court under Article 227.

4. It is contended on behalf of the
petitioner that in fact respondent no. 2 took
a loan of Rs. 5,00,000/- from the petitioner
and he wanted to avoid its repayment,
therefore, the petitioner has been falsely
implicated in this case; the revisional court
without appreciating the arguments of the
11 All. Dalveer Singh Vs. State of U.P. & Anr.
61
petitioner, dismissed the revision and
affirmed the order of the trial court; the
revisional court failed to see that the trial
court passed the summoning order in a
routine and arbitrary manner and without
properly appreciating the evidence on
record; the revisional court failed to
appreciate the evidence collected by the
investigating officer to the effect that the
case of the informant was false and
concocted.

5. Apart from arguing on some factual
aspects of the case, two legal points have
been raised. Firstly, that a protest petition
cannot be treated as a complaint unless it
fulfills the requirements of a complaint as
defined under Section 2(d) of Cr.P.C.,
therefore, the order is bad in law. Secondly,
that there was no list of witnesses which
was must with the protest petition,
therefore, the protest petition cannot be
treated as a complaint and the trial court
was wrong in proceeding on the basis of
such complaint/protest petition.

6. It is settled law that after
investigation, when a final report is
submitted, the Court has several options
open. Where the Court, instead of rejecting
the final report, decides to proceed in the
matter on the basis of protest petition
treating it as a complaint, in my view, it
cannot be expected from the informant that
he should have foreseen such an option
being adopted and he should have referred
to all the facts as is required where the
complainant decides to file a complaint
case directly.

7. Clause (d) of Section 2 of Cr.P.C.,
defines the complaint as an allegation made
orally or in writing to a Magistrate under
this
Code. No particular
format
of
complaint has been given in the Code of
Criminal
Procedure.
The
only
requirement is that the allegations
should be there and such allegations
should be made with a view to mobilize
the authority of the Magistrate or the
Court for taking action against the
offenders. It may also be noticed that the
complaint may be made orally also. It
stands to reason that when a trial court is
proceeding on a protest petition, there must
be material, which is sufficient enough to
enable the Court to proceed against the
accused persons. There is no provision in
law that at such stage the Magistrate is
powerless to look into and evaluate the
evidence as collected by the Investigating
Officer. In certain cases, there may be good
reasons prompting the Magistrate to not to
proceed as police case. Some of the reasons
may be that investigation is deficient as
some of the evidence whether oral or
documentary is not collected or if collected,
is not appreciated in the right perspective
by the Investigating Officer or the manner
of questioning the witnesses may have been
faulty and may be some other facts and
circumstances,
which
cannot
be
enumerated or foreseen here. Further there
may be instances where the Court agrees
with the Police report whether it is a
chargesheet or a final report partly and
partly not. Now, the question may arise
whether the Court, while deciding not to
proceed as a Police case on the basis of
protest petition instead decides to proceed
as a complaint case albeit on the basis of
same protest petition, transgresses its
powers in taking notice of the evidence
collected during the investigation? This fact
cannot be under estimated that even if a
final
report
is
submitted
by
the
Investigating Officer for some good or not
so good reason, the spot inspection, the
postmortem
report,
the
medical
examination report, the recovery of blood
62 INDIAN LAW REPORTS ALLAHABAD SERIES
stained earth or blood stained clothes or
weapon of offence, even the FIR or any
other
material
collected
during
the
investigation may be of great assistance to
the Courts. It may importantly be noticed
that where the Magistrate proceeds in a
complaint case, he has powers to order for
police investigation, if required, under
Section 202 Cr.P.C. In my view, if he
already has such material which could have
been collected, if he chose to exercise such
powers under Section 202 Cr.P.C., then
how can he be expected to look sideways
and ignore the material already available
before him. The law cannot be interpreted
in such a manner so as to thwart justice.
The goal of all procedural laws is
attainment of justice or at least illuminate
the path to attain such a goal. A police
report under Section 173(2) Cr.P.C. is
within his ken, as it forms part of material
on record. In my firm opinion, it can be put
to good use for the purpose of summoning
the accused. The Courts are concerned with
substantive justice rather than with the
form
or
technicality
or
procedural
formalities. Obviously, on the other hand, if
the material before the Court, which may
include the evidence collected by the
Investigating Officer and other papers are
deficient in some respect or which fail to
give complete picture of the case, the Court
may decide not to proceed. In my opinion,
if the allegations, as contained in the
protest petition coupled with material on
record are sufficient to enable the Court to
proceed, the such course of action cannot
be faulted on technical grounds.

8. Section 204(2) Cr.P.C. which deals
with issuing of process in criminal case is
as below:-

"No summons or warrant shall
be issued against the accused under sub-
section (1) until a list of the prosecution
witnesses has been filed."

As far as the lack of list of
witness is concerned, it is always open for
the Court to call for the same and take
suitable action either refusing to proceed
further or passing some other appropriate
order in terms of provisions of Section
204(2) Cr.P.C.The proceeding cannot be
quashed on this technicality.

9. It is settled proposition of law that
while exercising supervisory jurisdiction
under Article 227, the High Court will not
convert itself in the Court of appeal and
indulge in re-appreciation or re-valuation of
evidence or correct errors of formal or
technical character. The High Court may
decide to intervene where non-intervention
may result in travesty of justice or where
such refusal would result in prolongation of
the litigation. The underlying policy is that
the Courts should remain within their legal
bounds
for
the
sake
of
orderly
administration of justice. The powers, for
good reasons are to be exercised sparingly
when the ends of justice, in the peculiar
fact and circumstances of the case, so
demand.

10. In view of the scope of powers, as
available
under Article
227
of
the
Constitution, no case is made out for such
interference. It may be noted that as per the
allegations in the FIR, not only large
amount of money was siphoned out from
the victim-respondent no. 2, but it was so
meticulously planned that a forged order of
appointment was also issued. Though, after
investigation, the Investigating Officer
submitted a final report, however, the Court
decided to proceed as a complaint case on
the basis of protest petition. It may also be
noted
that
the
petitioner
has
been
summoned in the case after considering the
11 All. Smt. Luxmi Devi & Anr. Vs. State of U.P. & Ors.
63
oral statement recorded under Sections 200
and 202 Cr.P.C. and other material on
record. Defect in the format or form of the
protest petition or for the reason that the list
of witnesses was not submitted cannot be
given importance out of proportion at this
stage. If done, it will tantamount to taking
too technical a view. In my opinion, no
ground for interference under Article 227 is
made out, hence the petition is dismissed.

11. Let copy of this order be certified
to the court concerned.
----------
(2022) 11 ILRA 63
ORIGINAL JURISDICTION
CIVILL SIDE
DATED: ALLAHABAD 21.09.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Writ A No. 595 of 2022

Smt. Luxmi Devi & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Krishna Mohan Misra

Counsel for the Respondents:
C.S.C., Sri Jai Bahadur Singh

A. Service Law - Disciplinary Proceedings
- U.P. Cooperative Societies Employees
Service Regulations, 1975 - Civil Services
Regulations - Article 351-A - In the
absence
of
any
provision
in
the
Regulations governing the service of an
employee providing for continuation of
disciplinary proceedings after retirement,
the
respondent
cannot
continue
the
disciplinary
proceedings
after
the
employee's superannuation. (Para 10)

There
was
no
provision
in
the
U.P.
Cooperative
Societies
Employees
Service
Regulations, 1975 for initiation of disciplinary
proceedings against retired employees or for
continuing disciplinary proceedings even when
they
started
before
retirement
of
the
employee concerned. Late Ram Nazar Singh
retired on 31.07.2018. At that time, there was
no provision in the Cooperative Societies
Employees Service Regulations, 1975 for
initiation of disciplinary proceedings against
retired employees. (Para 5)

B. The husband of the petitioner was on
a non pensionable post and therefore,
any
Regulation
which
permits
the
respondents
to
initiate
disciplinary
proceedings for recovery from pension
and other retrial dues of such an
employee including Article 351-A of the
Civil Services Regulations shall not be
applicable.
The
Court
also
held
that
contesting respondent was entitled to interest
on the amount payable to him. (Para 7, 12)

C. The disciplinary proceedings initiated
is without jurisdiction - The St. of U.P.,
notified
the
XXII
Amendment
to
the
Regulations of 1975 but it provided the date
of enforcement as the date of publication in
the Gazette. Publication was made only on
27.08.2018 in the official Gazette. Hence, no
retrospective operation can be given to
the Regulations and the Registrar could
not have given sanction on 09.02.2021
for initiation of disciplinary proceedings
against the husband of the petitioner no.
1. (Para 11)

The amendment which was carried out in the
Regulations of 1975 was notified only on
27.08.2018 and was made applicable with
immediate effect. Hence no retrospective
operation can be given in the case of the
husband of the petitioner no. 1. The
disciplinary proceedings initiated against late
husband of the petitioner no. 1 is without
jurisdiction as he retired on 31.07.2018 much
before the amendment in the Regulation was
notified with prospective effect. (Para 9, 13)

Writ petition allowed. (E-4)

Precedent followed: