# Dr. Jagdish Prasad Gaur Revisionist v. State of U.P. and others Opp. Parties

- **Citation:** (2011) 1 ILRA 64
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-01-06
- **Case number:** Criminal Revision No. 2146 of 2002
- **Bench:** Ahsok Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-jagdish-prasad-gaur-revisionist-v-state-of-u-p-and-others-opp-parties-41902
- **Pages:** 5

## Headnote

Sri Nitin Srivastava,
Sri Sunil Chandra Srivastava,
A.G.A.

Criminal
Revision-Session
Judge
Quashed the summoning order-offence
under section 323, 342, 504, 506
I.P.C.-applicant while in Que before
counter No. 541 for getting reservation
ticket-Noticed serious illegal activities
on protest-called in side the counter
ofter
closing
door
assaulted
and
misbehaved-handed
over
to
the
constable who also misuse his power
and post-on complaint all the accused
persons
summoned
by
magistrateastonishing
the
session
judge
by
misinterpreting the provision of section
197 Crpc. Set-a-side summoning orderin view of Bhgwan P.D. Srivastava case
which still hold good filed-for misuse of
power
or
doing
the
things
not
permitted under law- can not claim
protection of Section 197- order passed
by session judge wholly illegal and
perverse-quashed
Opposite
Parties
directed to appear before magistrate-in
case of default-NBW be issued.

Held: Para 11 & 12

A police constable, who is detaining a
person in custody, cannot be permitted
to assault or slap him while taking him
from a place to the police station
concerned.
Similarly
no
Reservation
Clerk
or
Supervisor
of
a
railway
reservation counter can be said to be
discharging their official duties while
they
are
abusing,
confining
and
assaulting a passenger who had gone to
the counter to purchase a ticket or
demanded the complaint book to lodge
the protest.

On the basis of the above discussion I
am of the view that the judgment and
order passed by the learned Sessions
Judge is totally illegal and perverse and
liable to be quashed.
Case law discussed:
AIR 1967 Supreme Court 1331 (V 54 C 278);
(2009) 3 Supreme Court Cases 398.

## Text

64 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.01.2011

BEFORE
THE HON'BLE AHSOK SRIVASTAVA, J.

Criminal Revision No. 2146 of 2002

Dr. Jagdish Prasad Gaur ...Revisionist
Versus
State of U.P. and others ...Opp. Parties

Counsel for the Revisionist:
Sri Saurabh Gaur
Sri A.B.L. Gaur,
Sri V.P. Mishra,
Sri P.K. Singh

Counsel for the Opposite Party:
Sri Nitin Srivastava,
Sri Sunil Chandra Srivastava,
A.G.A.

Criminal
Revision-Session
Judge
Quashed the summoning order-offence
under section 323, 342, 504, 506
I.P.C.-applicant while in Que before
counter No. 541 for getting reservation
ticket-Noticed serious illegal activities
on protest-called in side the counter
ofter
closing
door
assaulted
and
misbehaved-handed
over
to
the
constable who also misuse his power
and post-on complaint all the accused
persons
summoned
by
magistrateastonishing
the
session
judge
by
misinterpreting the provision of section
197 Crpc. Set-a-side summoning orderin view of Bhgwan P.D. Srivastava case
which still hold good filed-for misuse of
power
or
doing
the
things
not
permitted under law- can not claim
protection of Section 197- order passed
by session judge wholly illegal and
perverse-quashed
Opposite
Parties
directed to appear before magistrate-in
case of default-NBW be issued.

Held: Para 11 & 12

A police constable, who is detaining a
person in custody, cannot be permitted
to assault or slap him while taking him
from a place to the police station
concerned.
Similarly
no
Reservation
Clerk
or
Supervisor
of
a
railway
reservation counter can be said to be
discharging their official duties while
they
are
abusing,
confining
and
assaulting a passenger who had gone to
the counter to purchase a ticket or
demanded the complaint book to lodge
the protest.

On the basis of the above discussion I
am of the view that the judgment and
order passed by the learned Sessions
Judge is totally illegal and perverse and
liable to be quashed.
Case law discussed:
AIR 1967 Supreme Court 1331 (V 54 C 278);
(2009) 3 Supreme Court Cases 398.

(Delivered by Hon'ble Ashok Srivastava, J.)

1. This criminal revision has been
preferred
by
the
revisionist
feeling
aggrieved by the judgment and order dated
3.12.2002 passed by the learned Sessions
Judge, Ghaziabad in Criminal Revision
No. 582 of 2002.

2. The brief facts of this case are that
the revisionist Dr. Jagdish Prasad Gaur is a
retired Reader and Head of Department of
I.P. (P.G.) College, Bulandshahr and after
his retirement he settled down in the city of
Ghaziabad. On 12.5.1998 at about 8.00
A.M.
he
went
to
railway
station,
Ghaziabad and stood in the que before
counter No. 541. He was there for
reservation of a railway ticket for one Smt.
Shobha Narayan. After a while the
revisionist and other persons who were
standing in the que noticed that the
reservation officials were committing
1 All] Dr. Jagdish Prasad Gaur V. State of U.P. and others
65
irregularities. They were accepting money
and reservation forms from certain travel
agents bypassing the que. Such travel
agents and middlemen were getting
reservation tickets premptorily and without
standing in the que which was against the
prescribed rules. The revisionist could not
digest the irregularities and he went
straight away to opposite party no. 3,
Shivdan Singh, who was sitting on the
counter and issuing reservation tickets.
Opposite party no. 2, Ram Gopal Sharma
was occupying the reservation counter no.
542 which was adjacent to counter no. 541.
The revisionist lodged his protest against
the abovementioned irregularities being
committed by them upon which opposite
party nos. 2 and 3 started misbehaving
with the revisionist. The revisionist went to
Shift Supervisor R.K. Meena, opposite
party no. 4, and demanded from him the
complaint book. The opposite party no. 4
refused to give the complaint book to the
revisionist. Thereafter the revisionist and
other persons forming the que pressed their
demand for the complaint book and to
write their complaint therein. Seeing the
mounting pressure by the public, the
opposite party nos. 2, 3 and 4 asked the
revisionist to come inside the reservation
room. In good faith the revisionist went
inside where, after bolting the door from
inside, the opposite party nos. 2, 3 and 4
abused and assaulted him. Thereafter they
handed him over to opposite party no. 5 Jai
Kumar who was a constable at G.R.P.,
Ghaziabad. The opposite party no. 5 also
assaulted the revisionist and took him to
the G.R.P. Police Station and throughout
the way he kept on slapping him. A false
report was lodged against the revisionist
and he was detained at the police station
and produced before the court of the
Magistrate
concerned
at
4.30
P.M.
wherefrom he was released on bail.
Thereafter the revisionist went to the
Government Hospital where he was
medically examined and a medical report
was prepared. The revisionist tried to lodge
an F.I.R. with the G.R.P. Ghaziabad but in
vain; so he moved an application before
the court of learned Magistrate under
Section 156(3) Cr.P.C. but the same was
rejected. Thereafter he filed a complaint
against all the four opposite parties placed
at Sl. Nos. 2 to 5 of the memo of revision.
In the complaint case which was under
Section 323/342/504 I.P.C. the learned
Magistrate directed them to appear before
the court on 7.2.2000. Feeling aggrieved
by the summoning order, the opposite
party nos. 2, 3 and 4 preferred a criminal
revision before the learned Sessions Judge,
Ghaziabad which was registered there as
Criminal Revision No. 582 of 2002. It
should be mentioned here that opposite
party no. 5, Constable Jai Kumar, posted in
G.R.P. Railway Station, Ghaziabad has not
filed any revision.

3. After hearing both the parties, the
learned Sessions Judge allowed the
revision vide his order dated 3.12.2002
quashing and setting aside the summoning
order dated 6.1.2000 passed by the learned
Magistrate. Feeling aggrieved by the order
of the learned Sessions Judge, the present
revision has been filed before this Court.

4. This revision was listed for hearing
on 26.11.2010. On that date the learned
counsel for the revisionist, learned counsel
for opposite party nos. 2 to 4 and learned
A.G.A. were pressed. No one was present
on behalf of opposite party no. 5 despite
the fact that he has been served with the
notice issued by this Court.

5. I have heard learned counsel for
the
revisionist,
learned
counsel
for
66 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
opposite party nos. 2 to 4 and learned
A.G.A. and perused the lower court
records which are tagged with this file.

6. From the perusal of the judgment
impugned, it is evident that the learned
Sessions Judge had passed an order which
is quite unusual. He has given protection of
Section 197 of Cr.P.C. to all the three
revisionists before him. He has exceeded
his domain and stepped outrageously
beyond the limits permitted under various
provisions relating to criminal revision and
considered certain facts consideration of
which is permitted only by the High Court
under Section 482 Cr.P.C. It appears that
the learned Sessions Judge was under the
impression that he has inherent power
under Section 482 Cr.P.C. also. His
judgment runs in some 31/2 pages. In major
part of it he has mentioned the facts and
the arguments as advanced by the learned
counsel for the parties before him. The
relevant portion through which he has
arrived at the decision to allow the revision
is as follows :

"Having considered these arguments
when we go through the record of
Criminal Case No. 2067/99 of the trial
court, we find that actually the entire
incident alleged in the complaint took
place in connection with reservation of
Smt. Shobha Narayan and Counter no.
541 is said to be meant only for senior
citizens
and
freedom-fighters,
the
complainant has not shown anything to
attract the benefit of his being senior
citizen or freedom-fighter. Even he has
not brought any record to show that Smt.
Shobha Narayan for whom he was at the
counter was either freedom-fighter or
senior citizen. The act of the accused
persons in connection with reservation
got into in the form of alleged incident
and this discharge of official duty of
reservation of accused persons cannot be
separated from the work of reservation.
Under these circumstances for want of
sanction
when
the
revisionists
are
government
servants,
the
complaint
cannot be taken to be maintainable.
Further if at all the complainant had
been challaned, it can be inferred that the
complainant with a view to have the case
in peshbandi against the revisionists has
come forward with the complaint. In
these circumstances, the impugned order
has to be set aside and the revision has to
be allowed."

7. From perusal of this part of the
judgment it appears that the learned
Sessions Judge was of the opinion that it
was lawful for a Reservation Clerk and
Reservation Supervisor to abuse, assault
and confine a person, who had gone to a
railway reservation counter to purchase a
ticket, while vending tickets to the railway
passengers. From the perusal of the
complaint under Section 200 Cr.P.C., the
statements of the witnesses and the order
of the learned Magistrate, it is evident that
when the revisionist had protested vending
of reservation tickets in an illegal manner
by opposite party nos. 2 to 4, they got
irritated, called him inside the reservation
room on the pretext of giving him the
complaint
book
and
thereafter
the
revisionist was abused and assaulted by
them. By no stretch of imagination, one
can presume what the opposite party nos. 2
to 4 had allegedly done was done in
discharge of their official duties pertaining
to vending of reservation tickets to the
passengers. It is really surprising that such
a senior District & Sessions Judge can
misinterpret the law in such a reckless and
improper manner. He has also considered
various facts which were definitely not
1 All] Dr. Jagdish Prasad Gaur V. State of U.P. and others
67
under his domain while hearing the
revision. He has mentioned in his order
impugned that it has not been said before
the learned Magistrate, during the course
of inquiry of the complaint case, whether
the revisionist was a senior citizen or
freedom fighter or Smt. Shobha Narayan
for whom he had gone to get the ticket
reserved was a senior or a freedom fighter.
It was not a matter in dispute but the
dispute before the learned Magistrate was
that whether the revisionist was confined,
abused and assaulted or not. It was only a
piece of evidence relating to facts which
could have been seen at the time of trial of
the case. It is really astonishing to see that
the learned Sessions Judge has written in
his judgment that the duty of reservation
cannot be separated from the work which
the opposite party nos. 2 to 4 had allegedly
done against the revisionist.

8. In AIR 1967 Supreme Court
1331 (V 54 C 278), K.N. Shukla Vs.
Naynit Lal Manilal Bhatt and another
the Apex Court has said that "Railway
Officer officiating in Class I of the
Transportation (Traffic and Commercial)
Department is not an officer under Central
Government but is under Railway Board.
Therefore, prosecution can be instituted
without the sanction of the Central
Government."
The
Apex
Court
has
specifically said that in this judgment that
"railway officials is an employee of the
Railway Board and not the employees
under Central Government." Therefore, in
the case before the learned Magistrate, no
sanction was at all required to prosecute
opposite party nos. 2 to 5.

9. In (2009) 3 Supreme Court Cases
398, Choudhury Praveen Sultana Vs.
State of West Bengal and another the
Apex Court in paragraph no. 18 has said
the following :

"18. The direction which had been
given by this Court, as far back as in 1971
in Bhagwan Prasad Srivastava case holds
good even today. All acts done by a public
servant in the purported discharge of his
official duties cannot as a matter of course
be brought under the protective umbrella
of Section 197 CrPC On the other hand,
there can be cases of misuse and/or abuse
of powers vested in public servant which
can never be said to be a part of the official
duties required to be performed by him. As
mentioned in Bhagwan Prasad Srivastava
case the underlying object of Section 197
CrPC is to enable the authorities to
scrutinise the allegations made against a
public servant to shield him/her against
frivolous, vexatious or false prosecution
initiated with the main object of causing
embarrassment and harassment to the said
official.
However,
as
indicated
hereinabove, if the authority vested in a
public servant is misused for doing things
which are not otherwise permitted under
the law, such acts cannot claim the
protection of Section 197 CrPC and have
to be considered dehors the duties which a
public servant is required to discharge or
perform. Hence in respect of prosecution
for such excesses or misuse of authority,
no protection can be demanded by the
public servant concerned.

10. The law as laiddown in this case
is squarely applicable in the case in hand
before me.

11. A police constable, who is
detaining a person in custody, cannot be
permitted to assault or slap him while
taking him from a place to the police
station
concerned.
Similarly
no
68 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Reservation Clerk or Supervisor of a
railway reservation counter can be said to
be discharging their official duties while
they are abusing, confining and assaulting
a passenger who had gone to the counter to
purchase a ticket or demanded the
complaint book to lodge the protest.

12. On the basis of the above
discussion I am of the view that the
judgment and order passed by the learned
Sessions Judge is totally illegal and
perverse and liable to be quashed.

13. The revision is allowed. The
impugned judgment and order dated
3.12.2002 is quashed and set aside.

14. Let the complete Lower Court
Records be sent back to the learned
Sessions Judge, Ghaziabad for its onward
transmission to the court concerned.
Learned Magistrate is directed to proceed
with the case in accordance with law. The
matter is very old. Therefore, expeditious
disposal of the case is directed. Opposite
party no. 2, Ram Gopal Sharma, opposite
party no. 3 Shivdan Singh and opposite
party no. 4 R.K. Meena are directed to
appear before the court of learned
Magistrate on 7.2.2011.

15. Opposite party no. 5, Constable
Jai Kumar, posted at the G.R.P. Railway
Station, Ghaziabad at the relevant time is
also directed to appear before the learned
Magistrate on the above-mentioned date.

16. The learned Magistrate is
directed to issue non-bailable warrant of
arrest against opposite party nos. 2 to 5, if
they fail to appear before it on the date
fixed by this Court. If the opposite parties
move bail application before the learned
Magistrate, he will dispose of the same in
accordance with law.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.01.2011

BEFORE
THE HON'BLE AMAR SARAN, J
THE HON'BLE NAHEED ARA MOONIS, J

Criminal Appeal No. 4606 of 2008

Dilip and others

...Appellants
Versus
State of U.P.

 ...Opposite Party

Counsel for the Appellants:
Sri Ravi Sahu
Sri Ahmad Saeed
Sri Ali Hasan
Sri Ghan Shyam Joshi
Sri M.Islam
Sri Sanjay Srivastava

Counsel for the Respondent:
Sri P.K. Singh
A.G.A.

Criminal Procedure Code Bail during
Pendency
of
Appeal-Conviction
for
offence
under
section
302
IPCSubmission
that
on
basis
of
same
evidence with similar role has been
acquitted-appellant in Jail for last 9
years-con not be ground for bail-case of
302/34
IPC-wrong
acquittal-by
Trial
court can be converted in conviction by
High Court- No Case for Bail-Hearing
itself expedited.

Held: Para 9

Considering the aforesaid submissions
and without expressing any opinion on
the merits of the case and looking to the
gravity of the matter, even though the
principal appellant Dilip has undergone 9
years in jail, we are not inclined to grant