# Harihar Prasad Pathak and another v. State of U.P. and another

- **Citation:** (2013) 1 ILRA 330
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-25
- **Bench:** Surendra Vikram Singh Rathore
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harihar-prasad-pathak-and-another-v-state-of-u-p-and-another-42501
- **Pages:** 8

## Text

330 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Government shall also ensure that in each
and every college of U.P., students are
admitted only in terms of sanctioned
strength and not beyond that. The colleges
admitting students beyond sanctioned
strength from the session 2013-2014 be
de-affiliated by the Universities and the
Government
and
recognition
be
withdrawn.

(IV). The Government of U.P. shall
issue a Government order or circular
communicating to all the universities and
affiliated colleges as well as related
Government Departments in terms of
observations made in the body of the
present judgment (para 53 and others) for
maintenance of standard of education
keeping in view the teacher-student ratio
expeditiously say, within two months."

7. Sri Indu Prakash Singh, learned
counsel for the petitioners has placed
reliance in the case of A. Manoharan
and others Vs. Union of India and
others (2008) 3 SCC 641 whereby in the
identical situation, the Hon'ble Supreme
Court held that an order issued dealing
with the matter having prospective effect,
cannot be applied retrospectively. The
relevant
portion
of
the
judgment
reproduce herein below:

"Furthermore, the Regulations have
been amended only with effect from
1.08.2004. It would have a prospective
effect.
It
cannot
be
applied
retrospectively. Any vacancy which has
arisen prior to coming into force of the
said amended Regulations must be filled
up in terms of the law as was existing
prior thereto."

8. In view of the settled proposition
of law the Director of Higher Education
seems to be not justified in rejecting the
payment of the salary. The impugned
order at the face of record, seems to be
passed
incorrectly
interpreting
the
Government Order dated 21.08.2000.
Moreover, since the controversy has been
settled by this Court (supra) the impugned
order seems to not sustainable. In view of
the above, the impugned order suffers
from substantial illegality and is not
sustainable. The writ petition deserves to
be allowed.

9. Accordingly, the writ petition is
allowed. A writ in the nature of certiorari
is issued quashing the impugned order
dated 25.03.2011 passed by the Director
of Higher Education, opposite party no. 2
with consequential benefits. A writ in the
nature
of
mandamus
is
issued
commanding
the
respondents
to
reconsider petitioners' claim with regard
to payment of the regular salary in the
light of observations made herein above
and pass a speaking and reasoned order
expeditiously say, within a period of three
months from the date of production of
certified
copy
of
this
order
and
communicate decision.

10. With the aforesaid direction, the
writ petition allowed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.03.2013

BEFORE
THE HON'BLE SURENDRA VIKRAM SINGH
RATHORE, J.

Writ Petition No.1059 (M/S) Of 2013

Harihar Prasad Pathak and another

 ...Petitioner
Versus
State Of U.P. and another ...OppositeParties
1 All] Harihar Prasad Pathak and another Vs. State of U.P. and another
331
Constitution of India, Art.-226. Petition for
quashing the trail at stage of recording
statement
under
section
313
Cr.P.C-
rejected-challenged on ground record not
properly reconstructed- carbon copy of the
statements of witness accepted on recordnever
objected
by
the
counsel
for
accused/petitioner-such
application
merely to delay the trail-nothing whisper
either in application or in writ petitionrecording incorrect statement or any part
of document is false-what prejudice shall
caused in absence of the these documentpetition
dismissed-direction
for
expeditious trail given.

Held: Para-9

The facts of the above case are, to a great
extent identical with the facts of the
present case. In that case, this Court has
considered the submissions and have
proceeded to dispose of the appeal on the
basis of the reconstructed record. In the
facts of this case also carbon copies of the
statements of witnesses recorded during
trial were given to the accused and
therefore the accused-persons could have
filed the same before the court showing
that the evidence of witnesses in the
reconstructed record is not correct but the
same has not been done. It is nowhere the
case of the accused persons that any part
of statement of witnesses is incorrect.
Such objection ought to have been raised
at the time of reconstruction of the record.
But at that time with the consent of
counsels of both the parties the record was
reconstructed. Therefore,, raising such
objection at a later stage, indicates the
intention of the accused persons that they
intend to delay the trial.

Case Law discussed:
[2004 (50) ACC 691]; (IXXX) 1992 ACC 223;
2007 (2) ACR 2244; 2005(2) ACR 1880
(MANU/UP/2496/2004); (2001) 9 SCC 149
(Delivered by Hon'ble Surendra Vikram
Singh Rathore, J.)

1. Under challenge in this petition is
the order dated 21.01.2013 passed by the
learned Additional District Judge, Court
No.3, Faizabad, in S.T. No.1082 of 1996
(State Vs. Harihar Pathak & Others)
whereby the Application No.87-A of the
petitioners was rejected.

2. Brief facts giving rise to present
controversy, as transpires from the perusal
of the impugned order and the copy of the
application annexed with this petition, are
that the petitioners were facing trial for
the offence under Sections 302/34,
307/34, 504 and 506 I.P.C., Police Station
Kumarganj, District Faizabad, arising out
of Case Crime No.258 of 1996. The case
was committed to the court of Sessions.
During course of trial after recording the
evidence of several witnesses, the record
of the case was lost. Hence, the
reconstruction of the file was ordered and
learned Additional District Judge, Court
No.9, under the directions of the District
Judge, got the file reconstructed and the
reconstruction of the file was approved by
the learned District Judge and thereafter
the file was sent to the court concerned
for trial at the stage of recording of the
statement under Section 313 Cr.P.C. In
that court an application was moved on
behalf of the accused-persons on the
ground that the file was not reconstructed
properly. The reconstructed documents
and evidence of witnesses is against the
provisions of Sections 275, 276 & 278
Cr.P.C. and Sections 65, 67 of Evidence
Act. The trial court after considering the
entire matter rejected the application,
hence the instant petition.

3. Submission of the learned counsel
for the petitioners is that there is no
provisions for reconstruction of the record
and no rules have been framed therefore.
It
is
further
submitted
that
332 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
unauthenticated statements of witnesses
were taken on record and were wrongly
reconstructed. As such the file cannot be
treated to be reconstructed. It was further
mentioned in the application that all the
witnesses of facts are still alive, therefore,
the intention of the applicants was to get
their evidence recorded a fresh.

4. Learned A.G.A. has opposed the
prayer and has stated that there is no
illegality in the impugned order and the
file was reconstructed with the consent of
the learned counsels for both the parties.
The documents were admitted by the
counsels to be correct and accordingly the
reconstruction
of
the
record
was
approved. Therefore, there is no illegality
in the impugned order. It is further
submitted that the violation of sections of
Cr.P.C. and Evidence Act which the
petitioners are alleging do not come into
play in the present matter.

5. Admittedly, in the Cr.P.C. there is
no provision for reconstruction of the
record nor any rules have been framed
therefor. But the reconstruction of the
record is done on the administrative side.
Hon'ble the Apex Court in the case of
State of U.P. Versus Abhai Raj Singh
and Another reported in [2004 (50) ACC
691] in para 11 has directed as under:-

"The
High
Court
shall
direct
reconstruction of the record within a
period of six months from the date of
receipt of our judgment from all available
or possible sources with the assistance of
the prosecuting agency as well as the
defending parties and their respective
counsel. If it is possible to have the records
reconstructed to enable the High Court
itself to hear and dispose of the appeals in
the manner, engaged under Section 386 of
the Code, rehear the appeals and dispose of
the same, on their own merits and in
accordance with law. If it find that
reconstruction is not practicable but by
ordering retrial interest of justice could be
later served-adopt that course and direct
retrial-and from that stage shall take its
normal course. If only reconstruction is not
possible to facilitate the High Court to hear
and dispose of the appeals and the further
course of retrial and fresh adjudication by
the Sessions Court is also rendered possible
due to loss of vitally important basic
records-in that case and situation only, the
direction given in the impugned judgment
shall operate to the matter shall stand
closed."

6. The Hon'ble Apex Court has also
issued directions to this Court that all
efforts
should
be
made
for
the
reconstruction of the record. Therefore,
there is no need for any separate rules for
reconstruction of the record. Before
proceeding further it is necessary to quote
the section which the learned counsel for
the petitioners has mentioned in his
application:-

"275, Record in warrant-cases:- (1)
In all warrant-cases tried before a
Magistrate, the evidence of each witness
shall, as his examination proceeds, be
taken down in writing either by the
Magistrate himself or by his dictation in
open Court or, where he is unable to do so
owing to a physical or other incapacity,
under his direction and superintendence,
by an officer of the Court appointed by
him in this behalf:

Provided that evidence of a witness
under this sub-section may also be
recorded by audio-video electronic means
in the presence of the advocate of the
person accused of the offence.
1 All] Harihar Prasad Pathak and another Vs. State of U.P. and another
333

(2) Where the Magistrate causes the
evidence to be taken down, he shall
record a certificate that the evidence could
not be taken down by himself for the
reasons referred to in sub-section (1).

(3) Such evidence shall ordinarily be
taken down in the form of a narrative, but
the Magistrate may, in his discretion take
down, or cause to be taken down, any part
of such evidence in the form of question
and answer.

(4) The evidence so taken down
shall be signed by the Magistrate and
shall form part of the record.

276, Record in trial before Court of
Session :- (1) In all trials before a Court
of Session, the evidence of each witness
shall, as his examination proceeds, be
taken down in writing either by the
presiding judge himself or by his dictation
in open Court or, under his direction and
superintendence, by an officer of the
Court appointed by him in this behalf.

(2) Such evidence shall ordinarily be
taken down in the form of a narrative, but
the presiding judge may, in his discretion
take down or cause to be taken down, any
part of such evidence in the form of
question and answer.

(3) The evidence so taken down
shall be signed by the presiding Judge and
shall form part of the record.

278, Procedure in regard to such
evidence when completed:-

(1) As the evidence of each witness
taken under Section 275 or section 276 is
completed, it shall be read over to him in
the presence of the accused, if in
attendance, or of his pleader, if he appears
by pleader, and shall, if necessary, be
corrected.

(2) If the witness denies the
correctness of any part of the evidence
when the same is read over to him, the
Magistrate or presiding judge may,
instead of correcting the evidence, make a
memorandum thereon of the objection
made to it by the witness and shall add
such remarks as he thinks necessary.

(3) If the record of the evidence is in
a language different from that in which it
has been given and the witness does not
understand that language, the record shall
be interpreted to him in the language in
which it was given, or in a language
which he understands.

63. Secondary Evidence:

Secondary
evidence.
Secondary
evidence means and includes--

(1) certified copies given under the
provisions hereinafter contained; 1

(2) copies made from the original by
mechanical processes which in themselves
insure the accuracy of the copy, and
copies compared with such copies;

(3) copies made from or compared
with the original;

(4) counterparts of documents as
against the parties who did not execute
them;

(5) oral accounts of the contents of a
document given by some person who has
himself seen it. Illustrations
334 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

(a) A photograph of an original is
secondary evidence of its contents, though
the two have not been compared, if it is
proved that the thing photographed was
the original.

(b) A copy compared with a copy of a
letter made by a copying machine is
secondary evidence of the contents of the
letter, if it is shown that the copy made by
the copying machine was made from the
original.

1. See s. 76, infra.

(c) A copy transcribed from a copy,
but
afterwards
compared
with
the
original, is secondary evidence; but the
copy not so compared is not secondary
evidence of the original, although copy
from which it was transcribed was
compared with the original. (d) Neither
an oral account of a copy compared with
the original, nor an oral account of a
photograph or machine- copy of the
original, is secondary evidence of the
original.

Section 65 The Indian Evidence
Act, 1872

65. Cases in which secondary
evidence relating to documents may be
given. Secondary evidence may be given
of the existence, condition or contents of a
document in the following cases:--

(a) when the original is shown or
appears to be in the possession or power-
- of the person against whom the
document is sought to be proved, or of
any person out of reach of, or not subject
to, the process of the Court, or of any
person legally bound to produce it, and
when, after the notice mentioned in
section 66, such person does not produce
it; (b) when the existence, condition or
contents of the original have been proved
to be admitted in writing by the person
against whom it is proved or by his
representative in interest; (c) when the
original has been destroyed or lost, or
when the party offering evidence of its
contents cannot, for any other reason not
arising from his own default or neglect,
produce it in reasonable time; (d) when
the original is of such a nature as not to
be easily movable; (e) when the original
is a public document within the meaning
of section 74; (f) when the original is a
document of which a certified copy is
permitted by this Act, or by any other law
in force in 1[ India] to be given in
evidence; 2[1. Subs. by Act 3 of 1951, s. 3
and Sch., for" the States". 2. Cf. the
Bankers' Books Evidence Act, 1891 (18 of
1891 ), s.4. (g) when the originals consist
of numerous accounts or other documents
which cannot conveniently be examined in
Court and the fact to be proved is the
general result of the whole collection. In
cases (a), (c) and (d), any secondary
evidence of the contents of the document
is admissible. In case (b), the written
admission is admissible. In case (e) or (f),
a certified copy of the document, but no
other kind of secondary evidence, is
admissible. In case (g), evidence may be
given as to the general result of the
documents by any person who has
examined them, and who is skilled in the
examination of such documents.

67-Proof
of
signature
and
handwriting of person alleged to have
signed or written document produced-

If a document is alleged to be signed
or to have been written wholly or in part
by any person, the signature or the
1 All] Harihar Prasad Pathak and another Vs. State of U.P. and another
335
handwriting of so much of the document
as is alleged to be in that person's
handwriting must be proved to be in his
handwriting.

7. Sections 275, 276 & 278 applies
when the evidence is recorded. Sections
275, 276 & 278 has no role to play in the
present controversy because it is not the
case of the petitioners that due procedure
was not adopted while the evidence was
recorded initially. But the challenge is to
the effect that the record has not been
properly reconstructed. Sections 63, 65 &
67 of the Evidence Act have also no role
to play because it is not a case of
recording secondary evidence but the
question relates to the reconstruction of
the record.

8. It transpires from the record and
the application move by the accused
persons that the record was reconstructed
with the help of the counsels for both the
parties
and
at
the
time
of
the
reconstruction both the parties had
testified the record to be true on the basis
of which learned Additional Sessions
Judge, who was entrusted with the work
of reconstruction, has reconstructed the
record and submitted it to the learned
Sessions Judge for its approval. After
approval of the learned Sessions Judge the
file stood reconstructed. It has nowhere
been mentioned in the entire application
that which part of the statement of the
witnesses, so reconstructed, is false or
incorrect. Impliedly, a request has been
made for retrial of the case. The
occurrence of this case relates to the year
1996 meaning thereby more than 17 years
have elapsed after the aforesaid incident.
In the case of Aziz Khan Versus State of
U.P., reported in (IXXX) 1992 ACC 223,
it has been held by this court that in the
event the reconstruction of record is not
possible retrial should not be ordered after
a gap of about 11 years. Therefore, there
is no question of directing retrial or rerecording the evidence of the witnesses
again, in the background that the record
has already been reconstructed. These
arguments are being raised simply to
further delay the trial. This Court in the
case of Satyendra Kumar Singh &
Others Versus State of U.P. reported in
2007 (2) ACR 2244 has held that if the
reconstruction of the record is not
possible accused cannot be convicted. It
impliedly means that all efforts should be
made for reconstruction of the record and
only when it is impossible to reconstruct
the record only then acquittal can be
ordered. In the case of Abdul Waheed
and Others Versus State of U.P.
reported
in
2005
(2)
ACR
1880
(MANU/UP/2496/2004). The appeal was
heard after reconstruction of the record
and the accused persons were convicted
by this Court. In that case an objection
was raised to the effect that reconstruction
is inadmissible in evidence for the reason
that there is no explanation as to from
what source the reconstruction has been
made. It was further submitted that there
is
no
certainty
or
even
positive
information about the authenticity or
genuineness of the reconstructed record.
Reconstructed record is also not complete
and the site plan and some other
documents are still missing. This Court
following the verdict of the Hon'ble Apex
Court in the case of Abhai Raj Singh
(Supra),
while
dealing
with
this
aforementioned objections has held as
under:-

"17. It is not possible to reach any
such conclusion on consideration of the
report of the then District and Sessions
336 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Judge, namely Sri K.D. Rai, dated
10.09.1999, whereby he transmitted the
reconstructed
record
and
from
the
subsequent report of the succeeding
District and Sessions Judge. Rather it is
manifest that the record has been
reconstructed by collecting material from
the sources where it could be available.
As we said above, Mushtaq Khan son of
the complainant Razzak Khan submitted
the copies of the statements of witnesses
and certain other papers with his
application dated 19.05.1999 for the
reconstruction of the record. We also note
that
the
learned
counsel
for
the
Appellants has not been able to point out
any mistake or inaccuracy in the
reconstructed record. Nor
has
any
inaccuracy been pointed out in the facts
recorded by the trial court in its judgment
dated 31.03.1981, which is impugned in
this appeal. Indeed, the accused could
have produced their own copies of the
statements of witnesses supplied to them
by the trial court and other documents
during committal proceedings. By doing
so, they could show inaccuracy (ies), if
any, in the statements of the witnesses and
other documents sent by the District and
Sessions
Judge
in
the
form
of
reconstructed record. They did not do
anything of the kind and simply want to
take
advantage
of
unsubstantiated
contention that the reconstructed record
is inadmissible."

9. The facts of the above case are, to
a great extent identical with the facts of
the present case. In that case, this Court
has considered the submissions and have
proceeded to dispose of the appeal on the
basis of the reconstructed record. In the
facts of this case also carbon copies of the
statements of witnesses recorded during
trial were given to the accused and
therefore the accused-persons could have
filed the same before the court showing
that the evidence of witnesses in the
reconstructed record is not correct but the
same has not been done. It is nowhere the
case of the accused persons that any part
of statement of witnesses is incorrect.
Such objection ought to have been raised
at the time of reconstruction of the record.
But at that time with the consent of
counsels of both the parties the record
was reconstructed. Therefore,, raising
such objection at a later stage, indicates
the intention of the accused persons that
they intend to delay the trial.

Hon'ble the Apex Court in the case
of Kunwar Bahadur Singh Versus Shiv
Baran Singh and Others reported in
(2001) 9 SCC 149 has held as under:-

"24. A distinction must be made
between a case where the trial court
reports that the reconstruction of file is
impossible or the reconstructed file is
scanty and incomplete lacking in material
documents of which no extracts are to be
found in the judgment of the trial court
and a case where the trial court after due
verification reconstructs the file. In the
former case, declining to go into the
merits may be justifiable but in the latter
case, it is impermissible. There can be no
doubt that jurisprudentially, an accused is
presumed to be innocent till he is found to
be guilty by a competent court. In giving
its verdict the court will give benefit of
doubt
arising
on
consideration
of
evidence brought on record by the
prosecution or an account of absence of
material evidence which ought to have
been adduced but is not brought on
record, to the accused person and acquit
him of the offence charged against. But a
doubt arising on the basis of surmises and
1 All] Union of India Vs. R.A. Pandey
337
conjectures should never be allowed to
influence the verdict of the court as in
such cases giving benefit of doubt to the
accused will be counterproductive and
destructive of the system of delivery of
justice
in
criminal
cases
having
repercussions on the existence of every
civilised and peaceful society. The courts
will have to be cautious and prudent to
secure the ends of justice."

11. In the facts of this case in the
application it was also mentioned that in
the reconstructed file, challan lash, photo
lash, letter to CMO, letter to RI are not
available.

12. These are the documents which
form part of the inquest report and are
sent with the inquest report. In a criminal
trial these documents does not assume
much importance and are formal in
nature. It is the substantial evidence of the
witnesses on which the decision has to be
taken. The petitioners have also not
pointed out any ground or any reason
showing their prejudice which they
apprehends in the absence of these
documents, therefore, all these grounds
appears to have been raised simply to
further delay the disposal of a very old
sessions trial.

13. In view of the discussion made
above, I do not find any illegality in the
impugned
order
necessitating
the
interference of this Court, hence, the
petition being devoid of merit, deserves to
be dismissed and is hereby dismissed.

14. Trial court is directed to
conclude the trial expeditiously as the
same is very old.
---------

 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.03.2013

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ZAKI ULLAH KHAN, J.

Service Bench No. 1855 of 2000

Union of India

...Petitioner
Versus
R.A. Pandey

 ...Respondents

Counsel for the Petitioner:
Sri Qamar Hasan Rizvi
Sri I.H. Farooqui

Counsel for the Respondents:
Sri R.U. Pandey, Sri Ashok Kumar Pandey
Sri Ram Lagan Mishra

Constitution of India, Art.-226- Servicewithdrawl
of
voluntary
retirementpetitioner
applied
for
voluntary
retirement
on
14.05.1993-made
effective
on
31.08.1993-on
request
26.08.1993
moved
withdrawl
for
retirement-held-upto
31.08.1993
relation
of
master
and
servant
continuing -can apply for withdrawl-but
no salary payable during period of non
discharge of duty-but for other purpose
such period be counted in service.

Held: Para-6

In the present case, admittedly, the
claimant-respondent
had
moved
an
application
for
voluntary
retirement
w.e.f.
31.8.1993,
hence,
it
was
incumbent
upon
the
petitioner
to
consider the claimant's application dated
27.8.1993 keeping in view the fact that
by
that
date
master
and
servant
relationship
persists.
Application
for
withdrawal should have been allowed by
the petitioner. The judgement and order
passed by the learned tribunal seems to
be based on well appreciation of law on
the issue involved.