# (In Jail) v. The State

- **Citation:** (2003) 3 ILRA 744
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-08-23
- **Case number:** Criminal Appeal No. 2464 of 1980
- **Bench:** M.C. Jain, M. Choudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/in-jail-v-the-state-40189
- **Pages:** 8

## Headnote

A.G.A.

Criminal
Trail-Benefit
of
doubt-FIR
antiedated-infirmities and incongruities
in the prosecution" case and evidencefindings of the trail court based on
incorrect
reading
of
evidence
and
grounds which are not tenable -not safe
to hold accused appellants guilty of
charges leveled against them - appeal
allowed -accused acquitted of charges
leveled against them.

Held: Para 21 and 22

In
view
of
above
infirmities
and
incongruities in the prosecution case and
evidence, it would not be safe to hold
any of the accused appellants guilty of
the charge leveled against them, and
they are entitled to benefit of doubt.

The appeal is allowed and the findings of
conviction
and
sentence
recorded
against
the
accused
appellants
are
hereby set aside. The accused are hereby
acquitted of the charge leveled against
them.

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3 All] Gainda alias Goverdhan and others V. The State
745

## Text

744 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
(4)
SCC
401the
Supreme
Court
observed:-

"We are afraid that this kind of
administration of interlocutory remedies,
more guided by sympathy quite often
wholly misplaced, does no service to
anyone. From the series of orders that
keep coming before us in academic
matters, we find that loose, ill-conceived
sympathy masquerades as interlocutory
justice exposing judicial discretion to the
criticism of degenerating into private
benevolence.
This
is
subversive
of
academic discipline, or whatever is left of
it, leading to serious impasse in academic
life. Admissions cannot be ordered
without regard to the eligibility of the
candidates. Decisions on matters relevant
to
be
taken
into
account
at
the
interlocutory stage cannot be deferred or
decided later when serious complications
might ensue from the interim order itself.
In the present case, the High Court was
apparently moved by sympathy for the
candidates than by an accurate assessment
of even the prima facie legal position.
Such orders cannot be allowed to stand.
The court should not embarrass academic
authorities by themselves taking over
their functions."

11. There is no force in this
petitioner and it is rejected.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.08.2003

BEFORE
THE HON'BLE M.C. JAIN, J.
THE HON'BLE M. CHOUDHARY, J.

Criminal Appeal No. 2464 of 1980

Gainda Alias Govardhan and Others

 ...Appellants (In Jail)
Versus
The State

...Opposite Party

Counsel for the Appellants:
Sri G.S. Chaturvedi
Sri R.S. Yadav
Sri P.C. Tewari

Counsel for the Opposite Party:
A.G.A.

Criminal
Trail-Benefit
of
doubt-FIR
antiedated-infirmities and incongruities
in the prosecution" case and evidencefindings of the trail court based on
incorrect
reading
of
evidence
and
grounds which are not tenable -not safe
to hold accused appellants guilty of
charges leveled against them - appeal
allowed -accused acquitted of charges
leveled against them.

Held: Para 21 and 22

In
view
of
above
infirmities
and
incongruities in the prosecution case and
evidence, it would not be safe to hold
any of the accused appellants guilty of
the charge leveled against them, and
they are entitled to benefit of doubt.

The appeal is allowed and the findings of
conviction
and
sentence
recorded
against
the
accused
appellants
are
hereby set aside. The accused are hereby
acquitted of the charge leveled against
them.

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3 All] Gainda alias Goverdhan and others V. The State
745
(Delivered by Hon'ble M. Chaudhary, J.)

1. This is an appeal from the
judgment and order dated 30th of October
1980 passed by II Additional sessions
Judge, Aligarh in Sessions Trail No. 412
of 1977 State Vs. Genda alias Goverdhan
&
others
convicting
the
accused
appellants under Section 396 Indian Penal
Code and sentencing each of them to
undergo imprisonment for life there under
and accused Sheorab Singh and Fateh
Singh under Section 25 of the Arms Act
also and sentencing each of them to
undergo
one
year's
rigorous
imprisonment there under making both
the sentences to run concurrently.

2. Co-accused Prahlad was not tried
along with Co-accused above named as he
was reported having died. Other coaccused who were tried along with the
accused above named were acquitted.

3. Relevant facts of the case giving
rise to this appeal necessary for disposal
of the appeal are being recapitulated as
follows: During the night between 13th
and 14th of September, 1976 Pyarey Lal
was sleeping in the 'baithak' of his house
at village Sokhna and his sons Virendra
Kumar and Suresh at the chabutra in
frond of his house and his sons Virendra
Kumar and Suresh at the chabutra in front
of his house and other family members in
separate apartments inside the house. At
about 11:00 p.m. some dacoits entered the
house and started plundering the goods.
At that time two lanterns were lighted one
in the chappar of Pyarey Lal and the other
in the Verandah of the house of Keshav
adjoining thereto. As the bandits started
ransacking the house Smt. Reoti Devi
aunt of Virendra Kumar came out of the
house and informed Virendra Kumar that
there were bandits inside the house. In the
meanwhile one of the bandits fired with
gun hitting Reoti Devi and sustaining the
gunshot
injuries
she
fell
down.
Immediately Virendra Kumar and his
brother Suresh ran towards 'abadi' in the
village. On hearing the hue and cry many
of the co-villagers namely Shyam Lal,
Suraj Singh, Lachchman Prasad, Chattar
Singh, Mahavir Prasad and Jwala Prasad
rushed to the scene of occurrence. Sujan
Singh set fire to the heap of 'karab' lying
on the chabutra of Gram Panchayat which
emanated sufficient light. Gopal and
Jwala Prasad holding licensed firearms
fired shots and the bandits also fired. In
the meanwhile some police personnel
who were on patrol duty also reached
there and fired shots. After the rapine the
bandits ran away with the looted property.
Somehow the co-villagers and the police
personnel caught hold of four of the
bandits in the millet filed of Pyarey Lal
situate nearby and the remaining 5-6
succeeded in making their escape good.
On
being
enquired
four
persons
apprehended told their names as Sheroab
Singh, Fateh Singh, Prahlad and Suraj
Pal. Sheorab Singh was found in
possession of a single barrel gun no. HIM
05373 and five live cartridges, and
Prahlad
and
Fateh
Singh
each
in
possession of a countrymade pistol and
four live cartridges Suraj Pal was
possessed of a lathi. Virendra Kumar
alongwith some of the co-villagers and
the police personnel taking the four
bandits apprehended and the arms and
ammunition recovered from them went to
the Police Station Hathras Kotwali situate
at a distance of some four miles there
from and lodged and FIR of the said
dacoity with the police (Ext ka 1) and also
handed over the four bandits apprehended
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746 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
and the arms and ammunition recovered
from their possession to the police there.

4. The police registered a crime
against the four bandits apprehended and
seven unknown under Section 395 read
with Section 397 IPC and against Sheorab
Singh and Fateh Singh under Section 25
of the Arms Act also (Ext Ka 3) HM
Jayanti Prasad made entry in the general
diary regarding registration of the crime
(Ext ka 4). He also prepared memo of the
arms and ammunition allegedly recovered
from the four bandits apprehended on the
spot and handed over to him by virendra
Kumar at the police station (Ext Ka 2).

5. It appears that injured Reoti Devi
was rushed to Bagla Civil Hospital,
Hathras soon after the incident and she
died in the Hospital the same night at
about 3:40 a.m. ON receiving information
at the police station regarding the death of
Reoti Devi in the Hospital the police
altered the crime under Section 396 IPC
(Ext ka 5).

6. Sub-inspector K.S. Dubey to
whom investigation of the crime was
entrusted went to Bagla Civil Hospital
and drew inquest proceedings on the dead
body of Reoti Devi and prepared the
inquest report (Ext ka 14) and other
necessary papers (Exts ka 15 & ka 16)
and handed over the dead body in a sealed
cover along with necessary papers to CP
Ram Sewak and another for being taken
for its postmortem.

7. Then the Investigating Officer
visited the place of occurrence, inspected
the site and prepared its site plan map
(Ext ka 27). He also collected ashes of
"karab"
burnt
from
the
chabutra,
inspected the lanterns lighted at the time
of dacoity inside the house and prepared
their memos (Exts ka 8 & ka 11). He also
recorded statements of the witnesses and
did other necessary things.

8. Autopsy conducted on the dead
body of Reoti Devi by Dr. S.K. Saxena,
Medical Officer M.S. Hospital Aligarh on
14th of September 1976 at about 4:00 p.m.
revealed multiple ante mortem gunshot
wounds. The doctor opined that the death
was caused due to shock and hemorrhage
as a result of ante mortem gunshot
injuries sustained by her. (Ext Ka 21).

9. It appears that accused Genda @
Goverdhan was arrested by the police
Stations Hathras Kotwali and Sansni on
26th November 1976 and challaned under
Section 399, 402 and 307 IPC and under
section 25 of the Arms Act (registered as
Crime No. 00 of 1976) at Police Station
Sasni. One being inquired by the police
Genda @ Goverdhan confessed that he
participated in the said dacoity. Since the
involvement
of
accused
Genda
@
Goverdhan came to light he was made
'baparda' soon after the arrest and taken
to police station Sasni where he was kept
in the lockup. Accused Genda @
Goverdhan was lodged in District Jail,
Aligarh in connection with the said
dacoity on 27th of December 1976. He
was
subjected
to test
identification
proceedings in connection with the said
dacoity with murder on 10th January 1976.
IN all six witnesses were produced to
identify him as a participant in the said
dacoity and he was identified as such by
four of them namely Virendra Kumar,
Hari Singh, Pyarey Lal and Jwala Prasad.

10.

After
completing
the
investigation and obtaining necessary
sanction of the District Magistrate,
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3 All] Gainda alias Goverdhan and others V. The State
747
Aligarh to prosecute accused Sheorab
Singh, Fateh Singh and Prahlad under
Section 25 of the Arms Act the police
submitted charge sheets against the
accused accordingly.

11. The accused pleaded not guilty
denying the alleged occurrence altogether
and stating that they had been got
implicated in the case falsely on account
of enmity and village party factions.
Accused Genda @ Goverdhan denied his
arrest as alleged by the prosecution stating
that the police caught him from his house
and took him to the police station and a
false case was foisted against him He also
stated that the police took his photographs
and the police station and he was also
shown to the witnesses there. Accused
Sheroab Singh stated that accused Fateh
Singh happens to be his 'saru', that Fateh
Singh along with his brother Mathura
Prasad and Suraj Pal had come to his
house to attend the function of betrothal
ceremony of his son, that the police went
to his house and nabbed them from there
and took them to the police station.
Accused Suraj Pal and Fateh Singh also
stated likewise. Accused Suraj Pal also
stated that he was possessed of his
licensed gun and the police also took his
gun.

12. In order to bring the charge
home to the accused the prosecution
examined Virendra Kumar (PW1), Pyarey
Lal (PW3), Sujan Singh (PW5) and
Lachhman Prasad (PW6) as eye witnesses
of the concurrence. Testimony of the
remaining witnesses excepting SI Om
prakash, the arresting office (PW11) and
PW 18 SI Ram Saran who accompanied
him in the police force is more or less of
formal nature. PW2 SI Jayanti Prasad, the
then HM proved the check report and GD
entry regarding registration of the crime
made by him. He also proved memo of
the arms and ammunition allegedly
recovered
from
the
four
bandits
apprehended on the spot and handed over
to him by Virendra Kumar, the first
informant. Pw4 constable Ram Sewak is
one of the two police officials to whom
dead body of Reoti Devi in a sealed cover
along with necessary papers was handed
over to be taken for its post mortem. PW7
SI Harish Chand who drew inquest
proceedings on the dead body of Smt.
Reoti has proved the inquest papers.
PW10 Dr. S.K. Saxen who conducted
autopsy on the dead body of Reoti Devi
has proved the post mortem report. PW11
SI Om Prakash who alongwith the police
force arrested co-accused Netrapal on
02.11.76
and
accused
Genda
@
Goverdhan alongwith others on 26.11.76
has deposed thereabout. PW12 Radha
Mohan, PW13 CP Khen Chand and
PW16 SI Ashfaq Ahmad are witnesses
relating to idenfitication of looted articles
allegedly recovered from co-accused
Netrapal. PW14 SI Kripa Shanker is the
investigating officer who investigated the
crime
in
main.
PW15
Executive
Magistrate C D Bhargava conducted
identification parade of co-accused Nathu
Ram and Devendra. PW17 Rishikesh
Sharma, Reader of the court of Executive
Magistrate proved identification memo of
the idenfitication parade held of accused
appellant Genda @ Goverdhan PW 18 SI
Ram Saran had accompanied SI Om
Prakash (PW11) in the police force
arresting co-accused Netrapal. PW8 SI
Prem Pal. PW9 SI Bengali Babu, PW19
HC Amar Pal Singh and PW20 constable
Biharilal are the witnesses of link
evidence.

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748 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
13. The Accused examined Babu
Lal (DW1), Jitendra Singh (DW2) and
Dharmendra Swaroop (DW3) in their
defence. DW1 Babu Lal, the village
Pradhan stated that on hearing the due and
cry he also reached the scene of
occurrence but by that time the bandits
had fled away after ransacking the house,
that he did not see any of the bandits there
and that he saw Reoti lying injured and
Keshav also having received injuries.
DW2 Jitendra Singh, Pradhan of village
Parsara stated that at about 3-4 a.m. the
alleged night the police came to his
village and nabbed Sheorab Singh,
Mathura Prasad, Fateh Singh and Suraj
Pal from the house of Sheorab Singh and
took them alongwith the licensed gun of
Suraj Pal to the police station. DW3
Dharmendra Swarup, the then Arms
Cleark district Etah state that Suraj Pal
was license holder of gun no. 05373 since
the year 1964 till the time of the alleged
occurrence.

14. On an appraisal of the parties
evidence and after hearing the parties'
counsel learned Additional Session Judge
held accused Genda @ Goverdhan,
Sheorab Singh, Fateh Singh and Suraj Pal
guilty of the charge leveled against them
and convicted them accordingly and
sentenced thereunder.

Feeling aggrieved by the impugned
judgment
and
order
the
accused
appellants preferred this appeal for
redress.

15. None appeared for the appellants
though represented on record by Shri G.S.
Chaturvedi, Sri R.S. Yadav and Sri P.C.
Tewari Advocates. We heard the learned
AGA. The appeal is being decided on
merits.
16. Factum of the dacoity at the time
and place as alleged by the prosecution is
not disputed. It is also not disputed that
Smt. Reoti Devi sustained grievous
injuries at the hands of the bandits in the
said dacoity and succumbed to the injuries
sustained the same night. The only
question for consideration is if the
accused appellants participated in the said
dacoity and accused appellant Sheorab
Singh and Fateh Singh were apprehended
on the spot and arms and ammunition
were recovered from their possession as
alleged by the prosecution.

17. Now taking up the case of
accused Genda @ Goverdhan, his case
rests on the evidence of two identifying
witnesses namely Virendra Kumar (PW1)
and Pyarey Lal (PW3). PW1 Virendra
Kumar stated in his examination-in-chief
that while he was standing along the
banquette of 'dodah' standing around his
field he saw the bandits running away
after ransacking the house in the moon
light and in the light of the fire ablaze. At
the time his statement was being recorded
he also laid hand on accused Gendra
standing in the dock stating that he had
identified him as such in the identification
parade held in the District Jail. But he
could not withstand his cross-examination
as he stated in his cross-examination that
the banquette of 'dodah' where he took
shelter was at a distance of about 50-60
paces from the house of Sujan Singh. As
stated by PW1 Virendra Kumar house of
his uncle Sujan Singh is situate adjacently
to his house. He also stated that the police
personnel were standing at a distance of
some 60-70 paces from his house and at a
distance of about 10-15 paces from the
place where he alongwith some of the Covillagers was standing. Hans Gross in his
book 'Criminal Investigation' edited by
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3 All] Gainda alias Goverdhan and others V. The State
749
N.C. Adam, 5th Edition published in the
year 1962 at pages 159-160 observed that
if the eyesight is normal and the light is
good, one is able in broad daylight to
recognize a person he has seen only once
from a distance of 16 yards. In the instant
case the witness had seen the dacoits
running away from a distance of 50-60
paces (equal to 125 feet as one pace is
taken to be equal to two and a half feet)
and hence could not be in a position to
mark the features of the dacoits so as to
identify them at the identification parade
held more than four months after the
occurrence. Regarding testimony of PW 3
Pyarey Lal admittedly he remained
confined in his 'baithak' through out the
time his house was ran sacked he also
admitted that his baithak in which he was
confined was bolted from outside by the
bandits and that it was opened after
departure of the bandits from the scene
and it was thereafter that he went out of
his house. He had no opportunity to see
any of the bandits while they were
ransacking the house. He himself got
frightened as the shots were being fired
by the bandits and hence he could not
have seen the bandits and mark their
features from the window in the 'baithak'
while they were running away so as to
identify
them
in
the
identification
proceedings held after four months of the
dacoity.
He
further
stated
in
his
deposition that he was about 64 years old
and short sighted. In view of above state
of evidence the Court finds that the
learned Additional Sessions Judge failed
to appreciate the evidence of the two
identifying
witnesses
in
its
true
perspective and there is no justification to
uphold the conviction of accused Genda
@ Goverdhan.

18. Taking the case of accused
appellants Fateh Singh, Sheorab Singh
and Suraj Pal there is evidence of
Virendra Kumar (PW1), Pyarey Lal
(PW3) Sujan Singh (PW5) and Lachhman
Prasad (PW6). Out of these four witnesses
PW6 Lachhman Prasad has not supported
the prosecution case against any of the
accused appellants as he stated in his
examination-in-chief that the alleged
night when the bandits were running away
four of them were apprehended by some
of the co-villagers and the police
personnel and the bandits apprehended
told their names as Sheorab Singh, Fateh
Singh, Prahlad and Suraj Pal; but he could
not identify and of them standing in the
dock. He stated that the four bandits
apprehended
and
the
arms
and
ammunition recovered from them were
handed over the police at the police
station; but the prosecution did not care to
get his signatures proved on the memo of
arms and ammunition allegedly recovered
from the four persons apprehended on the
spot prepared by the police at the police
station. However this witness Lachhman
Prasad stated in his cross-examination
that he did not remember if the subinspector obtained his signatures on any
paper as witness.

19. Now remains the testimony of
PW1 Virendra Kumar, PW3 Pyarey Lal
and PW 5 Sujan Singh. PW1 Virendra
Kumar stated in his examination-in-chief
that four persons namely Sheorab Singh,
Fateh Singh, Prahlad and Suraj Pal were
apprehended while fleeing away after
ransacking the house and a single barrel
gun and five live cartridges were
recovered from the possession of Sheorab
Singh and one country made pistol and
four live cartridges from the possession of
each of accused Fateh Singh and Prahlad
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750 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
and a lathi from the possession of Suraj
Pal. However he identified Suraj Pal and
Sheorab Singh while standing in the dock
correctly, but laid his hand on Mathura
Prasad takeing him to be Fateh Singh
arrested on the spot. It appears that arms
and ammunition allegedly recovered from
the four persons apprehended were not
got proved by this witness Virendra
Kumar (PW1). PW3 Pyarey Lal stated
that he was confined in his 'baithak'
through out the time his house was
ransacked as it was bolted from outside
by the bandits and it was after departure
of the bandits that the door was opened
and it was thereafter that he went out of
his house and that he saw the bandits
apprehended near the field and by that
time the police personnel present there
had taken the arms and ammunition
allegedly recovered from their possession
in their custody. He identified accused
Suraj Pal and Sheorab Singh correctly but
laid his hand on Mathura Prasad taking
him to be Fateh Singh. PW5 Sujan Singh
identified accused Sheorab Singh, Fateh
Singh and Suraj Pal in the dock but he
stated in his cross-examination that he
was short sighted and could recognize a
well known person in broad daylight from
a distance of 3-4 feet only. Hence it is
difficult to believe that he would have
recognized
the
bandits
allegedly
apprehended by the co-villagers on the
spot in the night hour and seen by him for
the first time so as to identify them more
than three and a half years after the
dacoity as statement of this witness Sujan
Singh (PW5) was recorded on 27.3.80. He
also stated that when the bandits were
apprehended by the police personnel he
reached at that place subsequently and by
that time the police personnel had taken
possession of arms and ammunition
allegedly recovered from the bandits
apprehended.

20. Besides it there were some 9-10
bandits in all as PW1 Virendra Kumar
stated that while dacoits were fleeing
away after ransacking the house four were
apprehended
on
the
spot and
5-6
succeeded in making their escape good;
but strangely enough no stolen article was
recovered from the possession of any of
the four bandits allegedly apprehended on
the spot. Forthermore, FIR of the dacoity
lodged at the police station appears to be
ante timed. Because PW3 Pyarey Lal at
whose house the dacoity was committed
stated that soon after the dacoity he went
to the police station to inform the police
thereabout and he also told the Inspector
at the police station that Smt. Reoti Devi
had died in the Hospital, that thereafter he
alongwith the inspector went to the
village, that when they were going to the
village Virendra Kumar met them on the
way and that after seeing the dead body of
Reoti Devi Virendra Kumar went to the
police station. A perusal of the post
mortem report goes to show that Smt.
Reoti Devi died in the Hospital at about
3:40 a.m. It is true that the fact the Reoti
Devi died in the Hospital does not find
mention in the FIR; but the fact remains
that according PW1 Virendra Kumar he
had scribed the report after the dacoity in
the village itself. If Virendra Kumar went
to the police station to hand over the
written report of the dacoity after seeing
the dead body of his aunt Reoti Devi in
the Hospital apparently the FIR of the
occurrence having been lodged at the
police station at about 1:30 a.m. becomes
ante timed. And if the FIR is shaken then
the very basis of the prosecution case
stands knocked out. On this score also
authenticity of the prosecution case falls
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3 All] Krishna Sahkari Avas Samiti Ltd. V. District Magistrate, Bareilly and others
751
to the ground. Thus findings of the trail
court bases on incorrect reading of
evidence and ground which are not
tenable cannot be upheld.

21. In view of above infirmities and
incongruities in the prosecution case and
evidence, it would not be safe to hold any
of the accused appellants guilty of the
charge leveled against them, and they are
entitled to benefit of doubt.

22. The appeal is allowed and the
findings of conviction and sentence
recorded against the accused appellants
are hereby set aside. The accused are
hereby acquitted of the charge leveled
against them. They are on bail. Their bail
bonds are hereby discharged.

23. Let a copy of this judgment
alongwith record be sent to the lower
court incorporating necessary entry in the
relevant register and reporting compliance
within two months.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.08.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 14362 of 2003

Krishna Sahkari Avas Samiti Limited

 ...Petitioner
Versus
District Magistrate, Bareilly and others

 ...Respondents

Counsel for the Petitioner:
Sri Triloki Nath
Sri K.N. Singh

Counsel for the Respondents:
Sri Manish Goyal
Sri R.P. Goyal
S.C.

U.P. Co-operative Societies Act, 1965,
Section 65- Power to appoint receiverunder
the
Act
only
the
Registrar
Cooperative
Societiy
empowered
to
supersede-or-suspend the management
of society-District Magistrate can not
interfere in any manner.

Held Para 9

In our opinion the District Magistrate can
not be allowed to do anything he
pleases. In a democracy the District
Magistrate
can
exercise
only
such
powers as are granted to him by the law.
No power has been given to the District
Magistrate
under
the
Co-operative
Societies Act to suspend or supersede a
society or to appoint a Receiver in
respect of a society or to order an
enquiry
against
the
society
or
its
officials.

(Delivered by Hon'ble M. Katju, J.)

Heard the learned counsel for the
parties.

1. This writ petition has been filed
against the impugned orders of the
respondents no. 1,2 and 3 mentioned in
the letter dated 21.03.2003 (Annexure-1
to the Writ petition).

We have heard the learned counsel
for the parties.

2. The Petitioner is a Housing
Cooperative Society registered under the
U.P.
Cooperative
Societies
Act
(hereinafter referred to as the Act). As
stated in paragraph 8 of the writ petition,
the term of the elected Committee of
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