# Kailash Singh v. State of U.P

- **Citation:** (2012) 1 ILRA 24
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-31
- **Bench:** Ashok Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-singh-v-state-of-u-p-42109
- **Pages:** 3

## Headnote

Criminal Revision-against order taking
cognizance-without
going
through
case
diary-expression
"cognizance"
means "became aware" or to take
notice judicially-in view of law laid
down by Apex Court in Dy. Chief
Controller Export-import case-a detail
reasoned
discussion
not
requiredrevision dismissed.

Held: Para 4

In the instant case, fact wise, law as
laid down in Dy. Chief Controller of
Imports and Exports (supra) squarely
applies. From perusal of the order
impugned herein it does not transpire
that before taking cognizance of the
case and passing an order thereon the
Magistrate had not seen the case diary
or the charge sheet. It is needless to
say that while taking cognizance of an
offence no detailed order is required
to be passed by the Magistrate.
Case law discussed:
2011-ADJ-5-690; 2009 AIR Jhar-1-355;
2003 (46) ACC 686 SC; 2000 (40) ACC 441
SC; 2011 (73) ACC 750 (Alld./Lko.); (2008)
2 SCC 492
1 All] Kailash Singh V. State of U.P.
25

## Text

24 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Government, the plaint or the written
statement shall be signed by such person
as the Government may by general or
special order appoint in that behalf and
shall be verified by any person whom the
Government may so appoint."

8. In view of above, we are of the
view that since the petitioner-appellant
filed the writ petition claiming salary
from the State exchequer, therefore, he
ought to have impleaded the State as a
party and in the absence of the State as a
party in the writ petition, the writ petition
itself was not maintainable.

We, therefore, do not find any reason
to differ with the view taken by the learned
Single Judge. The appeal is, accordingly,
dismissed.

9. At this stage, learned counsel for
the appellant submits that the amount of
G.P.F. and other dues payable to the
appellant
are
still
lying
with
the
Department. He further submits that there
is
apprehension
of initiation
of a
proceeding for recovery of the amount of
salary already paid by the respondents.
However, the aforesaid apprehension has
not been substantiated by bringing any
material on record. Besides that, in the
event, if such proceedings are initiated,
that will be a fresh cause of action and it
will always be open to the appellant to
approach
the
appropriate
Court
challenging such action/order but that
cannot be a basis to interfere with the
order of the learned Single Judge.

10. The appeal, therefore, being
without merit, is dismissed.
---------

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2012

BEFORE
THE HON'BLE ASHOK SRIVASTAVA,J.

Criminal Revision No. - 260 of 2012

Kailash Singh

 ...Petitioner
Versus
State of U.P.

 ...Respondents

Counsel for the Petitioner:
Sri Pankaj Kumar Mishra

Counsel for the Respondents:
Pankaj Kumar Mishra
Govt. Advocate

Criminal Revision-against order taking
cognizance-without
going
through
case
diary-expression
"cognizance"
means "became aware" or to take
notice judicially-in view of law laid
down by Apex Court in Dy. Chief
Controller Export-import case-a detail
reasoned
discussion
not
requiredrevision dismissed.

Held: Para 4

In the instant case, fact wise, law as
laid down in Dy. Chief Controller of
Imports and Exports (supra) squarely
applies. From perusal of the order
impugned herein it does not transpire
that before taking cognizance of the
case and passing an order thereon the
Magistrate had not seen the case diary
or the charge sheet. It is needless to
say that while taking cognizance of an
offence no detailed order is required
to be passed by the Magistrate.
Case law discussed:
2011-ADJ-5-690; 2009 AIR Jhar-1-355;
2003 (46) ACC 686 SC; 2000 (40) ACC 441
SC; 2011 (73) ACC 750 (Alld./Lko.); (2008)
2 SCC 492
1 All] Kailash Singh V. State of U.P.
25
(Delivered by Hon'ble Ashok Srivastava,J. )

1. This revision has been directed
against the order passed by the learned
Magistrate on 5.11.2011 through which
he has taken cognizance of the offence
regarding which a charge sheet was
filed before him. It has been submitted
from the side of the revisionist that
from perusal of the order it is evident
that the learned Magistrate passed the
order without application of his mind
and without considering the charge
sheet and without going through the
case diary.

2. In this connection my attention
has been drawn from the side of the
revisionist towards 2011-ADJ-5-690,
Amit Garg Vs. State of U.P. & 2009
AIR Jhar-1-355, Fakhruddin Ahmad
Vs. State of Uttranchal. On the other
hand my attention has been drawn
towards 2003 (46) ACC 686 SC, Dy.
Chief
Controller
of
Imports
and
Exports Vs. Roshan Lal Agrawal &
Others, AIR 2000 SC-1456, U.P.
Pollution Control Board Vs. M/S
Mohan Meakins Ltd. & Others, 2000
(40) ACC 441 SC, Kanti Bhadra Singh
Vs. State of West Bengal & 2011 (73)
ACC 750 (Alld./Lko.) Bench, Mohd.
Sayeed Vs. State of U.P., from the side
of the State.

3. I have gone again through these
case laws. In the case Dy. Chief
Controller
of
Imports
&
Exports
(Supra), the learned Magistrate had
passed the following orders:-

"Cognizance taken, Register the
case. Issue summons to the accused.?
The Apex Court has held that this order
by itself indicates that the learned
Magistrate has applied his mind and
had taken cognizance of the case. The
Apex Court has discussed the term
cognizance in the case of S.K.Sinha,
Chief
Enforcement
Officer
Vs.
Videocon International Ltd. and Others
(2008) 2 SCC 492 and has stated that
expression ?cognizance? has not been
defined in the Code. But the word
(cognizance) is of indefinite import. It
has no esoteric or mystic significance
in criminal law. It merely means
?become aware of? and when used with
reference to a Court or a Judge, it
connotes ?to take notice of judicially?.
It indicates the point when a Court or a
Magistrate takes judicial notice of an
offence with a view to initiating
proceedings in respect of such offence
said to have been committed by
someone.

4. In the instant case, fact wise,
law as laid down in Dy. Chief
Controller of Imports and Exports
(supra) squarely applies. From perusal
of the order impugned herein it does
not
transpire
that
before
taking
cognizance of the case and passing an
order thereon the Magistrate had not
seen the case diary or the charge sheet.
It is needless to say that while taking
cognizance of an offence no detailed
order is required to be passed by the
Magistrate.

5. In the above circumstances I do
not find that there is any force in this
revision and accordingly it is dismissed
at the admission stage.
---------
26 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 1181 of 2012

Upma Srivastava

 ...Petitioner
Versus
State of U.P. & others
 ...Respondents

Counsel for the Petitioner:
Sri Manish Chand Umrao

Counsel for the Respondents:
C.S.C.
Sri Neeraj Mishra
Sri Shamsher Maurya
Sri P.D.Tripathi

Constitution of India, Article 226-prolong
suspension-without
any
progress
in
disciplinary
action
for
considerable
period
of
4
years-non
payment
of
subsistence
allowance
without
discharging any duty-highly derogatory,
arbitrary
and
impertinent-arrears
of
salary from date of suspension till
reinstatement
be
recovered
from
personal benefit of Basic Education
Officer-petition allowed with cost of Rs.
25000.

Held: Para 5

This inaction, in my view, cannot be
without any reason or indeliberate. In
fact no justification, explanation or
reason whatsoever has been given for
this kind of inaction on the part of
respondents. The Court is thus justified
in believing that it is deliberate and
surpasses the territory of arbitrariness,
unreasonableness and irrationality. Such
an official cannot be allowed to go scotfree without accounting for the public
funds.

(Delivered by Hon'ble Sudhir Agarwal,J. )

1. Pursuant to this Court's order
dated
10.01.2012,
Sri
J.K.Verma,
presently working as Basic Shiksha
Adhikari, Shahjahanpur, as identified by
Sri P.D.Tripathi, Advodate is present. It
is admitted by him that after suspension
order dated 8.9.2008 no further action
was taken against the petitioner and no
charge sheet was ever issued. However,
he submitted that after receiving the
order dated 10.01.2012 passed by this
Court inquiring as to what action has
been taken in the matter and why
petitioner
has
been
kept
under
suspension for such a long time without
any inquiry in the matter, an order has
been passed revoking suspension on
13.1.2012
pursuant
whereto
the
petitioner has joined.

2. In the affidavit filed by
respondent No.3 nothing has been said as
to why suspension of the petitioner
continued for more than 3 years and what
disciplinary action proceeded in the
meanwhile.

3. In the short counter affidavit
sworn by Sri J.K.Verma, Basic Shiksha
Adhikari,
Shahjahanpur
(hereinafter
referred to as "BSA") he has said that
petitioner was placed under suspension
on account of her unauthorized absence
and Deputy Basic Shiksha Adhikari was
appointed as enquiry officer. A report
was submitted by Finance and Accounts
Officer,
Basic
Shiksha
16.10.2008
wherein he has endorsed observation
made by Additional District Magistrate
and has also approved the proposed
action
against
responsible
persons.
However even this affidavit nowhere
shows as to when the petitioner was