# Kallu @ Praveen v. U.O.I. & Ors

- **Citation:** (2024) 9 ILRA 1443
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-25
- **Case number:** Habeas Corpus Writ Petition No. 445 of 2024
- **Bench:** Arvind Singh Sangwan, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kallu-praveen-v-u-o-i-ors-52552
- **Pages:** 8

## Headnote

Criminal Law - Constitution of India,1950
- Article 226 - order of preventive
detention by District Magistrate- under
Section 3 (2) of the National Security Act,
1980-detention
under
F.I.R.
under
Sections 147, 148, 149, 302 and 404 of
IPC-detention is based on this FIR- no
sucg proceedings initiated against the
petitioner in St. of Haryana on basis of
earlier registered FIR- matter of trial
whether the petitioner who is nominated
on
the
St.ment
of
co-accused-such
St.ment can be read in evidence against
the petitioner when eyewitnesses have
not named him-petitioner was not initially
named in FIR-implicated later on the
St.ment of co-accused- lack of a proper
hearing
and
non-disclosure
of
vital
materials to petitioner- NSA provisions
cannot
be
used
to
prevent
bail
applications-detention order set asidepetition allowed. (Paras 26 and 27)
HELD:
The detention of the petitioner is based on two
F.I.R. i.e. one Case Crime No. 0611 of 2023
under Sections 147, 148, 149, 302 and 404 of
IPC at Police Station - Teelamod, Trans Hindon
Commissionerate Ghaziabad in U.P. In this F.I.R.,
for a period of one month, the informant, his
wife, and wife of his deceased-brother did not
name the petitioner as an accused. Rather,
perusal of the F.I.R. shows that the same has
been registered against the co-villagers on
account of enmity regarding the election of
Village Pradhan and all the three witnesses have
assigned specific roles of firing on deceased to
those persons who are residents of the same
1444 INDIAN LAW REPORTS ALLAHABAD SERIES
village. Therefore, it will be the mater of trial
whether the petitioner who is nominated on the
St.ment of co-accused, such St.ment can be
read in evidence against the petitioner when
eyewitnesses have not named him.

It is well settled principle of law that provisions
of NSA cannot be invoked just to deter a person
from exercising his right to apply for bail before
the competent Court of law.

The order dated 16.4.2024 passed by the
Special Secretary rejecting the representation of
the petitioner is a totally non speaking order
and does not qualify the test as laid down by
the Supreme Court in Nenavath Bhujji's Case
(Supra). (Para 26)

Thus, from the above, it is apparent that the
material forming basis of the opinion of the
competent authority to pass impugned orders
were never supplied to the petitioner in terms of
the decisions in Smt. Icchu Devi Choraria's Case
(Supra), Mohinuddin's Case (Supra), Smt.
Shalini Soni's Case (Supra) and S. Gurdip Singh's
Case (Supra) and he has not been afforded
proper opportunity of hearing and the impugned
order of rejection is a totally non speaking order
with regard to the pleas raised by the petitioner.
(Para 27)

Petition allowed. (E-13)

List of Cases cited:

## Text

9 All. Kallu @ Praveen Vs. U.O.I. & Ors.
1443
dispute and the insurance company was
liable to satisfy the claim. This judgment
also supports the view of this Court that the
intention of the legislature is to make the
insurance company liable immediately, in
spite the transfer having not been recorded
in the records of the transport office and the
intention is not to exclude the transferees
strictly.

17. In the present case the transfer
does not stand completed and the claimant
continues to be the registered owner of the
vehicle. He had entered into a contract of
insurance with the appellant and he filed
the claim.

18. In absence of the ownership of the
vehicle
having
been
transferred,
the
petitioner would continue to be liable under
the contract of insurance entered between
the appellant and the registered owner of
the vehicle.

19. In view of the foregoing
discussion, I am of the considered view that
there is no illegality of error in the
judgment and order dated 04.06.2024
passed by the Permanent Lok Adalat,
Lakhimpur Kheri in P.L.A. Case No. 09 of
2022 allowing the claim of the opposite
party warranting interference by this Court.

20. The petition lacks merits and the
same is dismissed. The parties shall bear
their own costs of litigation.
----------
(2024) 9 ILRA 1443
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.09.2024

BEFORE

THE HON'BLE ARVIND SINGH SANGWAN, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Habeas Corpus Writ Petition No. 445 of 2024

Kallu @ Praveen ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Anju Shukla, Nigamendra Shukla

Counsel for the Respondent:
A.S.G.I., G.A., Prem Narayan Rai

Criminal Law - Constitution of India,1950
- Article 226 - order of preventive
detention by District Magistrate- under
Section 3 (2) of the National Security Act,
1980-detention
under
F.I.R.
under
Sections 147, 148, 149, 302 and 404 of
IPC-detention is based on this FIR- no
sucg proceedings initiated against the
petitioner in St. of Haryana on basis of
earlier registered FIR- matter of trial
whether the petitioner who is nominated
on
the
St.ment
of
co-accused-such
St.ment can be read in evidence against
the petitioner when eyewitnesses have
not named him-petitioner was not initially
named in FIR-implicated later on the
St.ment of co-accused- lack of a proper
hearing
and
non-disclosure
of
vital
materials to petitioner- NSA provisions
cannot
be
used
to
prevent
bail
applications-detention order set asidepetition allowed. (Paras 26 and 27)
HELD:
The detention of the petitioner is based on two
F.I.R. i.e. one Case Crime No. 0611 of 2023
under Sections 147, 148, 149, 302 and 404 of
IPC at Police Station - Teelamod, Trans Hindon
Commissionerate Ghaziabad in U.P. In this F.I.R.,
for a period of one month, the informant, his
wife, and wife of his deceased-brother did not
name the petitioner as an accused. Rather,
perusal of the F.I.R. shows that the same has
been registered against the co-villagers on
account of enmity regarding the election of
Village Pradhan and all the three witnesses have
assigned specific roles of firing on deceased to
those persons who are residents of the same
1444 INDIAN LAW REPORTS ALLAHABAD SERIES
village. Therefore, it will be the mater of trial
whether the petitioner who is nominated on the
St.ment of co-accused, such St.ment can be
read in evidence against the petitioner when
eyewitnesses have not named him.

It is well settled principle of law that provisions
of NSA cannot be invoked just to deter a person
from exercising his right to apply for bail before
the competent Court of law.

The order dated 16.4.2024 passed by the
Special Secretary rejecting the representation of
the petitioner is a totally non speaking order
and does not qualify the test as laid down by
the Supreme Court in Nenavath Bhujji's Case
(Supra). (Para 26)

Thus, from the above, it is apparent that the
material forming basis of the opinion of the
competent authority to pass impugned orders
were never supplied to the petitioner in terms of
the decisions in Smt. Icchu Devi Choraria's Case
(Supra), Mohinuddin's Case (Supra), Smt.
Shalini Soni's Case (Supra) and S. Gurdip Singh's
Case (Supra) and he has not been afforded
proper opportunity of hearing and the impugned
order of rejection is a totally non speaking order
with regard to the pleas raised by the petitioner.
(Para 27)

Petition allowed. (E-13)

List of Cases cited:

1. Tofan Singh Vs St. of T.N., (2013) 16 SCC 31

2. Nenavath Bhujji Vs The St. of Telangana &
ors., 2024 (3) SCR 1181

3. HABEAS CORPUS WRIT PETITION No. - 271
of 2024 (Faizan Khan Alias Raja Babu Vs
Addhikshak Janpadkendriya Karagar Bareilly And
3 Others) decided on 14.5.2024

4. Mohinuddin Vs District Magistrate, Beed &
ors., 1987 0 AIR (SC) 1977

5. Smt. Shalini Soni Vs U.O.I. & ors., 1981 0 AIR
(SC) 431

6. S. Gurdip Singh Vs U.O.I. & ors., 1981 0 AIR
(SC) 362
(Delivered by Hon'ble Arvind Singh
Sangwan, J.)

1. Heard learned counsel for the
petitioner and learned A.G.A. for the State.

2. This petition is filed challenging
the order dated 19.02.2024 passed by the
District Magistrate, Ghaziabad in exercise
of power under Section 3 (2) of the
National Security Act, 1980 (herein after
referred
to
as
'NSA')
and
all
the
consequential
orders
dated
2.4.2024,
5.04.2024, 9.4.2024 and 16.4.2024 passed
by
the
respondents vide
which
the
petitioner
is
directed
to
remain
in
preventive detention for one year.

3. Brief facts of the case are that an
F.I.R. dated 23.10.2023 was registered vide
Case Crime No. 0611 of 2023 under
Sections 147, 148, 149, 302 and 404 of IPC
at Police Station - Teelamod, Trans Hindon
Commissionerate Ghaziabad. In the F.I.R.,
there were nine persons named as an
accused along with three unknown persons.

4. Counsel for the petitioner has
referred to the F.I.R. to submit that as per
prosecution,
on
account
of
enmity
regarding the election of the Gram Pradhan,
nine persons namely Kapil-Gram Pradhan,
Jitnendra,
Sonu,
Hariom,
Sheetal,
Dharmveer, Dharampal, Anand along with
three unknown persons fired upon the
brother of the informant namely Pramod
Kasana alias Lalu and he died on the spot.

Counsel submits that all the nine
persons named in the F.I.R. are the
residents of the same village and they were
allegedly identified by the informant.

5. Counsel further submits that
later on, the police recorded the statement
9 All. Kallu @ Praveen Vs. U.O.I. & Ors.
1445
of Sunita wife of informant-Vinod who
stated on the line of the F.I.R. as she has
alleged that there was enmity with her
brother-in-law, deceased-Pramod Kasana,
with accused Kapil and she along with her
husband was following the deceased and
saw that Kapil, Sachin and Praveen were
firing upon Pramod Kasana whereas
Jitendra, Dharmpal and Dharmveer had
caught hold of Pramod and others had
encircled him.

6. It is further stated that after
some time, the police recorded the
statement of Karuna wife of the victim, on
the same line and stated that she had seen
Kapil, Sachin and Praveen firing upon her
husband Pramod Kasana and other accused
had caught hold of her husband.

7. It is submitted that neither in the
F.I.R. nor in the statements of eyewitnesses the name of the petitioner
surfaced. However, in the supplementary
statement,
the
informant
named
the
petitioner as one of the assailant who was
referred
to
as
an
unknown person.
However, no overt act was attributed to
him. Counsel submits that the said
statement was made after the arrest of one
accused-Sachin
and
his
confessional
statement was recorded by the police and
petitioner was named as one of the
conspirator.

8. Counsel submits that this
statement of Sachin was recorded on
20.11.2023 i.e. more than one month after
the incident just to involve the petitioner.

9. Counsel has referred to the
judgment of the Supreme Court in Tofan
Singh vs. State of Tamil Nadu, (2013) 16
SCC 31 to submit that it will be a matter of
trial whether the confessional statement
made by one of the accused can be used
against the other accused. It is further
submitted that on the basis of the said F.I.R.
proceedings under the NSA was initiated
against the petitioner.

10. Counsel submitted that the
petitioner
is
resident
of
VillageAmeerpur@ Motipur, PS-Tigaon, District -
Faridabad, Haryana and is not the resident
of the village of the informant and other
accused persons. It is also submitted that
nothing has come on record that the
petitioner is related to any of the accused.

11. It is submitted that in the
impugned order, in paragraph No.29, a
reason is given that if petitioner Kaalu alias
Praveen is released on bail in aforesaid
Case Crime No. 0611 of 2023, he may
indulge in similar other activities causing
threat to national security and therefore, on
this
ground,
the
District
Magistrate,
Ghaziabad
passed
the
order
dated
19.2.2024
directing
detention
of
the
petitioner for a period of one year in
exercise of power under Section 3 (2) read
with Section 8 of the NSA.

12. Counsel submits that petitioner
has given objections/representation before
the District Magistrate taking as many as
thirty grounds primarily that no proper
opportunity of hearing has been given; no
copy of report forming basis of detention
was supplied; no proper procedure was
adopted and two F.I.Rs at Police Station -
Kheripul, which are formed basis against
the petitioner apart from the present are
registered in Haryana and not in UP.

13. The first F.I.R. was registered
under Section 325, 379B and 307 of IPC
and second under Section 25 of the Arms
Act.
1446 INDIAN LAW REPORTS ALLAHABAD SERIES
14. Counsel for the petitioners
submits that no such proceeding is initiated
in the State of Haryana.

15. Counsel submits that vide
subsequent
impugned
order,
the
representation of the petitioner has been
rejected by passing a totally non speaking
order dated 16.4.2024, therefore, it is
prayed that the detention of the petitioner is
illegal and he is in illegal detention since
19.02.2024 and he be released.

16. Counsel has relied upon the
judgment of the Supreme Court in
Nenavath Bhujji Vs. The State of
Telangana and others, 2024 (3) SCR 1181
where in paragraph No.43, following
directions were issued :

"43. We summarize our
conclusions as under: -
(i) The Detaining Authority
should take into consideration only
relevant and vital material to arrive
at
the
requisite
subjective
satisfaction,
(ii) It is an unwritten law,
constitutional and administrative,
that wherever a decision-making
function
is
entrusted
to
the
subjective
satisfaction
of
the
statutory functionary, there is an
implicit duty to apply his mind to
the pertinent and proximate matters
and
eschew
those
which
are
irrelevant & remote,
(iii) There can be no
dispute
about
the
settled
proposition that the detention order
requires subjective satisfaction of
the detaining authority which,
ordinarily, cannot be questioned by
the court for insufficiency of
material.
Nonetheless,
if
the
detaining
authority
does
not
consider relevant circumstances or
considers
wholly
unnecessary,
immaterial
and
irrelevant
circumstances, then such subjective
satisfaction would be vitiated,
(iv) In quashing the order
of detention, the Court does not sit
in judgment over the correctness of
the subjective satisfaction. The
anxiety of the Court should be to
ascertain
as
to
whether
the
decision-making
process
for
reaching the subjective satisfaction
is based on objective facts or
influenced by any caprice, malice
or irrelevant considerations or
non-application of mind,
(v)
While
making
a
detention
order,
the
authority
should
arrive
at
a
proper
satisfaction
which
should
be
reflected clearly, and in categorical
terms, in the order of detention,
(vi) The satisfaction cannot
be inferred by mere statement in the
order that "it was necessary to
prevent the detenu from acting in a
manner
prejudicial
to
the
maintenance of public order".
Rather the detaining authority will
have to justify the detention order
from the material that existed
before him and the process of
considering
the
said
material
should be reflected in the order of
detention
while
expressing
its
satisfaction,

(vii) Inability on the part of
the state's police machinery to
tackle the law and order situation
should not be an excuse to invoke
the
jurisdiction
of
preventive
detention,
9 All. Kallu @ Praveen Vs. U.O.I. & Ors.
1447
(viii) Justification for such
an order should exist in the
ground(s) furnished to the detenu to
reinforce the order of detention. It
cannot be explained by reason(s) /
grounds(s) not furnished to the
detenu.
The
decision
of
the
authority must be the natural
culmination of the application of
mind to the relevant and material
facts available on the record, and

(ix) To arrive at a proper
satisfaction warranting an order of
preventive detention, the detaining
authority must, first examine the
material
adduced
against
the
prospective detenu to satisfy itself
whether
his
conduct
or
antecedent(s) reflect that he has
been acting in a manner prejudicial
to the maintenance of public order
and, second, if the aforesaid
satisfaction is arrived at, it must
further consider whether it is likely
that the said person would act in a
manner prejudicial to the public
order in near future unless he is
prevented from doing so by passing
an order of detention . For passing
a
detention
order
based
on
subjective satisfaction, the answer
of the aforesaid aspects and points
must be against the prospective
detenu. The absence of application
of mind to the pertinent and
proximate
material
and
vital
matters
would
show
lack
of
statutory satisfaction on the part of
the detaining authority."

17. Counsel submits that without
recording a satisfaction, the order of
detention has been passed in an illegal
manner.
18. Counter affidavit by the State
of Uttar Pradesh has been filed, in which,
pending
cases
against
the
petitioner
including Case Crime No. 611 of 2023
under Section 302 of IPC in Police Station
-
Teelamod,
Trans
Hindon
Commissionerate Ghaziabad and two F.I.Rs
registered under Section 307 and 379B of
IPC in District Faridabad, Haryana, as
detailed. It is submitted that District
Magistrate, Ghaziabad has recorded a
finding and has also communicated the
order dated 19.2.2024 to the petitioner. It is,
however, submitted that in one case in
Haryana, the petitioner has been released
on bail.

19. In the affidavit filed by the
Deputy Secretary, Home, similar stand is
taken and it is submitted that vide order
dated 16.4.2024, the representation of the
petitioner was rejected. The operative part
of the order read as under :

"उत्तर प्रदेि ि न
गृह (गोपन) अनुभ ग-7
 िंख्य - 108/2/02/2024- ी०एक् ०-7
लखनऊः सदन िंक 16 अप्रैल, 2024
आिेश
"चूाँसक, श्री क लू उिा प्रिीन पुत् श्री
 त्यिीर को "र ष्रीय ुरि असिसनयम, 1980" की
ि र 3(2) के अिीन सजल मसजस्रेट, ग सजय ब द के
द्व र प ररत सनरोि देि सदन िंक- 19.02.2024 के
आि र पर सदन िंक- 19.02.2024 को सनरूद्ध सकय
गय है।
और चूिंसक, उि असिसनयम की ि र 10
के अिीन उि श्री क लू उिा प्रिीन क प्रकरण उ०प्र०
पर मिाद त्ी पररिद को सनसदाि सकय गय थ और
पर मिाद त्ी पररिद ने उि असिसनयम की ि र 11 के
अिीन ररपोटा दी है सक उनकी र य में उि व्यसि को
सनरूद्ध करने क पय ाप्त क रण है।
अतएि, अब उत्तर प्रदेि पर मिाद त्ी
पररिद (सनरूसद्धय ाँ) की ररपोटा पर आिश्यक
1448 INDIAN LAW REPORTS ALLAHABAD SERIES
सिच रोपर न्त, र ज्यप ल महोदय, उि असिसनयम की
ि र 12(1) के अिीन िसि क प्रयोग करते हुए
पूिोि सनरोि देि की पुसि करते हैं और सनदेि देते हैं
सक उि श्री क लू उिा प्रिीन को उि असिसनयम की
ि र 13 के अन्तगात सनरूद्ध सकये ज ने के सदन िंक-
19.02.2024 े ब रह म ह की अिसि तक के सलए
सनरूद्ध रख ज येग ।
र ज्यप ल महोदय की आज्ञ े
ह०अपठनीय
(ड ० असनल कुम र स िंह)
सििेि सचि,
गृह (गोप न) सिभ ग,
उत्तर प्रदेि ि न।"

20. In reply, the petitioner through
his father-in-law filed a rejoinder denying
the allegation and stated that the petitioner
is illegally detained under the National
Security Act.

21. In another rejoinder, it is stated
on behalf of the petitioner that the copies of
the report of the District Magistrate and
that of Advisory Board, Lucknow were not
provided to the petitioner and, therefore,
principle of natural justice are violated. It is
stated that in the F.I.R. in Haryana, the
petitioner is on bail.

22. In another rejoinder affidavit, it
is stated that the Advisory Board has passed
the order in a mechanical manner just to
approve the detention order passed by the
District Magistrate and the mandate of
Article 22 (4) of the Constitution of India is
violated.

23. Counsel for the petitioner has
argued that the detention of the petitioner is
illegal and the proceedings have been
initiated
in
violation
of
the
settled
provisions of the facts as well as the
subsequent order has been passed in the
mechanical manner.
24. Learned Counsel has referred
to the judgement of this Court in HABEAS
CORPUS WRIT PETITION No. - 271 of
2024 (Faizan Khan Alias Raja Babu Vs.
Addhikshak Janpadkendriya Karagar
Bareilly And 3 Others) decided on
14.5.2024 and has relied on paragraph Nos.
13 and 14 which read as under :

"13.
Counsel
for
the
petitioner has referred to the
decision in Smt. Icchu Devi
Choraria Vs. Union of India and
others, 1980 0 AIR (SC) 1983, to
submit that it is held by the
Supreme Court of India that right
provided under Article 22 (5) of the
Constitution
of
India
is
a
substantive right and, if there is
violation of the same, the detention
order is liable to be quashed.
Similar view is taken by the
Supreme Court in Mohinuddin Vs.
District Magistrate, Beed and
others, 1987 0 AIR (SC) 1977,
Smt. Shalini Soni vs. Union of
India and others, 1981 0 AIR (SC)
431 and in S. Gurdip Singh vs.
Union of India and others, 1981 0
AIR (SC) 362.
14. Counsel has then relied
upon another decision in Sushanta
Kumar Banik Vs. State of Tripura
and Ors., 2022 0 AIR (SC) 4715,
whereby the Supreme Court has
held that when vital material or
vital facts are withheld and not
placed by the Sponsoring Authority
before the Detaining Authority, it
vitiate
the procedure. Counsel
submits that admittedly in the
instant case, till date the vital
material
relied
upon
by
the
Sponsoring Authority or by the
Screening Authority had not been
9 All. Kallu @ Praveen Vs. U.O.I. & Ors.
1449
disclosed to the petitioner and,
therefore,
detention
of
the
petitioner under PIT NDPS Act is
illegal."

25. Learned A.G.A. for the State in
reply has agreed that a proper procedure
has been followed and District Magistrate
has recorded its satisfaction that if the
petitioner is released on bail, he may be a
threat to the national security.

26. After hearing the counsel for
the parties, we find merits in the petition
for the following reasons :

A. The detention of the
petitioner is based on two F.I.R. i.e.
one Case Crime No. 0611 of 2023
under Sections 147, 148, 149, 302
and 404 of IPC at Police Station -
Teelamod,
Trans
Hindon
Commissionerate
Ghaziabad
in
U.P. In this F.I.R., for a period of
one month, the informant, his wife,
and wife of his deceased-brother
did not name the petitioner as an
accused. Rather, perusal of the
F.I.R. shows that the same has been
registered against the co-villagers
on account of enmity regarding the
election of Village Pradhan and all
the three witnesses have assigned
specific roles of firing on deceased
to those persons who are residents
of the same village. Therefore, it
will be the mater of trial whether
the petitioner who is nominated on
the statement of co-accused, such
statement can be read in evidence
against the petitioner when eyewitnesses have not named him.
B. In the second F.I.R.
relating to District Faridabad, the
petitioner has been released on bail
and that F.I.R. is under Section 307
and 379B of IPC.
C. The petitioner is facing
the trial in Case Crime No. 0611 of
2023 and is in judicial custody
since 23.12.2023 and when he filed
an
application
for
bail,
the
provisions of NSA were invoked
with an allegation as mentioned in
paragraph No.29 of the impugned
order that if the petitioner is
granted bail, he may misuse the
same.
D.
It
is
well
settled
principle of law that provisions of
NSA cannot be invoked just to
deter a person from exercising his
right to apply for bail before the
competent Court of law.
E.
The
order
dated
16.4.2024 passed by the Special
Secretary
rejecting
the
representation of the petitioner is a
totally non speaking order and does
not qualify the test as laid down by
the Supreme Court in Nenavath
Bhujji's Case (Supra).
F. It is admitted case that
before passing the impugned order
dated
19.2.2024,
the
District
Magistrate has neither afforded any
legal assistance nor afforded any
opportunity of personal hearing to
the petitioner. There is nothing on
record to suggest that the relevant
material forming basis of passing
the
impugned
order
dated
19.2.2024 was ever supplied to the
petitioner as order only reflects that
the copy of the impugned order be
sent to the petitioner.

27. Thus, from the above, it is
apparent that the material forming basis of
the opinion of the competent authority to
1450 INDIAN LAW REPORTS ALLAHABAD SERIES
pass impugned orders were never supplied
to the petitioner in terms of the decisions in
Smt.
Icchu
Devi
Choraria's
Case
(Supra), Mohinuddin's Case (Supra),
Smt. Shalini Soni's Case (Supra) and S.
Gurdip Singh's Case (Supra) and he has
not been afforded proper opportunity of
hearing and the impugned order of
rejection is a totally non speaking order
with regard to the pleas raised by the
petitioner.

28. Accordingly, this petition is
allowed. The impugned orders are set aside.
The petitioner be released forthwith if he is
granted bail by the competent Court.

29. However, it is made clear if
petitioner is found involved in any
subsequent F.I.R., it will be open for the
authorities to initiate fresh proceedings
against the petitioner.
----------
(2024) 9 ILRA 1450
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2024

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Election Petition No. 11 of 2024

Prahlad Singh ...Petitioner
Versus
Yogesh Chaudhary ...Respondent

Counsel for the Petitioner:
Amit Kumar Pandey, In Person

Counsel for the Respondent:
--

Election
Law
-Election
petition
challenging the election of the returned
candidate in MLC elections-petition filed
beyond time by 92 days- beyond the 45day limit prescribed by Section 81 of the
Representation of People Act, 1951-no
power in the Act for delay condonationAct is a complete code and does not allow
for the extension of the filing period or the
application of the Limitation Act- if an
election petition does not comply with the
provisions of Section 81 or Section 82 or
Section 117 of the Act, 1951-the High
Court shall dismiss it-election petition
held to be time-barred-petition dismissed.
(Paras 13, 19, 20 and 21)
HELD:
There is no provision in the Act, 1951 for
considering the period of limitation. There is
nothing in the Act, 1951 which gives powers for
condonation of delay, if any, and the extension
of the period of limitation. The time prescribed
for presentation of an election petition is
provided specifically in Section 81 of the Act,
1951. The judgement in the case of Nijam Uddin
(supra) as is being relied upon by the learned
counsel for the petitioner is distinguishable in as
much as the presentation of the present petition
beyond 92 days is an admitted fact and as such
nothing lay to be decided on the said fact. The
case relied upon by the learned counsel for the
petitioner has a different fact in as much as the
fact about limitation was in dispute therein. The
issue with regard to a delayed presentation of
an election petition which arises in the present
petition is an admitted fact and is no more res
integra. (Para 13)

The High Court while hearing an election
petition operates as an Authority under Article
329 (b) of the Constitution of India whose
jurisdiction is circumscribed by the statutory
provisions as per the Act, 1951. (Para 19)

After having heard learned counsel for the
petitioner and perusing the records, it is settled
that unless and until an election petition is
maintainable and is not barred by limitation, the
merits of the matter cannot be seen and
considered. In the present matter, from the
judgement relied by the learned counsel for the
petitioner and the discussion as above, it is
apparent that the provisions of Limitation Act,
1963 do not apply to election petitions. The
filing / presentation of the election petition is
strictly governed by Section 81 of the Act, 1951.
The trial of the election petition is provided