# Nirmal Tewari @ Bhoora v. State of U.P

- **Citation:** (2009) 1 ILRA 85
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-12-02
- **Case number:** Criminal Misc. Bail Application No.31381 of 2008
- **Bench:** Barkat Ali Zaidi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nirmal-tewari-bhoora-v-state-of-u-p-41322
- **Pages:** 2

## Headnote

86 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Code of Criminal Procedure-S-439-grant
of Bail-offence under section 302-the
deceased while sleeping outside his
house-death
caused
by
unknown
persons-according
to
F.I.R.
versionapplicant no where in picture-during
investigation
police
arrested
the
applicant-as he was in habit of teasing
the daughter of deceased-held-entitled
for Bail.

Held: Para 3

He is not named in the first information
report and the first information report
mentions that some unknown persons
caused his death by a fire arm at 1.30 O'
clock in the night while he was sleeping
outside his house in village Bhagwandin
Ka Purwa, P.S. Kakwan. During the
course of investigation, the police are
said to have found that the deceased
was killed by the accused and the reason
was that the deceased was in habit of
teasing his daughter and that is what led
the accused to kill the deceased.

## Text

1 All] Nirmal Tewari @ Bhoora V. State of U.P.
85
created under Article 323-A and Article
323-B of the Constitution are possessed of
the competence to test the constitutional
validity of statutory provisions and rules.
All decisions of these Tribunals will,
however, be subject to scrutiny before a
Division Bench of the High Court within
whose jurisdiction the Tribunal concerned
falls. The Tribunals will, nevertheless,
continue to act like courts of first
instance in respect of the areas of law for
which they have been constituted. It will
not, therefore, be open for litigants to
directly approach the High Courts even in
cases where they question the vires of
statutory legislations (except where the
legislation which creates the particular
Tribunal is challenged) by overlooking
the jurisdiction of the Tribunal concerned.
Section 5 (6) of the Act is valid and
constitutional and is to be interpreted in
the manner we have indicated."

5. Therefore, the tribunal is not an
usual
statutory
tribunal
but
the
jurisdiction of Writ Court is curtailed and
given to the tribunal. Thus, undoubtedly
the tribunal hears such matters as a court
of first instance i.e. like learned single
Judge exercising writ jurisdiction of the
High Court and its decisions are of
course, subject to scrutiny by a Division
Bench of the High Court, therefore, in
respect of exercise of such jurisdiction for
adjudicating questions of natural justice,
the appropriate word, according to us,
should be 'laches' in the place and instead
of 'delay'. The word 'limitation', therefore,
is uncalled for. Copy of such observation
and/or order will be communicated to
learned Addl. Solicitor General of India to
inform the government in this regard.
However, presently we have to go by the
existing law.

6. In the instant case, we find that
virtually by making this writ petition, the
petitioner wants to enter into merits of the
matter, bypassing the order of tribunal
passed on account of delay. We cannot
enter into the merits in such circuitous
manner because merits cannot be adhered
to by this Court directly as a court of first
instance, overlapping the jurisdiction of
the tribunal.

7. Therefore, the writ petition is
disposed of without any order as to cost
and with a liberty to the petitioner to
make an application for condonation of
delay before the tribunal positively within
a fortnight from this date and if such an
application is made, the tribunal will hear
out such application afresh, excluding the
period consumed for the purpose of
making the writ petition upon obtaining
the certified copy from the tribunal till the
period when certified copy of the order
made ready for delivery by the registry of
this Court.

Petition disposed of.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.12.2008

BEFORE
THE HON'BLE BARKAT ALI ZAIDI, J.

Criminal Misc. Bail Application No.31381
of 2008

Nirmal Tewari @ Bhoora ...Applicant
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri J.S. Kashyap
Stuti Singh

Counsel for the Opposite Party:
Sri S.K. Kulshrestha
A.G.A.
86 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Code of Criminal Procedure-S-439-grant
of Bail-offence under section 302-the
deceased while sleeping outside his
house-death
caused
by
unknown
persons-according
to
F.I.R.
versionapplicant no where in picture-during
investigation
police
arrested
the
applicant-as he was in habit of teasing
the daughter of deceased-held-entitled
for Bail.

Held: Para 3

He is not named in the first information
report and the first information report
mentions that some unknown persons
caused his death by a fire arm at 1.30 O'
clock in the night while he was sleeping
outside his house in village Bhagwandin
Ka Purwa, P.S. Kakwan. During the
course of investigation, the police are
said to have found that the deceased
was killed by the accused and the reason
was that the deceased was in habit of
teasing his daughter and that is what led
the accused to kill the deceased.

(Delivered by Hon'ble Barkat Ali Zaidi, J.)

1. Applicant-accused Nirmal Tewari
@ Bhoora is charged, under Section 302
Indian Penal Code. He has come for bail
here.

2. Heard Sri J.S. Kashyap advocate
for the applicant, and Addl. Government
Advocate for the State.

3. He is not named in the first
information
report
and
the
first
information report mentions that some
unknown persons caused his death by a
fire arm at 1.30 O' clock in the night
while he was sleeping outside his house in
village Bhagwandin Ka Purwa, P.S.
Kakwan.
During
the
course
of
investigation, the police are said to have
found that the deceased was killed by the
accused and the reason was that the
deceased was in habit of teasing his
daughter and that is what led the accused
to kill the deceased.

4. In these circumstances, the
accused may be granted bail.

5. He be released on bail on his
furnishing a personal bond of Rs.25,000/-
with one surety in the like amount to the
satisfaction
of
Chief
Metropolitan
Magistrate, Kanpur Nagar.
---------