# No. 17528 of 2011 (Sri Dinesh Tripathi v. State of U.P. and others). Learned

- **Citation:** (2011) 3 ILRA 1199
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-10-21
- **Bench:** Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/no-17528-of-2011-sri-dinesh-tripathi-v-state-of-u-p-and-others-learned-42063
- **Pages:** 4

## Headnote

Contempt of Court Act 1971-Section-12willful disobedience-non consideration of
interim bail on same day-violated-in
Amrawati case Full Bench no where said
when instructions are complete-on same
day can not be considered on meritneither the Magistrate nor the Session
Judge
committed
any
Contempt
by
rejecting Bail on merit-no contempt
made out.

Held: Para 7

The direction to grant interim bail is to
be clearly read as not applicable when
the Magistrate decides to pass final
orders on the bail application on the day
of his surrender without postponing the
date for consideration of bail. In cases
where
the
Public
Prosecutor
has
complete
instructions
from
the
Investigating Officer no adjourned date
is required to be fixed.

## Text

3 All] Dinesh Tripathi V. Saif Ahmad, Judicial Magistrate and another
1199
which is not necessarily an interlocutory
order, could be subjected to revision. An
order not conclusive of the main dispute
between the parties, but conclusive of the
subordinate matters with which it deals is
not a purely interlocutory order even
though it may not finally adjudicate the
main dispute between the parties. In our
opinion therefore a revision would not be
barred under Sub Section (1) of Section
397 of the Code if the orders impugned
before the revising authority fall within the
tests indicated hereinabove.

41. Our answer to the question
referred would be therefore in the negative,
and we hold that orders passed under
Sections 145(1) and 146(1) of the Code are
not
in
every
circumstance,
orders
simplicitor, and therefore a revision would
be maintainable in the light of the
observations made in this judgment
depending on the facts involved in each
case.

42. Coming to the issue as to whether
a petition under Section 482 would be
maintainable or not, the same has been
dealt with by a Full Bench of our court in
the case of H.K. Rawal and another Vs.
Nidhi Prakash and another reported in
1990 Cr.L.J. 961. We having gone through
the said decision, do not find it necessary
to answer the same as the question under
reference before this Court is primarily
relating to the maintainability of a revision
that has been dealt with hereinabove.

43. Let the papers be now placed
before the learned Single Judge for
proceeding to decide the revisions in
accordance with the principles indicated
hereinabove.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.10.2011

BEFORE
THE HON'BLE SANJAY MISRA,J.

Contempt Application (Civil) No. - 5025 of 2011

Dinesh Tripathi

 ...Petitioner
Versus
Saif Ahmad, Judicial Magistrate and
another

 ...Respondents

Counsel for the Petitioner:
Sri A.B. Singh
Sri Manish Singh

Counsel for the Respondents:
..........................................

Contempt of Court Act 1971-Section-12willful disobedience-non consideration of
interim bail on same day-violated-in
Amrawati case Full Bench no where said
when instructions are complete-on same
day can not be considered on meritneither the Magistrate nor the Session
Judge
committed
any
Contempt
by
rejecting Bail on merit-no contempt
made out.

Held: Para 7

The direction to grant interim bail is to
be clearly read as not applicable when
the Magistrate decides to pass final
orders on the bail application on the day
of his surrender without postponing the
date for consideration of bail. In cases
where
the
Public
Prosecutor
has
complete
instructions
from
the
Investigating Officer no adjourned date
is required to be fixed.

(Delivered by Hon'ble Sanjay Misra,J. )

1. Heard Sri A.B.Singh, learned
counsel for the applicant.
1200 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

2. Contempt is alleged of the order
dated 20.9.2011 passed in Writ Petition
No. 17528 of 2011 (Sri Dinesh Tripathi
Vs. State of U.P. and others). Learned
counsel for the applicant has submitted
that by the order dated 20.9.2011 passed
by the Writ Court, it was clearly provided
that if the petitioner moves an application
for surrender before the Court concerned
within three weeks, the Magistrate shall
fix a date within two weeks thereafter for
appearance of the petitioner and in the
meantime release the petitioner on interim
bail on such terms and conditions as the
court concerned considers fit and proper,
till the date fixed for disposal of the
regular bail. The Court further provided
that when the matter reaches before the
Sessions Judge, it will be in the discretion
of the Sessions Judge to consider granting
interim bail pending consideration of the
regular bail on similar terms as mentioned
above, if the petitioner applies for bail
before him. Further direction was given
that for a period of three weeks from that
date
or
till
the
petitioner
appears/surrenders before the court below
and applies for bail, whichever is earlier,
the petitioner shall not be arrested.

3. Insofar as the condition of not
being arrested for three weeks prior to
surrender is concerned, there is no dispute
nor learned counsel has argued that the
petitioner was arrested in violation of that
condition.

4. The first condition relates to the
stage when the petitioner moves an
application for surrender before the
Magistrate. The Magistrate is required to
fix a date for appearance of the petitioner
and in the meantime release him on
interim bail. It was further provided that
the Magistrate shall direct the public
prosecutor to seek instructions from the
Investigating Officer by the date fixed and
then decide the regular bail application.
The said direction appears to be based on
the observation made by the Full Bench in
the case of Amrawati Vs. State of U.P.
which judgement has been referred to in
the order of the Writ Court.

5. In Amrawati Vs. State of U.P., the
Full Bench had clearly provided with
respect to bail application under Section
437 Cr.P.C. that if the Magistrate in a
very rare and exceptional case decides to
postpone
the
hearing
of
the
bail
application and does not decide it on the
same day, he must record reasons in
writing. Therefore, it was provided that in
such circumstances, which have been
referred by the Full Bench as rare and
exceptional where the Magistrate decides
to postpone the hearing of the bail
application, he shall grant interim bail.

6. The directions of the Writ Court
in the present case based on the decision
of the Full Bench leaves no room for
doubt that in case the petitioner moves an
application
for
surrender
and
the
Magistrate does not decide the bail
application on the same day, he has to
grant interim bail and fix a date for
appearance
of
the
applicant
for
consideration of his application for
regular bail.

7. The direction to grant interim bail
is to be clearly read as not applicable
when the Magistrate decides to pass final
orders on the bail application on the day
of his surrender without postponing the
date for consideration of bail. In cases
where the Public Prosecutor has complete
instructions from the Investigating Officer
no adjourned date is required to be fixed.
3 All] Dinesh Tripathi V. Saif Ahmad, Judicial Magistrate and another
1201

8. In the present case, the applicant
made an application for surrender and bail
on 17.10.2011. On this date the public
prosecutor had all the relevant documents
and instructions available and placed
them before the Court. The Magistrate
therefore, did not adjourn the matter
because there was no rare and exceptional
circumstance to adjourn the matter. All
the records of the prosecution and
instructions were available on that very
date hence there was no reason for the
Magistrate to adjourn the hearing of the
bail
application.
Admittedly
the
prosecution did not seek any adjournment.

9. The order of the Magistrate
clearly records that he has perused all the
documents produced by the police. He has
refused to grant bail by rejecting the bail
application on merits on the very same
day without adjourning the matter for
another
date.
Consequently,
if
the
Magistrate decides the bail application on
the very same day, it cannot be held that
he has disobeyed the directions issued by
the Writ Court, which is based on the
observation made by the Full Bench in the
case of Amrawati (supra).

10. Insofar as the bail application
under Section 439 Cr.P.C. is concerned
that is considered by the Sessions Judge
after the matter has been dealt with by the
Magistrate under Section 437 Cr.P.C..
Here the Full Bench clearly held that it is
the discretion of the Sessions Judge
whether to decide the bail application on
the same day or not and it is also his
discretion to grant interim bail the same
day subject to final decision of the bail
application later.

11. On the one hand if the
consideration of the bail application under
Section 437 Cr.P.C. was to be adjourned
the Magistrate was to grant interim bail
and on the other hand if consideration of
the bail application under Section 439
Cr.P.C. was to be adjourned the Sessions
Judge had discretion to consider granting
interim bail pending consideration of the
regular bail.

12. The Full Bench as also the Writ
Court in the order contempt whereof is
alleged has used the word discretion of
the Sessions Judge for the purpose of
grant of interim bail. That discretion
cannot be interpreted to mean that he has
to grant interim bail. The discretion given
is clearly a freedom to form an opinion on
the facts and circumstances of each case.
Discretion cannot be misinterpreted to
mean that the the Sessions Judge has to
grant interim bail. Such interpretation
made by learned counsel cannot be
accepted in view of the decision of the
Full Bench in the case of Amrawati
(supra) as also in view of the direction to
exercise discretion by the Writ Court.

13. Learned counsel for the
applicant has emphasized on the use of
the words 'similar terms as mentioned
herein above' if the petitioner prays for
bail before the Sessions Judge. According
to him the terms mentioned in the order of
the Writ Court are clear that when the
applicant
makes
an
application for
surrender, the Magistrate will fix a date
for his appearance and in the meantime
release him on interim bail. If the
aforesaid interpretation of learned counsel
for the applicant is accepted then it is
clear that the Sessions Judge has no
discretion in the matter of consideration
of interim bail. That will not be a correct
interpretation of the word 'discretion' used
by the Full Bench in the case of Amrawati
1202 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
(supra) as well as by the Writ Court in the
order contempt whereof is alleged.

14. There is a difference of
jurisdiction between consideration of a
bail application under Section 437 Cr.P.C.
and Section 439 Cr.P.C. When there is no
postponement or when in his discretion
the Sessions Judge refuses to grant
interim bail pending consideration of
regular bail then it is not a contempt.
Otherwise it will mean that the Sessions
Judge has no discretion in the matter of
interim bail.

15. The Writ Court had clearly
directed that it will be in the discretion of
the Sessions Judge to consider granting
interim bail. When he has considered it
and refused to grant interim bail then it is
not a contempt. He could in his discretion
grant interim bail on similar terms as were
made applicable to bail applications under
Section 437 Cr.P.C. That was a discretion
given to him by the Writ Court. He has
exercised such discretion. If according to
the applicant the exercise of discretion
was not judicially exercised then he can
avail the remedy available to him in law.
It cannot be brought within the ambit of a
contempt.

16. For the aforesaid reasons, it
cannot be held that the opposite parties
no.1 and 2 have disobeyed the directions
issued by the Writ Court when the
opposite party no.1 has decided the bail
application on the same day and opposite
party no.2 has in his discretion rejected
the prayer for interim bail.

17. The contempt petition is
accordingly dismissed.

18. No order is passed as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.10.2011

BEFORE
THE HON'BLE SHABIHUL HASNAIN,J.

Service Single No. - 7671 of 2011

Smt. Anita Singh W/O Ajay Kumar Singh

 ...Petitioner
Versus
State Of U.P. Through Prin. Secy. Basic
Edu. Lko. & Ors.

 ...Respondents

Counsel for the Petitioner:
Sri Rajiv Shukla

Counsel for the Respondent:
Sri A.M. Ttripathi
C.S.C.

Constitution of India, Article 21-Right to
live with dignity-petitioner working as
Shiksha Mitra-proceeded on maternity
leave-after leave not allowed to joininspite
of
positive
direction-held-her
fundamental right to leave with dignity
can not be denied-direction issued to
allow her to join immediately.

Held: Para 5

The lady has a right to live with dignity
and to perform all the duties. As a
mother, she has the fundamental right to
live with dignity is a basic norms to the
petitioner. Such norms cannot be flouted
by the opposite parties in the manner
that they are not allowing the petitioner
to join her service.

(Delivered by Hon'ble Shabihul Hasnain,J. )

1. Heard Sri Rajiv Shukla, learned
counsel for the petitioner and Sri A. M.
Tripathi for the opposite party no. 5 as