# Pankaj Kumar and others v. State Of U.P. Through The Principal Secy. In The Dept.Home

- **Citation:** (2011) 1 ILRA 446
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-04-26
- **Bench:** Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pankaj-kumar-and-others-v-state-of-u-p-through-the-principal-secy-in-the-dept-41877
- **Pages:** 9

## Headnote

Service rules 2008)-Rule 26 readwith
Regulation
520
Police
Regulationtransfer order challenged on ground in
view of judgment 29.05.10 in W.P. No.
3838 of 2010 in which Constitution of
Regulation Police Establishment Board
itself-illegal hence as approval given by
Regional
Police
Board
without
jurisdiction-held-in view of Full Bench
decision
of
Vinod
Kumar
caseConstitution of Regional Police Board
found proper-as such transfer order can
not be bad-second ground of attack after
existence of Rule 2008 , G.O. 11.07.86
lost its significance also misconceived as
the Rule does not cover the field of
transfer as such the G.O. still applicable.

Held: Para 11 & 15

So far as the contention of learned
counsel for the petitioners that the
Government
Order
dated
11.7.1986
stands superseded after coming into
force Rules 2008, is concerned, it is to be
noted that the preamble of Rules 2008
recites that the said rules have been
framed
to
regulate
the
selections,
promotions,
appointments,
determination
of
seniority
and
confirmation etc. of the Constables and
Head Constables of civil police in the
police force. A reading of these rules
indicates that they do not deal with the
transfer of police personnel. It is also to
be seen that as per Rule 26 of the said
Rules 2008, the matters which are not
covered under these rules shall be
governed by the rules, regulations and
the
orders
applicable
generally
to
Government servants. The Government
Order dated 11.7.1986 specifically deals
with the transfer of police personnel as
such suffice is to mention that the said
Government Order dated 11.7.1986 is
duly applicable and enforceable in the
present case.

In this view of the matter, I am of the
considered view that constitution of
Regional Police Establishment Boards
can not be said to be wrong.

In the present case, the transfer order of
the petitioners has been passed after
approval
of
the
Regional
Police
Establishment Board as such it can not
be said to be bad in the eyes of law.
Case law discussed:
(2010) 3 UPLBEC 2060; 2011 (2) ADJ 177
(DB); Writ Petition No. 1781 (S/S) of 2011

## Text

446 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.04.2011

BEFORE
THE HON'BLE RITU RAJ AWASTHI,J.

Service Single No. - 2289 of 2011

Pankaj Kumar and others
 ...Petitioner
Versus
State Of U.P. Through The Principal Secy.
In The Dept.Home
 ...Respondent

Counsel for the Petitioner:
A.P.Singh

Counsel for the Respondent:
C.S.C.

U.P. (Civil Police and Head Constable
Service rules 2008)-Rule 26 readwith
Regulation
520
Police
Regulationtransfer order challenged on ground in
view of judgment 29.05.10 in W.P. No.
3838 of 2010 in which Constitution of
Regulation Police Establishment Board
itself-illegal hence as approval given by
Regional
Police
Board
without
jurisdiction-held-in view of Full Bench
decision
of
Vinod
Kumar
caseConstitution of Regional Police Board
found proper-as such transfer order can
not be bad-second ground of attack after
existence of Rule 2008 , G.O. 11.07.86
lost its significance also misconceived as
the Rule does not cover the field of
transfer as such the G.O. still applicable.

Held: Para 11 & 15

So far as the contention of learned
counsel for the petitioners that the
Government
Order
dated
11.7.1986
stands superseded after coming into
force Rules 2008, is concerned, it is to be
noted that the preamble of Rules 2008
recites that the said rules have been
framed
to
regulate
the
selections,
promotions,
appointments,
determination
of
seniority
and
confirmation etc. of the Constables and
Head Constables of civil police in the
police force. A reading of these rules
indicates that they do not deal with the
transfer of police personnel. It is also to
be seen that as per Rule 26 of the said
Rules 2008, the matters which are not
covered under these rules shall be
governed by the rules, regulations and
the
orders
applicable
generally
to
Government servants. The Government
Order dated 11.7.1986 specifically deals
with the transfer of police personnel as
such suffice is to mention that the said
Government Order dated 11.7.1986 is
duly applicable and enforceable in the
present case.

In this view of the matter, I am of the
considered view that constitution of
Regional Police Establishment Boards
can not be said to be wrong.

In the present case, the transfer order of
the petitioners has been passed after
approval
of
the
Regional
Police
Establishment Board as such it can not
be said to be bad in the eyes of law.
Case law discussed:
(2010) 3 UPLBEC 2060; 2011 (2) ADJ 177
(DB); Writ Petition No. 1781 (S/S) of 2011

(Delivered by Hon'ble Ritu Raj Awasthi,J. )

1. Notice on behalf of the opposite
parties has been accepted by the learned
Chief Standing Counsel.

Heard
learned
counsel
for
the
petitioners as well as Sri Badrul Hasan,
learned Standing Counsel.

2. This writ petition has been filed
challenging the transfer order dated
17.4.2011
including
the
decision/order/approval of the Regional
Police
Establishment
Board
dated
13.4.2011 by which the petitioners no. 1 to
5 have been transferred from Lucknow to
1 All Pankaj Kumar and others V. State of U.P.
447
Raibareli and the petitioner no. 6 has been
transferred from Lucknow to Lakhimpur
Kheri, on the ground that they are posted in
the adjoining district to the home district
which is not permissible as per the
Government
Order
dated
11.7.1986.
Challenge has also been made to the
Government Order dated 11.7.1986.

Learned counsel for the petitioners
submits that after coming into force the
U.P. (Civil Police) Constables and Head
Constables Service Rules 2008 (hereinafter
referred to as 'Rules 2008') notified by the
notification
dated
2.12.2008,
the
Government Order dated 11.7.1986 has
been superseded. Moreover, in view of
Rule 26 of the Rules 2008, the matters not
specifically covered by these rules shall be
governed by the rules, regulations and the
Orders applicable generally to Government
servants serving in connection with affairs
of the State.

3. Contention is that Rule 2008 does
not prohibit the posting of police personnel
in the home district or the adjoining district
to the home district and, therefore, there
can not be any embargo on the posting of
the police personnel in the home district or
districts adjoining to the home districts.

4. Learned counsel for the petitioners
further submits that, in fact, Regulation
520 of the Police Regulation provides that
the transfers which result in officers being
stationed far from their homes should be
avoided as much as possible, meaning
thereby that the police personnel shall be
posted near to the home districts.

Since Regulation 520 of the Police
Regulations provided that transfers which
result in officers being stationed far from
their homes as far as possible should be
avoided, therefore, the Government Order
dated 11.7.1986 which is contrary to the
Police Regulations is wrong and can not be
allowed to deal with the transfers of the
police personnel.

Moreover, the opposite parties on the
one hand vide circular dated 21.3.2011 has
exempted all those police personnel posted
in the V.I.P. duties from the general
transfers and on the other hand have made
large scale transfers on the basis of the
Government Order dated 11.7.1986 which
amounts to discrimination.

5. It is further contended by learned
counsel for the petitioners that the Full
Bench of this Court in the case of Vinod
Kumar & another Vs. State of U.P. &
others (2010) 3 UPLBEC 2060, while
considering the constitution of the Police
Establishment Board vide notification
dated 12.3.2008 has observed that Rule 26
of Rules 2008, makes applicable the rules
pertaining to the Government servants i.e.
the persons appointed to public services
and posts in connection with the affairs of
the State and as Regulation 520 deals with
the transfers of police personnel, who are
also a part of the public services of the
State, therefore, insofar as the police
personnel are concerned, the regulation
pertaining to the transfers would continue
to apply to them. In this regard he has
relied on para 20 of the judgment in the
case of Vinod Kumar (Supra).

"20. In our opinion, therefore,
considering the fact that the Rule 26 of the
Rules, 2008 makes applicable the rules
pertaining to the Government servants, i.e.
persons appointed to public services and
posts in connection with the affairs of the
State, and as Regulation 520 deals with the
transfers of the police personnel, who are
448 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
also a part of the public services of the
State, therefore, insofar as the police are
concerned, the Regulation pertaining to
transfer would continue to apply to them.
Therefore, though one of the Boards
constituted is not strictly in terms of the
directions issued by the Supreme Court in
Prakash
Singh
(Supra),
nonetheless
considering the exercise that has to be
done and the provisions for transfer, as
contained in the Police Regulations, there
has been sufficient compliance."

Further contention of learned counsel
for the petitioners is that the constitution of
the Regional Police Establishment Board is
not as per the directions issued by the
Apex Court in the case of Prakash Singh
Vs. Union of India (2006) 8 SCC 1. The
Full Bench in the case of Vinod Kumar
(Supra) has only upheld the validity of
constitution of four Police Establishment
Boards by notification dated 12.3.2008, as
such the impugned order passed on the
basis of approval of the Regional Police
Establishment Board are wrong and not
sustainable in the eyes of law.

6. Learned counsel for the petitioners
also submitted that earlier the transfer
orders of the petitioners dated 29.5.2010
and 28.5.2010 were challenged in the Writ
Petition No. 3838 (S/S) of 2010, which
were quashed by the order dated 28.8.2010
with liberty to the opposite parties to pass
afresh orders in accordance with law after
approval from the Board constituted vide
notification dated 12.3.2008 (wrongly
mentioned as 12.8.2009). His contention is
that when the Court had allowed the
opposite parties to pass afresh orders with
the approval from the Board as per the
notification dated 12.3.2008, then it was
not open for the opposite parties to have
taken approval from the Regional Police
Establishment Board, which has not been
constituted as per the notification dated
12.3.2008
as
the
Regional
Police
Establishment
Boards
have
been
constituted
vide
notification
dated
9.4.2010.

The learned Standing Counsel in
opposition
has
submitted
that
the
Government
Order
dated
11.7.1986,
specifically deals with the transfers of the
Police personnel including the Constables
and Head Constables. It also provides that
no police personnel shall be posted in the
home district or the district adjoining to the
home district. It is also submitted by the
learned
Standing
Counsel
that
the
Government Order dated 11.7.1986 is fully
applicable even today after the Rules 2008
have been framed which only regulate the
selection,
promotion,
training,
appointment, determination of seniority
and confirmation etc. of constables and
Head Constables of civil police in the State
of U.P. police force. The said Rules 2008
do not deal with the transfers of the police
personnel.

7. It is further submitted that Rule 26
of Rules 2008, specifically provides that all
those matters which are not covered under
the rules shall be governed by the rules,
regulations and the Orders applicable
generally to the government servants
meaning thereby that the Government
Order dated 11.7.1986, which deals with
the transfers of the police personnel shall
be applicable even after coming into force
of Rules 2008.

8. The learned Standing Counsel
contends that validity of the constitution of
the Regional Police Establishment Boards
was not before the Full Bench in the case
of Vinod Kumar (Supra), however, the Full
1 All Pankaj Kumar and others V. State of U.P.
449
Bench has upheld the theory of plurality of
constitution
of
Police
Establishment
Boards as it has been observed by the Full
Bench that looking into the vast area of the
State and the total strength of the police
force it is not possible to appoint one
Board and accordingly the State by
notification dated 12.3.2008 in exercise of
its power under Section 2 of the Police
Act,1861 had constituted four different
Boards. Thus, the Full Bench has found the
constitution of different Boards as proper.
The Regional Police Establishment Boards
constituted by the Government Order dated
9.4.2010 are headed by the Inspector
General of Police (Establishment) and
there is no illegality in the constitution of
the said Boards.

9. A Division Bench of this Court in
the case of State of U.P. & others Vs. C.P.
Ravindra Singh and others, 2011 (2) ADJ
177 (DB), while setting aside the judgment
passed by the learned Single Judge has
come to the conclusion that in case the
transfer orders have been passed on the
basis of approval of the Regional Police
Establishment Boards there is no illegality.

The learned Standing Counsel further
submits that the Court while deciding the
Writ Petition No.3838 (S/S) of 2010 by
order dated 28.8.2010 had quashed the
transfer orders dated 29.5.2010 and
28.5.2010 by which the petitioners were
transferred, with liberty to the opposite
parties to pass afresh orders in accordance
with law after approval from the Board.
His contention is that in the present case
the Regional Police Establishment Board
has granted approval which is sufficient as
per the requirement of law and according
to the directions issued by the Apex Court
in the case of Prakash Singh (Supra) and
observations made by the Full Bench in the
case of Prakash Singh (Supra). Mere
observation of the Court in its order dated
28.8.2010 to pass afresh orders after
approval of the Board constituted as per
the notification dated 12.3.2008 does not
mean that only that Board which has been
constituted by notification dated 12.3.2008
was required to grant approval and in case
the approval has been granted by the
Regional Police Establishment Board the
order of transfer is bad.

10. I have considered various
submissions made by the learned counsel
for the parties.

11. So far as the contention of
learned counsel for the petitioners that the
Government Order dated 11.7.1986 stands
superseded after coming into force Rules
2008, is concerned, it is to be noted that the
preamble of Rules 2008 recites that the
said rules have been framed to regulate the
selections,
promotions,
appointments,
determination
of
seniority
and
confirmation etc. of the Constables and
Head Constables of civil police in the
police force. A reading of these rules
indicates that they do not deal with the
transfer of police personnel. It is also to be
seen that as per Rule 26 of the said Rules
2008, the matters which are not covered
under these rules shall be governed by the
rules, regulations and the orders applicable
generally to Government servants. The
Government
Order
dated
11.7.1986
specifically deals with the transfer of
police personnel as such suffice is to
mention that the said Government Order
dated 11.7.1986 is duly applicable and
enforceable in the present case.

So far as the contention of learned
counsel for the petitioners that in view of
Rule 26 of Rules 2008 only those
450 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Government Orders would be applicable
which generally apply to the Government
servants serving in connection with the
affairs of the State, i.e. the transfer policies
dealing with the Government servants are
concerned, this Court is of the considered
opinion that since the Government Order
dated 11.7.1986 specifically deals with the
transfer of police personnel, therefore, the
Government Order dated 11.7.1986 would
be fully applicable and the general transfer
policy with respect to the Government
servants would not be applicable in this
case.

12. This Court had the occasion to
consider the Government Order dated
11.7.1986 in Writ Petition No. 1781 (S/S)
of 2011, Satya Narain Singh & others Vs.
State of U.P. , wherein this Court while
dismissing the writ petition held as under:

"So far as the contention of the
learned counsel for the petitioners with
regard to the discrimination in view of
circular letter dated 21.3.2011 (wrongly
mentioned as 24.3.2011) is concerned,
suffice is to mention that the said circular
letter relates to the transfer of the police
personnel posted in V.I.P. duties. It is for
the department to decide as to whether
such police personnel posted in V.I.P.
duties shall be subjected to transfers as per
the Government Order dated 11.7.1986 or
not."

13. The Government Order dated
11.7.1986 provides the guidelines for
transfer of that police personnel, which
also provide that they shall not be posted in
their home districts or the adjoining
districts to the home districts.

So far as the constitution of Regional
Police Establishment Board is concerned, a
Division Bench of this Court in the case of
State of U.P. & others Vs. C.P. Ravindra
Singh (Supra) has considered the Full
Bench decision of this Court in the case of
Vinod Kumar (Supra) which has upheld
the
theory
of
plurality
of
Police
Establishment Boards and has found that in
case the transfer order has been issued with
the approval of the Regional Police
Establishment Board that would not render
it totally illegal. The relevant paragraph 14
in the case of State of U.P. & others Vs.
C.P. Ravindra Singh (Supra) is quoted
below:

"According to us, pluralistic view in
the place and instead of singular view is
one
of
the
devices
to
maintain
transparency. It avoids possibilities of
motivated action, biasness or influence in
the cases of transfer. To that extent, there
is no conflict between Prakash Singh
(Supra) and the steps taken by the State.
The only issue is whether the State has
strictly complied with or sufficiently
complied with the direction of the Supreme
Court
in
Prakash
Singh
(Supra).
According to the Full Bench of this High
Court in Vinod Kumar (Supra), direction
has been sufficiently complied with.
Learned Chief Standing Counsel has given
an explanation by saying that the position
of the State of Uttar Pradesh as regards its
vastness and population may not be similar
with various other States. Therefore, if the
Board is constituted strictly in compliance
with the direction of the Supreme Court
then the State will not get full time
engagement of such officers to maintain
the law and order situation of the State. To
that, it is desirable that the State should
explain such position before the Supreme
Court. It is expected that by now it has
been done by the State. But so far as the
existing
position
is
concerned,
this
1 All Pankaj Kumar and others V. State of U.P.
451
Division Bench will be governed by both,
Prakash Singh (Supra) and Vinod Kumar
(Supra) and a conjoint reading of both the
judgments
speaks
that
a
mode
or
mechanism of plurality has been adopted
by the State, in spite of the existing law.
Therefore, this Court does not find any
reason to negate the orders of transfer, as
were impugned in the writ petition."

14. It is to be borne in mind that the
Full Bench of this Court in the case of
Vinod Kumar (Supra) while considering
the constitution of Police Establishment
Board constituted vide notification dated
12.3.2008 has upheld the constitution of
various
Police
Establishment
Boards
headed by the Director General of Police
as well as Inspector General of Police. The
Full Bench in paras 18,19,20 & 21,
observed as under:

"18.The judgment in Prakash Singh
(Supra) was to ensure that in the matter of
transfers and promotions etc., the officers
and men would be considered based on
their merit and uninfluenced by any
political
decision,
patronage
or
consideration. Merely, because one of the
functionaries named by post in the
directions of the Supreme Court, is not in
the Board, per se would not make the
entire action of transfers void or non est.
The administrative instructions are in
exercise of the executive power of the State
under Article 162 of the Constitution of
India, which power extends to matters with
respect to which the Legislature of the
State has power to make laws. The
transfers will have to be done in terms of
the Police Regulations in force. To that
extent, Rule 26 of the Rules 2008 will have
to be so read with the expression 'orders
applicable
generally
to
Government
servants serving in connection with the
affairs of the State' which includes the
Regulations. It is only in an area where
conditions of service are not covered by
the Act, Rules or Regulations, with the
rules in the matter of conditions of service
applicable to other Government servants,
would be applicable. As long as the
Regulations are in force, they will continue
to be applicable in the matters of transfer.
The Regulations also provide for regular
transfers, which are transfers not on
account of administrative exigency or in
public interest. Rule 26 can not be read to
mean
that
all
existing
rules
and
regulations in the matter of conditions of
service including transfer are no longer in
force. Rule 26 only contemplates a
situation where there is a vacuum or no
provision.

19. It is true that there may be no
strict compliance in terms of the directions
issued by the Supreme Court in Prakash
Singh (Supra) insofar as one of the Boards
is
concerned.
The
Government
has
attempted to contend that the notification
has to be read with the exercise of power
under Section 2 of the Police Act. There is
a power in the State Government under
Section 2 to have issued notification
constituting the Boards. The Section does
not provide for the publication or laying of
the Rules or Regulations made thereunder
before the Legislature. In other words, the
power conferred on the Government, as a
delegate, to make rules is not subject to
any control by the Legislature. Rules as
held by the judgment of the Supreme Court
can be made under Section 2 of the Police
Act. The Government, in the absence of
legislation, in exercise of its power under
Article 309 of the Constitution should have
made rules governing the conditions of
service. In the instant case, there is
legislation governing transfers, but there is
452 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
no provision for Constitution of Boards.
The Boards have been constituted by the
State in exercise of its executive powers. It
is now well settled that in an area, where
rule or existing law is silent in the matter
of conditions of service, administrative
instructions can be issued to fill in the void
or gap, which the State has done.
However,
we
have
held
that
the
notification for reasons given cannot be
held to be an exercise of power under
Section 2 of the Police Act.

20.In
our
opinion,
therefore,
considering the fact that the Rule 26 of the
Rules, 2008 makes applicable the rules
pertaining
to
the
Government
servants,i.e.,persons appointed to public
services and posts in connection with the
affairs of the State, and as Regulation 520
deals with the transfers of the police
personnel, who are also a party of the
public services of the State, therefore,
insofar as the police are concerned, the
Regulation pertaining to transfer would
continue to apply to them. Therefore,
though one of the Boards constituted is not
strictly in terms of the directions issued by
the Supreme Court in Prakash Singh
(Supra),
nonetheless
considering
the
exercise that has to be done and the
provisions for transfer, as contained in the
Police
Regulations,
there
has
been
sufficient compliance.

21.In these circumstances, we are
clearly of the opinion that, though we have
found that the notification constituting the
Board is not traceable to Section 2 of the
Police Act, the same at the highest,
amounts to an irregularity and not
illegality and would not vitiate the
transfers, if they have been done in terms
of the Regulations and after the approval
of the Board."

15. In this view of the matter, I am of
the considered view that constitution of
Regional Police Establishment Boards can
not be said to be wrong.

In the present case, the transfer order
of the petitioners has been passed after
approval
of
the
Regional
Police
Establishment Board as such it can not be
said to be bad in the eyes of law.

So far as Regulation 520 of the Police
Regulations is concerned, it provides as
under:

520. Transfer of Gazetted Officers are
made by the Governor in Council.

The Inspector General may transfer
Police Officers not above the rank of
Inspector throughout the province.

The Deputy Inspector General of
Police
of
the
range
may
transfer
inspectors, sub-inspectors, head constables
and constables, within his range; provided
that
the
postings
and
transfers
of
inspectors and reserve sub-inspectors in
hill stations will be decided by the Deputy
Inspector-General
of
Police,
Headquarters.

Transfers which result in officers
being stationed far from their homes
should be avoided as much as possible.
Officers above the rank of constable
should ordinarily not be allowed to serve
in districts in which they reside or have
landed property. In the case of constables
the numbers must be restricted as far as
possible.

Sub-inspectors and head constables
should not be allowed to stay in a
particular district for more than six years
1 All Pankaj Kumar and others V. State of U.P.
453
and ten years respectively and in a
particular police station not more than
three years and five years respectively. In
the Tarai area (including the Tarai and
Bhabar Estates) the period of stay of subinspectors, head constables and constables
should not exceed five years."

16. The said regulation only provides
that the transfers which result in officers
being stationed far from their homes
should be avoided as much as possible. It
does
not
mean
that
the
police
officers/personnel should be posted in their
home districts or the districts adjoining to
the home districts. As per the said
regulation the transfers which result in
officers being stationed far from their
homes should be avoided as much as
possible. It does not even prohibit the
transfer to far off places, as such, the
contention raised in this regard by the
learned counsel for the petitioners has no
force.

17. The petitioners were earlier
transferred by orders dated 29.5.2010 and
28.5.2010 and they had challenged the said
orders by filing Writ Petition No. 3838
(SS) of 2010, mainly on the ground that
the transfer orders have been issued with
the approval of the Regional Police
Establishment Board, which has not been
validly constituted and, therefore the
orders are bad. The writ petition was
allowed and the orders dated 29.5.2010
and 28.5.2010 were quashed with liberty to
the opposite parties to pass fresh orders in
accordance with law after approval from
the Board constituted by notification dated
12.3.2008.

18. Since the Full Bench in the case
of Vinod Kumar(Supra) has upheld the
validity of the constitution of various
Police
Establishment
Boards
by
notification dated 12.3.2008 and relying on
the aforesaid Full Bench decision, a
Division Bench of this Court in the case of
State of U.P. & others Vs. C.P. Ravindra
Singh (Supra) has found that in case the
transfer order has been issued with the
approval
of
the
Regional
Police
Establishment Board, it would not render
the transfer order bad, I am of the
considered opinion that in case the transfer
order has been passed with the approval of
the Regional Police Establishment Board,
it would not render the order bad. The
observation of the Court in the order dated
28.8.2010 passed in the Writ Petition No.
3838 (S/S) of 2010 is to be read in the
manner that the approval of the Police
Establishment Board duly constituted was
required. Since the validity of the Regional
Police Establishment Board has been
upheld and the present transfer order has
been issued with the approval of the
Regional Police Establishment Board, the
order impugned can not be said to be bad
in law merely because it was observed by
the Court in its order dated 28.8.2010 that
the approval of the Board constituted by
the notification dated 12.3.2008 was
required.

19. In this view of the matter, I am of
the considered opinion that there is no
illegality or infirmity in the impugned
orders. The petitioners are holding a
transferable post. Transfer is an incident of
service. They are supposed to work
anywhere in the State of U.P. The
petitioners have no right to claim their
posting at a particular place.

20. For the aforesaid reasons the writ
petition being devoid of merit is dismissed.
---------
454 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.04.2011

BEFORE
THE HON'BLE SHRI KANT TRIPATHI,J.

U/S 482/378/407 No. - 3849 of 2008

Dev Sharan Yadav

 ...Petitioner
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Sri Balram Yadav

Counsel for the Respondent:
Govt.Advocate

Code of Criminal Procedure-Section
321-Application
for
withdrawal
of
prosecution-as offence under Section
309 I.P.C.-applicant already deposited
entire
amount
of
embezzlementrejection by magistrate confining its
consideration
on
gravity
of
caseignoring other factors like growing
age, pendency of criminal case for last
28 years-held-not proper direction for
re-consideration issued.

Held: Para 8

The learned Magistrate seems to have
passed
the
impugned
order
in
a
slipshod manner without considering
the relevant facts of the case and
guided himself on the basis of gravity
of the crime and held that it was not in
public interest to allow the prayer for
withdrawal
from
prosecution.
The
gravity of the crime cannot be said to
be the sole guiding factor for deciding
the petition under section 321 of the
Code
of
Criminal
Procedure.
The
learned Magistrate should have taken
into account other relevant factors
such as the old age of the applicant, his
criminal history, if any, as well as the
fact that he had deposited the entire
amount involved the present case. It
was also a relevant factor that the
F.I.R. is of the year 1982 and since
then more than 28 years have elapsed
but the trial is still pending with no
logical progress. Was it in public
interest to keep the trial pending after
about 28 years specially in a case
where embezzled amount had been
deposited and the Public Prosecutor
wanted
withdrawal
from
the
prosecution. All these facts need to be
given due consideration by the learned
Magistrate
while
considering
the
application filed under section 321 of
the Code of Criminal Procedure. In
view of the fact that the learned
Magistrate has not considered all the
relevant aspects of the matter and
passed
the
impugned
order
in
a
summary manner, it would be just and
expedient
to
direct
the
learned
Magistrate to reconsider the matter.
Case law discussed:
(1980) 3 SCC 435; (1976) 4 SCC 250; 2005
(51) ACC 724 (SC)

(Delivered by Hon'ble Shri Kant Tripathi,J.)

1. Heard learned counsel applicant
and learned AGA for the respondents
and perused the record.

2. Counter and rejoinder affidavits
have been exchanged.

3. With the consent of the learned
counsel for the parties, this application
is being disposed of finally.

4. It appears that the applicant is
an accused in the case crime no. 197 of
1982, under section 409 I.P.C., Police
Station-Inayatnagar, District-Faizabad,
pending in the court of First Judicial
Magistrate, Faizabad. The Assistant
Prosecuting Officer in-charge of the
case moved an application under section
321 of the Code of Criminal Procedure
for withdrawal from the prosecution of