# Phuleshwar v. Smt. Maya Niranjan and another

- **Citation:** (2005) 1 ILRA 69
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-12-20
- **Case number:** Criminal Misc. Writ Petition No. 6160 of 2002
- **Bench:** Ravindra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phuleshwar-v-smt-maya-niranjan-and-another-40381
- **Pages:** 4

## Headnote

Sri Ashok Nath Tripathi
Sri B.K. Tripathi
Sri N.K. Sharma
A.G.A.
S.C.

Code of Criminal Procedure-Section 482
-Protest Petition-final report in offence
under section 498-A, 323 I.P.C. 3⁄4 Dowry
Prohibition Act submitted- On Protest
application without holding any Reinvestigation simply on the basis of
protest application as well as on final
report
-held-
illegal
without
reinvestigation on without treating the
protest
application
as
complaint
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
70
impugned order passed by the Court,
below can not sustain.

Held: Para 5

It also appears that the learned Chief
Judicial Magistrate, Ghaziabad has not
considered the investigation done by the
Investigating
Officer.
In
such
circumstance, the learned Chief Judicial
Magistrate,
Ghaziabad
was
under
obligation
to
send
the
matter
for
reinvestigation or to proceed further as a
complaint case, as such the impugned
order dated 30.5.1995 is illegal which is
liable to be setaside. The order dated
10.9.2002 passed by learned Sessions
Judge, Ghaziabad in Criminal Revision
No. 445 of 2002 is also illegal order
because he has also not considered the
settled legal position. As such the order
dated 10.9.2002 is also liable to be
setaside. Therefore, the impugned order
dated 30.5.1996 passed by learned Chief
Judicial Magistrate, Ghaziabad and order
dated 10.9.2002 passed by
learned
Sessions Judge, Ghaziabad in Criminal
Revision No. 445 of 2002 are setaside.

## Text

http://www.allahabadhighcourt.nic.in
1All] Phuleshwar V. Smt. Maya Niranjan and another
69
forget';
school
of
thought
in
the
administration of contempt jurisdiction."

31. Considering her conduct and
also taking into account that her career
spanning more than a decade is marred
with more than sixty contempt cases and
considering the fact that the State is the
largest litigant and if in such cases the
recalcitrant officers are handled with kid
gloves it would act as spark to tinder and
the flame may engulf the entire lot. In my
opinion, the court would be failing in its
duty by merely imposing fine and if no
deterrent punishment is awarded the very
faith of the people in efficacy of the
courts order would be shaken and it
would send down a wrong message that
defiance, even after stricture, costs only
apology or fine. The court is conscious
that Smt. Maya Niranjan is a young
officer having put in only about more than
a decade of service but her conduct is
such that brooks no apathy as the public
interest in due administration of justice
and upholding the dignity of the courts, is
more sacred than the career of an
individual.

32.

For
the
reasons
given
hereinabove,
Smt.
Maya
Niranjan,
opposite party no.1 is hereby sentenced to
two months simple imprisonment and a
fine of Rs.2000/- payable within four
weeks from today to the Registrar General
of this court. In case of default, she would
further
undergo
one
month's
imprisonment.

Smt. Maya Niranjan, who is present
in court should be taken in custody by the
Court Officer of this court and sent to Jail
through the Chief Judicial Magistrate,
Allahabad forthwith to serve out the
sentence.

With regard to filing of false
affidavit, the court would pass a separate
order.

 Application Allowed.

Let a copy of this order be sent to the
Chief Secretary, Government of Uttar
Pradesh,
Secretary,
Education
(Secondary), U.P., Lucknow with the
hope that they would administratively
deal with Smt. Maya Niranjan.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.12.2004.

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Writ Petition No. 6160 of 2002

Neeraj Tyagi

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Santosh Tripathi
Sri Dharmendra Pratap Singh
Sri sanjay Goswamy

Counsel for the Respondents:
Sri Ashok Nath Tripathi
Sri B.K. Tripathi
Sri N.K. Sharma
A.G.A.
S.C.

Code of Criminal Procedure-Section 482
-Protest Petition-final report in offence
under section 498-A, 323 I.P.C. 3⁄4 Dowry
Prohibition Act submitted- On Protest
application without holding any Reinvestigation simply on the basis of
protest application as well as on final
report
-held-
illegal
without
reinvestigation on without treating the
protest
application
as
complaint
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
70
impugned order passed by the Court,
below can not sustain.

Held: Para 5

It also appears that the learned Chief
Judicial Magistrate, Ghaziabad has not
considered the investigation done by the
Investigating
Officer.
In
such
circumstance, the learned Chief Judicial
Magistrate,
Ghaziabad
was
under
obligation
to
send
the
matter
for
reinvestigation or to proceed further as a
complaint case, as such the impugned
order dated 30.5.1995 is illegal which is
liable to be setaside. The order dated
10.9.2002 passed by learned Sessions
Judge, Ghaziabad in Criminal Revision
No. 445 of 2002 is also illegal order
because he has also not considered the
settled legal position. As such the order
dated 10.9.2002 is also liable to be
setaside. Therefore, the impugned order
dated 30.5.1996 passed by learned Chief
Judicial Magistrate, Ghaziabad and order
dated 10.9.2002 passed by
learned
Sessions Judge, Ghaziabad in Criminal
Revision No. 445 of 2002 are setaside.

(Delivered by Hon'ble Ravindra Singh. J.)

1. Heard Sri Santosh Tripathi,
learned counsel for the petitioner, learned
A.G.A and Sri A.N.Tripathi, learned
counsel for the respondent no.2.

2. This writ petition has been filed
against order dated 30.5.1996, passed by
learned
Chief
Judicial
Magistrate,
Ghaziabad, by which the final report
submitted by the Investigating Officer
was rejected and the petitioner ahad been
summoned to face trial for the offence
punishable under Sections 498-A, 323
I.P.C. And 3⁄4 Dowry Prohibition Act and
the order dated 10.9.2002 passed by
learned Sessions Judge, Ghaziabad in
Criminal
Revision No.445 of 2002, whereby the
revision filed by the petitioner was
dismissed.

It is contended by the learned
counsel for the petitioner in which the
final report was submitted by the
Investigating
Officer.
Thereafter,
respondent no.2 field a protest petition in
the court of learned Chief Judicial
Magistrate, Ghaziabad and filed affidavit
of the witnesses. Learned Chief Judicial
Magistrate, Ghaziabad relying upon the
afidavits filed by the respondent no.2 had
relied upon the protest petition of
petitioner and affidavits filed by the
witnesses and had taken cognizance
against petitioner while rejecting the final
report.

3. It is contended that from the
perusal of the impugned order dated
30.5.1996, it is clear that the learned
Magistrate had ignored the material
collected by the Investigating Officer
during investigation, as such he had not
taken into account the investigation done
by the Investigating Officer. It is
contended that if the learned Magistrate
was not satisfied with the investigation
done by the Investigating Officer, the
matter
could
have
been
sent
for
reinvestigation
or
if
the
learned
Magistrate was relying upon the protest
petition and the affidavits filed by the
witnesses, the protest petition could have
been treated as complaint case and the
procedure prescribed for complaint case
could have been followed. The learned
Magistrate neither sent the matter for
reinvestigation nor he treated this protest
writ petition as complaint and not
followed the procedure prescribed for a
complaint case, as such the impugned
http://www.allahabadhighcourt.nic.in
1All] Neeraj Tyagi V. State of U.P. and another
71
order is illegal which is liable to be
setaside.

4. This contention is opposed by
learned A.G.A. and Sri A.N. Tripathi,
learned counsel for the respondent no. 2
by submitting that there is sufficient
material present on the record to show
that the petitioner has committed the
alleged offence and after considering all
the facts and circumstances of the case,
the learned Chief Judicial Magistrate,
Ghaziabad has summoned the petitioner
to face trial by rejecting the final report.
5. From the perusal of the record as
well as the impugned order dated
30.5.1996, passed by learned Chief
Judicial Magistrate, Gaziabad, it appears
that the learned Chief Judicial Magistrate,
Ghaziabad had considered only protest
petition, final report and the affidavit filed
by respondent no. 2 and had taken
cognizance against the petitioner and
rejected the final report. It also appears
that the learned Chief Judicial Magistrate,
Ghaziabad
has
not
considered
the
investigation done by the Investigating
Officer. In such circumstance, the learned
Chief Judicial Magistrate, Ghaziabad was
under obligation to send the matter for
reinvestigation or to proceed further as a
complaint case, as such the impugned
order dated 30.5.1995 is illegal which is
liable to be setaside. The order dated
10.9.2002 passed by learned Sessions
Judge, Ghaziabad in Criminal Revision
No. 445 of 2002 is also illegal order
because he has also not considered the
settled legal position. As such the order
dated 10.9.2002 is also liable to be
setaside. Therefore, the impugned order
dated 30.5.1996 passed by learned Chief
Judicial Magistrate, Ghaziabad and order
dated
10.9.2002
passed
by
learned
Sessions Judge, Ghaziabad in Criminal
Revision No. 445 of 2002 are setaside.

6. Considering all the facts and
circumstances of the case learned Chief
Judicial Magistrate, Ghaziabad is directed
to pass a fresh order on police report in
accordance with the provisions of the law
within a period of two months from today.

With this observation, this writ
petition is finally disposed of.
Petition Disposed of.
---------
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
72
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.11.2004

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 46983 of 2004

Amit Kumar Singh

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

Counsel for the Petitioner:
Sri Deepak Jaiswal
Sri R.L. Singh

Counsel for the Respondents:
C.S.C.

Dying
in
Harness
Rules,
1974Compassionate
appointment-Petitioner
accepted appointment on class IV postThus his claim for appointment under
Dying in Harness Rules stood exhaustedTherefore, held, relief of his adjustment
on class III post after already having
availed
benefit
of
compassionate
appointment cannot be granted.

Held: Para 5

The Government Order dated 28.5.2004
would also not help the petitioner. It
only
provides
that
compassionate
appointment should not be given on a
higher post than the one on which the
deceased employee was working. The
same cannot be interpreted to mean that
such an appointment should necessarily
be made on a post equivalent to the one
on which the deceased employee was
working. Since the same only provides
that such appointment cannot be given
on a higher post, it would not mean that
the
dependent
cannot
be
given
appointment on a lower post. In the
present case the petitioner was offered
appointment on a class IV post and on
his acceptance of the same, his claim for
appointment under the Dying in Harness
Rules stood exhausted. In the absence of
any provision for re-considering his claim
for appointment on a higher post when it
falls vacant, in my view, the relief for
adjustment on a class III post after
already having once availed the benefit
of
appointment
on
compassionate
ground, cannot now be granted.
Case law discussed:
(1994) 6 SCC 560
2000 (3) UPLBEC 2522

(Delivered by Hon'ble Vineet Saran, J.)

1. The father of the petitioner was
Senior clerk (a Class III post) in Nagar
Panchayat, Phoolpur, Azamgarh. He died
in harness on 20.7.1998. The petitioner
thereafter applied for appointment on
compassionate ground under the Dying in
Harness Rules, 1974. By an order dated
13.12.1999 the petitioner was given
appointment on a class IV post as Peon in
Nagar Panchayat Phoolpur, Azamgarh.
The petitioner now claims that since he is
qualified for being appointed on a class
III post, which was not vacant at the time
when he was given appointment on
compassionate ground in the year 1999
and has now fallen vacant on 10.12.2003,
he should be adjusted on such class III
post. In support of his contention he relies
on a Government Order dated 28.5.2004
wherein in Paragraph 3 it has been stated
that the dependents of the employee who
die in harness should not be appointed on
a higher post than that on which the
deceased
employee
was
working.
According to the petitioner the dependent
of an employee thus ought to be given
employment on such post on which the
deceased employee was working if he has
the
requisite
qualifications
for
appointment on such post. He thus
contends that since the petitioner has the
requisite qualification for appointment on