# PratapSingh v. State of U.P. and the

- **Citation:** (2009) 1 ILRA 298
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-03-30
- **Case number:** Criminal Misc. Writ Petition No. 4983 of 2009
- **Bench:** Amar Saran, R.N. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pratapsingh-v-state-of-u-p-and-the-41366
- **Pages:** 5

## Headnote

Constitution of India-Art. 226-Criminal
Writ-Challenging FIR seeking stay of
arrest-offence u/s 420, 423 and 424 IPC
read with U.P. Sugarcane (Regulation of
Supply and purchased Act 1953 Section
22-A-inspection by Sugarcane InspectorNotices several discrepancies in waittage
of loaded sugarcane trolly and empty
trolly-termed as fraud-challenged on
numerous grounds being compoundable
offence-court declined to interfere but
issued general mandamus to all the
judicial officer for strict compliance of
the guide lines given by Apex Court in Lal
Kamal Pratap Singh as well as the full
Bench in Amarauti Case by letter and
sprit.

Held: Para 11

In the light of the aforesaid observations
of the Apex Court in Lal Kamlendra
PratapSingh v. State of U.P. and the
observations of the Full Bench of this
Court in Amarawati it is provided that if
an application is moved before the
competent Magistrate within 3 weeks, a
date may be fixed for appearance of the
petitioner in about a week thereafter.
The petitioner may not be arrested
without permission of the Magistrate
between the date of moving of the
application for surrender and the date
fixed for his appearance in the Court.
The concerned Court may direct the
Public Prosecutor to obtain instructions
from the investigating officer by the date
fixed and thereafter dispose of the bail
application at the earliest in accordance
with the decision in Amarawati's case. It
will also be open for the Court concerned
to release the petitioner on interim bail
in an appropriate case on such terms and
conditions that the concerned Court
deems fit and proper till the next date of
hearing of the bail application, if the
hearing of the case is adjourned or the
Court for any reason is not in a position
to finally dispose of the bail application
on that day, or some further instructions
are needed.
Case law discussed:
AIR 1952 SC 12, AIR 1965 SC 745, Criminal
Appeal No. 538 of 2009, 2005 Cri.L.J. 755.

## Text

298 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
represent 1⁄4 members of the Society
cannot be entertained. The judgements
cited by the learned counsel for the
petitioner has no application with regard
to the maintainability of the writ petition.
The said judgement talks about the
validity of the election conducted by a
Committee after the expiry of the
stipulated
period
conducted
by
a
Committee after the expiry of the
stipulated period contemplated under it s
rule or bye laws.

9. In view of the aforesaid, writ
petition is dismissed as not maintainable.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2009

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE R.N. MISRA, J.

Criminal Misc. Writ Petition No. 4983 of
2009

Pradeep Tyagi

...Petitioner

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

Counsel for the Petitioner:
Sri Diptiman Singh
Sri S.D. Singh

Counsel for the Respondents:
A.G.A.

Constitution of India-Art. 226-Criminal
Writ-Challenging FIR seeking stay of
arrest-offence u/s 420, 423 and 424 IPC
read with U.P. Sugarcane (Regulation of
Supply and purchased Act 1953 Section
22-A-inspection by Sugarcane InspectorNotices several discrepancies in waittage
of loaded sugarcane trolly and empty
trolly-termed as fraud-challenged on
numerous grounds being compoundable
offence-court declined to interfere but
issued general mandamus to all the
judicial officer for strict compliance of
the guide lines given by Apex Court in Lal
Kamal Pratap Singh as well as the full
Bench in Amarauti Case by letter and
sprit.

Held: Para 11

In the light of the aforesaid observations
of the Apex Court in Lal Kamlendra
PratapSingh v. State of U.P. and the
observations of the Full Bench of this
Court in Amarawati it is provided that if
an application is moved before the
competent Magistrate within 3 weeks, a
date may be fixed for appearance of the
petitioner in about a week thereafter.
The petitioner may not be arrested
without permission of the Magistrate
between the date of moving of the
application for surrender and the date
fixed for his appearance in the Court.
The concerned Court may direct the
Public Prosecutor to obtain instructions
from the investigating officer by the date
fixed and thereafter dispose of the bail
application at the earliest in accordance
with the decision in Amarawati's case. It
will also be open for the Court concerned
to release the petitioner on interim bail
in an appropriate case on such terms and
conditions that the concerned Court
deems fit and proper till the next date of
hearing of the bail application, if the
hearing of the case is adjourned or the
Court for any reason is not in a position
to finally dispose of the bail application
on that day, or some further instructions
are needed.
Case law discussed:
AIR 1952 SC 12, AIR 1965 SC 745, Criminal
Appeal No. 538 of 2009, 2005 Cri.L.J. 755.

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

1. Heard learned counsel for the
petitioner and the learned AGA.
1 All] Pradeep Tyagi V. State of U.P. and others
299
2. This writ petition has been filed
for quashing an FIR at case crime No. 22
of 2009, under sections 420, 423 and 424
IPC read with Section 22-A of the U.P.
Sugarcane (Regulation of Supply and
Purchased Act, 1953, (hereinafter referred
to as the Sugarcane Act), at PS Pahasu,
District Bulandshahr.

3. The FIR in this case was lodged
by
the
District
Sugarcane
Officer,
Bulandshahr on 10.2.2009 at 8.30 am.
The allegation in the FIR were that an
inspection was conducted on 6.2.2009 at
3.10 pm in M/s. Triveni Sugar Mills,
Sabitgarh, a sugar-mill run by the
company of which the petitioner was the
occupier. It was found that there was a
discrepancy of 15 kg between the
weighment in the sugarcane loaded
trollies
in
the
weighbridge
No.
2
compared to the empty trollies weighed
by
the
weigbridge
No.
4.
The
agriculturalists were wrongly not given
the slips prepared by the weighment
committes but were given challan nos.
156720 and 152387. Since 4.2.2009 the
payment for sugarcane was made by cash
and not by cheque. Payments for the
sugarcane purchase between 15.1.2009
and 3.2.2009 have not been made. All
these activities were described as a fraud
on the agriculturalists and the occupier
(the petitioner) was held liable for the
same.

4. It is argued by the learned counsel
for the petitioner that the petitioner,
Pradeep Tyagi, was the occupier and he
has wrongly been named as D.K. Tyagi in
the FIR. In view of section 23 of the
Sugarcane
Act there
could be no
prosecution under the aforesaid Sugarcane
Act, except on a complaint made by or
under
the
authority
of
the
Cane
Commissioner or the District Magistrate
concerned. Under section 23(2) there was
also a provision for compounding of the
offence on payment of composition fee
and that prosecution ought not have been
lodged against the petitioner without
giving an opportunity. Some inaccuracies
in weighment are permissible under Rule
33 of the Rules, 1954, framed under the
said Sugarcane Act.

5. Our attention was also drawn to
the entries in the weighment register
(Annexure 4) maintained by the mill for
conteding that if at all the weighment as
per the said record showed that an excess
amount was noted therein, hence the
petitioner could not be held guilty
defrauding
the
farmers
by
underweighment. No complaint has been
made by any farmer or cane grower.

6. As there are allegations also of
commission of offences under sections
420, 423 and 424 IPC apart from section
22-A of the Sugarcane Act, hence the
legal impediment, if any in the application
of the Act will provide no ground for
quashing of the FIR. The value of the
defence material, i.e. notings regarding
the
calibration
of
the
weighbridge
(annexure-4) and as to whether they
resulted
in
overweighment
or
underweighment, and the extent of
discrepancies in weighment, and whether
they fall in permissible limits are all
matters
for
consideration
by
the
investigating agency or the trial court and
this Court cannot adjudicate on these
questions of fact in this writ petition.

7. On a plain reading of the FIR
therefore it cannot be said that prima facie
no cognizable offence is disclosed or that
there are any legal fetters on the conduct
300 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
of the investigation. As on the facts of the
present case, the final relief of quashing
of the FIR cannot be granted, the ancillary
relief of stay of arrest during investigation
can also not be granted (vide the
Constitution Bench decisions in State of
Orissa v. Madan Gopal Rungta, AIR 1952
SC 12, (para 6) and "Under Article 143, of
the Constitution of India; In the matter
of," AIR 1965 SC 745 (para 137).

8. It is significant however that no
complaint has been made by any canegrower or purchaser and taking an overall
view of the matter the offences and
breaches, if any, appear more to be of a
technical nature.

9. In a recent decision of the
Supreme Court dated 23.3.09 in Criminal
Appeal No. 538 of 2009, Lal Kamlendra
Pratap Singh v. State of U.P., which has
been directed to be circulated in the High
Court and in subordinate Courts in U.P. it
has been observed that in appropriate
cases the Court concerned may consider
releasing an accused on interim bail,
pending consideration of his regular bail,
and that arrest was not a must in each case
when an FIR of a cognizable offence was
lodged.

10. The Full Bench of the Allahabad
High Court in Amarawati v. State of U.P.,
2005 Cri.L.J. 755 has been specifically
approved in this decision. In this regard
the Full Bench has held in Amarawati :

i)
Even if a cognizable offence is
disclosed in the FIR or complaint the
arrest of the accused is not a must, rather
the police officer should be guided by the
decision of the Supreme Court in Joginder
Kumar v. State of U.P., 1994 Cr LJ 1981,
before deciding whether to make an arrest
or not.

ii) The High Court should ordinarily
not direct any Subordinate Court to
decide the bail application the same day,
as that would be interfering with the
judicial discretion of the Court hearing
the bail application. However, as stated
above, when the bail application is under
Section
437,
CrPC
ordinarily
the
Magistrate should himself decide the bail
application the same day, and if he
decides in a rare and exceptional case not
to decide it on the same day, he must
record his reasons in writing. As regards
the application under Section 439, CrPC
it is in the discretion of the learned
Sessions Judge considering the facts and
circumstances whether to decide the bail
application the same day or not, and it is
also in his discretion to grant interim bail
the same day subject to the final decision
on the bail application later.

11. In the light of the aforesaid
observations of the Apex Court in Lal
Kamlendra PratapSingh v. State of U.P.
and the observations of the Full Bench of
this Court in Amarawati it is provided that
if an application is moved before the
competent Magistrate within 3 weeks, a
date may be fixed for appearance of the
petitioner in about a week thereafter. The
petitioner may not be arrested without
permission of the Magistrate between the
date of moving of the application for
surrender and the date fixed for his
appearance in the Court. The concerned
Court may direct the Public Prosecutor to
obtain instructions from the investigating
officer by the date fixed and thereafter
dispose of the bail application at the
earliest in accordance with the decision in
Amarawati's case. It will also be open for
1 All] Pradeep Tyagi V. State of U.P. and others
301
the Court concerned to release the
petitioner on interim bail in an appropriate
case on such terms and conditions that the
concerned Court deems fit and proper till
the next date of hearing of the bail
application, if the hearing of the case is
adjourned or the Court for any reason is
not in a position to finally dispose of the
bail application on that day, or some
further instructions are needed.

12. It is made clear that the order
granting interim bail pending hearing of a
regular bail application may be passed in
appropriate cases, but it ought not to be
passed where:

(i) The case involves a grave offence
like murder, dacoity, robbery, rape etc.,
and it is necessary to arrest the accused
and bring his movements under restraint
to infuse confidence among the terror
stricken victims and society at large and
for protecting witnesses.
(ii)The case involves an offence
under the U.P. Gangsters Act and in
similar statutory provisions
(iii) The accused is likely to abscond
and evade the processes of law.
(iv) The accused is given to violent
behaviour and is likely to commit further
offences unless his movements are
brought under restraint.
(v) The accused is a habitual
offender and unless kept in custody he is
likely to commit similar offences again.
(vi) The offence is in the nature of a
scam, or there is an apprehension that
there may be interference with the
investigation or for any other reason the
Magistrate / Competent Court feels that it
is not a fit case for releasing the appellant
on interim bail pending the hearing of the
regular bail.
(vii) An order of interim bail can also
not be passed by a Magistrate who is not
empowered to grant regular bail in
offences
punishable
with
death
or
imprisonment for life or under the other
circumstances enumerated in section 437
Cr.P.C.
(viii) If the Public Prosecutor/
investigating officer can satisfy the
Magistrate/ Court concerned that there is
a
bona
fide
need
for
custodial
interrogation of the accused regarding
various facets of motive, preparation,
commission and aftermath of the crime
and the connection of other persons, if
any, in the crime, or for obtaining
information leading to discovery of
material facts, it may constitute a valid
ground for not granting interim bail, and
the Court in such circumstances may pass
orders for custodial interrogation, or any
other appropriate order.

13. These directions are necessary as
the need to grant plenary powers to the
police to investigate and unravel the
circumstances of a crime are as important
as the need to protect a respectable person
from being unnecessarily sent to jail or
for restraining the police from taking
persons in custody for minor isolated
offences where it may strictly not be
necessary for the police to arrest an
accused at the stage of investigation.

14. It is expected that in all cases
where the Magistrate is not restrained
from granting bail under section 437
Cr.P.C, where an accused moves an
application for consideration of his prayer
for bail through his counsel, even without
orders of the High Court, the Magistrate
may fix a convenient date for the
appearance of the accused, and direct the
Public Prosecutor to seek instructions
302 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
from the investigating officer in the
meanwhile. Between the date of moving
of the surrender application and the date
fixed for appearance of the accused by the
Magistrate, the accused may not be
arrested without permission of the Court
concerned. In case the Magistrate is not in
a position to finally dispose of the bail on
the date fixed, he may consider releasing
the appellant on interim bail till the date
of final hearing of the bail application in
the light of the observations hereinabove.
This direction is needed to prevent all
accused persons whose cases do not fall
within the interdict of section 437 Cr.P.C.
rushing to this Court seeking protection,
and for this Court having to pass orders in
each individual case, creating a huge back
log of criminal writ petitions, which then
engage the attention of a number of
benches, and come in the way of disposal
of the large number of pending division
bench murder and other appeals.

15. With these observations the
petition is disposed of.

16. Copy of this order may be
circulated to all District Judges for
communication to all subordinate Courts,
so that the directions given by the Apex
Court in Lal Kamlendra Pratap Singh v.
State of U.P., the Full Bench in
Amarawati and hereinabove may be
followed by all subordinate Courts in
letter and spirit.

17. Copy of the order may be issued
to the parties on usual charges within 24
hours.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2009

BEFORE
THE HON'BLE S.R. ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 48406 of 2006

V.K. Upadhyaya

...Petitioner

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

Counsel for the Petitioner:
Sri Santosh Kumar Srivastava

Counsel for the Respondents:
Sri Ravi Ranjan
Sri Barun P. Singh
S.C.

Constitution of India-Art.226-Recovery
of excess payment-petitioner not guilty
of concealment of fact or fraud pleaded-
after long period such amount cannot be
recovered.

Held: Para 6:

In the instant case, after more than a
decade the amount of alleged excess
payment is being sought to be recovered
from the petitioner, though it is not
disputed that for the said payment the
petitioner is not at fault and there is no
allegation of fraud or misrepresentation.
Case Law Discussed:
1979 ALJ 1184, 1994(2) SCC 521,1979 ALJ
1184, 1994(2) SCC 521, (1)SCC 149, 1997(1)
SC 353, 2002(3) SCC 302, 2006(1) UPLBEC
399, 2006(10) SCALE 1999.

(Delivered by Hon'ble S.R.Alam, J.)

1. Aggrieved by the impugned order
dated 10th March 2006 (Annexure-1 to the
writ petition) and consequential order
dated 29.6.2006 whereby pay fixation of