# Raj Kumar Saroj v. State of U.P. & Anr

- **Citation:** (2023) 2 ILRA 196
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-30
- **Case number:** Matters Under Article 227 No. 414 of 2024
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-saroj-v-state-of-u-p-anr-51094
- **Pages:** 7

## Headnote

Law
-
Police
Act
1861
-
Sectiontion 29 -Indian Penal Code,1860Sectiontion 406-Charge against the petitioner
is of having breached the court's order-
impugned order punishing the petitioner under
Sectiontion 29 of the U.P. Police Act and lodging
F.I.R. against the petitioner u/s 406 I.P.C. -the
power to examine such a complaint has to be
exercised by the District Magistrate in case the
information has been received by a Magistrate
other than a District Magistrate-in the event the
Magistrate himself takes notice of -then the
matter will have to be sent to another
Magistrate for conducting the enquiry after
putting the Officer to notice- same Magistrate
cannot be the witness and the judge himself-
procedure adopted by the learned Magistrate
was not in conformity with Sectiontion 29 of the
Police Act 1861 read with the Regulations.
Petition allowed. (E-9)

Cases cited:

## Text

196 INDIAN LAW REPORTS ALLAHABAD SERIES
limitation and in the absence of any clause
condoning the delay by showing sufficient
cause after the prescribed period, there is
complete exclusion of Section 5 of the
Limitation Act. Accordingly, one cannot
apply Section 5 of the Limitation Act, 1963
to the aforesaid provision.

8. In light of the above, no
interference is required in this petition and
the same is, accordingly, dismissed.
----------
(2023) 2 ILRA 196
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.01.2024
BEFORE

THE HON'BLE SHAMIM AHMED, J.

Matters Under Article 227 No. 414 of 2024

Raj Kumar Saroj ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Ashok Kumar Singh, Mukesh Sharma

Counsel for the Respondents:
G.A.

Criminal
Law
-
Police
Act
1861
-
Sectiontion 29 -Indian Penal Code,1860Sectiontion 406-Charge against the petitioner
is of having breached the court's order-
impugned order punishing the petitioner under
Sectiontion 29 of the U.P. Police Act and lodging
F.I.R. against the petitioner u/s 406 I.P.C. -the
power to examine such a complaint has to be
exercised by the District Magistrate in case the
information has been received by a Magistrate
other than a District Magistrate-in the event the
Magistrate himself takes notice of -then the
matter will have to be sent to another
Magistrate for conducting the enquiry after
putting the Officer to notice- same Magistrate
cannot be the witness and the judge himself-
procedure adopted by the learned Magistrate
was not in conformity with Sectiontion 29 of the
Police Act 1861 read with the Regulations.
Petition allowed. (E-9)

Cases cited:

1. Pramod Kumar Sharma Vs St. of U.P. &
ors.(Special Appeal No.1453 of 2010)

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Ashok Kumar Singh,
learned counsel for the petitioner and Sri
S.P. Tiwari, learned A.G.A.-I for the State
as well as perused the record.

2. The instant petition under Article
227 of The Constitution of India has been
filed with following relief:-

"Wherefore,
it
is
most
respectfully prayed that this Hon'ble Court
may kindly be pleased to set aside the
impugned order dated 19.01.2024 passed
in Misc. Case No.554/2023 (State Vs.
S.H.O. Mankapur, Gonda) by the Court of
Additional District and Session Judge,
Court No.3, Gonda."

3. Learned counsel for the petitioner
submits that on 23.05.2015, police of
Police Station Mankapur, District Gonda
recovered a Truck bearing Registration No.
UP-32-A-9016 and an F.I.R. was lodged as
Case Crime No. Nil/2015, under Sections
41, 411, 413, 420, 467, 468, 487 I.P.C. at
Police Station Mankapur, District Gonda,
which was later on converted to Case
Crime No.0999/2015.

4. He further submits that thereafter
the matter was investigated by the
Investigating Officer and charge sheet was
submitted before the learned court below.
He further submits that during trial on
23.08.2023, the court of learned Additional
2 All. Raj Kumar Saroj Vs. State of U.P. & Anr.
197
District and Sessions Judge, Court No.3,
Gonda issued an order in Session Trial
No.216 of 2018 directing the S.H.O.
Kotwali Mankapur, Gonda to get the
physical verification report of the case
property i.e. Truck (Registration No. UP32-A-9016).
Thereafter,
the
S.H.O.
Mankapur, Gonda sent a letter to the
Regional Transport Officer, District Gonda
for physical verification of the aforesaid
truck.
On
30.08.2023,
the
In-charge
Inspector
(S.H.O.),
Police
Station
Mankapur, District Gonda submitted an
application for extension of time for
physical verification of the aforesaid truck.

5. He further submits that on
30.08.2023, the learned trial court issued a
letter to the Superintendent of Police,
Gonda directing him to take action against
the S.H.O. Mankapur, Gonda and also to
submit the physical verification report
before the trial court. Thereafter, on
01.09.2023,
the
A.R.T.O.,
Gonda
completed the physical verification of the
truck and submitted its report to the S.H.O.
Mankapur, Gonda, which was submitted by
him before the learned trial court on
12.09.2023.

6. He further submits that on
26.09.2023, the learned trial court passed
an order directing the office to register
Misc. Case against the In-charge / S.H.O.,
Police Station Mankapur, District Gonda.
Thereafter, on 03.10.2023, the learned trial
court issued notice to the S.H.O. Mankapur
to submit his explanation to the notice
issued by opposite party no.2 personally on
10.10.2023. Futher, on 10.10.2023, the then
In-charge Inspector (S.H.O.), Police Station
Mankapur, Gonda / petitioner submitted his
report before the learned trial court stating
therein that on 10.10.2023, he has taken
charge of Police Station Mankapur, District
Gonda.

7. He further submits that on
11.10.2023, the opposite party no.2 issued a
notice to the then In-charge Inspector /
S.H.O., Police Station Mankapur, Gonda to
submit his explanation before the learned
trial court personally on 19.10.2023.
Thereafter, on 19.10.2023, the learned trial
court issued a notice to the Superintendent
of Police, District Baghpat directing him to
produce the then S.H.O. Mankapur, District
Gonda, namely, Sudhir Kumar Singh for
evidence on 30.10.2023 in Misc. Case
No.554
of
2023.
However,
the
Superintendent of Police, Baghpat vide
letter No. RI-Report/2023 dated 06.11.2023
informed the opposite party no.2 that
Inspector Sudhir Kumar Singh has not
reported in the District Baghpat till
06.11.2023. Thereafter, on 15.11.2023, the
opposite party no.2 issued Non Bailable
Warrant against the then S.H.O. Mankapur,
namely, Sudhir Kumar Singh and directed
the
In-charge
Inspector
/
S.H.O.,
Mankapur, Gonda to produce the accused
on 30.11.2023. Thereafter, on 30.11.2023,
the learned trial court issued notice to the
petitioner for his evidence in Misc. Case
No.554/2023.

8. He further submits that on
11.12.2023, the petitioner was on urgent
duty hence he failed to appear on
11.12.2023 for adducing his evidence in
Misc. Case No.554/2023. On 19.01.2024,
the learned trial court passed the impugned
order
punishing
the
petitioner
under
Section 29 of the U.P. Police Act and
lodging F.I.R. against the petitioner under
Section 406 I.P.C.

9. He further submits that as per the
report submitted by the Assistant Regional
198 INDIAN LAW REPORTS ALLAHABAD SERIES
Transport Officer vide paper No.5-B, there
is no allegation of theft or misappropriation
of any valuable part of case property. The
police arrested the accused Ram Tirath with
truck in question which contains different
chasis number and engine number. The said
truck was not registered in the office of
R.T.O., Gonda and the number plate
bearing no. U.P.-32-A-9016 is also false
and fabricated. Even till date, no one has
claimed the ownership of the said truck. He
further submits that the sessions trial
regarding the aforesaid crime is still
pending and the alleged truck is the case
property, hence, it could not be disposed of.

10. He further submits that the
learned trial court had exceeded its
jurisdiction by registering a Misc. Case
against the then S.H.O. Mankapur, Gonda
without mentioning that under which
Section or Act the Misc. Case is being
registered. He further submits that as per
record, the Presiding Officer, the Opposite
Party No.2 is complainant in the said Misc.
Case and he himself tried the said Misc.
Case in his own court which is against the
law. He further submits that the learned
trial court was supposed to send the matter
for appropriate action to the competent
authority / District Magistrate, Gonda for
action under Section 29 of U.P. Police Act.

11. He further submits that no part of
the truck is missing and no one has lodged
any complaint about the misappropriation
of any valuation security and even no one
has claimed the ownership of said truck,
hence, the prosecution under Section 406
I.P.C. as directed by the learned trial court
is also an abuse of process of Court. He
further submits that no case is made out
against the petitioner under Section 406
I.P.C. as the petitioner has not committed
any willful breach and is also not guilty of
any violation of duty or neglect or any
lawful order made by competent authority
even he was also not a party in the Misc.
Case No.554/2023, hence, the punishment
order against the petitioner is absolutely
illegal, arbitrary and malafide. He further
submits that the impugned order suffers
from material illegality and infirmity,
which apparently from the face of record
appears to be unsustainable in the law and
the same is liable to be set aside as the
same is passed in gross violation of law.

12. In support of his arguments,
learned counsel for the petitioner has relied
upon the judgment rendered by a Division
Bench of this Court in the case of Pramod
Kumar Sharma Vs. State of U.P. &
Others (Special Appeal No.1453 of 2010).

13. On the other hand, learned
A.G.A.-I for the State submits that the
impugned order has been rightly passed by
the
learned
trial
court
after
due
consideration of material available before
it, as such, it does not require any
interference by this Court, therefore, the
instant petition is liable to be dismissed at
this stage only. He further submits that the
petitioner having not performed his duty in
compliance
of
the
direction
of
the
Magistrate, the punishment was justified
and the petitioner can avail of his remedies
as available to him in law.

14. Having heard learned counsel for
the parties and having perused the records,
it is evident that the charge levelled by the
learned Magistrate during the course of a
judicial proceeding against the petitioner
was of breach of duty by not complying
with the directions of the Court. The
learned Magistrate, therefore, proceeded to
issue a notice to the petitioner calling for an
explanation. This power was exercised by
2 All. Raj Kumar Saroj Vs. State of U.P. & Anr.
199
the Magistrate purportedly under Section
29 of the Police Act, 1861 which is
gainfully reproduced bellow:-

"Section
29.
Penalties
for
neglect of duty, etc.- Every Police Officer
who shall be guilty of any violation of duty
or wilful breach or neglect of any rule or
regulation or lawful order made by
competent
authority,
or
who
shall
withdraw from the duties of his office
without permission, or without having
given previous notice for the period of two
months, or who, being absent on leave,
shall fail, without reasonable cause, to
report himself for duty on the expiration of
such leave, or who shall engage without
authority in any employment other than his
police duty, or who shall be guilty of
cowardice,
or
who
shall
offer
any
unwarrantable personal violence to any
person in his custody shall be liable, on
conviction before a Magistrate to a penalty
not exceeding three months' pay, or to
imprisonment, with or without hard labour,
for a period not exceeding three months, or
to both."

15. The said provision indicates that a
person has to be found guilty of violation
of duty or wilful breach or neglect of any
rule or regulation or a lawful order made by
competent authority, and if the same results
in conviction by a Magistrate, then a
penalty shall be imposed not exceeding
three months pay or imprisonment in the
manner prescribed therein.

16. The charge against the petitioner
is of having breached the court's order
which was a lawful order made by a
competent Magistrate. The aforesaid willful
neglect of duty or breach of duty has been
made punishable, and from the U.P. Police
Regulations, Chapter XXXII, it appears
that a procedure has been provided to deal
with such situations. The provisions
relating to such enquiry if being undertaken
under Section 29 of the Police Act 1861 are
contained in Regulation 484 and 486 of the
Police Regulations. Regulation 484 is
quoted below:-

"Regulation 484. The nature of
the inquiry in any particular case will vary
according to the nature of the offence. If the
offence is cognizable or non-cognizable
according to Schedule II of the Criminal
Procedure Code and information of it is
received by the District Magistrate he may
in exercise of his powers under the
Criminal Procedure Code either-

(1)Make or order a magisterial
inquiry; or

(2)Order and investigation by the
police.

If the information is received by a
Magistrate
other
than
a
District
Magistrate, an he takes cognizance of the
offence, he should report the case at once
to the District Magistrate who will
withdraw it to his own Court under Section
528 (now Section 410/411), Criminal
Procedure Code. The District Magistrate
may then act as though the original
complaint had been made to him.

This power extends to cases
under Section 29 of the Police Act, but
magisterial inquiry in cases under this
section will be ordered only in very
exceptional circumstances."

17. A perusal of the aforesaid
regulation indicates that the power to
examine such a complaint has to be
exercised by the District Magistrate in case
the information has been received by a
Magistrate other than a District Magistrate.
The powers in the said regulations have
200 INDIAN LAW REPORTS ALLAHABAD SERIES
been extended to cases under Section 29 of
the Police Act.

Regulation 486 in relation to
neglect of duty under Section 29 is quoted
below:

"Regulation
486.
When
the
offence alleged against a police officer
amounts to an offence only under Section 7
of the Police Act, there can be no
magisterial inquiry under the Criminal
Procedure Code. In such cases, and in
other cases until and unless a magisterial
inquiry is ordered, inquiry will be made
under the direction of this Superintendent
of Police in accordance with the following
rules:-

(I)Every information received by
the police relating the commission of a
cognizable offence by a police officer shall
be dealt with in the first place under
Chapter XIV (now Chapter XII), Criminal
Procedure Code, according to law, a case
under
the
appropriate
section
being
registered in the police station concerned
provided that-

(1)if the information is received,
in the first instance, by a Magistrate and
forwarded by the District Magistrate to the
police, no case will be registered by the
police;

(2)if the information is received,
in the first instance by the police, the report
required
by
Section
165,
Criminal
Procedure Code, shall be forwarded to the
District Magistrate, and when forwarding it
the Superintendent of Police shall note on it
with his own hand what steps are being
taken as regards investigation or the
reasons for refraining from investigation;

(3)unless investigation is refused
by the Superintendent of Police under
Section 157 (1)(b), Criminal Procedure
Code and not ordered by the District
Magistrate under Section 159, or unless the
District Magistrate orders a magisterial
inquiry under Section 159, investigation
under Section 159, Criminal Procedure
Code, shall be made by a police officer
selected : by the Superintendent of Police
and higher in rank than the officer
charged;

(4)On the conclusion of the
investigation and before the report required
by Section 173, Criminal Procedure Code,
is prepared, the question whether the
officer charged should or should not be
sent for trial shall be decided by the
Superintendent of Police. Provided that
before an officer whose dismissal would
require the concurrence of the Deputy
Inspector General under paragraph 479 is
sent for trial by the Superintendent of
Police, the concurrence of the Deputy
Inspector General must be obtained;

(5)the
charge-sheet
or
final
report under Section 173, or Section 169,
Criminal Procedure Code, as the case may
be, shall be sent to the District Magistrate;
if the Superintendent of Police or the
Deputy Inspector General had decided
against a prosecution, a note by the
Superintendent of Police giving the reasons
for this decision shall be endorsed on, or
attached to the final report;

(6)when the reason for not
instituting a prosecution is that the charge
is believed to be baseless, no further action
will be necessary; if the charge is believed
to be true and a prosecution is not
undertaken owing to the evidence being
considered insufficient or for any other
reasons the Superintendent may, when the
final report under Section 173, Criminal
Procedure Code, has been accepted by the
District Magistrate; take departmental
action as laid down in paragraph 490.

II. When information of the
commission by a police officer of a noncognizable offence (including an offence
2 All. Raj Kumar Saroj Vs. State of U.P. & Anr.
201
under Section 29 of the Police Act) is
given in the first instance to the police, the
Superintendent of Police may, if he sees
reason to take action, either (a) proceed
departmentally as laid down under head
III of this paragraph and in paragraph
490, or (b) as an alternative to, or at any
stage of the departmental proceedings,
forward a port in writing to the District
Magistrate with a request that he will take
cognizance of the offence under Section
190(1)(b),
Criminal
Procedure
Code;
provided that reports against Police
Officers
of
having
committed
noncognizable offences will (when made to the
police and unless there are special reasons
for desiring a magisterial inquiry or formal
police investigation under the Code)
ordinarily be inquired into departmentally
and will not ordinarily and then only if be
referred to the District Magistrate until
departmental
inquiry
is
complete,
a
criminal prosecution is desired.

On receiving information either
by means of a report in writing from the
Superintendent of Police as laid down
above, or otherwise as laid down in Section
190(1)(a) and (c), Criminal Procedure
Code, of the commission by a Police
Officer of a non-cognizable offence, the
District Magistrate may, subject to the
general provisions of Chapter XV (now
Chapter XIII), Part B, Criminal Procedure
Code-

(a) proceed with the case under
Chapter XVII (now Chapter XVI) Criminal
Procedure Code;

(b) order an inquiry by a
Magistrate or an investigation by the police
under Section 202, Criminal Procedure
Code; or an investigation by the police
under Section 155(2);

(c) decline to proceed under
Section 203, Criminal Procedure Code.

If an investigation by the police is
ordered, it would be made under Section
155(3), Criminal Procedure Code by an
officer selected by the Superintendent of
Police and higher in rank that the officer
charged and all further proceedings will be
exactly as laid down for cognizable cases
in paragraph 486 (1), (4), (5) and (6)
above.

If no investigation by the police is
ordered, and the District Magistrate, after
or without magisterial inquiry, declined to
proceed criminally with the case, the
Superintendent of Police will decide, in
accordance with the principles set forth in
paragraph 486 (1) (6) above and subject to
the orders contained in paragraph 494,
whether departmental proceedings under
paragraph 490 are required.

III.- When a Superintendent of
Police sees reasons to take action or
information given to him, or on his own
knowledge or suspicion, that a Police
Officer subordinate to him has committed
an offence under Section 7 of the Police Act
or non-cognizable offence (including an
offence under Section 29 of the Police
Act) of which he considers it unnecessary
at that stage to forward a report in writing
to the District Magistrate under Rule II
above he will make or cause to be made by
an officer senior in rank to the officer
charged, a departmental inquiry sufficient
to test the truth of the charge. On the
conclusion of this inquiry he will decide
whether further action is necessary and if
so, whether the officer charged should be
departmentally tried, or whether the
District Magistrate should be moved to
take cognizance of the case under the
Criminal Procedure Code; provided that
before the District Magistrate is moved by
the Superintendent of Police to proceed
criminally with a case under Section 29 of
the Police Act or other non-cognizable
202 INDIAN LAW REPORTS ALLAHABAD SERIES
section of the law against an Inspector or
sub Inspector, the concurrence of the
Deputy
Inspector
General
must
be
obtained. Prosecution under Section 29
should rarely be instituted and only when
the offence cannot be adequately dealt
with under Section 7."

18. The aforesaid provision also
indicates that the matter shall be taken up
by
the
Superintendent
of
Police
departmentally or by the District Magistrate
in manner indicated above. In the event the
Magistrate himself takes notice of it then in
view of the provisions of Section 190
Criminal procedure Code as referred to
therein, the matter will have to be sent to
another Magistrate for conducting the
enquiry after putting the Officer to notice.

19. The procedure therefore makes it
amply clear that the same Magistrate
cannot be the witness and the judge
himself. The procedure adopted by the
learned Magistrate to proceed against the
petitioner was therefore not in conformity
with the provisions of Section 29 of the
Police Act 1861 read with the Regulations
referred to hereinabove.

20. The learned A.G.A.-I has not been
able to point out any contrary provision or
conferment of power on the Magistrate so
as to allow him to proceed to convict the
petitioner in the circumstances indicated
above.

21. Accordingly, the order dated
19.01.2024
passed
in
Misc.
Case
No.554/2023 (State Vs. S.H.O. Mankapur,
Gonda) by the Court of learned Additional
District and Sessions Judge, Court No.3,
Gonda is hereby set aside leaving it open
to the competent authority to proceed in
accordance with the provisions as indicated
above in the event such powers can be
invoked on the facts of the present case.

22. The writ petition is accordingly
allowed.

23. No order as to the costs.
----------
(2023) 2 ILRA 202
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.02.2024
BEFORE

THE HON'BLE JASPREET SINGH, J.

Matters Under Article 227 No. 4239 of 2023

Upendra Nath Srivastava ...Petitioner
Versus
Addl. District & Sessions Judge/Special
Judge, Pocso Act, Court No. 1, Lko & Ors.
 ...Respondents

Counsel for the Petitioner:
Ravi Shanker Tewari, Anant Tewari

Counsel for the Respondents:
Lalit Kishore Pandey, Pankaj Shukla

Civil Law - Code of Civil Procedure,1908Order 39 Rule 3-Private respondent no.3 had
instituted the suit for permanent injunction- also
moved an application under Order 39 Rule 1
and Sectiontion2 C.P.C.- sham compliance of
Order 39 Rule 3 C.P.C. was made by the private
respondent no.3-private respondent has not
given specific reply to indicate that compliance
has been made-the impugned orders set asidePetition allowed. (E-9)

Cases cited:

1. U.P. Pasi Jagriti Mandal, Lucknow & ors. Vs
Devi Dayal Chauhan & ors. 1997 (1) ARC 518

2. Shiv Kumar Chadha Vs Municipal Corporation
of Delhi & ors.; (1993) 3 SCC 161

(Delivered by Hon'ble Jaspreet Singh, J.)