# Revision no. 360/04, Ramesh v. State

- **Citation:** (2007) 3 ILRA 1032
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-16
- **Bench:** R.K Rastogi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revision-no-360-04-ramesh-v-state-40991
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 362Bar of jurisdiction once the Magistrate
passed
order-treating
the
protest
petition as complaint-statement of the
complaint
as
well
as
the
witness
recorded-can not be reviewed.

Held: Para 7

There is also one more aspect of the
case. In the Cr.P.C. there is no provision
for review of an earlier order passed by
the court, and section 362 Cr.P.C. clearly
bars review of earlier order. In the
present case Sri S.N. Saroj had passed an
order on 28.10.2003 for treating the
protest petition as a complaint and so in
view of the clear bar of seciton 362
Cr.P.C. Sri Amar Nath Kushwaha had no
jurisdiction to review that order holding
it
to
be
illegal
vide
order
dated
30.4.2004.
Case law discussed:
2002 ACR (2) 1693 (SC)
2004 (Cr.) 1135
2006 (1) SCC (Crl.)-575
3 All] Ramesh V. State of U.P.
1033

## Text

1032 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
granted by this Court. Otherwise also if
this kind of tactics is permitted, then it
will be very easy for a mighty person to
grab public property by back door process
in an illegal manner and then to claim its
settlement to get it legalised. This will be
clearly arbitrary and discriminatory and in
violation of principle of natural justice to
the public at large. The benefit to which,
large number of eligible persons may be
entitled cannot be permitted to be given to
an individual in a secret manner without
any opportunity of participation to all
eligible. It has been repeatedly said by the
Apex Court and this Court that in the
matter of public settlement, it has to be
after opportunity of participation to public
at large and, in the manner so provided.
Thus this Court has to reject the claim of
the petitioner for settling the land on
premium basis as that will be in violation
of principle of natural justice as others are
to suffer and that will be laying a bad
precedent of granting premium to wrong
acts certifying the slogan that might is
right. We can take judicial notice of the
fact that now a days, tendency of
encroachment of public land/property is
increasing day by day and thus that has to
be checked although on its beginning
itself and if for any reason that could not
come to notice at its start then as and
when, it comes to the notice of a person
authorised/capable to take action in
accordance with law, There cannot be any
license/premium to a wrong and void act
unless it is permitted in law or it could get
protection in law.

11. For the reasons given above, this
Court is of the view that petitioner has not
been able make out any case for
interference in the impugned orders by
pointing out any illegality.

This petition accordingly fails and is
dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.11.2007

BEFORE
THE HON'BLE R.K RASTOGI, J.

Criminal Misc. Application no. 2749 of
2005

Ramesh

...Applicant
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri Rajul Bhargava

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure-Section 362Bar of jurisdiction once the Magistrate
passed
order-treating
the
protest
petition as complaint-statement of the
complaint
as
well
as
the
witness
recorded-can not be reviewed.

Held: Para 7

There is also one more aspect of the
case. In the Cr.P.C. there is no provision
for review of an earlier order passed by
the court, and section 362 Cr.P.C. clearly
bars review of earlier order. In the
present case Sri S.N. Saroj had passed an
order on 28.10.2003 for treating the
protest petition as a complaint and so in
view of the clear bar of seciton 362
Cr.P.C. Sri Amar Nath Kushwaha had no
jurisdiction to review that order holding
it
to
be
illegal
vide
order
dated
30.4.2004.
Case law discussed:
2002 ACR (2) 1693 (SC)
2004 (Cr.) 1135
2006 (1) SCC (Crl.)-575
3 All] Ramesh V. State of U.P.
1033
(Delivered by Hon'ble R.K. Rastogi, J.)

1. This is an application under
section 482 Cr.P.C. to quash the order
dated 30.4.2004 passed by the Judicial
Magistrate, Mathura in complaint case no.
105 of 2003, Ramesh Vs. Dibban and
others, and the order dated 28.10.2004
passed by the Addl. District & Sessions
Judge, Court No.1, Mathura in Criminal
Revision no. 360/04, Ramesh Vs. State.

2. The facts relevant for disposal of
this application are that the applicant had
moved an application before the S.S.P.
Mathura
on
11.2.2001
with
these
allegations that he was resident of village
Semra police station Shergarh district
Mathura and on the above date at about 9
A.M. complainant's real brother Mukesh
and cousin brothers Pramod and Mahesh
had gone to Shyam Kund to take bath.
The accused Dibban, Prem Chandra,
Hukam, Sunil, Raju, Dalchand and
Chetram, who had pistols, guns and
lathies with them assaulted Pramod,
Mukesh and Mahesh. The accused abused
them and stated that they would not spare
Pramod, Mukesh and Mahesh and on
exhortation of Hukam, Sunil, Chetram,
Dibban & Raju fired at them with an
intent to kill them. The fire done by Sunil
hit Mukesh, that done by Cheram hit
Pramod but fires done by Raju and Prem
Chand did not hit any one. Dal Chand
gave a lathi blow to Mahesh. Upon noise
Shiv Ji, Durga, Bhajan Lal, Vinod etc. of
the same village reached there, who
witnessed the incident and protected
Pramod, Mukesh and Mahesh. The
accused persons went away towards
jungle threatening to kill them. Ramesh
was taking the injured to the police station
but the accused had obstructed the way.
Then he took them to Methodist Hospital
at Mathura where their treatment was
going on. It was, therefore, prayed that
action should be taken and the Station
Officer of the police station should be
directed to register a case against the
accused persons.

3. On the basis of the order passed
by the S.S.P. Mathura on this application
a case was registered against the accused
persons at police station Shergarh as case
creime no. 14A/2001 under sections 147,
148, 149, 307, 323, 504 & 506, I.P.C.and
it was investigated.

4. According to the injury report of
Pramod Kumar he had a fire arm injury
on his chest and left shoulder. Mahesh
had head injury. Mukesh had gun shot
injury on his chest. The police, however,
after investigation submitted a final report
in the case and against that final report,
complainant filed protest petition. On that
protest petition Sri S.N.Saroj, Judicial
Magistrate, Mathura passed an order on
28.10.2003 for treating it as complaint
and he fixed a date for recording
statements of the complainant and his
witnesses under sections 200 and 202
Cr.P.C. Accordingly the statements of the
complainant and his witnesses were
recorded. Thereafter the case was fixed
for order. On 30.4.2004 Sri Amarnath
Kushwaha, who was at that time posted as
Judicial Magistrate, Mathura passed an
order for accepting final report and
rejecting the protest petition. He further
observed in his order that his predecessor
had passed an erroneous order for
registering the protest petition as a
complaint because the protest petition did
not contain full particulars of the incident
and it did not come within the definition
of the word "complaint". Aggrieved with
that order Ramesh filed criminal revision
1034 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
no.360 of 2004 before the Sessions Judge,
Mathura, which was dismissed by Sri
A.K. Mathur, Addl. Sessions Judge, Court
no.1, Mathura vide his order dated
28.10.2004. Aggrieved with both these
orders the complainant has filed this
application under section 482 Cr.P.C.

5. I have heard learned counsel for
the applicant as well as the learned
A.G.A. for the State.

6. The learned counsel for the
applicant cited before me a Division
Bench ruling of this Court in 'Pakhando
and others Vs. State of U.P. and another
2001(43) ACC 1096 in which it has been
held that after filing of the final report by
the police, the Magistrate has got
jurisdiction to treat the protest petition as
a complaint. He further submitted that, in
this way, the view taken by the Magistrate
and the Addl. Sessions Judge that protest
petition could not be treated as a
complaint is erroneous. As regards the
contention of the learned Magistrate that
the protest petition did not contain
particulars of the incident, the learned
counsel for the applicant referred to para
1 of the protest petition, (Annexure no. 5
to the affidavit filed in support of the
application under section 482 Cr.P.C.) in
which complete description of the entire
incident has been given in brief and so the
observation of the Magistrate is erroneous
that the protest petition did not contain
description of the incident. It gives
complete description of the incident as
well as the names of witnesses.

7. There is also one more aspect of
the case. In the Cr.P.C. there is no
provision for review of an earlier order
passed by the court, and section 362
Cr.P.C. clearly bars review of earlier
order. In the present case Sri S.N.Saroj
had passed an order on 28.10.2003 for
treating the protest petition as a complaint
and so in view of the clear bar of seciton
362 Cr.P.C. Sri Amar Nath Kushwaha
had no jurisdiction to review that order
holding it to be illegal vide order dated
30.4.2004.

8. The Hon'ble Apex Court in 'State
of Kerala Vs. M.M.Manikantan Nair'
2002(2) A.Cr.R. 1693 S.C. and in 'R.
Annapurna
Vs.
Ramadugu
Anantha
Krishna Sastry and others' 2004 SCC
(Cr.) 1135 has held that a criminal court
has no power to review its judgment and
it can rectify clerical error under section
362 Cr.P.C. The same view was reiterated
by the Hon'ble Apex Court in 'Surendra
Singh Vs. State of Bihar 2006 (1) SCC
(Cri) 575.

9. In view of the aforesaid rulings of
the Hon'ble Apex Court the order passed
by the Magistrate Sri Amar Nath
Kushwaha on 30.4.2004 recalling the
order of Sri S.N. Saroj dated 28.10.2003
is totally without jurisdiction and the
order of the Addl. Sessions Judge passed
in criminal revision confirming the order
passed by Sri Amar Nath Kushwaha is
also without jurisdiction and both these
orders deserve to be set aside and that of
Sri S.N. Saroj dated 28.10.2003 deserves
to be restored.

10. The application under section
482 Cr.P.C. is, therefore, allowed and the
order dated 30.4.2004 passed by Sri
Amarnath Kushwaha, Judicial Magistrate,
Mathura in Crl. Case no. 105 of 2003,
Ramesh Vs. Dibban and others, and the
order dated 28.10.2004 passed by Sri
A.K. Mathur in Crl. Revision no.360 of
2004, Ramesh Vs. State, are hereby set
3 All] Ram Dutt Agnihotri V. State of U.P. and others
1035
aside and the order dated 28.10.2003
passed by Sri S.N. Saroj, Judicial
Magistrate, Mathura in criminal case
no.105 of 2003, Ramesh Vs. Dibban and
others, is hereby restored and the matter
as
remanded
back
to
the
Judicial
Magistrate, Mathura for passing suitable
orders under section 203/204, Cr.P.C.
after hearing the complainant.

11. The learned Magistrate shall, be
at liberty to pass suitable order as to
whether any case for summoning the
accused is made out or not on the basis of
the evidence of the complainant and his
witnesses under sections 200 and 202
Cr.P.C. as well as other evidence and
circumstances.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2007

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 25974 of 2006

Ram Dutt Agnihotri

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

Counsel for the Petitioner:
Sri Shesh Kumar
Sri Sunil Dubey

Counsel for the Respondents:
Sri Vimal Chandra Misra
Sri S.K. Singh
S.C.

U.P. Basic Education Staff Rules 1973Section 19-Adoption of the provisions of
CCA
Rules-1999
Rule-7
readwith
Constitution of India Art. 311-Dismissal
of
Head
Master-in
Primary
Schoolwithout charge sheet-without holding
enquiry in utter violation of principle of
Natural justice held illegal can not
sustain-a man can not be condemn
without reasonable opportunity.

Held: Para 8

Thus from the above provisions it is
ample clear that before imposing a major
punishment of dismissal from services, it
is
incumbent
upon
the
disciplinary
Authority
to
conduct
a
disciplinary
enquiry against the delinquent officer
either himself or through an officer
subordinate to him as enquiry officer and
the delinquent officer be informed of the
charges levelled against him by means of
a charge sheet along with the proposed
documentary evidence and the name of
the witnesses. It is only thereafter that
an order of punishment of dismissal from
service can be
passed against the
delinquent officer subject to the three
exceptions carved out. In short the
aforesaid rules in a way adopts the
analogy of Article 311 of the Constitution
of
India
and
contemplates
not
to
condemn any person without affording
reasonable opportunity of hearing to
him. Admittedly, in the present case no
disciplinary enquiry was initiated against
the petitioner and the petitioner has not
been found guilty of any misconduct in
any such enquiry so as to inflict the
punishment of dismissal from service.

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Heard Sri Shesh Kumar, learned
counsel appearing for the petitioner and
Sri S.K. Singh, holding brief of Sri Vimal
Chandra Misra learned counsel who
appears for respondents No. 2,3 and 5.
Standing Counsel appears for respondent
No. 1.

2. The petitioner was working
substantively since1986 as Head Master
in Prathamik Vidhyala, District Banda.
He had proceeded on a day's casual leave
on 30th July 2003 and on the same day he