# Satya Narain Tripathi and another v. State of U.P. and others

- **Citation:** (2008) 1 ILRA 280
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-01
- **Case number:** Civil Misc. Writ Petition No. 33392 of 2006
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satya-narain-tripathi-and-another-v-state-of-u-p-and-others-41039
- **Pages:** 9

## Headnote

Constitution of India, Art. 19 & 226-Writ
Petition-maintainability-validity of the
list of members of society-challenge
made by member-neither statutory nor
fundamental
right
of
such
member
affected-serous disputed question of
facts involved-petitioner may file civil
suit or approach before the Registrar
under
Section
25
of
the
Society
Registration
Act-petition-held-not
maintainable.

Held: Para 9

In neither of these petitions has any
fundamental right or statutory right of
the
petitioners
been
breached.
The
petitioners have effective alternative
remedy to challenge the election by a
civil suit or under Section 25 of the
Societies Registration Act. The writ
petitions are therefore not maintainable.
Moreover disputed questions of fact are
1 All] Satya Narain Tripathi and another V. State of U.P. and others
281
involved in these petitions and a writ
petition is not an appropriate remedy.
Case law discussed:
2007 (4) ESC 2500, 1993 (2) UPLBEC 1333,
2007 (4) ESC 2500, W.P, No. 31886 of 2004,
Special Appeal No. 94 of 2007, W.P. No.
54508 of 2006 decided on 7.5.2007

## Text

280 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
is going in its favour or against and then
prefer
a
chance
appeal.
This
discourageable state of affairs is to be
understood
carefully
before
making
grievance. Moreover, from the composite
reading of Jyotsnaben Sudhirbhai Patel
(Supra), Nicolletta Rohtagi and others
(Supra) and Smt. Manju and others
(Supra) we are of the view that an
insurance company is entitled to know the
reason of allowing or rejection of
application under Section 170 of the Act
by the Motor Accident Claims Tribunal
and can challenge the order of rejection, if
any, under Article 227 of the Constitution
of
India.
Therefore,
the
insurance
company can not be said to be remediless.

8. Hence, in totality when we find
that the appeal as made by the insurance
company only for the purpose of quantum
of compensation and negligence in spite
of rejection of application under Section
170 of the Act is squarely hit both by the
verdict of the Supreme Court as well as
the High Court, we are of the view that
the appeal can not be admitted and as
such the same is dismissed without
imposing any cost.

9. Incidentally, the appellantinsurance company prayed that the
statutory deposit of Rs.25,000/- made
before this Court for preferring this appeal
be remitted back to the concerned Motor
Accidents
Claims
Tribunal
as
expeditiously as possible in order to
adjust with the amount of compensation
to be paid to the claimants, however, such
prayer is allowed. Appeal dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.02.2008

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Civil Misc. Writ Petition No. 33392 of 2006
Connected with
Civil Misc. Writ Petition No. 39638 of 2006

Satya Narian Tripathi and another

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

Counsel for the Petitioners:
Sri Radha Kant Ojha
Sri Saroj Kumar Yadav

Counsel for the Respondents:
Sri Indra Raj Singh
Sri Mahendra Singh
Sri Vijendra Singh
S.C.

Constitution of India, Art. 19 & 226-Writ
Petition-maintainability-validity of the
list of members of society-challenge
made by member-neither statutory nor
fundamental
right
of
such
member
affected-serous disputed question of
facts involved-petitioner may file civil
suit or approach before the Registrar
under
Section
25
of
the
Society
Registration
Act-petition-held-not
maintainable.

Held: Para 9

In neither of these petitions has any
fundamental right or statutory right of
the
petitioners
been
breached.
The
petitioners have effective alternative
remedy to challenge the election by a
civil suit or under Section 25 of the
Societies Registration Act. The writ
petitions are therefore not maintainable.
Moreover disputed questions of fact are
1 All] Satya Narain Tripathi and another V. State of U.P. and others
281
involved in these petitions and a writ
petition is not an appropriate remedy.
Case law discussed:
2007 (4) ESC 2500, 1993 (2) UPLBEC 1333,
2007 (4) ESC 2500, W.P, No. 31886 of 2004,
Special Appeal No. 94 of 2007, W.P. No.
54508 of 2006 decided on 7.5.2007

(Delivered by Hon'ble Janardan Sahai, J.)

1. The Kshettriya Shri Gandhi
Ashram, Deoria is a society registered
under the Societies Registration Act,
1860. Under the bye law no.10 of the bye
laws of the society the members of the
society are to elect members of the
prabandh samiti. Under bye law no.14
ordinary members of the committee of
management are to be elected for 3 years.
Under bye law no.21 the Secretary is to
be
elected
by
the
committee
of
management. The dispute in the present
writ petition relates to the election to the
post of Secretary. It appears that a list of
members
of
the
committee
of
management for the year 2001-2002 was
filed under Section 4 (1) of the Societies
Registration Act and in that list the names
of Satya Narain Tripathi petitioner no. 1
in writ Petition No. 33392 of 2006 and the
respondent no.4 Mahendra Nath Dubey
were also included. In the year 2003 two
rival claims to the post of Secretary were
set up one by the petitioner No.1 Satya
Narain Tripathi and the other by the
respondent no. 4 Mahendra Nath Dubey.
The Assistant Registrar, Firms, Societies
and Chits, Gorakhpur passed an order
dated
11.7.2003
and
approved
the
proceedings dated 24.4.2003 submitted by
Mahendra Nath Dubey and recognised
him as the Secretary and directed him to
file a list of members of the management
committee. The order of the Assistant
Registrar dated 11.7.2003 was challenged
in Writ Petition No. 32799 of 2003. The
writ petition was disposed of by an order
dated 4.5.2006 with a direction to the
Assistant Registrar to hold the elections
for the post of Secretary of the society
under his supervision and to follow the
procedure in the bye-laws. It was directed
that till the elections of the secretary take
place the post of Secretary shall be vested
in the District Magistrate, Deoria.

2. In pursuance of the order of this
Court the Assistant Registrar undertook
the exercise of holding the elections. He
invited the petitioner No.1 Satya Narain
Tripathi as well as the respondent no.4
Mahendra Nath Dubey to produce the
original records and members list. An
election programme was published in the
newspaper
'Rashtriya
Sahara'
dated
16.6.2006 in which the date of publication
of the provisional voter list was fixed as
20.6.2006, objections to which were also
to be filed later, on the same day.
22.6.2006 was fixed as the date for
disposal of the objections and final voter
list was to be published on 23.6.2006. The
Assistant
Registrar
found
that
the
Secretary of the society is to be elected by
the committee of management of the
society,
which
thus
constitutes
the
electoral body. He also found that the list
of
members
of
the
committee
of
management
2001-2002
filed
under
Section 4 (1) of was the authenticate list
in as much as that list was not challenged
while the subsequent elections in the year
2003 were disputed. He, therefore,
decided that the election would be held on
the basis of the list of members pertaining
to the year 2001-2002. It appears that
several sets of objections against the voter
list were filed before the Assistant
Registrar. One of these objections was
filed by the petitioner No.1 Satya Narain
Tripathi. Another objection was filed by
282 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the respondent no.4 Mahendra Nath
Dubey. Another objection was filed by
Gauri Shanker Mishra petitioner in Writ
Petition No. 39368 of 2006. There were
11
members
of
the
committee
of
management in the list of 2001-2002.
While
deciding
the
objections
of
petitioner No.1 Satya Narain Tripathi and
other persons the Assistant Registrar
found that two of the members in the list
have died. He, therefore, allowed the
objections in this respect and published
the final electoral list of nine members.
The objections of the petitioner No.1
Satya Narain Tripathi on other points
were rejected by the Assistant Registrar.
The objections of this petitioner were (i)
Mahendra Nath Dubey was not qualified
to be a member in view of the fact that
under the bye-law no. 5 only a person
who had put in 15 years of service in the
Sanstha alone could be a member, a
qualification, which according to the
petitioner, Mahendra Nath Dubey did not
possess; (ii) out of the nine members
Mahendra Upadhyay and Vishambher
Nath Pandey had already retired; (iii)
Durga Prasad Rai had resigned from
service on 1.2.2004 and his resignation
was approved by the committee; (iv) the
services of Som Nath Dubey were
terminated on 26.9.2005 and he had left
the Sanstha and these persons not being in
the service of the Sanstha had ceased to
be qualified to be members of the Sanstha
and consequently their names were liable
to be excluded from the electoral roll. The
Assistant Registrar found that there was a
dispute regarding the membership of
these persons and that there was also a
dispute
about
membership
of
the
petitioner No.1 Satya Narain Tripathi
himself and in respect of three other
persons who according to Satya Narain
Tripathi
were
also
members.
He,
therefore, published the electoral roll of
nine members excluding out of the list of
11 members pertaining to the year 20012002 only the two members who had
died. The order of the Assistant Registrar
dated 22.6.2006 finalising the electoral
list has been challenged by the petitioner
No.1 Satya Narain Tripathi in Writ
Petition No. 33392 of 2006 and also by
Gauri Shanker Mishra in Writ Petition
No. 39638 of 2006. The name of Gauri
Shanker Misra does not find place in the
list of members 2001-2002 which has
been found by the Assistant Registrar to
be the valid list and therefore Gauri
Shanker Misra is not included in the
electoral college. The stand of Gauri
Shanker Mishra is that the members list of
the year 2001-2002 was not a valid list
and that the subsequent list of members of
the committee of management on the
basis of which elections were held in the
year 2003 in which list his name was also
included was the valid list. The petitioner
Gauri Shanker Mishra claims that he was
elected as a trustee member along with 15
others including the Secretary Mahendra
Nath Dubey in the election of 2003 and
his membership was acknowledged by the
respondent no.4 Mahendra Nath Dubey
and that the list of members in which the
name of Gauri Shanker Mishra is included
was approved by the Assistant Registrar
by order dated 11.7.2003 and the said
order dated 11.7.2003 has also been relied
upon by the Assistant Registrar in his
order dated 22.6.2006 finalising the
voter's list impugned in this writ petition
and as such there was no ground for
excluding him from the membership.
Several questions of fact are thus involved
in this writ petition.

3. The writ petition of Satya Narain
Tripathi was presented on 26.6.2006. An
1 All] Satya Narain Tripathi and another V. State of U.P. and others
283
interim order was passed by this Court in
this
writ
petition
on
28.6.2006
whereunder this court permitted the
elections to be held on 29.6.2006 as
scheduled but directed that the results of
the elections shall not be given effect to
till 7.6.2006. This order was extended
from time to time. It appears that the
respondent Mahendra Nath Dubey alone
had filed his nomination paper for the
post of Secretary and he was unopposed.

4. The contention of Sri Radha Kant
Ojha, learned counsel for the petitioners is
that Mahendra Nath Dubey was not
qualified to be a member as he does not
fulfil the requirement of 15 years
minimum service in the Sanstha while the
other four persons, namely, Mahendra
Upadhyay, Vishambher Nath Pandey,
Durga Prasad Rai and Som Nath Dubey
are also not qualified to be members as
they have ceased to be in the service of
the Sanstha and are disqualified in terms
of bye-law no. 5. On the other hand, Sri
Indra Raj Singh, learned counsel for the
respondent no.4 Mahendra Nath Dubey
raised a preliminary objection relating to
the maintainability of the writ petitions
that it is not open to a member to
challenge the election in writ petition. In
support of his contention reliance has
been placed upon the decision of this
Court in Committee of Management, Sri
Kachcha Baba Inter College, Varanasi
and others Vs. Regional Committee,
Pancham Mandal, Varanasi and others,
2007 (4) ESC 2500. It is also submitted
that the petitioners have challenged the
order of the Assistant Registrar finalising
the electoral list, which is a step in the
process of election and a writ petition
challenging the election process is not
maintainable. In support of his contention
reliance is placed upon a Division Bench
judgement of this Court in Basant Prasad
Srivastava and another Vs. State of U.P.
and others 1993 (2) UPLBEC 1333.

5. In so far as the procedure adopted
by the Assistant Registrar in deciding the
objections against the electoral roll is
concerned there is nothing to indicate that
there was any irregularity. The Assistant
Registrar had invited both the parties to
furnish list of members. He also gave
opportunity to the members to file
objections to the provisional list and has
then decided the objections.

6. The question is whether a member
can
challenge
an
election
of
the
committee of management. In Committee
of Management, Sri Kachcha Baba Inter
College,
Varanasi
and
others
Vs.
Regional Committee, Pancham Mandal,
Varanasi and others, 2007 (4) ESC 2500
relied upon by Sri Indra Raj Singh it was
held that a writ petition by a member of
the general body and not by a rival
committee
of
management
is
not
maintainable. Reliance was placed by the
learned judge upon a decision in Writ
Petition No. 31886 of 2004 (Bhagwan
Kaushik Vs. State of U.P. and others)
decided on 30.1.2006 as well as upon the
judgement of the Division Bench of the
Court dated 19.2.2007 passed in Special
Appeal No. 94 of 2007 (Anjani Kumar
Vs. State of U.P. and others) wherein it
has been held that member of the society
has no right to challenge the result of the
election. In that case an order of the
regional Committee under Section 16-A
(7) of the U.P. Intermediate Education
Act was challenged. A dispute under
Section 16-A (7) where rival committees
of management claim the right of
management is to be decided on the basis
of effective control of the committee of
284 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
management. The present is not a dispute
decided under Section 16-A (7). The case
is therefore distinguishable.

7. In Yogendra Singh and another
Vs. State of U.P. and others Writ Petition
No. 54508 of 2006 decided on 7.5.2007 it
was held that a member of the general
body can also challenge the elections. The
case of Bhagwan Kaushik Vs. State of
U.P. and others was distinguished on the
ground
that
that
case
related
to
recognition
of
a
committee
of
management by the Regional Committee
in exercise of power under Section 16-A
(7) of the U.P. Intermediate Education
Act, 1921, which provides that the dispute
is to be decided on the basis of effective
control. A mere member of the general
body cannot claim effective control and,
therefore, can not challenge the decision
of the Regional Committee recognising a
particular committee of management on
the basis of effective control and it was
only a rival committee of management
which could challenge such an order. In
Yogendra Singh's case the elections were
held by a person who was an imposter and
who in a previous decision dated
22.7.2004 in Writ Petition No. 27492 of
2004 had been found to have been
wrongly
authorised
by
the
District
Inspector of Schools to hold the election.
It was held in that case that a member has
a right to participate in the election and
also to contest the election and if he is
excluded from the membership and
deprived of the right to contest election he
could file a writ petition for in such a case
it is the member ousted from the electoral
body who would be interested to agitate
his rights and not the committee of
management. In holding this the court
was it appears considering the question of
maintainability of the writ petition by a
member in the context of a person
aggrieved.

8. Article 19 (1) (C) of the
Constitution
of
India
confers
a
fundamental right upon a citizen to form
an association. The question is whether
exclusion of a member from the electoral
college or inclusion of a member in the
electoral college on the basis of an
erroneous determination of the voter list
by the Assistant Registrar or other
authority
can
be
treated
as
an
infringement of Article 19 (1) (C) giving
right to the aggrieved member to maintain
a writ petition. The question about the
nature of the right of a member to
question his exclusion from the electoral
college was examined in the context of
Article19 (1) (C) of the Constitution of
India in Kamla Kant Agrawal Vs. State of
U.P. and others Writ Petition No. 23477
of 2007 decided on 20.7.2007. It was held
that a citizen of India has a fundamental
right under Article 19 (1) (C) of the
Constitution
of
India
to
form
an
association. Reliance was placed by the
learned judge upon the decision of the
apex
court
in
The
Hindi
Sahitya
Sammelan Vs. Jagdish Swarup and others
A.I.R. 1971 SC 966 in support of the
proposition that the right to form an
association enjoins with it a right to
continue to be associated with it as well as
to ensure that only those persons are
admitted to the association whom they
voluntarily admitted. In this background it
was held that it is the right of a citizen to
challenge
his
exclusion
from
the
membership by a petition under Article
226and alternative remedy would not be a
bar. A member can challenge his
wrongful exclusion from membership of
the association or the wrongful inclusion
into the association of another person as a
1 All] Satya Narain Tripathi and another V. State of U.P. and others
285
member if his fundamental rights are
breached and in such cases alternative
remedy would not bar the maintainability
of a writ petition. A member can also file
a writ petition on breach of a statutory
right but an alternative remedy may bar
the maintainability of a writ petition. But
a right to form an association on the one
hand and the right to be elected to an
office of such association or to participate
in the elections on the other hand have
been held to be distinct rights and the
latter can be claimed only in accordance
with the provisions of the bye-laws of the
association or under a statute while the
former can be claimed also as a
fundamental right. Under the bye-laws in
the present case the right to elect the
Secretary has been conferred upon the
Prabandh Samiti and not upon the
members of the general body. What the
Assistant Registrar has decided is that the
persons forming the electoral college are
members
of
the
committee
of
management. The question whether any
person was validly inducted or elected or
continues as a member of the committee
of management or whether the person
who contests election to the post of
Secretary is a member of the committee
of management is an election dispute or a
dispute relating to his induction as a
member of the committee of management.
The right of a person claiming to be a
member of the committee of management
is not a fundamental right. The petitioners
do not have any fundamental right to
contest the election of Secretary or to
challenge the same. The petitioner Satya
Narain
Tripathi has challenged the
candidature of Mahendra Nath Dubey on
the ground that he cannot be included in
the voters list which consists of members
of the committee as he is not qualified to
be a member under the bye laws. The bye
laws of the society do not have statutory
force. The right of a person to contest an
election or to challenge it is not a
fundamental right nor even a common law
right but originates from the statute or
from the rules and bye laws of an
association. A breach of such a statutory
right or right under the rules or bye laws
can be redressed by availing the remedy
which the statute or the bye laws or rules
provide or by a civil court except where in
the case of a civil suit unless the remedy
of a suit is barred. Even where elections
are held under statutory provisions the
remedy of challenging the elections if
provided under the statute has to be
availed of as an alternative remedy which
would ordinarily bar the maintainability
of a writ petition. In this case the
induction of members of the committee of
management and the election of Secretary
is governed by the bye laws of the
society. It is only where an election is set
aside or an office bearer is held no longer
entitled to continue in office or where the
elections are not held within the time
specified in the rules of the society that
the Registrar can hold the elections under
Section 25(2) of the Societies Registration
Act. In this case the petitioner Satya
Narian Tripathi has challenged the voters
list which consists of member of the
committee of management primarily on
the ground of breach of bye law no. 5.
What is being challenged in this case is
the wrongful induction of certain persons
as
members
of
the
committee
of
management,
which
constitutes
the
electoral college. The infringement of the
bye laws in such a case would not be a
ground to maintain a writ petition when
the election or continuance in office of the
office bearers can be questioned in the
manner provided by the statute under
Section 25 of the Societies Registration
286 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Act or by a civil suit. The proviso (C) to
Section 25 (1) provides;

"25. Provided that the election of an
office-bearer shall be set aside where the
prescribed authority is satisfied.

(c) that the result of the election in so
far as it concerns such office-bearer has
been materially affected by the improper
acceptance of any nomination or by the
improper reception, refusal or rejection of
any vote or the reception of any vote,
which is void or by any non-compliance
with the provisions of any rules of the
Society."

9. In neither of these petitions has
any fundamental right or statutory right of
the
petitioners
been
breached.
The
petitioners
have
effective
alternative
remedy to challenge the election by a civil
suit or under Section 25 of the Societies
Registration Act. The writ petitions are
therefore not maintainable. Moreover
disputed questions of fact are involved in
these petitions and a writ petition is not an
appropriate remedy.

10. In the present case Satya Narain
Tripathi
was
not
excluded
from
participating
in
the
elections.
The
elections were also not held by an
imposter as was done in the case of
Yogendra Singh. The elections in the
present case have been held by the
Assistant
Registrar
who
has
been
authorised by the Court to hold the
elections. In the peculiar facts of the case
of Yogendra Singh (supra) the court was
not called upon to decide in that case the
question of alternative remedy. The
decision in Yogendra Singh is, therefore,
also distinguishable. In the present case
there appears to be a dispute raised by
Gauri Shanker Mishra the petitioner in
Writ Petition No. 39638 of 2007 that the
elections could not have been held on the
basis of the electoral roll of 2001-2002
but by another list. The membership of
Satya
Narain
Tripathi
himself
was
challenged before the Assistant Registrar
so also the membership of Mahendra Nath
Dubey. The High Court had not directed
the Assistant Registrar to hold the
elections on the basis of any particular list
of members. The entire exercise was
required to be conducted by the Assistant
Registrar. Several disputed questions of
fact, therefore, arise in the present writ
petition.

11. There is an additional reason
why the elections which have been held in
this case cannot be challenged in writ
petition. It is not in dispute that Mahendra
Nath Dubey the respondent was the only
person who had filed his nomination
paper for the post of Secretary. He was
thus unopposed. In these circumstances
the main question for testing the validity
of his election in this case is about the
validity of the membership of Mahendra
Nath Dubey. As there was no other
candidate for the post of Secretary the
question of validity of membership of
some of the members of the electoral list
is not of any significance because
Mahendra Nath Dubey's election as
Secretary would be valid even if some of
the members were wrongly inducted in or
excluded from the voter list as the result
of the election would not be materially
affected. In fact Gauri Shanker Mishra the
petitioner in one of the petition has not
challenged the membership of Mahendra
Nath Dubey. He has rather alleged that
Mahendra Nath Dubey was elected
Secretary
in
the
meeting
held
on
24.4.2003. On the point of membership of
1 All] Satya Narain Tripathi and another V. State of U.P. and others
287
Mahendra Nath Dubey it is not in dispute
that Mahendra Nath Dubey was included
in the list of members of the committee of
2001-02 filed under Section 4 (1). In
paragraph 3 of the counter affidavit of
Mahendra Nath Dubey in the writ petition
of Satya Narain Tripathi it is stated that
Mahendra Nath Dubey was enrolled as a
Member on 24.2.2000. A copy of the
minutes of the meeting dated 24.2.2000 in
which
11
members
participated
is
Annexure 1. A list of members it is stated
was prepared on 16.6.2001 in which the
name of Mahendra Nath Dubey is at serial
no.12. Mahendra Nath Dubey it is said
participated in the meeting of 28.10.2001
and 24.4.2003. A copy of the minutes
have been filed as Annexure C.A.3 and
C.A. 5. In the meeting dated 28.10.2001
and 24.4.2003 it is alleged the petitioner
Satya Narain Tripathi also participated.
The Assistant Registrar was required to
decide the question about the validity of
the members in a summary manner. The
Assistant Registrar has given good
reasons for relying upon the list of
members of the committee of the year
2001-2002,
which
had
never
been
challenged before objections were filed in
the present case whereas the subsequent
elections of the year 2003 were disputed.
The finding on the point given by the
Assistant Registrar is not perverse and
does not suffer from any illegality, which
may call for interference under Article
226 of the Constitution of India. As
regards, the membership of Vishambher
Nath who is said to have retired on
1.6.2003 and Mahendra Nath Upadhyay
who is said to have retired on 30.9.2005
the Assistant Registrar has recorded a
finding that a person's membership does
not cease on retirement unless he has
resigned or he is disabled. In support of
this stand, the Assistant Registrar in
paragraph 10 of his counter affidavit has
relied upon Rule 7 (b) and has annexed
with the counter affidavit the resolution of
the general body of the society dated
15.7.1997. The finding recorded by the
Assistant Registrar upon the membership
of Som Nath Dubey is that the petitioners
themselves have taken a contradictory
stand and that at one place it was alleged
that the termination order of Som Nath
Dubey
was
set
aside.
About
the
resignation of Durga Prasad Rai the
finding
recorded
by
the
Assistant
Registrar is that it has been disputed.
Disputed questions of fact cannot be
decided in a writ petition. Moreover, in
the facts of this case that Mahendra Nath
Dubey's election was unopposed the
question of the validity of the membership
of some of the persons is not of much
importance. The petitioner Satya Narain
Tripathi did not contest the election of
Secretary. I have already held that the
order finalising the list of members passed
by the Assistant Registrar in the summary
proceedings is neither perverse nor suffers
from any illegality. The petitioners are at
liberty to challenge the elections and
membership of Mahendra Nath Dubey
and others either by way of civil suit or
under Section 25 of the Societies
Registration Act. The finding regarding
the validity of the electoral roll or about
the claim of Mahendra Nath Dubey shall
not be binding in the suit or in the other
remedy that the petitioners may avail.

12. In view of the findings above
recorded both the writ petitions are
dismissed.
---------
288 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.02.2008

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Revision No. 1340 of 2006

Rajeshwar Prasad and others

...Revisionists
Versus
The State of U.P. and another

...Opposite Parties

Counsel for the Revisionists:
Sri Anil Kumar Srivastava
Sri Vinod Srivastava

Counsel for the Opposite Parties:
Sri Rajesh Kumar Gupta
Sri Rajesh Kishore
A.G.A.

Code of Criminal Procedure Section 397
(2)-Criminal
Revision-issue
of
Non
bailable warrant-interlocutory order-No
final
order
passed-revision-held
not
maintainable.

Held: Para 4

The
order
issuing
warrant
is
interlocutory order within the meaning
of Section 397 (2) Cr.P.C. and hence,
revision against the impugned order
dated
06.01.2006
is
also
not
maintainable Reference in this regard
may be made to the case of Mohd.
Usman Vs. State of U.P. (2002 (40) ACC
901).
Case law discussed:
[2004 (50) ACC 9241, [2005 (51) ACC 6841,
[2006 (55) ACC 942], (2002 (40) ACC 901)

(Delivered by Hon'ble Vijay Kumar Verma, J.)

Heard Sri Vinod Srivastava, learned
counsel for the revisionists and learned
A.G.A. for the state and perused the
record.

2. Instant revision has been
preferred against the summoning order
dated 01.09.2005 passed by Additional
Chief Judicial Magistrate, Court No. 2,
Allahabad in Criminal complaint case
no.2702 of 2004 (State Vs. Rajeshwar
Prasad and others), whereby the accusedrevisionists have been summoned to face
the trial. Order dated 06.01.2006 issuing
bailable warrant has also been challenged.

3. In view of the observations made
by Hon'ble Apex Court in the case of
Adalat Prasad Vs. Rooplal Jindal and
others [2004 (50) ACC 9241 and
Subramanium Sethuraman [2005 (51)
ACC 6841, revision against summoning
order is not maintainable, as the Hon'ble
Apex Court has held that the only remedy
available
to
the
accused
against
summoning order is to invoke the
jurisdiction of High Court under Section
482 Cr.P.C. This Court also in the case of
Bhajan Lal and others Vs. State U.P.
and another [2006 (55) ACC 942] has
held that revision against summoning
order is not legally maintainable.

4. The order issuing warrant is
interlocutory order within the meaning of
Section 397 (2) Cr.P.C. and hence,
revision against the impugned order dated
06.01.2006 is also not maintainable
Reference in this regard may be made to
the case of Mohd. Usman Vs. State of
U.P. (2002 (40) ACC 901).

5. Hence, keeping in view the law
laid down in aforesaid cases, instant
revision has to be dismissed. However the
accused may move this Court in the