# Shammi v. State of U.P. and Anr

- **Citation:** (2013) 2 ILRA 787
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-23
- **Case number:** Criminal Revision No. 1728 of 2010
- **Bench:** Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shammi-v-state-of-u-p-and-anr-42599
- **Pages:** 4

## Headnote

788 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Criminal Revision- Against the summary
order passed under section 319-main
thrust of argument that in case of
allegations of SC/ST Act-under section 7
of the Rules 1995-I.O. should not be
below the rank than Dy.S.P.-charge
sheet submitted by Senior S.I. without
jurisdiction-held-misconceived-
applicant has been summoned under
Section
319
and
not
an
basis
of
investigation-application rejected.

Held: Para-10
In the present case, it is also relevant to
mention that the accused persons are
facing
trial
on
the
basis
of
their
summoning under Section 319 Cr.P.C.
and not on the basis of charge-sheet
submitted by the investigating officer.
No gross injustice or violation has been
proved while the first application has
already been rejected on merits, the
subsequent application on the same
grounds was also not maintainable.

Case Law discussed:
AIR 2000 SC 870

## Text

2 All] Shammi Vs. State of U.P. and Anr.
787
(supra) but without considering the
provisions of General Clauses Act or
Bengal, Agra and Assam Civil Courts or
the provisions of Section 42 of the Act
and their joint impact on the jurisdictional
issue took a different view.

16. The Full Bench of Bombay High
Court in the case of Fountain Head
Developers (supra) opined that the
principal
civil
court
of
original
jurisdiction in a district for the purpose of
a petition under Section 34 of the Act is a
District Court and does not include any
other Court inferior to the District Court.
In this case the Court was considering
whether Court of Civil Judge Senior
Division is inferior to principal civil court
of original jurisdiction in a district i.e.
District Judge or not? The full bench
found itself in agreement with the view
expressed by Hon'ble Single Judge of this
Court in the M/s I.T.I., Allahabad (supra).

17. In the case of Madhya Pradesh
State
Electricity
Board
(supra)
a
division bench of Madhya Pradesh High
Court as noted in para-22 of the report
observed that as far as Madhya Pradesh is
concerned, the Additional District Judge
is equated with the Principal Civil Court
of original jurisdiction. Section 21(1)(e)
does not include any civil Court of grade
inferior to such Principal Civil Court or
any Court of Samll Causes. It means that
the verdict has been squeezed to the
territory of Madhya Pradesh only.

18. The case of Nand Contractors
and Engineers through G. D. Ahuja
(supra) does not deal with the controversy
in hand as the issue involved in the case
was with regard to award of interest.

19. In view of the aforestated
discussion we are in full agreement with
ratio given by an Hon'ble Single Judge of
this Court in the case of M/s I.T.I.,
Allahabad (supra) and hold that the Court
of Additional District Judge is not the
Principal Civil Court for the purpose of
Section 2(1)(e) of the Act and the District
Judge can not transfer the case under the
Arbitration and Conciliation Act, 1996 to the
Court of Additional District Judge by
invoking the provisions of either Section 8(2)
of Bengal, Agra and Assam Civil Courts Act
or Section 24 of Code of Civil Procedure,
therefore, the court of Additional District
Judge no jurisdiction to dispose of objections
u/s 34 of the Act. The impugned order thus
being
without
jurisdiction
cannot
be
sustained. The appeal succeeds and is
allowed. The impugned order is set aside and
the matter is remitted back to the District
Judge, Sonebhadra with the request to
dispose of the case expeditiously preferably
within three months from the date of receipt
of certified copy of this order. The interim
order dated 3.5.2011 is vacated. The parties
would bear their own costs.
---------
RIVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.05.2013

BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Revision No. 1728 of 2010

Shammi

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

Counsel for the Petitioner:
Sri Raghuraj Kishore
Sri S.M. Abbas Naqvi

Counsel for the Respondents:
A.G.A.
788 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Criminal Revision- Against the summary
order passed under section 319-main
thrust of argument that in case of
allegations of SC/ST Act-under section 7
of the Rules 1995-I.O. should not be
below the rank than Dy.S.P.-charge
sheet submitted by Senior S.I. without
jurisdiction-held-misconceived-
applicant has been summoned under
Section
319
and
not
an
basis
of
investigation-application rejected.

Held: Para-10
In the present case, it is also relevant to
mention that the accused persons are
facing
trial
on
the
basis
of
their
summoning under Section 319 Cr.P.C.
and not on the basis of charge-sheet
submitted by the investigating officer.
No gross injustice or violation has been
proved while the first application has
already been rejected on merits, the
subsequent application on the same
grounds was also not maintainable.

Case Law discussed:
AIR 2000 SC 870

(Delivered by Hon'ble Aditya Nath Mittal,J.)

1. Heard Sri S.M. Abbas, learned
counsel for the revisionist, learned AGA
and perused the record.

2. This criminal revision has been
filed against order dated 5.2.2010 passed
by Fast Track Court No.1 District
Saharanpur in Sessions Trial No.707 of
2006 under Sections 323, 324, 504, 506
IPC and Section 3(1)10 SC ST Act.

3.

Learned
counsel
for
the
revisionist has submitted that as per
provisions of Rule 7 of the Scheduled
Castes
&
the
Scheduled
Tribes
(Prevention of Atrocities) Rules, 1995,
the offence committed under this Rules
shall be investigated by a police officer
not
below
the
rank
of
Deputy
Superintendent of Police. It has further
been submitted that in the present matter
the investigation has been done by a
Senior Sub Inspector who had no
jurisdiction
to
do
the
investigation
therefore, the impugned order is against
the law.

4. Learned AGA has defended the
impugned order.

5. Section 7 of the Scheduled Castes
& the Scheduled Tribes (Prevention of
Atrocities) Rule, 1995, provides as under
:-

"7. Investigating Officer.- (1) An
offence committed under the Act shall be
investigated by a police officer not below
the rank of a Deputy Superintendent of
Police. The investigating officer shall be
appointed by the State Government,
Director
General
of
Police,
Superintendent of Police after taking into
account his pass experience, sense of
ability and justice to perceive the
implications of the case and investigate it
along with right lines within the shortest
possible time.

(2) The investigating officer so
appointed
under
sub-rule
(1)
shall
complete the investigation on top priority
within thirty days and submit the report to
the Superintendent of Police who in turn
will immediately forward the report to the
Director General of Police of the State
Government.

(3) The Home Secretary and the
Social Welfare Secretary to the State
Government, Director of Prosecution the
officer-in-charge of Prosecution and the
Director General of Police shall review by
the end of every quarter the position of all
2 All] Shammi Vs. State of U.P. and Anr.
789
investigations done by the investigating
officer."

6. Perusal of the aforesaid Rules
reveals that the investigating officer may be
appointed by the State Government,
Director
General
of
police
or
the
Superintendent of Police after taking into
account his past experience, sense of ability
and justice to perceive the implications of
the case. Perusal of the impugned order
reveals that previously also the accused
persons had moved an application 160-Kha
on 6.1.2010. It has also been mentioned in
the impugned order that initially the
investigation
was
started
by
Deputy
Superintendent of Police but after referring
the Government Order, the investigation
was transferred to Senior Sub Inspector
Chanya Swaroop after which it was
transferred to Sub Inspector Mahendra. The
charge sheet was submitted on 16.3.2006.
The Government Order clarifies the position
that the investigation under Scheduled Caste
and Scheduled Tribes Act may be done by a
police officer of the rank of Sub Inspector.
Furthermore, it was relevant that the
accused persons who had moved an
application for discharge were summoned
under Section 319 Cr.P.C. because they
were not arrayed as accused persons on the
basis of charge sheet filed by the
investigating officers. The order under
Section 319 Cr.P.C. was challenged before
this Court in Criminal Revision No.3350 of
2008 which was rejected and at that time no
such objection of Rule 7 was taken
therefore, the order passed under Section
319 Cr.P.C. has become final. After it the
statements of two witnesses were also
recorded and the application 160-Kha was
rejected on the merits. Therefore, I am in
agreement with the findings of learned trial
Court that the Sessions Judge had no
jurisdiction to review its own order.

7. Furthermore, Hon'ble the Apex
Court in State of M.P. and others Vs. Ram
Singh AIR 2000 SC 870, State Inspector of
Police
Vs.
Surya
Sankaram
Karri
MANU/SC/8834/2006 and State of M.P. Vs.
Ramesh
Chandra
Sharma
MANU/SC/2574/2005 has held that a defect
or illegality in the investigation, however
serious, has no direct bearing on the
competence or the procedure relating to
cognizance or trial.

8. In the State of M.P. Vs. Ramesh
Chandra Sharam (supra), Hon'ble the
Apex Court has held as under :-

"The question then requires to be
considered whether and to what extent the
trial which follows such investigation is
vitiated. Now, trial follows cognizance and
cognizance is preceded by investigation. This
is undoubtedly the basic scheme of the Code
in respect of cognizable cases. But it does not
necessarily
follow
that
an
invalid
investigation nullifies the cognizance or trial
based thereon. Here we are not concerned
with the effect of the breach of a mandatory
provision regulating the competence or
procedure of the court as regards cognizance
or trial. It is only with reference to such a
breach that the question as to whether it
constitutes
an
illegality
vitiating
the
proceedings or a mere irregularity arises."

9. Hon'ble the Apex Court has
further held as under:-

"The Court after referring to Parbhu
v. Emperor MANU/PR/0035/1944 : AIR
1944 PC 73: 46 Cri LJ 119 and
Lumbhardar Zutshi v. R AIR 1950 PC 26:
51 Cri LJ 644, held that if cognizance is
in fact taken on a police report initiated by
the breach of a mandatory provision
relating to investigation, there can be no
790 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
doubt that the result of the trial, which
follows it cannot be set aside unless the
illegality in the investigation can be
shown
to
have
brought
about
a
miscarriage of justice and that an
illegality committed in the course of
investigation
does
not
affect
the
competence and the jurisdiction of the
court for trial. This being the legal
position, even assuming for the sake of
argument that C.B.I. committed an error
or irregularity in submitting the chargesheet without the approval of C.V.C., the
cognizance taken by the learned Special
Judge on the basis of such a charge-sheet
could not be set aside nor could further
proceedings in pursuance thereof be
quashed. The High Court has clearly erred
in setting aside the order of the learned
special Judge taking cognizance of the
offence
and
in
quashing
further
proceedings of the case."

10. In the present case, it is also
relevant to mention that the accused
persons are facing trial on the basis of
their summoning under Section 319
Cr.P.C. and not on the basis of chargesheet submitted by the investigating
officer. No gross injustice or violation has
been proved while the first application has
already been rejected on merits, the
subsequent application on the same
grounds was also not maintainable.

11. For the facts and circumstances
mentioned above, I do not find any error
of law or perversity in the impugned
order.

12. The revision is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.06.2013.
BEFORE
THE HON'BLE SHABIHUL HASNAIN, J.

Writ Petition No.1832(S/S) of 2008
alongwith
W.P. No.8100 (S/S) of 2009, W.P.
No.4688 (S/S) of 2008 ,
W.P. No.4788 (S/S) of 2008 , W.P.
No.6451 (S/S) of 2008,
 W.P. No.8048 (S/S) of 2010 , W.P.
No.7346 (S/S) of 2008 ,
W.P. No.7990 (S/S) 2007 , W.P. No.3449
(S/S) of 2007
W.P. No.1980 (S/S) of 2008 and W.P.
No.1909 (S/S) of 2008

Satyendra Kumar Singh
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Dr. L.P. Misra , Sri P.K. Mishra and Sri
Sharad Pathak

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Art.
226-
Cancellation
of
selection-class
4th
employee-on
ground
malafide
arbitrariness-challenged on ground for
misdeed of employee-petitioners not to
suffer-while in pursuance of selection list
working for considerable period and
drawing
salary-Interview
of
1817
candidates in Single day not humanly
possible-apart from it Dr. Pandey drawn
two days salary of all candidates in cashagainst the rule of government by which
payment of salary by cash prohibiteditself speaks about malafide-cancellation
of entire selection-held proper.

Held: Para-20
In view of above stated facts and
arguments of both the parties and after
a keen observation of records Court is of
the view that the selection in question is
liable to be quashed on the grounds of
various illegalities.

Case
Law
discussed: