# Shamsher and others v. The State of U.P

- **Citation:** (2007) 2 ILRA 354
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-02-22
- **Bench:** R.K. Rastogi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shamsher-and-others-v-the-state-of-u-p-40913
- **Pages:** 4

## Headnote

(A) Code of Criminal Procedure-Session
Trail pending since 1993-after closure of
evidence-application
to
list
both-the
2 All] Shamsher and others V. State of U.P. and others
355
pending session Trail as well as the cross
cases simultaneously Trail court rejected
taking view that the applicant -misusing
the bail order-cancelled the Bail Bondheld-cancellation of bail bond proper but
taking into judicial custody and sending
jail not justified.

Held: Para 5

It is true that the cases were of the year
1993 and when the aforesaid S.T. and its
cross sessions trial were pending in the
same court, both these cases should
have been listed for evidence on the
same date in the court so that accused
as well as witnesses in both the cases
may appear in the court and evidence
may be recorded in both the above
sessions trials in presence of the parties.
The
Presiding
Officer
of
the
court
concerned was of the view the accused
were mis-using the bail and so he
cancelled their bail bonds. He could do
so, but there was no provision for taking
that accused into judicial custody and
sending him to jail, who was present in
court. The Presiding Officer is not
justified in this regard.

(B) Code of Criminal Procedure-Section
482-power of court-Trail court issued
non-bailable warrant with process of 82
and 83 Cr.P.C.-held-committed great
error-both
can
not
be
issued
simultaneously.

Held; Para 6

It further appears that on the above date
Presiding Officer further passed an order
for issuing non-bailable warrants and
processes under sections 82 and 83
Cr.P.C.
simultaneously
against
the
accused persons. He again committed
legal error because all these processes
cannot be issued simultaneously. The
warrant is to be issued at the first
instance and when the accused does not
appear in court even after issue of
warrant, the process under sections 82
Cr.P.C. can be issued only when there is
a report to this effect that he is
absconding. After issuing proclamation
under sections 82 Cr.P.C. the court has
to wait for thirty days from the date of
publication of proclamation and then
attachment under section 83 Cr.P.C. is to
be issued. But if the court is of the view
that the accused is about to dispose of
the whole or any part of his property or
is about to remove the whole or any part
of his property from the local jurisdiction
of the court, the proclamation under
section 82 Cr.P.C. and attachment u/s 83
Cr.P.C. can be issued simultaneously. In
such a case, the court must be satisfied
on the basis of the evidence produced
before it that these circumstances exist
and he has to mention these facts in the
order
for
issuing
processes
under
sections
82
and
83
Cr.P.C.
simultaneously.

## Text

354 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
bureaucrats
who
work
under
him.
Therefore, he bears not only moral
responsibility but also in relation to all
the actions of the bureaucrats who work
under him, bearing actual responsibility
in the working of the department under
his ministerial responsibility.

13. All purposes or actions for which
moral responsibility can be attached are
actions performed by individual persons
composing
the
department.
All
government actions, therefore, means
actions performed by individual persons
to further the objectives set down in the
Constitution,
the
laws
and
the
administrative
policies
to
develop
democratic
traditions,
social
and
economic democracy set down in the
Preamble, Part III and Part IV of the
Constitution. The intention behind the
government actions and purposes is to
further the public welfare and the
national
interest.
Public
good
is
synonymous
with
protection
of
the
interests of the citizens as a territorial
unit or nation as a whole. It also aims to
further the public policies. The limitations
of the policies are kept along with the
public interest to prevent the exploitation
or misuse or abuse of the office or the
executive actions for personal gain or for
illegal gratification."

6. The same view has been reiterated
in Samatha Vs. State of Andhra
Pradesh and others AIR 1997 SC 3297.

7. Therefore the Minister of the
concerned department being responsible
for the acts and omissions of his
department, has issued certain directions,
it cannot be said that he has no business
or reason to direct the subordinate
authorities to act in a particular manner so
long as such direction is not inconsistent
with any statutory provision. If under the
rules something is required to be done in a
particular manner and by a particular
authority in such case obviously a
minister even if holding a high office
would not be competent to direct such
authority to exercise statutory power in a
particular manner but in the absence of
such provision the action taken on the
directions of Minister cannot be said to be
vitiated in law per se. There is nothing on
record to show that the order issued by the
Minister is not in public interest or not in
the interest of department.

8. In the circumstances, we do not
find any fault in the judgment under
appeal and of the view that the writ
petition has rightly been dismissed by the
Hon'ble Single Judge. This appeal,
therefore, lacks merit and is accordingly
dismissed summarily. Appeal dismissed
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.02.2007

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

Crl. Misc. Application no. 3076 of 2007

Shamsher and others
...Applicants
Versus
The State of U.P.
 ...Opposite Parties

Counsel for the Applicants:
Sri S.R. Singh
Sri Rajesh Maurya

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

(A) Code of Criminal Procedure-Session
Trail pending since 1993-after closure of
evidence-application
to
list
both-the
2 All] Shamsher and others V. State of U.P. and others
355
pending session Trail as well as the cross
cases simultaneously Trail court rejected
taking view that the applicant -misusing
the bail order-cancelled the Bail Bondheld-cancellation of bail bond proper but
taking into judicial custody and sending
jail not justified.

Held: Para 5

It is true that the cases were of the year
1993 and when the aforesaid S.T. and its
cross sessions trial were pending in the
same court, both these cases should
have been listed for evidence on the
same date in the court so that accused
as well as witnesses in both the cases
may appear in the court and evidence
may be recorded in both the above
sessions trials in presence of the parties.
The
Presiding
Officer
of
the
court
concerned was of the view the accused
were mis-using the bail and so he
cancelled their bail bonds. He could do
so, but there was no provision for taking
that accused into judicial custody and
sending him to jail, who was present in
court. The Presiding Officer is not
justified in this regard.

(B) Code of Criminal Procedure-Section
482-power of court-Trail court issued
non-bailable warrant with process of 82
and 83 Cr.P.C.-held-committed great
error-both
can
not
be
issued
simultaneously.

Held; Para 6

It further appears that on the above date
Presiding Officer further passed an order
for issuing non-bailable warrants and
processes under sections 82 and 83
Cr.P.C.
simultaneously
against
the
accused persons. He again committed
legal error because all these processes
cannot be issued simultaneously. The
warrant is to be issued at the first
instance and when the accused does not
appear in court even after issue of
warrant, the process under sections 82
Cr.P.C. can be issued only when there is
a report to this effect that he is
absconding. After issuing proclamation
under sections 82 Cr.P.C. the court has
to wait for thirty days from the date of
publication of proclamation and then
attachment under section 83 Cr.P.C. is to
be issued. But if the court is of the view
that the accused is about to dispose of
the whole or any part of his property or
is about to remove the whole or any part
of his property from the local jurisdiction
of the court, the proclamation under
section 82 Cr.P.C. and attachment u/s 83
Cr.P.C. can be issued simultaneously. In
such a case, the court must be satisfied
on the basis of the evidence produced
before it that these circumstances exist
and he has to mention these facts in the
order
for
issuing
processes
under
sections
82
and
83
Cr.P.C.
simultaneously.

(Delivered by Hon'ble R.K. Rastogi, J.)

1. This is an application under
section
482
Cr.P.C.
to
quash
the
impugned order dated 11.1.2007 passed
by the Addl. Sessions Judge/Fast Track
Court no.2, Azamgarh passed in Sessions
Trial no. 18 of 1993 (State Vs. Ram
Bahore) under sections 147, 148, 149,
323, 352 & 307 I.P.C. police station Rani
Ki Sarai district Azamgarh.

2. Heard learned counsel for the
applicants and learned A.G.A. for the
State.

3. The facts relevant for disposal of
this application are that the aforesaid
sessions trial is pending in the above court
and date 11.1.2007 was fixed in the case.
On that date accused Arvind was present
with his counsel, and the remaining
accused
Vijay
Bahadur,
Shamsher,
Sarakchand,
Subhash,
Randhir,
Raghunath, Smt. Radha Devi and Smt.
Salari Devi were absent. An application
for exemption on their behalf was moved,
356 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
but the Presiding Officer of the court
concerned was of the view that the above
case as well as its cross case which were
of the year 1993 were pending in his court
for evidence but the accused persons were
delaying the proceedings of the case,
hence, he rejected the application for
exemption holding that they were misusing bail and cancelled their bail bonds.
He took accused Arvind present in court
in judicial custody and sent him to jail and
passed orders for issuing non-bailable
warrants and processes under sections 82
and 83 Cr.P.C. against the remaining
accused and also issued orders for issuing
notice to the sureties fixing 19.1.2007.
Aggrieved with that order applicants have
filed this application.

4. In this petition complainant Ant
Lal has also been impleaded as O.P. no.2
but since it is a State case there is no
necessity to hear him. The learned
counsel for the applicants submitted that
he wants to delete the name of O.P. no.2
and he is permitted to do so.

5. It is true that the cases were of the
year 1993 and when the aforesaid S.T.
and its cross sessions trial were pending
in the same court, both these cases should
have been listed for evidence on the same
date in the court so that accused as well as
witnesses in both the cases may appear in
the court and evidence may be recorded in
both the above sessions trials in presence
of the parties. The Presiding Officer of the
court concerned was of the view the
accused were mis-using the bail and so he
cancelled their bail bonds. He could do
so, but there was no provision for taking
that accused into judicial custody and
sending him to jail, who was present in
court. The Presiding Officer is not
justified in this regard. In such a case the
proper order would have been to grant
exemption for that date only with a
direction to all the accused to appear in
person in the court on the next date
further providing that no request for
exemption shall be entertained on the next
date and non-bailable warrant shall be
issued against the defaulting accused, and
in this way the delaying tactics could be
lawfully curbed.

6. It further appears that on the
above date Presiding Officer further
passed an order for issuing non-bailable
warrants and processes under sections 82
and 83 Cr.P.C. simultaneously against the
accused persons. He again committed
legal error because all these processes
cannot be issued simultaneously. The
warrant is to be issued at the first instance
and when the accused does not appear in
court even after issue of warrant, the
process under sections 82 Cr.P.C. can be
issued only when there is a report to this
effect that he is absconding. After issuing
proclamation under sections 82 Cr.P.C.
the court has to wait for thirty days from
the date of publication of proclamation
,and then attachment under section 83
Cr.P.C. is to be issued. But if the court is
of the view that the accused is about to
dispose of the whole or any part of his
property or is about to remove the whole
or any part of his property from the local
jurisdiction of the court, the proclamation
under section 82 Cr.P.C. and attachment
u/s
83
Cr.P.C.
can
be
issued
simultaneously. In such a case, the the
court must be satisfied on the basis of the
evidence produced before it that these
circumstances exist and he has to mention
these facts in the order for issuing
processes under sections 82 and 83
Cr.P.C. simultaneously.
2 All] Shri Chandra Bhushan Singh V. B.S.A, Azamgarh and others
357
7. In the present case the learned
Presiding Officer of the court fell in grave
legal error by issuing all those processes
simultaneously.

8. The application under section 482
Cr.P.C. is, therefore, allowed to this effect
that the order of the Presiding Officer
taking the accused Arvind in judicial
custody and sending him to jail is set
aside. Accused Arvind shall be released
forthwith in this case on bail if not wanted
in any other case. The order for issuing
processes under sections 82 and 83
Cr.P.C. against the remaining accused is
also set aside.

9. The learned counsel for the
applicants submitted that the accused
applicants are ready to appear before the
court below. They are allowed one
month's time to appear before the court
concerned
and
during
this
period
execution of non-bailable warrants against
them
shall
remain
stayed.
After
appearance of the accused, the Presiding
Officer of the court may release the
applicants on taking fresh bail bonds from
them and then he shall proceed with the
trial of the case in accordance with law.
Application allowed
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2006

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 15033 of 1983

Shr Chandra Bhushan Singh ...Petitioner
Versus
District
Basic
Education
officer,
Azamgarh and others
 ...Respondents

Counsel for the Petitioner:
Sri V.B. Khare
Sri A.B. Singh

Counsel for the Respondents:
Sri Indra Raj Singh
Sri A.N. Singh
Sri Awadh Behari Singh
S.C.

U.P. Recognised Basic School (In High
Schools) Recruitment & Conditions of
Service Rules of Teachers) Rules, 1978Rule-12-appointment
as
L.T.
grade
teacher-on
one
year
probation-after
expiry of one year-stood confirmed on
1.7.78-dis approval by Basic Education
officer
on
9.9.83-petitioner
possess
minimum qualification-teaching for a
long period-only reason disclosed by the
management that appointment made
without
following
the
procedure
prescribed
under
rule
1975-heldmanagement later can not turn aroundorder of disapproval-quashed with all
consequential benefits.

Held: Para 11

It was for the Management to obtain
requisite approval from the concerned
authority for the appointment of the
petitioner. The Management who offered
appointment to the petitioner later on
cannot turn around and say that the
appointment of the petitioner is illegal or
void.
Case law discussed:
2004 (2) UPLBEC-2070
1994 (3) ESC-117
1990 (1) UPLBEC-425
1993 (2) ESC-245
1993 ESC-231
1982 UPLBEC-365
2004 (2) UPLBEC-2070

(Delivered by Hon'ble Prakash Krishna. J.)

1. By means of the present writ
petition
under
Article
226
of
the