# Sharda Prasad Mishra v. A.G.M., Union Bank of India , Bombay& others

- **Citation:** High Court of Judicature at Allahabad #39513
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Bench:** J.C.Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sharda-prasad-mishra-v-a-g-m-union-bank-of-india-bombay-others-39513
- **Pages:** 2

## Text

22 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
persons on bail during investigation under
Section 437 Cr.P.C. All these provisions in
the Cr.P.C. have been incorporated for
providing
assistance
to
the
police
in
investigation under the supervision of the
Magistrate. Similarly in a case where there is
allegation against a person that he is in
possession of stolen goods, which may be
recovered
on
an
interrogation,
or
the
complicity of certain persons in the crime can
be
ascertained
by
conducting
test
identification parade, there can be no reason
as to why the Magistrate cannot provide
assistance to the police in calling the accused
to the jail concerned if the person is detained
in prison in some other district or State.
Section 267 Cr. P.C provides remedy for such
a situation for the crime and interrogation,
recovery of stolen or incriminating articles
etc.

11. For the above reasons, with great
respect I think that the narrow interpretation
of the words "other proceeding under this
Code" as meaning only the proceeding in the
court is not a correct interpretation and the
investigation of the offence by the police u/s
156 Cr. P.C. is also a proceeding under the
Code and for that purpose a Magistrate can
exercise power u/s 267 Cr.P.C. to issue an
order in Form No.36,if the person is detained
in some other prison.

12. I, therefore, respectfully differ with
the view taken by the Hon'ble J.C.Gupta, J. in
the above case and the following point is
referred to for the decision by the Division
Bench "whether an order u/s 267 Cr.P.C. in
Form No. 36 of second schedule of Cr.P.C.
can be issued on the request of the police
during investigation of some offence, even if
no inquiry or trial or proceedings are pending
in the court"

13. Let the record be placed before the
Hon'ble The Chief Justice for nominating a
Bench for the decision of the above question
at an early date, as this question is of very
vital importance for investigation of offences.

14. This petitions shall be disposed of
after the question is answered.

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By the Count

1. Heard learned counsel for the petitioner
and learned Standing Counsel.

2. The petitioner has prayed for prayed
for.
Regularisation
of
the
service
as
2ALL] Sharda Prasad Mishra V A.G.M., Union Bank of India , Bombay& others 23
Stenographer. Admittedly, the petitioner
was appointed as Stenographer on daily wage
basis in March 1981, and he has been in
continuous service since then i.e. for more
then 18 years.

3. In our opinion, the state government
cannot act arbitrarily in the matters relating to
temporary or daily wage employees. No doubt
there is a principle in service law that a
temporary employee has no right to the post,
but this principle has to be considered along
with the other legal principle that the State
cannot act arbitrarily. In the case of Smt.
Maneka Gandhi Vs.Union of India and
another ,AIR 1978 SC 597 it has been held by
a7 judge constitution Bench decision of the
supreme court that the State Government can
not act arbitrarily as arbitranuons violates
Art.14 of the constetion. In our opinion to
keep a person on daily wage basis for 18 year
is wholly arbitrary, Hence on the facts and
circumstances of the case, we direct that the
petitioner be regularised within a month from
the date of production of the certified copy of
this order and he shall be paid regular salary
thereafter.

4. With the above observations, the
petition is disposed of.

Petition disposed of.
----------

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By the court

A number of prayers been made in this
writ petition, but having gone through the
pleadings of the parties and heard Sri K.P.
Agarwal learned counsel appearing on behalf
of the petitioner and sri V.R. Agrawal learned
counsel
appearing
on
behalf
of
the
Respondent, we find that the real question is
as to whether that memorandum, as contained
in Annexure-15 to the writ petition, which
reads as follows should be should quashed by
us or not:-
"This has reference to the explanation date
28.12.1993 submitted by Shri S. P. Mishra in
reply to memorandum no CO:IRD:9034/93
dated 20.12.93.
The aforesaid explanation dated 28.12.93
submitted by Shri Mishra is not found
satisfactory and convincing. I, therefore, hold
Sri Mishra guilty of the resons enumerated in
memorandum no CO: IRD: 9034/93 dated
20.12.93: