# Shiv Kumar v. State of U.P. and another

- **Citation:** (2000) 3 ILRA 100
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-07-22
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-kumar-v-state-of-u-p-and-another-39461
- **Pages:** 4

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000
100
and medical institutions as are not run and
managed by the Government shall become
liable for making payment of general tax.

8. Learned counsels for the petitioner
also submitted that by the Government
order tax liability could not be imposed by
issuing government order dated 22.7.1998.
The argument has substance and it is
accordingly accepted.

9. In view of the unambiguous
provision of Section 177 of the Act as well
as amended clause (c) of the Section 177
referred to above, we are of the opinion
that no general tax could be imposed upon
the college of the petitioner which is
admittedly
neither
professional
nor
vocational institution.

10. In view of the above the
Government
order
dated
22.7.1998
Annexure 1 to the writ petition is quashed.
We further issue a writ of mandamus
directing the respondents to refund the
amount if any deposited as general tax
under Section 177 of the Act within two
months of production of a certified copy of
this order in accordance with law.

11. The petition stands allowed. No
order as to costs.
Petition Allowed.

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By the Court

1. I have heard Sri S.C. Pandey,
Learned counsel for the revisionist and the
learned A.G.A.

2. In this revision various order
which have been passed on the order sheet
adjoining the case no. 1640 of 1999 and
after committal in S.T. No. 171 of 1999,
State versus Shiv Kumar and Six others,
Under Section 498- A, 304-B I.P.C. and 3⁄4
3All] Shiv Kumar V. State of U.P. and another
101
D.P. Act pending in the court of Ist
Additional Sessions Judge, Bhadohi have
been challenged. All the orders have been
challenged. All the orders have been
challenged
on
one
ground
that
the
revisionist, Shiv Kumar is in jail. That he
is detained in jail but no order for remand
to judicial custody was ever passed to
detain revisionist in custody. The other
accused of this case are on bail. The only
argument of the learned counsel is that he
is in jail without any order of remand to
the judicial custody. Under Section 309 or
209 Cr.P.C and therefore, the custody of
the revisionist is illegal. The request made
by the revisionist is that he may be
enlarged on bail for the reason that he is in
illegal detention.

3. Record of the S.T.No.171 of 1999
has been summoned and has been perused
by me. In this case the revisionist was on
remand granted Under Section 167 Cr.P.C.
during., Bhadohi ordered that the case be
registered.
The
revisionist and other
accused are in jail. The copies be prepared.
However, on receipt of the charge sheet
neither be has been taken cognizance of
the case nor he has ordered that a remand
order Under Section 309 (2) Cr.P.C be
prepared. There is no order in the entire
order sheet of the learned Chief Judicial
Magistrate,
Bhadohi
remanding
the
accused to judicial custody Under Section
309 (2) Cr.P.C.. Various dates were fixed
in the case and ultimately the case was
committed to the court of Sessions on
17.11.1999. It was ordered that he be
produced
before
Sessions
Judge
on
17.12.1999. The other accused who were
on bail were also directed to appear in the
court of Sessions Judge on that day.
However, to my utter surprise even on that
date no remand order was passed by the
learned Chief Judicial, Bhadohi under
clause (b) Section 209 Cr.P.C. as amended
in U.P. The commitment order was
received for the court of Sessions Judge on
18.11.1999 and according to the order of
the Magistrate 17.12.1999 was fixed for
appearance. The case was transferred to Ist
Additional Sessions Judge were it is
proceeding. From that date till today no
remand
order
was
passed,
but
the
revisionist continues to be in custody
which is naturally illegal being without
any remand order authorizing detention.

4. In the circumstances mentioned
above I have no option but to say that the
custody of the revisionist is illegal.
However question that arises is whether
the accused should be released on bail. The
learned counsel for the revisionist has
referred to several cases. The first case is
Sajid and another Versus The State of
U.P., 1995 (Suppl.) A.C.C. 433. In this
case, the order of remand Under Section
209 Cr.P.C. was not found proper and
therefore,
in
criminal
revision
was
enlarged on bail. The other authority is
Raj Pal Singh Versus State of U.P.,
1995(32) A.C.C., 155. The facts of this
case are similar to the case of Sajid &
another (Supra) and the accused was
released on bail in the revision filed
against the order of judicial custody passed
without application of mind. The third
decision referred to is Rajesh Mishra
Versus State of U.P., 1994 (31) A.C.C.
197. This is a very detailed judgment of
Hon'ble Mr. Justice A.S. Tripathi and he
has considered the several decision and
held that there was no proper remand
order. He therefore, held that detention of
the accused is illegal and released the
accused on bail in a criminal revision.

5. I am unable to follow these
authorities as after careful going through
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
102
them I find that no doubt in all three case
the accused were released on bail in
criminal revision on the finding that there
was no legal remand order. However, no
law was laid down that in a case if an
accused is in illegal custody he is entitled
to be released on bail. Therefore, there is
no law laid down I these cases to be
followed. Only on the basis that in the
cited cases the accused were released on
bail, I am not inclined to release the
revisionist on bail. The following two
important questions were not at all
considered in any of the cases:

1)
Whether the accused can be released
on bail on the ground that his custody is
illegal.

2)
Whether the bail order can be passed
in revision ignoring the provisions of
chapter XXXIII Cr.P.C. regarding bail.

6. Without considering the above two
questions, it is not proper to grant bail to
the accused in a criminal revision. The
ground of bail has been mentioned Under
Section 436 and 439 Cr.P.C. are relevant.
Section 397 Cr.P.C. provide that where
exercising the power under that section of
examining the record, the High Court or
Court of Sessions may "direct that the
execution of any sentence or order be
suspended and if the accused is in
confinement that he be released on bail or
on his own bond pending the examination
of the record." The careful reading of the
provision reveal that under this provision
the bail can be ordered only in the case
where sentence has been awarded and the
power Under Section 397 Cr.P.C. is
exercised against the order awarding
sentence. In any other cases there is n o
provision for grant of bail while exercising
power of revision.
7. Secondly, this court exercise the
power of revision under Chapter XXX
Cr.P.C. and Sections 397 to 401 Cr.P.C.
are relevant. Section 397 Cr.P.C. provide
that where exercising the power under that
sections of examining the record, the High
Court or Court of Sessions may " direct
that the execution of any sentence or order
be suspended and if the accused is in
confinement that he be released on bail or
on his own bond pending the examination
of the record." The careful reading of the
provision reveal that under this provision
the bail can be ordered only in the case
where sentences has been awarded and the
power Under Section 397 Cr.P.C. is
exercised against the Order awarding
sentences. In any other cases there is no
provision for grant of bail while exercising
power of revision.

8. I therefore, find that neither the
bail can be granted on the ground that
there is illegal custody nor bail can be
granted in revision against illegal remand.
The remedy open for illegal custody is in
writ petition for Habeas Corpus under
Article 226 of the Constitution of India.
This court while exercising power of
revision, except in the cases where the
revision against the order of sentence can
not order for release on bail of the accused.
There are different provisions of bail
contained Under Section 436 to 439
Cr.P.C. in which alone the bail can be
granted.

9. I earned Counsel for the revisionist
has referred to certain other cases also
which in my opinion are against the
arguments of the learned counsel for the
revisionist but it is proper to refer to them.
The
first
is
Vashist Muni Versus
Superintendent, District jail, Faizabad
and others, 1993 U.P. Cr.P.C. 159. This
3All] The Oriental Insurance Co. Ltd. V. Nanhoomal Sharma and another
103
was a petition under Article 226 of the
Constitution of India. In this case the
detention was found illegal and for want of
proper order of remand and therefore, the
petitioner was directed to be set at liberty.
The other case referred to is Rafi Ahmad
Versus Adhikshak Janpad Karagar and
others, 1992 U.P. Cr.P.C. 531. In this
case also the remand order was found to be
illegal and therefore, it was ordered that
the revisionist, who is in illegal custody
shall be set at liberty. The third case
referred to is Ram Narayan Singh Versus
The State of Delhi and others, 1953 Crl.
L.J., 1113. This is a decision of the
Hon'ble Supreme Court. In this case, also
a writ petition under Article 32 of the
Constitution of India was filed. The
detention was found without remand order.
The Hon'ble Supreme Court ordered that
the petitioners be set at liberty.

10. All the above three cases
therefore, are against the arguments of
learned counsel for the revisionist. In all
these three cases the writ petition for
Habeas Corpus under Article 226 of the
Constitution of India were filed and it was
ordered that the accused be set at liberty.
In no cases the revisionist was released on
bail. Therefore, these cases confirm my
view expressed above.

11. In view of the above, no relief can
be given to the revisionist in this revision.
He may file a petition for Habeas Corpus
under Article 226 of the Constitution of
India.
The
revision
is
accordingly
dismissed.

12. However, I shall be failing in my
duty if proper guidance is not issued to the
Chief Judicial Magistrate, Bhadohi. The
Learned Sessions Judge, Bhadohi will look
into the matter and call for explanation of
the chief Judicial Magistrate, Bhadohi as
to why he did not order for taking
cognizance of the case when the charge
sheet was received and he did not prepare
warrant Under Section 309 (2) Cr.P.C. on
receipt of the charge sheet and the case
was adjourned for preparation of the
copies, and why he did not prepare
warrants Under Section 209 (b) Cr.P.C. (
as amended in U.P.) remanding the
accused to custody until commitment of
the case under clause (a) and therefore
during and until the conclusion of the trial.
The explanation shall be obtained within a
month and shall be forwarded with the
comments of Sessions Judge, Bhadohi to
the Registrar General of the High Court to
be placed before me. The office is directed
to sent the copy of this order to the learned
Sessions
Judge,
Bhadohi
immediately
alongwith record of the S/.T. No. 171 of
1999.
Revision Dismissed.

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