# Smt. Kalpana Gupta v. Sate of U.P. and Ors

- **Citation:** (2013) 2 ILRA 1008
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013
- **Case number:** Criminal Misc. Writ Petition No.3223 of 2013
- **Bench:** S.C. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kalpana-gupta-v-sate-of-u-p-and-ors-42534
- **Pages:** 5

## Headnote

Cr.P.C Section-401(2)- Revision before
session Court-according to provision of
section 399 provision of section 401(2)
applicable-revision against order passed
under section 203-rejecting complaintbefore revision Court neither the accused
persons impleaded nor any opportunity
of
hearing
given-on
remand-the
Magistrate passed impugned summoning
order-held-order of remand as well as
summoning
order
set-a-side-with
direction
to
session
court
after
impleadment of petitioner on due notice
decide
revision-irrespective
of
facts
whether writ or 482 application filed.

Held: Para-14
In the instant case, after dismissal of the
complaint under section 203 Cr.P.C., the
accused persons were neither impleaded
in the revision nor any notice was given
to them. They were not provided any
opportunity of hearing by the revisional
court and, therefore, revisional order
dated 27.9.2012 is liable to be quashed.
Since the revisional order ceases to
exist, the subsequent summoning order
dated 1.12.2012 passed by Chief Judicial
Magistrate, Jhansi as well as order dated
3.4.2013 issuing non-bailable warrants
do not survive and these orders are also
liable to be quashed and the matter has
to be remanded to the revisional court
for a fresh decision in accordance with
law after issuing notices to the accused
persons.

Case Law discussed:
2009(1) JIC 419(SC); 2010(10) SCC 517.

## Text

1008 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
government servant is entitled to full pay and
allowances which he would have been entitled
to had the order of dismissal, removal or
suspension, as the case may be, not been
passed. Where the authority cannot form such
an opinion the government servant may be
given such proportion of pay and allowances
as the authority may prescribe. In the former
case the period of absence from duty has to be
treated as period spent on duty. But the
authority has the power in suitable cases to
direct that such period of absence shall be
treated as period spent on duty in which case
the government servant would be entitled to
full pay and allowances.

"In our view, FR 54 contemplates a
duty to act in accordance with the basic
concept of justice and fair play. The authority
therefore had to afford a reasonable
opportunity to the appellant to show cause
why clauses 3 and 5 should not be applied
and that having not been done the order must
be held to be invalid."

40. In the instant matter, from the
perusal of the impugned order dated
25.4.2009, the position which emerges out is
that the competent authority/opposite party
no.4 has set aside the order of dismissal
taking a sympathetic view with a direction
that the petitioner is not entitled for any pay
and allowances for the said period, without
issuing any notice and without affording any
opportunity to the writ petitioner to make a
representation,
further
the
competent
authority also did not consider as to whether
the said period of absence of duty preceding
his termination can be converted into leave
of any kind due or admissible to the writ
petitioner as required under Sub-rule 4 or
Rule 54 of the Fundamental Rules.

41. In view of the above said facts,
the impugned order dated 25.4.2009
(Annexure No.1) passed by opposite party
no.4/Sub Divisional Officer, Tehsil Sadar,
District-Hardoi, so far as it directs that the
writ petitioner is not entitled for any back
wages while he re-instating him in service
being contrary to the provisions of Subrule 4 of Rule 54 of the Fundamental
Rules, thus, liable to be set aside.

42. For the foregoing reasons,
impugned
order
dated
25.4.2009
(Annexure No.1) passed by opposite party
no.4/Sub Divisional Officer, Tehsil Sadar,
District-Hardoi is set aside and the matter
is remanded back to the competent
authority/opposite party no.3 to take fresh
decision in the matter in accordance with
the observations made herein above. The
said exercise shall be completed by the
said authority expeditiously, say, within a
period of four months from the date of
receiving a certified copy of this order.

With the above observation, the writ
petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL- SIDE
DATED: ALLAHABAD 04.07.2013

BEFORE
THE HON'BLE S.C. AGARWAL, J.

Criminal Misc. Writ Petition No.3223 of
2013
along with
Application u/s 482 NO. 1020 of 2013
and
Criminal Misc. Writ Petition No. 6197 of
2013

Smt. Kalpana Gupta

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

Counsel for the Petitioner:
Sri Dilip Gupta, Sri Krishna Agarwal
2 All] Smt. Kalpana Gupta Vs. Sate of U.P. and Ors.
1009
Counsel for the Respondents:
A.G.A., Sri S.N. Pandey, Sri Siddharth
Singh
Sri Himanshu Pandey

Cr.P.C Section-401(2)- Revision before
session Court-according to provision of
section 399 provision of section 401(2)
applicable-revision against order passed
under section 203-rejecting complaintbefore revision Court neither the accused
persons impleaded nor any opportunity
of
hearing
given-on
remand-the
Magistrate passed impugned summoning
order-held-order of remand as well as
summoning
order
set-a-side-with
direction
to
session
court
after
impleadment of petitioner on due notice
decide
revision-irrespective
of
facts
whether writ or 482 application filed.

Held: Para-14
In the instant case, after dismissal of the
complaint under section 203 Cr.P.C., the
accused persons were neither impleaded
in the revision nor any notice was given
to them. They were not provided any
opportunity of hearing by the revisional
court and, therefore, revisional order
dated 27.9.2012 is liable to be quashed.
Since the revisional order ceases to
exist, the subsequent summoning order
dated 1.12.2012 passed by Chief Judicial
Magistrate, Jhansi as well as order dated
3.4.2013 issuing non-bailable warrants
do not survive and these orders are also
liable to be quashed and the matter has
to be remanded to the revisional court
for a fresh decision in accordance with
law after issuing notices to the accused
persons.

Case Law discussed:
2009(1) JIC 419(SC); 2010(10) SCC 517.

(Delivered by Hon'ble S.C. Agarwal, J.)

1. Since all the three cases arise out
of the same proceedings, as such, they are
being disposed of by a common order.

2. For the sake of convenience, writ
petition no.3223 of 2013 is treated as a
leading case.

3. Heard Sri Dilip Kumar, learned
counsel for the petitioners - Smt. Kalpana
Gupta and Rakesh Gupta, Sri B.R.J.
Pandey, learned counsel for the applicant
- Anand Sharma in Application u/s 482
Cr.P.C., learned A.G.A. for the State as
well as Sri Siddharth Singh, learned
counsel for the complainant.

4. The aforesaid petitioners and the
applicant are the accused in complaint
case no. 9946 of 2010 under sections 420,
406, 409, 467, 477-A, 120-B IPC, P.S.
Nawabad, District Jhansi (Vinay Bhushan
Sood Vs. Rakesh Kumar Gupta and
others) pending in the Court of Chief
Judicial
Magistrate,
Jhansi.
The
allegations made in the complaint are not
relevant for the disposal of the aforesaid
three cases. Suffice it to say that the said
complaint was dismissed under section
203 Cr.P.C. vide order dated 22.9.2011.
Feeling aggrieved, the complaint - Vinay
Bhushan Sood preferred criminal revision
no.249 of 2011 before Sessions Judge,
Jhansi, which was allowed vide judgment
and order dated 27.9.2012 passed by
Additional Sessions Judge / Special Judge
(E.C. Act), Jhansi. The order dated
22.9.2011 passed by Chief Judicial
Magistrate, Jhansi was set aside and the
Magistrate was directed to reconsider the
evidence available on record and to pass
orders in accordance with law. The said
revisional order dated 27.9.2012 is under
challenge in writ petition no.3223 of
2013.

5. In pursuance of order dated
27.9.2012 passed by the revisional court,
learned Chief Judicial Magistrate, Jhansi
1010 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
vide order dated 1.12.2012 reconsidered
the matter and summoned the accused
Rakesh Kumar Gupta, Kalpana Gupta,
Anand Sharma, N.S. Kushwaha and R.L.
Garg to face trial under sections 420, 406,
409, 467, 477-A, 120-B IPC. The
summoning order as well as the entire
proceedings have been challenged by
accused Anand Sharma by means of
Application u/s 482 Cr.P.C. No.1020 of
2013.

6. The revisional order dated
27.9.2012 as well as summoning order
dated 1.12.2012 along with order dated
3.4.2013
passed
by
Chief
Judicial
Magistrate, Jhansi issuing non-bailable
warrant of arrest against accused persons
have been challenged by accused Rakesh
Kumar Gupta by means of writ petition
no.6197 of 2013.

7.

Learned
counsel
for
the
petitioners and the applicant submitted
that after dismissal of the complaint under
section 203 Cr.P.C., a valuable right
accrued in favour of the petitioners and
the applicant and revision was allowed by
learned
Additional
Sessions
Judge
without issuing notices to the petitioners
and the applicant and without giving them
any opportunity of hearing. It was
contended that the complainant had not
even impleaded the petitioners and the
applicant as opposite parties in the
revision before the Sessions Judge and
learned
Additional
Sessions
Judge
allowed the revision in violation of
section 401 (2) Cr.P.C.

8. Learned A.G.A. as well as learned
counsel for the complainant supported the
impugned orders. It was submitted by
learned counsel for the complainant that the
petitioners as well as the applicant, in
collusion with Bank officials, usurped the
properties of the complainant. Since the
accused persons were not summoned by the
Magistrate, there was no necessity for
impleading them as opposite parties in
criminal revision no.249 of 2011, as they had
no right of hearing and learned Addl.
Sessions Judge rightly set aside the order
passed by the Chief Judicial Magistrate,
Jhansi dismissing the complaint under
section 203 Cr.P.C. A preliminary objection
was also raised that writ petition is not
maintainable to challenge the summoning
order passed by the Magistrate and the
revisional order was challenged after 90 days
without explaining the delay.

9. As far as the maintainability of
the writ petitions is concerned, the
revisional order has been challenged by
the
petitioners
along
with
the
consequential orders passed by the
Magistrate. Writ petition is maintainable
against the revisional order and, therefore,
preliminary objection in this respect is not
maintainable.

10. As far as question of delay is
concerned,
the
petitioners
had
no
knowledge regarding dismissal of the
complaint as well as of the fact that
revision filed by the complainant was
allowed as no notice was issued to the
petitioners and the applicant by the
revisional court. The petitioners and the
applicant came to know about the
proceedings only after process was issued
against them and, therefore, there is no
question of any laches on the part of the
petitioners and the applicant.

11. Section 401 (2) Cr.P.C. deals
with the High Court's power of revision.
Sub-section (2) provides that no order
under this section shall be made to the
prejudice of the accused or the other
2 All] Smt. Kalpana Gupta Vs. Sate of U.P. and Ors.
1011
person unless he has had an opportunity
of being heard either by personally or by
pleador in his defense. According to
section 399 (2) Cr.P.C., provisions of
section 402 Cr.P.C. shall apply to
revisions before Sessions Judge also.

12. In Raghu Raj Singh Rousha
Vs. M/s. Shivam Sundaram Promoters
Pvt. Ltd. & another, 2009 (1) JIC 419
(SC), the Apex Court held that once
Magistrate had refused to exercise its
jurisdiction under Section 156 (3) Cr.P.C.,
the opportunity of hearing is to be given
to the accused in revisional proceedings
by virtue to section 401 (2) Cr.P.C.

13. The aforesaid decision in Raghu
Raj Singh Rousha's case again came into
consideration of the Apex Court in
Manharibhai Muljibhai Kakadia &
Another Vs. Shaileshbhai Mohanbhai
Patel & Ors. 2012 (10) SCC 517 wherein
the it was held that

"We are in complete agreement with
the view expressed by this Court in P.
Sundarrajan, Raghu Raj Singh Rousha
and A. N. Santhanam. We hold, as it must
be, that in a revision petition preferred by
complainant before the High Court or the
Sessions Judge challenging an order of
the Magistrate dismissing the complaint
under Section 203 of the Code at the stage
under Section 200 or after following the
process contemplated under Section 202
of the Code, the accused or a person who
is suspected to have committed crime is
entitled to hearing by the revisional court.
In other words, where complaint has been
dismissed by the Magistrate under Section
203 of the Code, upon challenge to the
legality of the said order being laid by the
complainant in a revision petition before
the High Court or the Sessions Judge, the
persons who are arraigned as accused in
the complaint have a right to be heard in
such revision petition. This is a plain
requirement of Section 401(2) of the
Code. If the revisional court overturns the
order of the Magistrate dismissing the
complaint and the complaint is restored to
the file of the Magistrate and it is sent
back for fresh consideration, the persons
who are alleged in the complaint to have
committed crime have, however, no right
to participate in the proceedings nor they
are entitled to any hearing of any sort
whatsoever by the Magistrate until the
consideration of the matter by the
Magistrate for issuance of process. We
answer the question accordingly. The
judgments of the High Courts to the
contrary are overruled."

14. In the instant case, after
dismissal of the complaint under section
203 Cr.P.C., the accused persons were
neither impleaded in the revision nor any
notice was given to them. They were not
provided any opportunity of hearing by
the
revisional
court
and,
therefore,
revisional order dated 27.9.2012 is liable
to be quashed. Since the revisional order
ceases
to
exist,
the
subsequent
summoning order dated 1.12.2012 passed
by Chief Judicial Magistrate, Jhansi as
well as order dated 3.4.2013 issuing nonbailable warrants do not survive and these
orders are also liable to be quashed and
the matter has to be remanded to the
revisional court for a fresh decision in
accordance with law after issuing notices
to the accused persons.

15. Both the writ petitions as well as
the application u/s 482 Cr.P.C. are
allowed.

16.

Impugned
orders
dated
27.9.2012 passed by Additional Sessions
1012 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Judge Special Judge (E.C. Act), Jhansi in
criminal revision no.249 of 2011, the
consequential summoning order dated
1.12.2012 as well as order dated 3.4.2013
issuing non-bailable warrants against the
accused persons passed by Chief Judicial
Magistrate, Jhansi in complaint case no.
9946 of 2010 are quashed and the matter
is
remanded
to
learned
Additional
Sessions Judge / Special Judge (E.C. Act),
Jhansi for a fresh decision. Learned
Additional Sessions Judge shall direct the
complainant to implead the accused
persons in the revision and notices will be
issued to them and the revision shall be
disposed of in accordance with law after
giving an opportunity of hearing to all the
accused persons irrespective of the fact
that they have filed writ petitions and
application u/s 482 Cr.P.C. before this
Court or not.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.07.2013

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

Service Single No. 4407 of 2008

Prabhu Dayal

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

Counsel for the Petitioner:
Sri S.C. Verma, Sri Ajay Sharma
Sri Pradeep Singh

Counsel for the Respondents:
C.S.C., Sri Prashant Arora

U.P. Recognized & Basic School,(Junior
High School)(Recruitment and Condition
of Service of Ministerial Staff and Group
'D' Employees)Rules 1984- Rule 14 & 15Payment of salary on post of junior
clerk-admittedly no approval granted by
Basic Education Officer as yet-hence no
question of appointment-moreover as
per Rule 14 selection Committee not
properly
constituted-in
absence
of
export
nominated
by
BEO-selection
process and as well as appointment both
illegal-petition
dismissed-liberty
to
complete fresh selection process in
accordance with law given within 3
month.

Held: Para-19 & 20
19. The presence of three members of
the Selection Committee as envisaged
under Rule 14 of the Service Rules is
mandatory
in
nature.
Presence
or
absence of either of the members of the
Selection Committee may change the
very colour of the selection, hence, I am
of the considered opinion that in absence
of specialist to be nominated by the
District Basic Education Officer in the
Selection Committee, any selection made
by the such a Selection Committee
cannot be termed to be legal and
therefore, any recommendation made by
such a Selection Committee cannot be
legally permitted to be given effect to.

20. Further, any appointment based on
the
recommendation
made
by
the
Selection Committee can be made only
once it is approved by the District Basic
Education Officer as per requirement
contained in Rule 15 (5) of the Service
Rules.
Appointment
letter
by
the
appointing authority can be issued under
the
direction
of
the
District
Basic
Education Officer only once he accords
his approval to the selection proceedings
undertaken by the Selection Committee.
Any deviation of the procedure laid down
under Rule 15 of the Service Rules will
not
be
in
conformity
with
the
requirement
of
the
Rules,
hence
selection and appointment both will be
vitiated.

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)