# State of U.P v. Swaminath

- **Citation:** (2021) 11 ILRA 673
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-26
- **Case number:** Government Appeal No. 1850 of 2015
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-swaminath-46617
- **Pages:** 8

## Headnote

the basis of the evidence on record, the
appellate Court should not disturb the finding
of acquittal recorded by the trial Court when it
is just and proper. (Para 12)
Appeal Modified. (E-10)

List of Cases cited:
674 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

11 All. State of U.P. Vs. Swaminath
673

20.

Learned
AGA
submitted
that
prosecutrix has supported the prosecution
version in her statement as PW1. She has
narrated the story, which took place with her by
the accused persons in detail, but the learned
trial court did not rightly appreciate her
evidence. It is also submitted that Ram Swaroop
(PW2) had seen the accused persons while
running from the house of prosecutrix at the
given date and time, but this evidence was also
not considered by trial court in right perspective.

21. We had perused the evidence on
record. Prosecutrix has stated that rape was
committed upon her by the accused-Khushi
Ram, but the medical evidence suggests that no
rape was committed upon her. Medical Report
(Ex.ka3) says that at the time of internal medical
examination, hymen was found old torn and
well-healed up. No fresh-injury detected.
Therefore, as per medical-report, there was no
external or internal injury on the person of the
prosecutrix rather it was concluded by the doctor
that she has used to sexual intercourse. In
ossification-test, her age was found above 19
years and the doctor had opined that 'no opinion
about rape can be given'. In pathology-report, it
is mentioned that 'no spermatozoa was seen'. It
is also pertinent to mention as far as the offence
of theft under Section 380 IPC is concerned, no
recovery is made from any of the accused
persons.

22. We have considered the evidence on
record meticulously and we are of the
considered opinion that learned trial Judge had
rightly appreciated the evidence on record and it
was correctly opined by the learned trial Judge
that offence of rape or theft was not proved by
the prosecution case.

23. In view of above, we cannot take a
different view from that of taken by the learned
trial-court. We also do not find any infirmity in
the impugned judgment and order dated
18.2.1986, therefore, we have no other option,
but to concur with the findings recorded by the
learned trial court and appeal is liable to be
dismissed.

24. Hence, appeal sans merit and is
dismissed.

25. We are thankful to Shri Vikas
Goswami, learned AGA for the State of UP and
Shri Suresh Dhar Dwivedi, learned counsel for
the accused-respondents for ably assisting the
Court.
----------
(2021)12ILR A673
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.11.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Government Appeal No. 1850 of 2015

State of U.P. ...Appellant
Versus
Swaminath ...Respondent

Counsel for the Appellant:
A.G.A.

Counsel for the Respondent:

A. Practice & Procedure - Scope of Appellate
Court - It is a settled principle that while
exercising appellate powers, even if two
reasonable views/conclusions are possible on
the basis of the evidence on record, the
appellate Court should not disturb the finding
of acquittal recorded by the trial Court when it
is just and proper. (Para 12)
Appeal Modified. (E-10)

List of Cases cited:
674 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Shiv Shankar Vs St. of U.P. 2002 Crl. Law Journal
2673

2. M.S. Narayana Menon @ Mani Vs St. of Kerala &
anr. (2006) 6 S.C.C. 39

3. Chandrappa Vs. St. of Karn.(2007) 4 S.C.C. 415

4. State of Goa Vs Sanjay Thakran & anr. (2007) 3
S.C.C. 75

5. St. of U.P. Vs Ram Veer Singh & ors. 2007 A.I.R.
S.C.W. 5553

6. Girja Prasad (Dead) by L.Rs. Vs St. of M.P. 2007
A.I.R. S.C.W. 5589

7. Luna Ram Vs Bhupat Singh & ors. (2009) SCC 749

8. Mookkiah & anr Vs State of Representatives by the
Inspector of Police, Tamil Nadu AIR 2013 SC 321

9. State of Karnataka Vs Hemareddy AIR 1981 SC
1417

10. Shivasharanappa & ors. Vs St.of Karn. JT 2013 (7)
SC 66

11. St. of Pun. Vs Madan Mohan Lal Verma (2013) 14
SCC 153

12. Jayaswamy Vs St. of Karn.(2018) 7 SCC 219

13. Shaildenra Rajdev Pasvan Vs St.of Gu. (2020) 14
SC 750

14. Samsul Haque Vs St.of Assam (2019) 18 SCC 161

(Delivered by Hon'ble Dr. Kaushal Jayendra
Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. Heard learned AGA for the State and
perused the record.

2. This appeal, at the behest of the State,
has been preferred against the judgment and
order
dated
18.10.2005,
passed
by
the
Additional Sessions Judge/F.T.C., Maharajganj,
acquitting accused-respondent, who has been
tried for commission of offence under Sections
376 and 511 of Indian Penal Code (hereinafter
referred to as, ''I.P.C').

3. The State of Uttar Pradesh has felt
aggrieved while convicting the accused. The
learned trial Judge has convicted under Section
354 of the Indian Penal Code as the learned
Judge has considered the case under Section 354
as though the charge against the accused was for
commission of offence under Section 376 of IPC
and 511 IPC. The said offences were held to be
not proved. The accused had entered the house
of his uncle and aunt and tried to ravish her. The
learned Judge has considered the judgment in
Shiv Shankar v. State of Uttar Pradesh
reported in 2002 Crl. Law Journal 2673 and
come to the conclusion that he held lost the right
of being in the house of the uncle and, therefore,
he has been considered to be an accused and is
punished for committing offence under Section
457 IPC also read with 354 IPC.

4. Learned Judge while sentencing has
considered the fact that this is first offence and
he was under mental shock as he had lost his
elder brother and wife of his younger brother.
The accused tried to molest his aunt and,
therefore, the court ordered his incarceration for
2 years under Section 354 of IPC and one year
under Section 457 of the IPC but looking to his
state of mind did not order recovery of fine or
default sentence.

5. After recording the evidence of the
witnesses and perusing the material on record,
the trial Court passed the impugned order.
Hence, the present appeal contending that
offence committed was under Section 376 IPC.

6. We are not aware whether the accused
has challenged the sentence or not, but the State
11 All. State of U.P. Vs. Swaminath
675
has challenged. The order sheet does not reveal
that since 2006 whether the accused ever was
issued with summons, though the record has
been summoned and it is with this court since
August, 2021.

7. The term shall also be liable to fine in
section 457 and, therefore, we are of the opinion
that while hearing the appeal, we find that error
has occurred by not imposing fine for conviction
under Section 457 IPC. The view taken by
learned Judge is against the mandate of the
Statute and no reasons are assigned by the
learned Judge, as to why he has not inflicted
punishment of fine though the sentencing as per
Section 457 of Indian Penal Code uses the word
'and fine'.

8. As far as the facts are concerned, the
accused was charged with commission of
offence under Section 376 read with Section 511
of the IPC that he had committed rape of his
aunt on 2.2.1995 by entering into his house, he
had tried to commit rape and he was also liable
for tress pass.

9. Learned AGA for the appellant-State,
vehemently submitted that the trial Court
committed a grave error in passing the impugned
judgment and order, inasmuch as it failed to
appreciate the material on record in its proper
perspective. It is submitted that taking into
consideration the oral evidence of the witnesses
examined by the prosecution as well as the
documentary evidences produced by it, the trial
Court ought to have held the accused guilty of
the charges leveled against them. It is, therefore,
prayed that the appeal be allowed.

10. The principles which would govern and
regulate the hearing of an appeal by this Court,
against an order of acquittal passed by the trial
Court, have been very succinctly explained by
the Apex Court in catena of decisions. In the
case of "M.S. NARAYANA MENON @
MANI VS. STATE OF KERALA & ANR",
(2006) 6 S.C.C. 39, the Apex Court has narrated
the powers of the High Court in appeal against
the order of acquittal. In para 54 of the decision,
the Apex Court has observed as under:

"54. In any event the High Court
entertained an appeal treating to be an appeal
against acquittal, it was in fact exercising the
revisional jurisdiction. Even while exercising an
appellate power against a judgment of acquittal,
the High Court should have borne in mind the
well settled principles of law that where two
view are possible, the appellate Court should
not interfere with the finding of acquittal
recorded by the Court below."

11.

Further,
in
the
case
of
"CHANDRAPPA
Vs.
STATE
OF
KARNATAKA", reported in (2007) 4 S.C.C.
415, the Apex Court laid down the following
principles;

"42. From the above decisions, in our
considered
view,
the
following
general
principles regarding powers of the appellate
Court while dealing with an appeal against an
order of acquittal emerge:

[1] An appellate Court has full power
to review, re-appreciate and reconsider the
evidence upon which the order of acquittal is
founded.

[2] The Code of Criminal Procedure,
1973 puts no limitation, restriction or condition
on exercise of such power and an appellate
Court on the evidence before it may reach its
own conclusion, both on questions of fact and of
law.

[3]
Various
expressions,
such
as,"substantial and compelling reasons", "good
and
sufficient
grounds",
"very
strong
circumstances",
"distorted
conclusions",
"glaring mistakes", etc. are not intended to
676 INDIAN LAW REPORTS ALLAHABAD SERIES
curtain extensive powers of an appellate Court
in
an
appeal
against
acquittal.
Such
phraseologies are more in the nature of
"flourishes of language" to emphasis the
reluctance of an appellate Court to interfere
with acquittal than to curtail the power of the
Court to review the evidence and to come to its
own conclusion.

[4] An appellate Court, however, must
bear in mind that in case of acquittal there is
double presumption in favour of the accused.
Firstly, the presumption of innocence is
available to him under the fundamental
principle of criminal jurisprudence that every
person shall be presumed to be innocent unless
he is proved guilty by a competent Court of law.
Secondly, the accused having secured his
acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened
by the trial Court.

[5] If two reasonable conclusions are
possible on the basis of the evidence on record,
the appellate Court should not disturb the
finding of acquittal recorded by the trial Court."

12. Thus, it is a settled principle that while
exercising appellate powers, even if two
reasonable views/conclusions are possible on the
basis of the evidence on record, the appellate
Court should not disturb the finding of acquittal
recorded by the trial Court.

13. Even in the case of "STATE OF GOA
Vs. SANJAY THAKRAN & ANR.", reported
in (2007) 3 S.C.C. 75, the Apex Court has
reiterated the powers of the High Court in such
cases. In para 16 of the said decision, the Court
has observed as under:

"16. From the aforesaid decisions, it is
apparent that while exercising the powers in
appeal against the order of acquittal the Court
of appeal would not ordinarily interfere with the
order of acquittal unless the approach of the
lower Court is vitiated by some manifest
illegality and the conclusion arrived at would
not be arrived at by any reasonable person and,
therefore, the decision is to be characterized as
perverse. Merely because two views are
possible, the Court of appeal would not take the
view which would upset the judgment delivered
by the Court below. However, the appellate
Court has a power to review the evidence if it is
of the view that the conclusion arrived at by the
Court below is perverse and the Court has
committed a manifest error of law and ignored
the material evidence on record. A duty is cast
upon the appellate Court, in such circumstances,
to re-appreciate the evidence to arrive to a just
decision on the basis of material placed on
record to find out whether any of the accused is
connected with the commission of the crime he is
charged with."

14. Similar principle has been laid down
by the Apex Court in cases of "STATE OF
UTTAR PRADESH VS. RAM VEER SINGH
& ORS.", 2007 A.I.R. S.C.W. 5553 and in
"GIRJA PRASAD (DEAD) BY L.R.s VS.
STATE OF MP", 2007 A.I.R. S.C.W. 5589.
Thus, the powers, which this Court may exercise
against an order of acquittal, are well settled.

15. In the case of "LUNA RAM VS.
BHUPAT SINGH AND ORS.", reported in
(2009) SCC 749, the Apex Court in para 10 and
11 has held as under:

"10. The High Court has noted that the
prosecution version was not clearly believable.
Some of the so called eye witnesses stated that
the deceased died because his ankle was twisted
by an accused. Others said that he was
strangulated. It was the case of the prosecution
that the injured witnesses were thrown out of the
bus. The doctor who conducted the postmortem
and examined the witnesses had categorically
stated that it was not possible that somebody
11 All. State of U.P. Vs. Swaminath
677
would throw a person out of the bus when it was
in running condition.

11. Considering the parameters of
appeal against the judgment of acquittal, we are
not inclined to interfere in this appeal. The view
of the High Court cannot be termed to be
perverse and is a possible view on the evidence."

16. Even in a recent decision of the Apex
Court in the case of "MOOKKIAH AND ANR.
VS. STATE, REP. BY THE INSPECTOR OF
POLICE, TAMIL NADU", reported in AIR
2013 SC 321, the Apex Court in para 4 has held
as under:

"4. It is not in dispute that the trial
Court, on appreciation of oral and documentary
evidence led in by the prosecution and defence,
acquitted the accused in respect of the charges
leveled against them. On appeal by the State, the
High Court, by impugned order, reversed the
said decision and convicted the accused under
Section 302 read with Section 34 of IPC and
awarded RI for life. Since counsel for the
appellants very much emphasized that the High
Court has exceeded its jurisdiction in upsetting
the order of acquittal into conviction, let us
analyze the scope and power of the High Court
in an appeal filed against the order of acquittal.
This Court in a series of decisions has
repeatedly laid down that as the first appellate
court the High Court, even while dealing with
an appeal against acquittal, was also entitled,
and obliged as well, to scan through and if need
be reappreciate the entire evidence, though
while hoosing to interfere only the court should
find an absolute assurance of the guilt on the
basis of the evidence on record and not merely
because the High Court could take one more
possible or a different view only. Except the
above, where the matter of the extent and depth
of consideration of the appeal is concerned, no
distinctions or differences in approach are
envisaged in dealing with an appeal as such
merely because one was against conviction or
the other against an acquittal. [Vide State of
Rajasthan vs. Sohan Lal and Others, (2004) 5
SCC 573]"

17. It is also a settled legal position that in
acquittal appeals, the appellate Court is not
required to rewrite the judgment or to give fresh
reasonings, when the reasons assigned by the
Court below are found to be just and proper.
Such principle is laid down by the Apex Court in
the case of "STATE OF KARNATAKA VS.
HEMAREDDY", AIR 1981, SC 1417, wherein
it is held as under:

"...This Court has observed in Girija
Nandini Devi V. Bigendra Nandini Choudhary
(1967) 1 SCR 93:(AIR 1967 SC 1124) that it is
not the duty of the Appellate Court on the
evidence to repeat the narration of the evidence
or to reiterate the reasons given by the trial
Court expression of general agreement with the
reasons given by the Court the decision of which
is under appeal, will ordinarily suffice."

18. In a recent decision, the Hon'ble Apex
Court in "SHIVASHARANAPPA & ORS. VS.
STATE OF KARNATAKA", JT 2013 (7) SC
66 has held as under:

"That appellate Court is empowered to
reappreciate the entire evidence, though, certain
other principles are also to be adhered to and it
has to be kept in mind that acquittal results into
double presumption of innocence."

19. Further, in the case of "STATE OF
PUNJAB
VS.
MADAN
MOHAN
LAL
VERMA", (2013) 14 SCC 153, the Apex Court
has held as under:

"The law on the issue is well settled
that demand of illegal gratification is sine qua
non for constituting an offence under the 1988
Act. Mere recovery of tainted money is not
678 INDIAN LAW REPORTS ALLAHABAD SERIES
sufficient
to
convict
the
accused
when
substantive evidence in the case is not reliable,
unless there is evidence to prove payment of
bribe or to show that the money was taken
voluntarily as a bribe. Mere receipt of the
amount by the accused is not sufficient to fasten
guilt, in the absence of any evidence with regard
to demand and acceptance of the amount as
illegal gratification. Hence, the burden rests on
the
accused
to
displace
the
statutory
presumption raised under Section 20 of the 1988
Act, by bringing on record evidence, either
direct or circumstantial, to establish with
reasonable probability, that the money was
accepted by him, other than as a motive or
reward as referred to in Section 7 of the 1988
Act. While invoking the provisions of Section 20
of the Act, the court is required to consider the
explanation offered by the accused, if any, only
on
the
touchstone
of
preponderance
of
probability and not on the touchstone of proof
beyond all reasonable doubt. However, before
the accused is called upon to explain how the
amount in question was found in his possession,
the foundational facts must be established by the
prosecution. The complainant is an interested
and partisan witness concerned with the success
of the trap and his evidence must be tested in the
same way as that of any other interested witness.
In a proper case, the court may look for
independent corroboration before convincing
the accused person."

20.

The
Apex
Court
recently
in
Jayaswamy vs. State of Karnataka, (2018) 7
SCC 219, has laid down the principles for laying
down the powers of appellate court in reappreciating the evidence in a case where the
State has preferred an appeal against acquittal,
which read as follows:

"10.It is by now well settled that the
Appellate Court hearing the appeal filed against
the judgment and order of acquittal will not
overrule or otherwise disturb the Trial Court's
acquittal if the Appellate Court does not find
substantial and compelling reasons for doing so.
If the Trial Court's conclusion with regard to the
facts is palpably wrong; if the Trial Court's
decision was based on erroneous view of law; if
the Trial Court's judgment is likely to result in
grave miscarriage of justice; if the entire
approach of the Trial Court in dealing with the
evidence was patently illegal; if the Trial Court
judgment
was
manifestly
unjust
and
unreasonable; and if the Trial Court has
ignored the evidence or misread the material
evidence or has ignored material documents like
dying declaration/report of the ballistic expert
etc. the same may be construed as substantial
and compelling reasons and the first appellate
court may interfere in the order of acquittl.
However, if the view taken by the Trial Court
while acquitting the accused is one of the
possible
views
under
the
facts
and
circumstances of the case, the Appellate Court
generally will not interfere with the order of
acquittal particularly in the absence of the
aforementioned factors.

.........................It is relevant to note
the observations of this Court in the case of
Ramanand Yadav vs. Prabhu Nath Jha & Ors.,
(2003) 12 SCC 606, which reads thus:

"21.There is no embargo on the
appellate court reviewing the evidence upon
which an order of acquittal is based. Generally,
the order of acquittal shall not be interfered with
because the presumption of innocence of the
accused is further strengthened by acquittal. The
golden thread which runs through the web of
administration of justice in criminal cases is that
if two views are possible on the evidence
adduced in the case, one pointing to the guilt of
the accused and the other to his innocence, the
view which is favourable to the accused should
be adopted. The paramount consideration of the
court is to ensure that miscarriage of justice is
prevented. A miscarriage of justice which may
11 All. State of U.P. Vs. Swaminath
679
arise from acquittal of the guilty is no less than
from the conviction of an innocent. In a case
where admissible evidence is ignored, a duty is
cast upon the appellate court to re-appreciate
the evidence in a case where the accused has
been acquitted, for the purpose of ascertaining
as to whether any of the accused committed any
offence or not."

21. The Apex Court recently in Shailendra
Rajdev Pasvan v. State of Gujarat, (2020) 14
SC 750, has held that the appellate court is
reversing the trial court's order of acquittal, it
should give proper weight and consideration to
the presumption of innocence in favour of
accused, and to the principle that such a
presumption sands reinforced, reaffirmed and
strengthened by the trial court and in Samsul
Haque v. State of Assam, (2019) 18 SCC 161
held that judgment of acquittal, where two views
are possible, should not be set aside, even if
view formed by appellate court may be a more
probable one, interference with acquittal can
only be justified when it is based on a perverse
view.

22. The factual scenario of the case to
show that on the fateful date, the accused who
was the nephew of the prosecutrix tried to
commit tress pass entered the house tried to
molested her, but in the process when she tried
to catch him, he ran away. The prosecutrix was
moved into motion and the charge sheet was
laid. The learned judge has given judgment
which cannot be said to be in so perverse, that
conviction under Section 354 IPC is bad, it
cannot be said that the findings of facts are
perverse but there is irregularity in not passing
order of fine and default sentence.

23. In view of the above judgments and
facts as discussed above, it would not permit us
to take a different view then that taken by the
learned Judge who has convicted the accused.
The evidence on record also will not permit us to
take a different view as far as punishment under
Section 354 and not 376 IPC is considered.
Thus, the above-mentioned decisions will not
permit this Court to take a different view except
infliction of fine. In this case it is not proved
beyond
doubt
that
the
original
accused
respondent, herein, indulged into commission of
rape of his own aunt.

24. While going through the record and the
impugned judgment, the principle enunciated by
the Apex Court for entertaining appeal against
partial conviction which are reproduced herein
above, will permit this Court to pass order which
will meet ends of justice.

25. The Court on careful reading came to
the conclusion that the provisions of Section
offence under Sections, 375 and 376 IPC are not
made out. The testimony of the witnesses do not
permit us to take a different view that rape was
not committed. The reason being there was no
penetration in the vagina of the prosecutrix
before he could do anything. She sounded the
alarm by shouling and accused fled away. The
provision of Section 511 IPC with which he was
charged is also not be attracted. There was no
charge under Section 457 of IPC, but the learned
Judge has also convicted under Section 457 of
IPC read with 354 IPC.

26. In the result, this appeal fails but to
meet ends of justice as the judgment and order
of the trial Court, Dated : 18.10.2005, stands
modified. Bail bonds of the accused, if any, on
bail, stands cancelled.

27. Lower Court Record be sent back to
the concerned trial Court, forthwith.

28. As far as under Section 457 IPC is
concerned, as there is mandate to impose fine as
it is mandatory, we direct the learned trial Judge
to summon the accused herein and pass order of
fine and default sentence. The accused if he has
680 INDIAN LAW REPORTS ALLAHABAD SERIES
not undergone, the punishment will surrender to
the Jail authorities concerned, if he has not
preferred any appeal or no orders are passed.
----------
(2021)12ILR A680
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.12.2021

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE JASPREET SINGH, J.

Misc. Single No. 156 of 2008 & other cases

Ram Vilas ...Petitioner
Versus
Commissioner Devi Patan Mandal Gonda & Ors.
 ...Respondents

Counsel for the Petitioner:
M/s Mohan Singh, Rajiv Kumar Tripathi, Rama Kant
Dixit, Vinod Kumar Pandey, S. Chandra, Ganesh Nath
Mishra, Satendra Nath Rai

Counsel for the Respondents:
Mr. Manjive Shukla, Additional Chief Standing
Counsel, Mr. Brijesh Kumar Singh, Advocate

A. Interpretation of Statute - U.P. Panchayat
Raj Act, 1947: Section 2(q)(ii), 27 - U.P.
Panchayat Raj (Amendment) Rules, 1969 -
By way of Amendment in Chapter XIII heading
"SURCHARGE" was inserted in the U.P. Panchayat
Raj Rules, 1947. The Court interpreted that the
District Magistrate is the "Prescribed Authority" for
imposing surcharge on Pradhan, Up-Pradhan and
the Members under Section 27(2) and the District
Panchayat Raj Officer is the Prescribed Authority
for imposing surcharge upon the Officers or
servants of the Gaon Sabha. (Para 20)

Reference is Answered. (E-10)

List of Cases cited:

1. Uday Pratap Singh @ Harikesh Vs St. of U.P. & ors.
Writ C No. 24902 of 2019
(Delivered by Hon'ble Rajesh Bindal, C.J.)

1. The matter has been placed before this
Court for consideration of the following
questions of law, on account of doubt expressed
by learned Single Judge on the view expressed
earlier by a Single Judge of this Court in Writ-C
No. 24902 of 2019 (Uday Pratap Singh @
Harikesh Vs. State of U.P. and others) decided
on 30.09.2019:

"(1) Whether in view of the U.P.
Panchayat Raj (Amendment) Rules, 1969 by
which
Chapter-
XIII
with
the
heading
''SURCHARGE' was inserted in the U.P.
Panchayat Raj Rules, 1947 in exercise of powers
under Section 110 by the State Government,
which have been notified in the Gazette on
31.05.1969, the District Magistrate is the
''Prescribed Authority' for imposing surcharge
on Pradhan, Up-Pradhan and Members under
Section 27 (2) in terms of Section 2(q)(ii) of the
U.P. Panchayat Raj Act, 1947 or not ?, and
whether the District Pachayat Raj Officer is the
Prescribed Authority for imposing surcharge
upon the Officers or servants of the Gaon Sabha
or not ?

(2) Whether the decision rendered by a
Single Judge Bench in Writ- C No. 24902 of
2019; Uday Pratap Singh @ Harikesh Vs. State
of U.P. and others and connected petitions on
30.09.2019 lays down the law correctly with
regard to Question No. 1 framed above ?"

2. As only legal issues have been referred
to be considered by Larger Bench, we do not go
much in the facts of the case as for that purpose
the matter will go back before the learned Single
Judge.

3. The argument raised by learned counsel
for the petitioners is that the Prescribed
Authority having not been notified in terms of
the provisions of the U.P. Panchayat Raj Act,
1947 (hereinafter referred to as "the Act"), the
District Magistrate cannot exercise the power. A