# Sunderbhai Ambalal Desai v. State of

- **Citation:** (2013) 1 ILRA 73
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-01-03
- **Bench:** Ashok Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunderbhai-ambalal-desai-v-state-of-42530
- **Pages:** 4

## Headnote

Criminal Procedure Code, Section 451released of Motor Cycle involved in case
no. 1429 of 2011, the Police rubbed the
engine
and
chassis-rejected
by
the
Magistrate-learned Session Judge also
without appreciating the law laid down
by the Apex Court in Sunderbhai Ambalal
Desai-rejected-held-the
magistrate
is
not limb but a judicial officer, he should
have acted in more responsible mannerorder passed by the Court below set-aside-liberty to file a fresh application-it
shall be decided in accordance with law.

Held: Para-10

Keeping in view the character of U.P.
Police the possibility that the number
plate has been changed or the engine &
chassis numbers have been rubbed to
make it illegible, can not be ruled out. In
such circumstances the duty of a judicial
officer is enhanced and it necessitates
that the Court should behave in a more
responsible manner. In the instant case
the way in which the learned Magistrate
has acted while disposing of the release
application of the petitioner cannot be
appreciated. He must not forget that he
is not a limb of the police, but is a
judicial officer. The learned Additional
Sessions Judge also did not care to go
deep in the matter and appreciate the
law as laid down by the Apex Court in
Sunderbhai Ambalal Desai Vs. State of
Gujrat (2003) SC 6318 & Sulekh Chnad
Vs. Suresh Chand (1991) Crl. L.J. 469
(SC).
Case Law discussed:
(2003) SC 6318; (1991) Crl. L.J. 469 (SC)

## Text

1 All] Shyam Bihari V. State of U.P. and another
73
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2013

BEFORE
THE HON'BLE ASHOK SRIVASTAVA, J.

Criminal Misc. Writ Petition No. - 9560 of
2012

Shyam Bihari

...Petitioner
Versus
State of U.P. & another ...Respondents

Counsel for the Petitioner:
Sri S.K. Dubey

Counsel for the Respondents:
Govt. Advocate

Criminal Procedure Code, Section 451released of Motor Cycle involved in case
no. 1429 of 2011, the Police rubbed the
engine
and
chassis-rejected
by
the
Magistrate-learned Session Judge also
without appreciating the law laid down
by the Apex Court in Sunderbhai Ambalal
Desai-rejected-held-the
magistrate
is
not limb but a judicial officer, he should
have acted in more responsible mannerorder passed by the Court below set-aside-liberty to file a fresh application-it
shall be decided in accordance with law.

Held: Para-10

Keeping in view the character of U.P.
Police the possibility that the number
plate has been changed or the engine &
chassis numbers have been rubbed to
make it illegible, can not be ruled out. In
such circumstances the duty of a judicial
officer is enhanced and it necessitates
that the Court should behave in a more
responsible manner. In the instant case
the way in which the learned Magistrate
has acted while disposing of the release
application of the petitioner cannot be
appreciated. He must not forget that he
is not a limb of the police, but is a
judicial officer. The learned Additional
Sessions Judge also did not care to go
deep in the matter and appreciate the
law as laid down by the Apex Court in
Sunderbhai Ambalal Desai Vs. State of
Gujrat (2003) SC 6318 & Sulekh Chnad
Vs. Suresh Chand (1991) Crl. L.J. 469
(SC).
Case Law discussed:
(2003) SC 6318; (1991) Crl. L.J. 469 (SC)

(Delivered by Hon'ble Ashok Srivastava, J.)

1. The instant writ petition has been
filed as the petitioner has felt aggrieved
by an order dated 12.4.2012 passed by V
additional Sessions Judge, Mirzapur in
criminal revision No.11 of 2012 and order
dated 8.11.2011 passed by the Addl.
Chief Judicial Magistrate 1st, Mirzapur in
S.T.No.253 of 2011(arising out of case
crime No.260 of 2011), State Vs. Ashish
Patel & others, P.S.Ahrora, district
Mirzapur.

2. Respondent No.2 of this case is
Station Officer of P.S. Ahrora district
Mirzapur who is properly represented by
the learned AGA and so is the case of
respondent no.1, hence no notice has been
issued to respondent no.2 and with
consent of the parties present before this
Court this petition is finally disposed of
after due hearing.

3. In a police encounter which took
place at 12.45 p.m. on 17.5.2011 one
Ashis Patel was also arrested by the
police. Ashish Patel is the son of the
petitioner Shyam Bihari. After detention
and arrest of all the accused persons
named in the FIR certain stolen articles
and illicit arms and ammunitions were
recovered from their possession. Asish
Patel was riding a Hero Honda Passion
motorcycle which too was taken into
custody by the arresting officer and it was
74 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
also brought to the police station. On
examination it was found that the said
motorcycle was having a fake registration
number. It was also found that the engine
and chassis numbers were tampered and
were made illegible.

4. When the petitioner came to know
that his motorcycle was detained at the
police
station
he
approached
the
Magistrate of the Court concerned with an
application informing the Magistrate that
the said motorcycle was his property and
he was its registered owner. The learned
Magistrate called for the report of the
police station and when he found that the
registration number of the motorcycle as
mentioned by the petitioner in his
application under section 451 Cr.P.C. was
not detained by the police in the relevant
case he, in a cursory manner, rejected the
application for release of the said vehicle.

5. Feeling aggrieved by such order
the petitioner approached the Court of
learned Sessions Judge and filed the
revision No.11 of 2012 which was
ultimately transferred and decided by the
Court of V Additional Sessions Judge,
Mirzapur. The revision was dismissed.
Hence the present petition.

6. It has been submitted from the side
of the petitioner that the petitioner is the
owner of motorcycle No. UP 67/A-3980
which he purchased on 19.5.2011 from one
Nasim
Ahmad
and
the
registration
certificate of the said vehicle was amended
accordingly and his name was incorporated
as the registered owner of the said vehicle.
It has been further stated from the side of
the petitioner that his son Ashish Patel was
picked up by the police of P.S.Ahrora from
his residence in the early hours of 16.5.2011
and the police took away with it the
motorcycle in question. It has further been
submitted that a telegram was sent to
D.G.P.,Lucknow
in
this
regard
on
16.5.2011 at 2.30 p.m. It has also been
submitted that after picking up his son on
16.5.2011 he was roped in in a false case on
17.5.2011 showing the time of the incident
as 12.45 p.m. It has further been submitted
that in a nefarious manner the registration
plate of the said motorcycle has been
changed and the engine and chassis
numbers of the vehicle tampered and
rubbed by the police of P.S. Ahrora in order
to harass the son of the petitioner. It has also
been submitted that the release application
filed by him under section 451 Cr.P.C.
before the learned Magistrate has been
disposed of in a reckless and cursory
manner. It has further been submitted that
the learned revisional Court did not try to
appreciate the matter and in an improper
way the revision has been dismissed.

7. I have heard learned counsel for the
parties and perused the record.

8. On the back of page no.32 of the
paper book the application under section
451 Cr.P.C. is available. From perusal of
this page it is evident that the petitioner
Shyam Bihari moved an application before
the Court of learned A.C.J.M. 1st Mirzapur
with the prayer that his vehicle No.UP
67/A-3980 be given to his custody. The
relevant case no. is 1429 of 2011. In this
application engine and chassis numbers
have also been mentioned. This page also
indicates that the learned Magistrate called
for the report of the police station. Through
an order passed on the back of the said
application, on 8.11.2011 the said prayer to
release the vehicle was rejected without
going deep in the matter and by a cryptic
order. From perusal of the judgment of the
revisional Court it appears that it has been
1 All] Shyam Bihari V. State of U.P. and another
75
passed ignoring all the legal norms as
contained in Section 451 Cr.P.C. The
learned additional Sessions Judge has
written a long judgment but it is worthless.

9. In the instant case it is the admitted
case of the prosecution that the said
motorcycle
was
recovered
from
the
possession of the son of the petitioner. This
Court had summoned the investigating
office of the case and he was asked to file a
counter affidavit. In his counter affidavit
dated 22.11.2012 in paras 4 & 5 the
investigating officer has mentioned that the
said motorcycle was stolen but there in
nothing on record which may indicate the
facts on the basis of which such opinion has
been formed by the investigating officer It
is evident from the record that till
22.11.2012 the said motorcycle was not
connected to any incident of theft.

10. Keeping in view the character of
U.P. Police the possibility that the number
plate has been changed or the engine &
chassis numbers have been rubbed to make
it illegible, can not be ruled out. In such
circumstances the duty of a judicial officer
is enhanced and it necessitates that the
Court should behave in a more responsible
manner. In the instant case the way in which
the learned Magistrate has acted while
disposing of the release application of the
petitioner cannot be appreciated. He must
not forget that he is not a limb of the police,
but is a judicial officer. The learned
Additional Sessions Judge also did not care
to go deep in the matter and appreciate the
law as laid down by the Apex Court in
Sunderbhai Ambalal Desai Vs. State of
Gujrat (2003) SC 6318 & Sulekh Chnad
Vs. Suresh Chand (1991) Crl. L.J. 469
(SC).

11. In the above set of circumstances
this Court has been left with no option but
to quash and set aside both the orders
impugned herein and remand back the
matter to the Court where, at present, the
relevant case is pending. It appears from the
record that the matter is being tried by a
Court of Sessions as I find a noting on the
certified copies of the documents filed
alongwith the affidavit wherein S.T.No. 253
of 2011 has been mentioned. The learned
Sessions Judge. Mirzapur is directed to find
out the Court where such case is pending
and send this order to that Court for
compliance.

12. The case is remanded back.
The learned Court concerned is directed
to peruse the position of law as
contained in section 451 Cr.P.C. and
after giving a detailed and careful
hearing to both the parties pass an
appropriate and reasoned order in this
case. The learned Court concerned is
also directed to read carefully the law as
laid down in Sunderbhai Ambalal
Desai's case (supra) and follow the same
while disposing of the application under
section 451 Cr.P.C. The petitioner
herein is at liberty to file a fresh
application before the Court concerned
under section 451 Cr.P.C. within a
period of 30 days from today. If such an
application is moved the same shall be
disposed of by the Court concerned
within a period of 45 days from the date
of its presentation.

13. With the above observations
and directions the petition is allowed.
---------
76 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 14915 of 2011

Akhilesh Kumar Yadav
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri V.K. Singh
Sri Balwant Singh
Sri G.K. Singh

Counsel for the Respondents:
C.S.C.

U.P.
Police
Constable
and

Head
constable Service Rules, 2008, Rule 15appointment on post of constable after
passing physical efficiency test/medical
examination and written examinationbefore could join-a complaint made as
petitioner's left forefinger is cut up to
the nails-not fit for Government job-on
second
medical
board
examination
opinioned such physical deformity does
not constitute as handicapped persondoes not make handicapped personheld-the competent authority can not sit
over the opinion of medical experts-nor
the claim can be rejected on surmises
and
conjunctures-petition
alloweddirection to issue appointment letter
within two weeks given.

Held: Para-6

In the light of the aforesaid medical
opinion given by a team of medical
experts, it was no longer open to the
competent authority to hold that the
physical deformity may interfere in the
efficient performance of his duties. The
competent authority could not reject the
claim of the petitioner on the basis of
mere
surmises
and
conjuctures
especially when the medical opinion was
otherwise.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard the learned counsel for
the parties.

2. The petitioner applied for the
post of constable under Rule 15 of the
U.P.
Police
Constable
and
Head
Constables Service Rules, 2008. The
petitioner was required to undergo a
physical
standard
test,
physical
efficiency test, medical examination and
written examination. In accordance with
the procedure prescribed under the Rule
15 of the aforesaid Rules, the petitioner
was successful in the physical standard
test and the physical efficiency test and
thereafter he was required to appear
before the Medical Board for his
medical
examination.
The
Medical
Board also cleared him. The petitioner
was thereafter issued a call letter to
appear for the written examination in
which the petitioner participated and
cleared the written examination, but
before
he
could
be
issued
an
appointment letter, some complaint was
made
that
the
petitioner
is
a
handicapped person and has a physical
defect which may interfere with the
efficient performance of his duties as a
constable. In the light of the said
complaint, the petitioner was again
directed to appear before the Medical
Board.
The
Medical
Board
after
reexamining the petitioner submitted a
report dated 31st August, 2010 and
opined that the physical deformity in
left forefinger, which is cut up to the
nails, does not make the petitioner a
handicapped
person
and
that
the
petitioner is fit for being given an