# Tinna and another (In Jail) v. State of U.P

- **Citation:** (2008) 1 ILRA 201
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-15
- **Case number:** Criminal Appeal No. 585 of 2008
- **Bench:** S.S Kulshrestha, Vijay Kumar Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tinna-and-another-in-jail-v-state-of-u-p-41012
- **Pages:** 3

## Headnote

A.G.A.

Criminal
Appeal-conviction
of
life
imprisonment without imposition of fineoffence
u/s
302/34
IPC-held-No
discretion left to court regarding levy of
fine or not-whereas it is mandatory in
addition to the substantive punishment
of life imprisonment.

Held: Para 5

It is worthwhile to mention that the
learned Trial Court has not imposed fine,
whereas it is mandatory to impose fine
in addition to the substantive sentence
of
imprisonment
for
the
offence
punishable under Section 302 I.P.C., as
the language used in Section302 I.P.C.
is, "and shall also be liable to fine". No
discretion is left to the Court to levy or
not to levy fine and imposition of both
imprisonment and fine is imperative in
such case, as held by Hon'ble Apex Court
in the case of Zunjarrao Bhikaji Nagarkar
Vs. Union of India and others (AIR 1999
SC 2881), in which reference has been
made
to
the
case
of
Rajasthan
Pharmaceuticals Laboratory, Bangalore
V. State of Karnataka (1981) 1 SCC 645.
Case law discussed:
AIR 1999 SC 2881, (1981) 1 SCC 645

## Text

1 All] Tinna and another V. State of U.P.
201
said order cannot be lightly interfered
with unless the order is clearly erroneous
or likely to cause gross miscarriage of
justice. The revisional power against such
order of Consolidation Officer condoning
the delay was not excluded but was
cautioned to be exercised in appropriate
case. This Court in Sukhjinder Jeet
Kaur's case (supra) has relied the above
Supreme Court judgment in Shanti
Prasad Gupta's case for the proposition
that revision is not maintainable against
interlocutory order. The Apex Court did
not lay down any such proposition that
order passed by Consolidation Officer is
an interlocutory order and against the said
order writ petition does not lie under
Section 48 of U.P. Consolidation of
Holdings Act, 1953.

14. The judgments, which have been
relied by counsel for respondent No.3 in
Paras Nath's case (supra), Sukhjinder
Jeet Kaur's case (supra) and Dhanush
Raj's case (supra) were the judgments in
which earlier Division Bench judgment
was not noticed. The Judgment in Paras
Nath's case (supra) was relied in
Sukhjinder Jeet Kaur's case (supra). The
order condoning the delay in filing an
objection, which was barred by time
cannot be treated to be an interlocutory
order not amenable to the revisional
jurisdiction of the Deputy Director of
Consolidation under Section 48 of U.P.
Consolidation of Holdings Act, 1953.
Coming to the facts of the present case,
the Deputy Director of Consolidation has
refused to enter into the merits of
condonation and has rejected the revision
only on the ground that the order of
Consolidation Officer is interlocutory and
the revision is not entertain able.

15. In view of the foregoing
discussions it is clear that an order passed
by Consolidation Officer condoning the
delay in an objection under Section 9A(2)
of U.P. Consolidation of Holdings Act,
1953 terminates the proceeding under
Section 5 of the Limitation Act, hence the
same cannot be treated to be an
interlocutory order and is subject to
revisional jurisdiction of Deputy Director
of Consolidation under Section 48 of U.P.
Consolidation of Holdings -Act, 1953.

16. In result, both the writ petitions
are allowed. The order dated 20th
September, 2007 of Deputy Director of
Consolidation is set-aside. The matter is
remitted to the Deputy Director of
Consolidation to decide the revision filed
by the petitioners afresh in accordance
with law. The revision being only
confined to the question of delay, it is in
the ends of justice that the said revision
shall be decided expeditiously preferably
within a period of six months from the
date of production of a certified copy of
this order.

17. With the aforesaid directions, the
writ petitions are disposed of.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.02.2008

BEFORE
THE HON'BLE S.S KULSHRESTHA, J.
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Appeal No. 585 of 2008

Tinna and another ...Appellants (In Jail)
Versus
State of U.P.

...Opposite Party
202 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Counsel for the Appellants:
Sri Atul Kumar Tiwari

Counsel for the Opposite Party:
A.G.A.

Criminal
Appeal-conviction
of
life
imprisonment without imposition of fineoffence
u/s
302/34
IPC-held-No
discretion left to court regarding levy of
fine or not-whereas it is mandatory in
addition to the substantive punishment
of life imprisonment.

Held: Para 5

It is worthwhile to mention that the
learned Trial Court has not imposed fine,
whereas it is mandatory to impose fine
in addition to the substantive sentence
of
imprisonment
for
the
offence
punishable under Section 302 I.P.C., as
the language used in Section302 I.P.C.
is, "and shall also be liable to fine". No
discretion is left to the Court to levy or
not to levy fine and imposition of both
imprisonment and fine is imperative in
such case, as held by Hon'ble Apex Court
in the case of Zunjarrao Bhikaji Nagarkar
Vs. Union of India and others (AIR 1999
SC 2881), in which reference has been
made
to
the
case
of
Rajasthan
Pharmaceuticals Laboratory, Bangalore
V. State of Karnataka (1981) 1 SCC 645.
Case law discussed:
AIR 1999 SC 2881, (1981) 1 SCC 645

(Delivered by Hon'ble S.S. Kulshrestha, J.)

1. Heard Sri Atul Kumar Tiwari,
learned counsel for the appellants, learned
A.G.A. for the State and also perused the
material on record.

2. The bail application on behalf of
the
accused
appellants
Tinna
and
Harvansh convicted for the offences
under Section 302/34 I.P.C. in S.T. No.
444 of 1998 vide judgement dated
24.03.2007 passed by Additional Sessions
Judge, Court No.3, Farrukhabad has been
pressed on the ground that the case is
totally based on circumstantial evidence.
Report of the incident was lodged after
twenty four days from the date of
disappearance of the deceased and after
thirteen days from the date of recovery of
dead body. It is also said that the
witnesses are not reliable. When the
witnesses being in the near relation of the
deceased had seen the deceased being
dragged and Criminally assaulted by
appellants accused, then why no F.I.R.
was lodged immediately thereafter.

3. Having regard to all the facts and
circumstances
of
the
case,
without
expressing any opinion on merit of the
case, the accused-appellants may be
released on bail.

4. Let the appellants Tinna and
Harvansh be released on bail for the
offences indicated above during the
pendency of the appeal on their executing
a personal bond and furnishing two
sureties each in the like amount to the
satisfaction of the Trial Court concerned.

5. It is worthwhile to mention that
the learned Trial Court has not imposed
fine, whereas it is mandatory to impose
fine in addition to the substantive
sentence of imprisonment for the offence
punishable under Section 302 I.P.C., as
the language used in Section302 I.P.C.
is,"and shall also be liable to fine". We
have come across some other cases also,
in which, fine was not imposed by the
Trial Courts even for those offences
where the expression used by the
legislature in the Sections for which
conviction was recorded was "and shall
also be liable to fine". Where such
expression is used in any Section, the
1 All] Talib Khan V. Addl. Commissioner, Moradabad and others
203
Court is under obligation to impose fine
also in addition to the substantive
sentence of imprisonment. No discretion
is left to the Court to levy or not to levy
fine and imposition of both imprisonment
and fine is imperative in such case, as
held by Hon'ble Apex Court in the case of
Zunjarrao Bhikaji Nagarkar Vs. Union
of India and others (AIR 1999 SC 2881),
in which reference has been made to the
case
of
Rajasthan
Pharmaceuticals
Laboratory, Bangalore V. State of
Karnataka (1981) 1 SCC 645.

6. Let a copy of this order be sent by
Registrar General within a week to Sri
Rajiv Kumar Tripathi, the then Additional
Sessions Judge, Court No.3, Farrukhabad
for his future guidance.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 8846 of 2008

Talib Khan

...Petitioner
Versus
Additional Commissioner and others

...Respondents

Counsel for the Petitioner:
Sri Haider Husain

Counsel for the Respondents:
Sri D.V. Jaiswal
S.C.

U.P. Zamindari Abolition & Land Reforms
Act, 1950-Section333-Revisional power
of Board-very wide-empowers to call for
record of any Suit or proceeding-order
passed
under
Section
229-D
not
specifically excluded by amended Act No.
11 of 2002-held-revision against the
order passed under Section 229-D not to
be dismissed in the garb of interlocutory
order.

Held: Para 9

Section 333 of the Act is very widely
worded which empowers the Board or
Additional Commissioner to call for the
record
of
any
suit
or
proceeding.
Application under section 229-D has
been separately provided under the Act
and when an application under section
229-D is disposed of finally either
granting or refusing to grant interim
order, it can be said that the said
proceedings
are
finally
terminated.
Under section 333 of the Act, the Court is
empowered to call for record of any suit
or-proceeding. The order under section
229-D is not specially excluded from the
purview of section 333 of the Act. It is
relevant to note that by U.P. Act No. 11
of
2002,
an
amendment
has been
inserted excluding one proceeding from
the
revisional
jurisdiction
that
is
proceedings under sub-section (4-A) of
section 198. Had the legislature intended
to have excluded the proceeding under
section 229-D, there was no reason of
not indicating or mentioning the same in
section 333. The amendment made in
2002 as noted above, clearly shows the
intendment of the Legislature that no
other proceeding has been excluded
except the proceeding under sub-section
(4-A) of section 198 from the purview of
section 333 of the Act.
Case law discussed:
2002 (93) R.D. 883, 2001 RJ 661, 2001 RJ
913, 2001 RJ 529, 2001 RJ 918.

(Delivered by Hon'ble Ashok Shushan. J.)

1. Heard Sri Haider Husain, learned
counsel for the petitioner and Sri D.V.
Jaiswal,
learned
Counsel
for
the
contesting respondents.

2. With the consent of learned
Counsel for the parties, the writ petition is