# Tribhuwan Nath Tripathi v. State of U.P. and another

- **Citation:** (2003) 3 ILRA 604
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-05-14
- **Case number:** Criminal Misc. Writ Petition No. 2517 of 2003
- **Bench:** M.C. Jain, M. Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tribhuwan-nath-tripathi-v-state-of-u-p-and-another-40136
- **Pages:** 4

## Headnote

Constitution
of
India-Article
226Maintainability-Order
directing
the
authorities to lodge F.I.R. and initiate
disciplinary action against the petitionerHeld-Petition is totally premature-not
maintainable.

Held- Para 8

It is well settled legal position that the
High Court does not ordinarily interfere
with the investigation, which is in the
domain of the police after the lodging of
an F.I.R. concerning commission of a
cognizable offence. In the present case,
the F.I.R. has not yet been lodged and
the petitioner simply wants to stifle the
first step to spark the plugs of criminal
machinery by lodging of the F.I.R. In our
opinion, the petitioner cannot challenge
the
authority
of
the
Government
directing the lodging of the F.I.R. The
writ petition as this stage is pre mature,
misconceived and not maintainable
Case Law:
AIR 1945 PC 18
AIR 1980 SC 326

## Text

604 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
not an illiterate person having no
experience in contractual transaction. He
being a retired officer of the Life
Insurance Corporation of India knew
quite
well
that
registration
of
his
dealership in the OTCEI would be done
by the SEBI and so far the petitioner is
concerned, she is due discharge of her
official duty as General Manager of the
OTCEI was required to send all the
papers and documents to the SEBI for
taking a decision. In view of such back
ground facts, I am of the opinion that the
case is squarely covered by illustrations
(1) and (5) as laid down by the Apex
Court in Bhajan Lal (Supra). Had the
learned Magistrate looked to all these
aspects of the case he would have been
slow to pass the impugned order taking
cognizance of the offence either under
Section406 or 420 I.P.C.

15. Added to what has been stated
above, the case may be viewed from
another angle. For realisation of the
amount deposited with the OTCEI,
respondent no. 2 filed a writ petition in
the Delhi High Court arraying petitioner
as one of the respondent and admittedly,
the said writ petition is pending for
decision. He concealed this fact while
filing the present case. True it is, law is
well settled that even if the facts give rise
to a civil claim, yet a criminal proceeding
is maintainable and both the proceedings
can simultaneously continue. But so far
the present case is concerned, as stated
earlier, the allegations taken in entirety do
not make out any offence, more so,
offence under Sections 406 and 420 I.P.C.
If on a reading of the complaint
ingredients of those two offences would
have been spelt out, this Court would
have been slow to interfere with the
impugned
orders
of
the
learned
Magistrate taking cognizance of the
offence in exercise of inherent power.
Rather what appears is that since the writ
petition is pending in the Delhi High
Court and no early decision could be
obtained, respondent no. 2 adopted this
devise
in
initiating
the
criminal
proceeding in order to force the petitioner
to refund back the amount.

16. Regard being had to the facts
and
circumstances
of
the
case
as
discussed above, I would hold that
impugned order passed by the Magistrate
taking cognizance of the offence being
unsustainable in law should be set at
naught. It is accordingly so ordered.

17. In the result, criminal misc.
application succeeds and is allowed and
consequently the impugned order as well
as the proceedings in complaint case no.
127/9 of 1998 pending in the court of
judicial Magistrate-I, Meerut are quashed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.5.2003

BEFORE
THE HON'BLE M.C. JAIN, J.
THE HON'BLE M. CHAUDHARY, J.

Criminal Misc. Writ Petition No. 2517 of 2003

Tribhuwan Nath Tripathi
...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Appellant:
Sri G.S. Chaturvedi
Sri Samit Gopal

Counsel for the Respondents:
A.G.A.
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3 All] Tribhuwan Nath Tripathi V. State of U.P. and another
605
Constitution
of
India-Article
226Maintainability-Order
directing
the
authorities to lodge F.I.R. and initiate
disciplinary action against the petitionerHeld-Petition is totally premature-not
maintainable.

Held- Para 8

It is well settled legal position that the
High Court does not ordinarily interfere
with the investigation, which is in the
domain of the police after the lodging of
an F.I.R. concerning commission of a
cognizable offence. In the present case,
the F.I.R. has not yet been lodged and
the petitioner simply wants to stifle the
first step to spark the plugs of criminal
machinery by lodging of the F.I.R. In our
opinion, the petitioner cannot challenge
the
authority
of
the
Government
directing the lodging of the F.I.R. The
writ petition as this stage is pre mature,
misconceived and not maintainable
Case Law:
AIR 1945 PC 18
AIR 1980 SC 326

(Delivered by Hon'ble M.C. Jain, J.)

1. We have heard Sri G.S.
Chaturvedi learned Senior Advocate for
the petitioner and learned A.G.A.

2. Through this writ petition the
petitioner has prayed for quashing the
order dated 30th April, 2003- annexure 1
to the writ petition, passed by the
Secretary, Government of U.P. Home
(Police), Anubhag 4, Lucknow, addressed
to the Director General of Police, U.P. for
taking disciplinary action and also to
lodge an FIR against the concerned police
personnel involved in the incident of
police encounter dated 14th February,
2003.

3. The facts are that the petitioner is
a Circle Officer of police. A police
encounter took place on 14th February,
2003 at about 11.30 A.M. in the jungle in
village Abhirawa Pali, Police Station
Kacaura, District Jalaun in which three
persons had received injuries and died.
First information Reports were lodged
and cases registered with regard to that
incident. One Arvind Kumar Bhautik
made an application on 6th April 2003 to
Sri G.S. Dinkar, M.L.A. Baberu, District
Banda. On the basis of the said
application the latter wrote a letter to the
Chief
Minister,
requesting
that
appropriate legal action be taken against
the concerned police officials as his
relative Jagat Aaurwar was shot dead by
the police and was intentionally wrongly
identified as Sudhir Nishad and that the
said incident was wrongly shown as
police encounter. In the ultimate result,
some
enquiry
was
conducted
by
Commissioner of Jhansi Division, who
submitted a report, finding certain police
personnel including the petitioner to be
negligent in duty with regard to the
identification of the third dead person,
namely, Jagat Ahirwar. As the said letter
(Annexure 1) has been issued to the
Director General of Police, Lucknow by
the Secretary of Government of U.P.
Home (Police), the petitioner challenges
the same and contends that the same is
arbitrary and is meant to harass him. It is
also assailed as illegal.

4. On the other hand, learned A.G.A.
has countered the argument of Sri
Chaturvedi, urging that there is nothing
illegal or arbitrary in the order in question
and the unwarranted attempt of the
petitioner is simply preempt the lodging
of the F.I.R. against him and consequent
investigation.

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606 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
5. It was held by Privy Council long
back in the case of Emperor Vs. Khyaja
Nazir Ahmad, AIR 1945 PC 18 that it is
of utmost importance that the judiciary
should not interfere with the police in
matters which are within their province
and into which the law imposes upon
them the duty of inquiry. There is a
statutory right on the part of the police to
investigate the circumstances of an
alleged
cognizable
crime
without
requiring any authority from the judiciary.
The functions of the judiciary and the
police
are
complementary
and
not
overlapping.

6. We may also refer to the case of
State of Bihar vs. J.A.C. Saldanna, AIR
1980 SC 326 wherein, the Supreme Court
held as under:

"There is a clear cut and well
demarcated sphere of activity in the
field of crime detection and crime
punishment.
Investigation
of
an
offence
is
the
field
exclusively
reserved for the executive through the
police
department,
the
superintendence over which vests in
the State Government. The executive
which is charged with duty of keep
vigilance over law and order situation
is obliged to prevent crime and if an
offence is alleged to have been
committed it is its bounden duty to
investigate into the offence and bring
the
offence
to
book.
Once
it
investigates and finds an offence
having been committed it is his duty to
collect evidence for the purpose of
proving the offence. Once that is
completed
and
the
Investigating
Officer submits report to the Court
requesting
the
Court
to
take
cognizance of the offence under
section 190 of the Code its duty comes
to an end. On a cognizance of the
offence being taken by the Court the
police function of investigation comes
to an end subject to the provision
contained in section 173 (8), there
commences the adjudicatory function
of the judiciary to determine whether
an offence has been committed and if
so, whether by the person or persons
charged with the crime by the police
in its report to the Court, and to
award
adequate
punishment
according to law for the offence
proved to the satisfaction of the Court.
There is thus a well defined and well
demarcated function in the field of
crime detection and its subsequent
adjudication between the police and
the Magistrate."

7. The decision of the Privy Council
in the case of Emperor Vs. Khwaja Nazir
Ahmad (supra) was approved.

8. It is well settled legal position that
the High Court does not ordinarily
interfere with the investigation, which is
in the domain of the police after the
lodging
of
an
F.I.R.
concerning
commission of a cognizable offence. In
the present case, the F.I.R. has not yet
been lodged and the petitioner simply
wants to stifle the first step to spark the
plugs of criminal machinery by lodging of
the F.I.R. In our opinion, the petitioner
cannot challenge the authority of the
Government directing the lodging of the
F.I.R. The writ petition as this stage is pre
mature,
misconceived
and
not
maintainable.
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3 All] Sachin @ Banti V. State of U.P. and others
607
9. The writ petition is hereby
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.5.2003

BEFORE
THE HON'BLE U.S. TRIPATHI, J.
THE HON'BLE D.P. GUPTA, J.

Habeas Corpus Writ Petition No. 4839 of 2003

Sachin @ Banti

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

Counsel for the Petitioner:
Sri Swetashwa Agrawal
Sri Rishi Chadha

Counsel for the Respondents:
S.C.

(A) National Security Act-Section 3 (2)-
Detention order period of detention not
specified whether is the detention order
bad on this account ? held- No.

Held- Para 13

In view of the above decisions, the
detaining
authority
is
not
under
obligation to specify the period of
detention and the detention order is not
rendered illegal on account of detaining
authority's failure to specify period of
detention in the order. It is also clear
that the words 'during such period as
may be specified in the order' occurring
in section 3 (2) of the Act relate to the
delegation/authorization to the District
Magistrate or the Commissioner of the
Police and not to the period of detention
of a detenu. Therefore, we find no force
in the above detention and hold that the
detention is not invalid on account of
non mentioning of period of detention of
the detenu.

(B) National Security Act- Section 3 (2)-
Delay in decision of Representation-
unexplained unreasonable delay-helddetention order illegal.

Held- Para 50

In view of our findings on the above
points in Writ Petition No. 4842 and
4846, there was un-explained delay on
the part of Central Government in
deciding representation of the petitioner.
Therefore,
continued
detention
of
petitioner Rajesh and Subhash have
rendered invalid. We also find that there
is no force in the writ petition of other
petitioners Sachan, Vinod and Nauratan.

(Delivered by Hon'ble U.S. Tripathi, J.)

1. The above five writ petitions have
been filed separately by each of the
petitioner for quashing their detention
order dated 16.12.2002 passed by District
Magistrate, Rampur, respondent no. 2
under section 3 (2) of National Security
Act.

2. Each of the petitioner was
separately served with the grounds of
detention, alongwith order of detention,
which stated that on 16.11.2002 at about 5
p.m. one Darashan Lal resident of
Balmiki Basti, Radha Road, Civil Lines,
district Rampur lodged a report at the
Police Station Civil Lines against the
petitioners alleging that on 15.11.2002 a
quarrel had taken place between his son
Sumit and the petitioners Vinod and
Subhash on playing cricket, which was
pacified by the people of the Mohalla. But
the petitioners were not happy. On
account of above incident, all the
petitioners armed with country made
pistols, in order to create terror in the
Biradari raided the house of Sumit and
fired on him with intent to kill him. When
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