# Union of India and others v. State of U.P. and another

- **Citation:** (2011) 1 ILRA 433
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-04-01
- **Case number:** Criminal Misc. Case No. 1342 of 2011
- **Bench:** Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-and-others-v-state-of-u-p-and-another-41868
- **Pages:** 4

## Text

1 All] Union of India and others V. State of U.P. and another
433
or trial held by him, that an investigation by
the police is in progress in relation to the
offence which is the subject-matter of the
inquiry or trial held by him, the Magistrate
shall stay the proceedings of such inquiry or
trial and call for a report on the matter
from the police officer conducting the
investigation.

(2) If a report is made by the
investigating police officer under section
173 and on such export cognizance of any
offence is taken by the Magistrate against
any person who is an accused in the
complaint case, the Magistrate shall inquire
into or try together the complaint case and
the case arising out of the police report as if
both the cases were instituted on a police
report.

(3) If the police report does not relate
to any accused in the complaint case or if
the Magistrate does not take cognizance of
any offence on the police report, he shall
proceed with the inquiry or trial, which was
stayed by him, in accordance with the
provisions of this Code."

10. In view of the above, I do not find
any reason to set aside the summoning
order of the revisionist as has been prayed
for and, therefore, I do not find any merit in
this revision.

11. However, it is desirable for this
Court to direct that since the complaint case
instituted against the revisionist relates to
the murder of same person Bharat Lal,
under the provisions of Section 323 Cr.P.C.
it is desirable to commit his case to the
Court of Sessions for trial and be allotted to
the same Judge who is prosecuting Hari
Singh on the basis of police charge sheet in
respect of the same murder to avoid
conflicting findings and it is ordered
accordingly.

12. After the aforesaid decision was
dictated in open Court, it was submitted that
since Hari Singh has already been allowed
bail
some
direction
for
expeditious
consideration of bail of revisionist be
issued.

13. Considering above submission, I
hereby directed both the courts below to
dispose of the bail prayer of the revisionist
in accordance with law after hearing Public
Prosecutor without unreasonable delay as
expeditiously as possible.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.04.2011

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA,J.

Criminal Misc. Case No. 1342 of 2011

Union of India and others
...Applicants
Versus
State of U.P. and another

 ...Opposite Parties

Code of Criminal Procedure Section-475Application for transfer of criminal case
of
Court
Marshal
before
nearest
commanding
officer-rejected
by
the
Magistrate as no change framed-heldmisconceived-Magistrate
failed
to
appreciate law correctly-order quashed
only statement of offence required

Held: para 7

Thus for sending a person for trial under
the Court-martial, the framing of charge
by the Magistrate is not necessary. The
only statement of the offence committed
by him is to be recorded by the learned
Magistrate. Therefore, I am of the view
that the learned Magistrate has failed to
434 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
appreciate
the
law
on
the
subject
correctly. Under the circumstances, I
hereby quash the order impugned dated
23.2.2011, passed by the Additional
Chief Judicial Magistrate-Vth, Court No.
29, Lucknow and the direction is issued
to the learned Magistrate to transfer the
case to the concerned officer who is
competent for trial of the case forthwith.
Case law discussed:
AIR 1971 Supreme Court 1120

(Delivered by Hon'ble Shri Narayan Shukla,J. )

1. Heard Mr. Raj Kumar Singh,
learned counsel for the petitioner as well
as Sri Rajendra Kumar Dwivedi, learned
Additional Government Advocate for the
State.

2. The petitioners have challenged
the order impugned dated 23.2.2011,
passed by the Additional Chief Judicial
Magistrate-Vth, Court No. 29, Lucknow,
whereby the petitioners' application for
transfer of case for trial to the Armed
Forces Tribunal has been rejected on the
ground that in the matter the charge sheet
has already been filed and the court has
taken
cognizance
of
the
offences,
therefore, now it cannot be transferred to
the Tribunal.

3.

Learned
counsel
for
the
petitioners invites the attention of the
Court towards the provisions of Section
475 of the Code of Criminal Procedure,
which speaks for delivery of the case to
commanding officers of persons liable to
be tried by Court-martial. Section 475 of
the Code of Criminal Procedure is
extracted herebelow:-

"475. Delivery to commanding
officers of persons liable to be tried by
Court-
martial.
(1)
The
Central
Government may make rules consistent
with this Code and the Army Act, 1950
(46 of 1950 ), the Navy Act, 1957 (62 of
1957 ), and the Air Force Act, 1950 (45
of 1950 ), and any other law, relating to
the Armed Forces of the Union, for the
time being in force, as to cases in which
persons subject to military, naval or air
force law, or such other law, shall be
tried by a Court to which this Code
applies or by a Court- martial; and when
any
person
is
brought
before
a
Magistrate and charged with an offence
for which he is liable to be tried either by
a Court to which this Code applies or by
a Court- martial, such Magistrate shall
have regard to such rules, and shall in
proper cases deliver him, together with a
statement of the offence of which he is
accused, to the commanding officer of
the unit to which he belongs, or to the
commanding officer of the nearest
military, naval or air force station, as the
case may be, for the purpose of being
tried by a Court- martial.

Explanation.- In this section-

(a) " unit" includes a regiment,
corps, ship, detachment, group, battalion
or company,

(b) " Court- martial" includes any
tribunal with the powers similar to those
of a Court- martial constituted under the
relevant law applicable to the Armed
Forces of the Union.

(2) Every Magistrate shall, on
receiving a written application for that
purpose by the commanding officer of
any unit or body of soldiers, sailors or
airmen stationed or employed at any
such place, use his utmost endeavours to
apprehend
and
secure
any
person
accused of such offence.
1 All] Union of India and others V. State of U.P. and another
435

(3) A High Court may, if it thinks fit,
direct that a prisoner detained in any jail
situate within the State be brought before
a Court- martial for trial or to be
examined touching any matter pending
before the Court- martial."

4.

Learned
counsel
for
the
petitioners further submits that there is
Army Act, 1950 as well as Rules framed
thereunder which empowers the Tribunal
for trial of such cases, therefore, the
transfer of the case cannot be denied. In
the case of Lt. Col. S.K. Kashyap and
another
Vs.
State
of
Rajasthan,
reported in AIR 1971 Supreme Court
1120, the Hon'ble Supreme Court has
discussed the controversy involved in the
matter and held that for transferring the
case for trial under the Army Act, it is
not necessary for the learned Magistrate
to frame charges and then transfer the
matter. Section 5 of the Code of Criminal
Procedure (old) has been dealt with and
has expressed the opinion that the words
"charged with and tried for an offence"
mean that there are accusations and
allegations against the person. It does not
mean that the charges have been framed.
The relevant paragraph of 26 of the
judgment is reproduced herebelow:-

"26.The next question is as to what
meaning should be given to the words "
charged with and tried for an offence
under the principal Act", occurring in
Section
5(1)(A).
Counsel
for
the
appellants contended that the words
"charged with and tried for an offence"
would mean that charges had been
actually framed and trial commenced.
There is a distinction between Clauses
(a) and (b) of sub-section (1) of Section 5
of Act 22 of 1966. Clause (a) deals with
persons who are subject to the military,
naval or ari force law being charged
with and tried for an offence together
with a person or persons not so subject
whereas Clause (b) deals only with
persons who are subject to military,
naval or air-force law. In the present
case, the appellants are persons who
were subject to military law and they
were charged along with civilians.
Therefore, Clause (a) is attracted. It is in
connection with a case which concerns
only persons subject to military, naval or
air-force law that under Section 5(1)(b)
it is enacted that a case is not only to be
pending before 30 June, 1966 before a
Special Judge but that changes should
also have been framed against such
persons. The absence of framing of
charges in Clauses (a) and requirement
of framing charges in Clause (b) repels
the construction suggested by counsel for
the appellants that charges should have
been framed in the present case in order
to make it a case pending within the
meaning of Section 5(1)(a) of the 1966
Act. The words "charged with and tried
for an offence" mean that there are
accusations and allegations against the
person. The words "charged with" are
used
in
Section
5
(1)(a)
in
contradistinction to the words "charges
have already been framed" in Section
5(1)(b) of the Act. Therefore, the use of
separate words in the two separate
Clauses (a) and (b) is significant to
indicate that the statute speaks of the
words "charged with" in Clause (a) not
in the sense of "charges have been
framed" in Clause (b). The legislative
intent is abundantly clear from the use of
separate words."

5. The learned Magistrate does not
dispute the authority of the court under
the Army Act to try with the case.
436 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

6. The provisions of Section 475 of
the Code of Criminal Procedure are itself
clear that when the person who is subject
to military, naval or air force law and is
liable to be tried by the Court-martial, is
brought before the Magistrate and
charged with an offence, such Magistrate
shall have regard to such rules, and shall
in proper cases deliver him, together for
the offence in which he is accused to the
commanding officer of the nearest
military, naval or air force station, as the
case may be, for the purpose of being
tried by a Court-martial.

7. Thus for sending a person for
trial under the Court-martial, the framing
of charge by the Magistrate is not
necessary. The only statement of the
offence committed by him is to be
recorded by the learned Magistrate.
Therefore, I am of the view that the
learned
Magistrate
has
failed
to
appreciate the law on the subject
correctly. Under the circumstances, I
hereby quash the order impugned dated
23.2.2011, passed by the Additional
Chief Judicial Magistrate-Vth, Court No.
29, Lucknow and the direction is issued
to the learned Magistrate to transfer the
case to the concerned officer who is
competent for trial of the case forthwith.

8. In the aforesaid terms, the
petition is allowed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.04.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH,J.
THE HON'BLE S.C. CHAURASIA,J.

Service Bench No. - 1785 of 1997

Prahlad Lal Srivastava
 ...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner
Sri P N Bajpai

Counsel for the Respondent
C S C

Constitution
of
India,
Article 226consequential benefits-Tribunal set-aside termination order-back wages not
given as " no work no pay" but other
consequential
benefits
can
not
be
denied-direction issued accordingly.

Held: Para 6 & 7

Since the order of punishment has
been set aside by the tribunal, the
order of tribunal has attained finality
to the extent the respondents are
concerned.

In view of above, we dispose of the
writ petition with the direction to the
respondents
to
provide
all
consequential
benefits
treating
the
petitioner's continuity in service except
the back wages.

(Delivered by Hon'ble Devi Prasad Singh,J.)

1. Heard learned counsel for the
parties and perused the record.

2. The order of termination dated
17.2.1993
was
set
aside
by
the