Ramadhar Yadav vs State Of U.P. Thru Secy. And 3 ...
2018 Latest Caselaw 3698 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 35
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 249 of 2017
 
Appellant :- Ramadhar Yadav
 
Respondent :- State Of U.P. Thru Secy. And 3 Others
 
Counsel for Appellant :- Adeel Ahmad Khan
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Bharati Sapru,J.

Hon'ble Mrs. Sangeeta Chandra,J.

Orders on Review Petition no.           of 2017

Heard learned counsel for the review applicant and the learned standing counsel.

It has been submitted by the learned counsel for the review applicant that the present special appeal has been dismissed by this court by its order dated 24.4.2017 relying upon a judgment rendered by the Division Bench of this Court in the case of Hukumdar Tiwari vs. Inspector General of Police, 2010 (1) ESC 659.

The order of the Division Bench which has been relied upon in the special appeal, is not applicable in the case of the petitioner.

The facts of the case in brief are that the petitioner has filed an appeal against the order of Sr. S.P. dated 23.3.2012 before the Dy. Inspector General of the range concerned but his appeal was rejected on 15.12.2012, as not maintainable. Thereafter he filed a revision which was also rejected as not maintainable on 3.4.2013.

Since the remedy of appeal and revision were not found to be available to the applicant by the authorities themselves, the judgment in the case of Hukumdar Tiwari (supra) will not apply in the case of the applicant.

Hon'ble Supreme Court in the case of State of U.P. versus Madhav Prasad Sharma, (2011) 2 SCC 212 has held that where the police officer concerned has availed statutory remedy available under the Punishment and Appeal Rules, 1991 and then come to the writ court, special appeal would not lie.

In this case though the petitioner did avail statutory remedy but his appeal and revision were rejected as not maintainable and no decision on merit was given by the appellate and revisional authorities. Therefore the special appeal would be maintainable.

Having heard learned counsel for the parties and having perused the judgment dated 24.4.2017 as well as the judgment in the case of State of U.P. versus Madhav Prasad Sharma (supra), we are of the considered opinion that the judgment and order dated 24.4.2017 needs to be reconsidered in the facts and circumstances of the case.

The review application is therefore allowed. The special appeal defective no. 249 of 2017 (Ramadhar Yadav vs. State of U.P. and others) is held maintainable and restored to its original number. It shall now be listed before the appropriate court in due course.

Order Date :- 15.11.2018

/rk