Dismissed

State of U.P. v. Prabhat Kumar Sharma

Allahabad HC5 Sept 2019CRLR/1533/1995

Case brief

AI extract

What is this about?

Criminal Revision dismissed. The single judge held that the impugned charge-sheet filed with the signature of the D.S.P. (holding the charge) was not illegal, as mere holding of charge does not confer the rank or statutory authority to file a charge-sheet. The revision lacks merit.

What did the court decide?

The criminal revision under Section 397/401 Cr.P.C. is dismissed as lacking merit.

State of U.P. Vs Prabhat Kumar Sharma — Corruption | Allahabad HC (2019)

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Court No. - 34

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Case :- CRIMINAL REVISION No. - 1533 of 1995

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Revisionist :- State Of U.P. Opposite Party :- Prabhat Kumar Sharma Counsel for Revisionist :- A.G.A., Jagdish Tiwari Counsel for Opposite Party :- Dharmendra Singhal

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Hon'ble Sudhir Agarwal,J.

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Heard Sri Abhijeet Mukherjee, Brief Holder appearing for revisionist and perused the material available on record.

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This criminal revision under Section 397/401 Cr.P.C. has been filed by State of U.P. challenging judgement and order dated 01.07.1995 passed by Sri Sachchidanand Shukla, IVth Additional District and Sessions Judge, Agra in Special Case No. 4 of 1994 discharging accused-respondent Prabhat Kumar Sharma holding that charge-sheet under Section 7/13 of Prevention of Corruption Act, 1988 filed against accused was illegal, inasmuch as, said charge-sheet was already cancelled by Superintendent of Police (Vigilance) on 01.01.1994 but thereafter under the signature of Deputy Superintendent of Police, charge-sheet was filed in the Court on 10.01.1994 and the same being illegal, no cognizance could have been taken thereof.

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It is contended that Deputy Superintendent of Police on 10.01.1994 was holding charge of Superintendent of Police and, therefore, he was competent to sign the charge-sheet. But I find no force in the submission, inasmuch as, mere holding charge does not mean that person said to be holding that post and is in the same rank.

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This aspect has been considered in detail by a Division Bench of this Court in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools Region- I, Meerut & others 2007 (2)ESC 987 where this Court held as under:

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".................The aforesaid documents cemented the conclusion

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that the Petitioner-Appellant was only required to look after and discharge the duties of the officiating Principal but was never promoted/appointed on the said post. In other words, it can be said that the Petitioner-Appellant was given only current duty charge in addition to her substantive post and this arrangement did not result in promotion to the post of which, the current duty charge was handed over. In State of Haryana Vs. S.M. Sharma AIR 1993 SC 2273 , the Chief Administrator of the Board entrusted Sri S.M. Sharma, with the current duty charge of the post of Executive Engineer, which was subsequently withdrawn as a result of his transfer to other post. He challenged the said order stating that it amounts to reversion. The Apex Court held that Sri Sharma was only having current duty charge of the Executive Engineer and was never promoted or appointed to the aforesaid post and therefore, on transfer to some other post, it did not result in reversion from the post of Executive Engineer.

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A somewhat similar situation occurred in Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others, 1991 Supple (2) SCC 733 and the Apex Court observed as under:-

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"The distinction between a situation where a government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion."

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It was further held that such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it sometimes. However the person continues to hold substantive lower post and only discharges duties of the higher post essentially as a spot-gap arrangement. A further contention was raised that if such an arrangement continued for a very long period it would give some kind of right to continue on the post but negativing such contention, it was held that an in-charge arrangement is neither recognition nor is necessarily based on seniority and

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therefore, no rights, equities and expectations can be built upon it.

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In this view of the matter, the Petitioner-Appellant has miserably failed to show that the management ever appointed her as officiating Principal of the College and, therefore, we hold that she was only allowed to discharge duties of the office of officiating Principal, but was never appointed/promoted by the management as officiating Principal of the College."

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If a person mere on charge, discharges statutory duties of superior authority, it would be incompetent since he has no authority to do so.

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In view of above, I do not find any manifest error in the judgement passed by Court below.

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However, it is always open to revisionist to file another chargesheet in accordance with law but still I find that the unnecessary filing of this revision has resulted in unnecessary wastage of more than two decades.

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Revision lacks merit and is accordingly dismissed.

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Certify this judgment to the lower Court immediately.

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Order Date :- 5.9.2019 Siddhant Sahu

State of U.P. v. Prabhat Kumar Sharma

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State of U.P. v. Prabhat Kumar Sharma

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