Allahabad High Court

Rakesh Mishra And 3 Others vs State Of U.P. And Another on 27 April, 2023

Bench: Umesh Chandra Sharma




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A. F. R
 
Court No. - 53
 

 
Case :- APPLICATION U/S 482 No. - 1695 of 2023
 

 
Applicant :- Rakesh Mishra And 3 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Syed Imran Ibrahim,Vinay Kumar Rai
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Umesh Chandra Sharma, J.

1. Heard Sri Syed Imran Ibrahim, learned counsel for the applicants, Sri Pankaj Kumar Tripathi, learned A.G.A for the State and perused the record.

2. This application under Section 482 Cr.P.C has been moved to quash the summoning order dated 10.11.2022 arising out of Special Case No. 70 of 2019 - (Amar Singh Vs. Rakesh Mishra and others) under Sections 323, 427, 504, 506 I.P.C & Section 3 (1) X, of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Highway, district Mathura as well as all consequential proceedings of Case No. 70 of 2019, pending in the Court of Special Judge, SC/ST At, Mathura.

3. In brief, the facts of the case are that opposite party no. 2, Amar Sigh, the complainant moved an application under Section 156 (3) Cr.P.C to lodge an F.I.R under the aforesaid Sections against the applicants in respect of commission of crime at 09:00 a.m on 28.07.2019 with the allegations that the applicant and four five other persons armed with Lathi, sticks and other weapons reached at his land, broke the boundary wall through a J.C.B Machine and caused a loss of Rs.50,000/-. When they were prevented they abused, saying the applicant and his brother to be Chamar Dherh and assaulted the complainant and his brother.

4. The complainant ranged up 100 number and when police reached on the spot, they scrapped giving threatening to their life. The 100 number police carried the complainant and his brother Kundan Singh, Kedar Singh at the P.S. where the complainant presented a written complaint, but the Highway P.S. did not take any action in the matter. The accused persons are the Gunda and miscreants, who want to occupy the complainant's land by dint of his muscle power. The applicant also moved a complaint to S.S.P, Mathura on 31st July, 2019, and again sent an application on 13.08.2019 to S.S.P, Mathura and other superior authorities but no action was taken , hence application u/s 156 (3) Cr.P.C was moved.

5. The aforesaid application was converted into complaint. The statement of the complainant was recorded under Section 200 Cr.P.C. The statements of P.W. 1 Kundan Singh, P.W. 2 Kedar Singh and P.W 3 Vinod Kumar were recorded under Section 202 Cr.P.C. On 10.11.2022, the learned Special Judge (SC/ST Act) Mathura, summoned the applicants under Sections 323, 504, 506, 427 I.P.C and Section 3 (1) Da Dha of the S.C/S.T Act, for their appearance on 16.12.2022.

6. Being aggrieved, the accused applicants have preferred this Application under Section 482 Cr.P.C. At the time of hearing, the learned A.G.A raised an objection that in view of the Full Bench Judgement of this Court passed in Gulam Rasool Khan & Ors. Vs. State of U.P. & Ors. Criminal Appeal No. 1000 of 2018 on 28.07.2022, (appeal can be preferred u/s Section 14-A of the S.C. / S.T Act), this petition is not maintainable. By this application basically the summoning order has been challenged, which is appealable.

7. Contrary to that the learned counsel for the applicant relying on several judgments, which are discussed herein argued that the application under Section 482 Cr.P.C is maintainable against the order passed by the learned Special Judge (SC/ST Act) even in cases wherein an order has been passed under the S.C. S.T Act.

8. It would be proper to mention Section 14-A of the SC ST Act, which is here in below :-

"14A. (1) Notwithstanding anything contained in the Code of Criminal Procedure,1973, an appeal shall lie, from any judgment, sentence or order, not being an interlocutory order, of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law.

(2) Notwithstanding anything contained in sub-section (3) of section 378 of the Code of Criminal Procedure, 1973, an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail.

(3) Notwithstanding anything contained in any other law for the time being in force, every appeal under this section shall be preferred within a period of ninety days from the date of the judgment, sentence or order appealed from:

Provided that the High Court may entertain an appeal after the expiry of the said period of ninety days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of ninety days:

Provided further that no appeal shall be entertained after the expiry of the period of one hundred and eighty days.

(4) Every appeal preferred under sub-section (1) shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.".

9. The judicial precedent referred by the learned counsel for the applicant are categorically discussed herein below.

a) Prithvi Raj Chauhan Vs. Union of India & Ors. (2020) 4 SCC 727, this was the case, in which an anticipatory bail under Section 438 Cr.P.C had been preferred, Hon'ble the Apex Court held that the grant of anticipatory bail under Section 438 Cr.P.C is barred in respect of offences under the S.C S.T Act of 1989 however, where the prima-facie case are not made out, anticipatory bail can be granted in appropriate circumstances, with exercising the of power u/s 482 Cr.P.C.

b). It has also been held that preliminary inquiry before the registration of F.I.R in respect of occurrence under the Act of 1989 can only be in circumstances enumerated in Lalita Kumari, (2014) 2 SCC 1.

c). In para 12 of the judgment it has been held that in exceptional circumstances and strictly in parameter laid down in the judgment, quashment to proceedings under the Act of 1989 can be prayed under Section 482 Cr.P.C for preventing the misuse of law.

d). Para 12 of the judgment is reproduced herein below:-

"12) Dr. Ashok Dhamija, learned counsel for the CBI, submitted that the use of the word "shall" under Section 154(1) of the Code clearly mandates that if the information given to a police officer relates to the commission of a cognizable offence, then it is mandatory for him to register the offence. According to learned counsel, in such circumstances, there is no option or discretion given to the police. He further contended that the word "shall" clearly implies a mandate and is unmistakably indicative of the statutory intent. What is necessary, according to him, is only that the information given to the police must disclose commission of a cognizable offence. He also contended that Section 154 of the Code uses the word "information" simpliciter and does not use the qualified words such as "credible information" or "reasonable complaint". Thus, the intention of the Parliament is unequivocally clear from the language employed that a mere information relating to commission of a cognizable offence is sufficient to register an FIR. He also relied on Bhajan Lal (supra), Ramesh Kumari (supra), Aleque Padamsee (supra), Lallan Chaudhary (supra), Superintendent of Police, CBI vs. Tapan Kumar Singh (2003) 6 SCC 175, M/s Hiralal Rattanlal (supra), B. Premanand (supra), Khub Chand vs. State of Rajasthan AIR 1967 SC 1074, P. Sirajuddin (supra), Rajinder Singh Katoch (supra), Bhagwant Kishore Joshi (supra), State of West Bengal vs. Committee for Protection of Democratic Rights, West Bengal (2010) 3 SCC

571. He also pointed out various safeguards provided in the Code against filing a false case. In the end, he concluded by reiterating that the registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. Further, he also clarified that the preliminary inquiry conducted by the CBI, under certain situations, as provided under the CBI Crime Manual, stands on a different footing due to the special provisions relating to the CBI contained in the Delhi Special Police Establishment Act, 1946, which is saved under Sections 4(2) and 5 of the Code.

e). From the above, it is very much clear that only in exceptional cases the High Court can exercise its power under Section 482 Cr.P.C in case of any order passed under the S.C. S.T Act. Here no such exceptional circumstances are into existence, hence this Court is of the view that in the present case the aforesaid precedent does not apply.

f). Union of India Vs. State of Maharashtra & Ors. (2020) 4 SCC 761, this case was also in respect of grant of anticipatory bail regarding the offence committed under the Act of 1989. In this case it has been held that if information discloses a cognizable offence, registration of F.I.R is mandatory and no recourse to Section 438 Cr.P.C is permissible, so far as, exercise of power under Section 482 Cr.P.C is concerned, paras 52 and 60 of this judgment are relevant which are reproduced herein below:

52. It is an unfortunate state of affairs that the caste system still prevails in the country and people remain in slums, more particularly, under skyscrapers, and they serve the inhabitants of such buildings.

60. By the guidelines issued, the anomalous situation may crop up in several cases. In case the appointing authority forms a view that as there is no prima facie case the incumbent is not to be arrested, several complications may arise. For the arrest of an offender, maybe a public servant, it is not the provision of the general law of Cr.PC that permission of the appointing authority is necessary. No such statutory protection provided to a public servant in the matter of arrest under the IPC and the Cr.PC as such it would be discriminatory to impose such rider in the cases under the Act of 1989. Only in the case of discharge of official duties, some offence appears to have been committed, in that case, sanction to prosecute may be required and not otherwise. In case the act is outside the purview of the official discharge of duty, no such sanction is required. "

10. From the scrutiny of the aforesaid part of the judgment it is very much clear that there might be certain false cases in which interference by the High Court exercising its power under Section 482 Cr.P.C. might be necessary. As per para 60 of the judgment, if there is apprehension of arrest, harassment and false implication, the applicant may approach the High Court for quashment of the F.I.R under Section 482 Cr.P.C and in this case also the Hon'ble, the Apex Court has propounded similar preposition of law as held in the Case of Prithviraj Chauhan (supra).

11. Hear the complainant - opposite party no. 2 had moved an application under Section 156 (3) Cr.P.C, which was converted into complaint and in which after deposition under Sections 200 and 202 Cr.P.C., the applicants were summoned for their appearance as accused. Here the circumstances mentioned by the Apex Court are not present. Hence, this Court is of the view that in the facts and circumstances of this case, this precedent also does not support the contention of the applicants.

12. Learned counsel for the applicant have also relied on the judicial precedent Ram Awtar Vs. State of MP 2021 SCC OnLine SC 966 and Ram Gopal and another Vs. State of M.P. 2021 SCC OnLine SC 834. In both the cases the parties had entered into compromise and thereafter a question arose that when a criminal case under the S.C / S.T Act is not compoundable in view of Section 320 Cr.P.C whether the High Court or the Supreme Court can entertain the petition for quashment of the entire criminal proceedings under Article 142, 226 and 227 of the Constitution of India and Section 482 of the Cr.P.C.

13. Hon'ble the Apex Court held that no useful purpose would be served keeping the matter pending if the parties have compromised the case. Since the parties had entered into compromise and also considering the old pendency of the case, it was held that in the facts and circumstances of the case in hand, the proceedings of the criminal case under the S.C. S.T Act may also be quashed u/s 482 Cr.P.C.

14. Here no such circumstances with regard to compromise are present. The applicants are challenging the summoning order and opposite party no. 2, the complainant is prosecuting the impugned criminal case, Hence, this Court is of the view that these judicial precedents have no applicability in favour of the applicants due the change of facts and circumstances of the case.

15. Learned A.G.A has relied on the judgment passed in Gulam Rasool Khan Vs. State of U.P., Criminal Appeal No. 1000 of 2018 decided on July, 28, 2022 Full Bench decision of this Court, in which relying on the judgement in Re: provision of Section 14(a) of SC ST (Prevention of Atrocities) Amendment Act, 2015 (2018) 6 ALJ 631 concluded that against the judgment and orders passed in S.C S.T Act remedy has been provided u/s 14-A of the Act of 1989 but it can not be challenged under Articles 226 or 227 of the Constitution of India, Revision under Section 397 Cr.P.C or by an Application U/s 482 Cr.P.C.

16. It has also been held that since in Re: provisions of Section 14-A of the SC ST Amendment Act 2015 (supra), the provisions of Section 14-A (3) has been held to be in violation of Article 14 and 21 of the Constitution of India and the same has been struck down. Therefore, even if an applicant has been failed in filing an appeal under Section 14-A of the SC ST Act, it can be preferred any time.

17. Learned counsel for the applicant argued that since the judgment of Prithviraj Chauhan, Ram Awtar, Ram Gopal and Union of India Vs. State of Maharashtra properly have not been discussed by the Full Bench of this Court, while passing the judgment in the case of Gulam Rasool Khan & Ors. (supra). The judgement of Full Bench of this Court would be barred by the principle of per in curium.

18. In this regard learned counsel for the applicant has relied on Dr. Sah Faisal vs. Union of India and another (2020) 4 SCC-1, N.I.C. Ltd Vs. Pranay Sethi and others (2017) 16 S.C.C 680 Sandeep Kumar Vs. State of Maharashtra (2014) 16 SCC 623, in which it has been laid down that if a judgment of Division Bench, Full Bench, or High Court has not been discussed on the very impugned point involved in the case, later judgments would be barred by the principle of per incurium.

19. Certainly, while pronouncing the judgment in Gulam Rasool Khan & Ors. (supra), the aforesaid judgments have not been discussed by the Full Bench of this Court, but it has also been discussed by this Court that in Prithviraj Chauhan, Ram Awtar, Ram Gopal (supra), and Union of India Vs. State of Maharashtra (Supra), facts and circumstances of the concerned cases were totally different from the facts and circumstances of the case in hand. Since the relevant discussion has also been mentioned earlier, there is no need to reiterate it again, but it is very much clear that the Hon'ble Supreme Court has made an obitor dicta opinion that in extraordinary and exceptional cases, a petition under Section 482 Cr.P.C may be entertained.

20. This court is of the considered view that the circumstances pointed out in the judgment cited by the learned counsel for the applicants are not here. Hence, the judgement of Gulam Rasool Khan & Ors (Supra) the Supreme Court is not barred by principle of per incurium.

21. This judgement has been passed directly in respect of S.C / S.T Act and Section 14-A of the aforesaid Act with regard to the provision of appeal.

22. On the basis of facts and circumstances, it is concluded that this application under Section 482 Cr.P.C is not maintainable and is liable to be rejected. However, remedy is open to the applicants for filing an appeal under Section 14-A of the S.C / S.T Act.