Sushil Kumar Singh vs State Of U.P. And Another
2023 Latest Caselaw 8320 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 70
 

 
Case :- APPLICATION U/S 482 No. - 43713 of 2022
 

 
Applicant :- Sushil Kumar Singh
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Sugendra Kumar Yadav,Dilendra Pratap Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shekhar Kumar Yadav,J. 

1. Heard Sri Anoop Trivedi, learned Senior Counsel for the applicant, Sri R.P. Mishra, learned A.G.A. for the State and perused the material available on record.

2. The present application U/S 482 Cr.P.C. has been filed by the applicant with the prayer to quash the entire proceedings of S.T. No. 469 of 2022 (State Vs Sushil Kumar Singh) arising gout of Case Crime No. 45 of 2018, under Sections 419, 420, 467, 468, 471, 504, 506 I.P.C. and Section 3(1)(Da) & 3(1)(Dha) of SC/ST Act, P.S.- Khajani, District- Gorakhpur including the charge sheet as well as cognizance order dated 8.2.2022 passed by learned Additional District Judge (Special Judge) S.C./S.T. Act, Gorkahpur.

3. A preliminary objection has been raised by learned A.G.A. regarding maintainability of the application on the ground that the applicant has a statutory alternative remedy of appeal challenging the cognizance/summoning order under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (in short 1989 Act). It is submitted that the present 482 petition is not maintainable in view of opening line of Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which is a statutory provision and this section starts with non obstant clause that "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 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." In support of his contention, learned A.G.A. has relied upon the Full Bench decisions of this Court in the case of Ghulam Rasool Khan and others Vs State of UP and others, 2022 0 Supreme (All) 608 and In Re:-Provision of Section 14 A of SC/ST (Prevention of Atrocities) Amendment Act, 2015 (CRIMINAL WRIT- PUBLIC INTEREST LITIGATION No. - 8 of 2018) decided on 10.10.2018.

4. On the other hand, learned counsel for the applicant submitted that against the order impugned, petition under section 482 Cr.P.C. would be maintainable. He further submitted that the inherent power of the High Court under Section 482 Cr.P.C. cannot be ousted by Section 14-A of the Act. He relied upon the judgement of Apex Court rendered in Ramavawatar Vs State of Madhya Pradesh, 2021 0 Supreme (SC) 625 & Hitesh Verma Vs State of Uttarakhand and another, 2020 0 Supreme (SC) 653.

5. Learned AGA has further pointed out that the Hon'ble Apex Court has never considered the issue, in the cases relied upon by the learned counsel for the applicants, as to whether appeal would lie under Section 14-A of the Act, 1989 or petition U/S 482 Cr.P.C. would lie against the cognizance order passed of special Court, therefore, the decisions relied upon by the learned counsel for the applicant cannot be said to be a binding. In support of his argument, learned A.G.A. relied upon the case of Arnit Das Vs Sate of Bihar, 2000 (5) SCC 488, in which while examining the binding effect of such a decision, the Apex Court observed that "A decision not expressed, not accompanied by reasons and not proceedings on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgement is not the ratio decidendi. This is the rule of sub silentio, in the technical sense when a particular point of law was not consciously determined". He has also relied upon the case of N. Bhargavan Pillai Vs. State of Kerala, AIR 2004 SC 2317, to contend that if any view has been expressed without analyzing the statutory provision, it cannot be treated as a binding precedent.

6. Learned A.G.A. further taking recourse to Section 5 of the Code of Criminal Procedure has also contended that when a special Act, provides remedy of appeal 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, the special provision in the Act would prevail over the general provision.

7. In the case of Ramavawatar (supra) the issue was whether criminal proceedings arising out of non compoundable offence can be quashed against a person accused of hurting the sentiments of the victim who belongs to the Scheduled Caste category by exercising special powers of the court? The Hon'ble Apex Court has ruled that where it appears to the Court that the offence in question, although covered under the SC/ST Act, is (i) primarily private or civil in nature;, or (ii) where the alleged offence has not been committed on account of the caste of the victim; or (iii) where the continuation of the legal proceedings would be an abuse of the process of law, the Court can exercise its powers to quash the proceedings.

8. However, in the case of Hitesh Verma (supra), appellant had sought quashing of the charge-sheet on the ground that the allegation does not make out an offence under the Act against the appellant merely because respondent No. 2 was a Scheduled Caste since the property dispute was not on account of the fact that respondent No. 2 was a Scheduled Caste. The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste.

9. This Court is also mindful of the two Full Bench decisions of this Court rendered in Ghulam Rasool Khan and Others Vs State of UP and Another, 2022 Latest Case Law 8330 Alld and In Re:-Provision of Section 14 A of SC/ST (Prevention of Atrocities) Amendment Act, 2015 (CRIMINAL WRIT-PUBLIC INTEREST LITIGATION No. - 8 of 2018) decided on 10.10.2018.

10. In Re: Provision of Section 14-A of SC/ST (Prevention of Atrocities) Amendment Act, 2015 (supra), Full Bench of this Court has considered the question "(B) Whether in view of the provisions contained in Section 14-A of the Amending Act, a petition under the provisions of Article 226/227 of the Constitution of India or a revision under Section 397 of the Code of Criminal Procedure or a petition under Section 482 Cr.P.C., is maintainable. OR in other words, whether by virtue of Section 14-A of the Amending Act, the powers of the High Court under Articles 226/227 of the Constitution or its revisional powers or the powers under Section 482 Cr.P.C. stand ousted?

11. The Full Bench answered the said question in the negative. It was held that against the judgments or orders, for which remedy has been provided under Section 14-A of the 1989 Act, invoking the jurisdiction of this Court by filing petition under Articles 226 or 227 of the Constitution of India, a revision under Section 397 Cr.P.C. or an application under Section 482 Cr.P.C., will not be maintainable.

12. In another case of Ghulam Rasool Khan and Others (supra), which is another Full Bench of this Court also considered the following question as to whether an aggrieved person who has not availed of the remedy of an appeal under the provisions of Section 14-A of Act, 1989 can be allowed to approach the High Court by preferring an application under the provisions of Section 482 of the Cr.P.C.? The Full Bench answered the said question in negative holding that the aggrieved person having remedy of appeal under Section 14-A of the 1989 Act, cannot be allowed to invoke inherent jurisdiction of this Court under Section 482 Cr.P.C.

13. Both the cases relied upon by the learned counsel for the applicants are not applicable in the facts of the present case as the same are silent over the technical issue of maintainability of the petition under Section 482 Cr.P.C. after insertion of Section 14-A of Act, 1989 and unless the said issue is decided consciously, any departure from the statutory provision would be a bad precedent. The cases relied upon by the learned counsel for the applicants have been decided by Hon'ble Apex Court considering the fact that the dispute involved therein was either in the nature of private dispute or compromise took place between the parties.

14. It is no doubt true that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection as has been reminded by Hon'ble Supreme Court in catena of decisions on various occasions. Perusal of Section 14-A of the Act 1989, itself shows that it starts with a non obstante clause. The legislative intent behind inserting non-obstante clause in any provision is to enforce overriding effect of that provision over any other provision or any other prevailing law. When a statutory remedy is created by enactment for redressal of grievances, the exercise of inherent power by way of a petition U/S 482 Cr.P.C. could not be invoked ignoring the statutory dispensation.

15. Section 482 of the Code envisages the three circumstances under which the inherent jurisdiction may be exercised by High Court, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. It is trite law that the inherent power of the High Court under Section 482 of the Code ought to be exercised to prevent miscarriage of justice or to prevent the abuse of the process of the court or to otherwise secure the ends of justice and the Court possesses wide discretionary powers. It is well settled that the inherent powers under section 482 Cr.P.C. can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by any particular statute. If an effective statutory alternative remedy is available, this court should refrain from exercising its extraordinary power under section 482 Cr.P.C., especially when the applicant has not availed of that remedy.

16. The Apex Court in the case of Madhu Limaye Vs State of Maharashtra, AIR 1978 SC 47, has held that the following principles would govern the exercise of inherent jurisdiction of the HC:

1. Power is not to be resorted to, if there is specific provision in code for redress of grievances of aggrieved party.

2. It should be exercised sparingly to prevent abuse of process of any Court or otherwise to secure ends of justice.

3. It should not be exercised against the express bar of the law engrafted in any other provision of the code.

17. In the landmark case State of Haryana v. Bhajan Lal (1992 Supp. (1) SCC 335), a two-judge bench of the Supreme Court of India considered in detail, the provisions of section 482 and the power of the High Court to quash criminal proceedings or FIR. The Supreme Court summarized the legal position by laying the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint:

1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or, where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

18. In view of above legal position, instant application is finally disposed of with the direction to the applicant to avail the remedy of appeal available to him under the Statute before the appropriate forum.

19. Certified copy of the impugned order, if any, be returned as per rules.

Order Date :- 22.3.2023

Krishna*