Jharkhand High Court
Abdul Halim vs The State Of Jharkhand on 7 November, 2023
1 W.P. (Cr.) No. 371 of 2023
With
W.P. (Cr.) No. 327 of 2023
With
W.P. (Cr.) No. 393 of 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 371 of 2023
Abdul Halim ... Petitioner
-Versus-
1. The State of Jharkhand
2. Dr. Ishwar Chandra Vidyasagar ... Respondents
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W.P. (Cr.) No. 327 of 2023
Prof. Nand Kumar Yadav 'Indu' ... Petitioner
-Versus-
1. The State of Jharkhand
2. Dr. Ishwar Chandra Vidyasagar ... Respondents
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W.P. (Cr.) No. 393 of 2023
Tarun Kumar ... Petitioner
-Versus-
1. The State of Jharkhand
2. Dr. Ishwar Chandra Vidyasagar ... Respondents
-----
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
-----
For the Petitioner : Mr. Pandey Neeraj Rai, Advocate
[In W.P.(Cr.) Nos. 371/2023 & 393/2023]
Mr. Akchansh Kishore, Advocate
Mr. Saurabh Sagar, Advocate
For the Petitioner : Mr. Sumeet Gadodia, Advocate
[In W.P.(Cr.) No. 327/2023]
Mrs. Aanya, Advocate
Mr. Nilohit Choubey, Advocate
For the State : Mrs. Vandana Singh, Sr. S.C.-III
[In W.P. (Cr.)-371/2023]
Mr. Deepankar, A.C. to G.A.-III
[In W.P.(Cr.) Nos. 327/2023 & 393/2023]
For Respondent No.2: Mr. Kaushik Sarkhel, Advocate (In all cases)
-----
07/07.11.2023 Vide order dated 25.07.2023, notices were directed to be issued upon
respondent no.2 and interim protection was provided to the petitioner in
W.P.(Cr.) No.371 of 2023. On 13.09.2023, W.P. (Cr.) Nos. 371 of 2023 and
393 of 2023 were adjourned on the submission of the learned counsel for
the State as on that day, Mr. Manoj Kumar, learned G.A.-III was indisposed
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and the matters were again taken on 05.10.2023 and on that day,
Mr. Kaushik Sarkhel, learned counsel for respondent no.2 raised preliminary
objection with regard to maintainability of the writ petitions under Article
226 of the Constitution of India on the ground that if the case is arising
under the provision of Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989, the provision of appeal under Section 14A of the
said Act is there and in view of that, the writ petitions are not maintainable
and on that day, W.P.(Cr.) Nos. 371 of 2023 and 393 of 2023 were
adjourned and directed to be tagged with W.P.(Cr.) No.327 of 2023 to
address on the preliminary issue.
2. Accordingly, these matters have been listed today for addressing the
issue on the point of maintainability of the writ petitions under Article 226 of
the Constitution of India.
3. Heard Mr. Pandey Neeraj Rai and Mr. Sumeet Gadodia, learned
counsel for the petitioners, Mr. Kaushik Sarkhel, learned counsel for
respondent no.2 and Mrs. Vandana Singh and Mr. Deepankar, learned
counsel for the State on the point of maintainability of the writ petitions.
4. Mr. Kaushik Sarkhel, learned counsel for respondent no.2 submits that
preliminary issue framed by this Court vide order dated 05.10.2023 is
required to be answered in favour of respondent no.2 in view of the fact
that the High Court does not act as a Court of appeal against the decision of
a Court or Tribunal to correct the errors of fact and does not by assuming
jurisdiction under Article 226 of the Constitution of India and exercise power
when alternative remedy provided by the statute is there. He further
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submits that the learned Court has already taken cognizance and that order
can be challenged under Section 14A of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989. To buttress this
argument, he relied upon paragraph 7 of the judgment passed by the
Hon'ble Supreme Court in the case of Thansingh Nathmal & others v.
The Superintendent of Taxes, Dhubri and others , reported in (AIR
1964 SC 1419), which reads as under:
"7. Against the order of the Commissioner an order for
reference could have been claimed if the appellants satisfied
the Commissioner or the High Court that a question of law
arose out of the order. But the procedure provided by the Act
to invoke the jurisdiction of the High Court was bypassed, the
appellants moved the High Court challenging the competence
of the Provincial Legislature to extend the concept of sale, and
invoked the extraordinary jurisdiction of the High Court under
Article 226 and sought to reopen the decision of the Taxing
Authorities on question of fact. The jurisdiction of the High
Court under Article 226 of the Constitution is couched in wide
terms and the exercise thereof is not subject to any
restrictions except the territorial restrictions which are
expressly provided in the Articles. But the exercise of the
jurisdiction is discretionary : it is not exercised merely because
it is lawful to do so. The very amplitude of the jurisdiction
demands that it will ordinarily be exercised subject to certain
self-imposed limitations. Resort that jurisdiction is not
intended as an alternative remedy for relief which may be
obtained in a suit or other mode prescribed by statute.
Ordinarily the Court will not entertain a petition for a writ
under Article 226, where the petitioner has an alternative
remedy, which without being unduly onerous, provides an
equally efficacious remedy. Again the High Court does not
generally enter upon a determination of questions which
demand an elaborate examination of evidence to establish the
right to enforce which the writ is claimed. The High Court
does not therefore act as a court of appeal against the
decision of a court or tribunal, to correct errors of fact, and
does not by assuming jurisdiction under Article 226 trench
upon an alternative remedy provided by statute for obtaining
relief. Where it is open to the aggrieved petitioner to move
another tribunal, or even itself in another jurisdiction for
obtaining redress in the manner provided by a statute, the
High Court normally will not permit by entertaining a petition
under Article 226 of the Constitution the machinery created
under the statute to be bypassed, and will leave the party
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applying to it to seek resort to the machinery so set up."
5. Relying on this judgment, Mr. Sarkhel submits that the High Court is
required to restrain itself when alternative remedy under the statute is
there. He submits that once the statute is there, procedure is required to be
followed.
6. Mr. Sarkhel further submits that alternative remedy arising out of
Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Amendment Act, 2015 was considered by Full Bench of the
Hon'ble Allahabad High Court in Criminal Writ-Public Interest
Litigation No.8 of 2018, Criminal Misc. Bail Application No.38755
of 2017 and Criminal Writ-Public Interest Litigation No.11 of 2018 ,
reported in MANU/UP/3484/2018. He submits that at paragraph 4 of
the said judgment of the Full Bench, the question of law has been
formulated and said question of law has been answered by the Full Bench
of the Hon'ble Allahabad High Court in paragraphs 63, 64, 82, 84, 85 and 86
of the said judgment, which read as under:
"63. Next we would like to consider Question 'B':
"B. Whether in view of the provisions contained in
Section 14-A of the Amending Act, a petition under the
provisions of Article226/227 of\ the Constitution of
India or a revision under Section 397 of the Code of
Criminal Procedure (in short 'Cr.P.C.) 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 High Court under Article 226/227 of the
Constitution or its revisional powers or the powers
under Section 482 Cr.P.C. shall stand ousted?"
64. At the outset, our answer to the first part of the
question is in the negative. In other words, where an appeal
under subsection (1) and/or sub-section (2) of Section 14A
of the Amending Act is maintainable against any judgment,
sentence or order, not being interlocutory in nature, a petition
under the provisions of Articles 226/227 of the Constitution of
India or a revision under Section 397 Cr.P.C. or a petition
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under Section 482 Cr.P.C. would not be maintainable. We deal
with this question bearing in mind our opinion on the first
question. In other words, we deal with this question conscious
that the powers of this Court to entertain an appeal even after
expiry of the period of 180 days from the date of the
judgment, sentence or order appealed from, if it is satisfied
that the appellant had sufficient cause for not preferring the
appeal within the said period are retained.
82. It was submitted that even during the course of trial, an
occasion may arise where various orders may qualify what is
now clearly or legally known and understood as 'intermediate
orders'. As noticed above, these are orders of a category
which may affect the accused/victim and, if such orders are
challenged by way of an appeal and if the appeal is allowed, it
may put an end to the proceedings once and for all and,
therefore, such orders being "intermediate" in nature, can also
be challenged under Section 482 Cr.P.C.
84. Similarly, in paragraphs 27, 29 and 30, the Supreme
Court observed thus:
"27. Our conclusion on this subject is that while the
appellants might have an entitlement (not a right) to
file a revision petition in the High Court but that
entitlement can be taken away and in any event, the
High Court is under no obligation to entertain a revision
petition - such a petition can be rejected at the
threshold. If the High Court is inclined to accept
the revision petition it can do so only against a
final order or an intermediate order, namely, an
order which if set aside would result in the
culmination of the proceedings. As we see it, there
appear to be only two such eventualities of a revisable
order and in any case only one such eventuality is
before us. Consequently the result of paragraph 10 of
the order passed by this Court is that the entitlement of
the appellants to file a revision petition in the High
Court is taken away and thereby the High Court is
deprived of exercising its extraordinary discretionary
power available under Section 397 Cr.P.C.
29. This leads us to another facet of the submission
made by learned counsel that even the avenue of
proceeding under Section 482 Cr.P.C. is barred as far as
the appellants are concerned. As held in Amar Nath
and with which conclusion we agree, if an
interlocutory order is not revisable due to the
prohibition contained in Section 397 (2) Cr PC
that cannot be circumvented by resort to Section
482 Cr PC. There can hardly be any serious dispute on
this proposition.
30. What then is the utility of Section 482 Cr.P.C.? This
was considered and explained in Madhu Limaye which
noticed the prohibition in Section 397 (2) Cr.P.C. and at
the same time the expansive text of Section 482 Cr.P.C.
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and posed the question: In such a situation, what is the
harmonious way out ? This Court then proceeded to
answer the question in the following manner: (SCC pp.
555-56, para 10)
"10. ...In such a situation, what is the
harmonious way out? In our opinion, a happy
solution of this problem would be to say that the
bar provided in sub-section (2) of Section
397 operates only in exercise of the
revisional power of the High Court,
meaning thereby that the High Court will
have no power of revision in relation to
any interlocutory order. Then in accordance
with one of the other principles enunciated
above, the inherent power will come into play,
there being no other provision in the Code for
the redress of the grievance of the aggrieved
party. But then, if the order assailed is purely of
an interlocutory character which could be
corrected in exercise of the revisional power of
the High Court under the 1898 Code, the High
Court will refuse to exercise its inherent power.
But in case the impugned order clearly brings
about a situation which is an abuse of the
process of the Court or for the purpose of
securing the ends of justice interference by the
High Court is absolutely necessary, then nothing
contained in Section 397 (2) can limit or affect
the exercise of the inherent power by the High
Court. But such cases would be few and far
between. The High Court must exercise the
inherent power very sparingly."
(emphasis supplied)
85. It is light of the above exposition of the law that the
expression "order as occurring in Section 14A must be
interpreted.
86. Reverting to the invocation of the inherent or revisional
power even where an appeal would lie it would be apposite to
bear in mind that though other interlocutory orders passed by
the Special Court or the Exclusive Special Court, as the case
may be, are not appealable at all in view of the provisions
prescribed under Section 14-A(1) of the Amending Act, an
order granting or refusing bail is an order against which an
appeal is permitted under the newly inserted Section 14-
A(2) of the Act. This is so, because as provided under sub-
section (3) of Section 14, every trial, under the Act, is to
proceed on a day-to-day basis and has to be conducted
expeditiously. Similarly we note that both the Amending Act as
well as the rules framed thereunder prescribe a specific time
frame for each stage of the proceedings. This appears to be
the legislative intent underlying no appeal being provided
against interlocutory orders other than those refusing or
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granting bail passed by the Special Court or the Exclusive
Special Court. The reasoning behind the exception carved out
is because those orders concern the liberty of the accused, as
would appear from the interpretation accorded to the pari
materia provisions of Section 21(1) and (4) of the National
Investigation Agency Act, 2008 by the Supreme Court in State
of A.P. Vs. Mohd. Hussain alias Saleem."
7. Relying on this judgment, Mr. Sarkhel submits that in view of the Full
Bench judgment of the Hon'ble Allahabad High Court, the petitioners are
having alternative remedy by way of filing appeal under the said statute, as
has been held therein and in view of that, the writ petitions are not
maintainable.
8. Mr. Sarkhel, learned counsel for respondent no.2 further relied upon
the judgment passed by the Hon'ble Supreme Court in the case of
Nivedita Sharma v. Cellular Operators Association of India and
others, reported in [(2011) 14 SCC 337] and submits that it has been
held by the Hon'ble Supreme Court that such type of petitions must not be
entertained by the High Court as a matter of course ignoring the fact that
aggrieved person has an effective alternative remedy. When statutory
forum is created by law for redressal of grievances, the writ petition should
not be entertained ignoring the statutory dispensation. He relied upon
paragraphs 12 and 16 of the said judgment, which read as under:
"12. In Thansingh Nathmal v. Supdt. of Taxes [AIR 1964 SC
1419] this Court adverted to the rule of self-imposed restraint
that the writ petition will not be entertained if an effective
remedy is available to the aggrieved person and observed:
(AIR p. 1423, para 7)
"7. ... The High Court does not therefore act as a court
of appeal against the decision of a court or tribunal, to
correct errors of fact, and does not by assuming
jurisdiction under Article 226 trench upon an alternative
remedy provided by statute for obtaining relief. Where
it is open to the aggrieved petitioner to move another
tribunal, or even itself in another jurisdiction for
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obtaining redress in the manner provided by a statute,
the High Court normally will not permit by entertaining
a petition under Article 226 of the Constitution the
machinery created under the statute to be bypassed,
and will leave the party applying to it to seek resort to
the machinery so set up."
16. It can, thus, be said that this Court has recognised some
exceptions to the rule of alternative remedy. However, the
proposition laid down in Thansingh Nathmal v. Supt. of Taxes
[AIR 1964 SC 1419] and other similar judgments that the High
Court will not entertain a petition under Article 226 of the
Constitution if an effective alternative remedy is available to
the aggrieved person or the statute under which the action
complained of has been taken itself contains a mechanism for
redressal of grievance still holds the field."
9. Relying on this judgment, Mr. Sarkhel submits that these writ petitions
are abuse of process of law.
10. Mr. Sarkhel, learned counsel for respondent no.2 further relied upon
paragraph 20 of the judgment passed by the Hon'ble Supreme Court in the
case of Phoenix ARC Private Limited v. Vishwa Bharati Vidya
Mandir and others, reported in [(2022) 5 SCC 345], which reads as
under:
"20. In Mathew K.C. [State Bank of Travancore v. Mathew
K.C., (2018) 3 SCC 85 : (2018) 2 SCC (Civ) 41] after referring
to and/or considering the decision of this Court in Chhabil
Dass Agarwal [CIT v. Chhabil Dass Agarwal, (2014) 1 SCC
603] , it was observed and held in para 5 as under : (Mathew
K.C. Case [State Bank of Travancore v. Mathew K.C., (2018) 3
SCC 85 : (2018) 2 SCC (Civ) 41] , SCC p. 89)
"5. We have considered the submissions on behalf of
the parties. Normally this Court in exercise of
jurisdiction under Article 136 of the Constitution is loath
to interfere with an interim order passed in a pending
proceeding before the High Court, except in special
circumstances, to prevent manifest injustice or abuse of
the process of the court. In the present case, the facts
are not in dispute. The discretionary jurisdiction under
Article 226 is not absolute but has to be exercised
judiciously in the given facts of a case and in
accordance with law. The normal rule is that a writ
petition under Article 226 of the Constitution ought not
to be entertained if alternate statutory remedies are
available, except in cases falling within the well-defined
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exceptions as observed in CIT v. Chhabil Dass Agarwal
[CIT v. Chhabil Dass Agarwal, (2014) 1 SCC 603] , as
follows : (SCC p. 611, para 15)
'15. Thus, while it can be said that this Court has
recognised some exceptions to the rule of
alternative remedy i.e. where the statutory
authority has not acted in accordance with the
provisions of the enactment in question, or in
defiance of the fundamental principles of judicial
procedure, or has resorted to invoke the
provisions which are repealed, or when an order
has been passed in total violation of the
principles of natural justice, the proposition laid
down in Thansingh Nathmal case [Thansingh
Nathmal v. Supt. of Taxes, AIR 1964 SC 1419],
Titaghur Paper Mills case [Titaghur Paper Mills
Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 :
1983 SCC (Tax) 131] and other similar
judgments that the High Court will not entertain
a petition under Article 226 of the Constitution if
an effective alternative remedy is available to the
aggrieved person or the statute under which the
action complained of has been taken itself
contains a mechanism for redressal of grievance
still holds the field. Therefore, when a statutory
forum is created by law for redressal of
grievances, a writ petition should not be
entertained ignoring the statutory dispensation.'"
11. Relying on this judgment, Mr. Sarkhel submits that when alternative
remedy is there, the writ petition is not maintainable. On these grounds, he
submits that the writ petitions are not maintainable and, therefore, the
same are fit to be dismissed.
12. Per contra, Mr. Pandey Neeraj Rai, learned counsel for the petitioners
in W.P.(Cr.) Nos.371 of 2023 and 393 of 2023 submits that the arguments
advanced by the learned counsel for respondent no.2 with regard to
maintainability of the writ petitions is dehors the rule and precedent. He
submits that once the inherent power of the High Court under Article 226 of
the Constitution of India and under Section 482 of Cr.P.C. in a case where
abuse of process of law is made out, is not exercised, aggrieved person will
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be put to a great prejudice. He submits that the Court is only required to
consider whether the case of abuse of process of law is made out or not
and if the Court comes to a conclusion that abuse of process of law is there,
the Court can exercise its jurisdiction under Article 226 of the Constitution
of India or Section 482 of Cr.P.C. He further submits that after the judgment
passed by the Full Bench of the Hon'ble Allahabad High Court, as relied by
the learned counsel for respondent no.2, recent judgment of the Hon'ble
Supreme Court in the case of Ramawatar v. State of Madhya Pradesh ,
reported in (2021 SCC OnLine SC 966) has been passed, wherein, the
Hon'ble the Supreme Court has categorically held that if the offence is
covered under a special statute, it would not refrain the Hon'ble Supreme
Court or the High Court from exercising their respective powers under
Article 142 of the Constitution of India or under Section 226 of the
Constitution of India or under Section 482 of Cr.P.C. He submits that in view
of that, the Hon'ble Single Judge of the Allahabad High Court in the case of
Devendra Yadav and others v. State of U.P. and another , reported in
(2023 SCC OnLine All 164) has exercised power under Section 482
Cr.P.C. considering that the Full Bench of the Hon'ble Allahabad High Court
has not considered the case of Ramawatar (supra).
13. Mr. Pandey Neeraj Rai, learned counsel for the petitioners further
submits that in the case of B. Venkateshwaran and others v. P.
Bakthavatchalam, reported in (2023 SCC OnLine SC 14), the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
was again considered by the Hon'ble Supreme Court and considering that
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the ingredient of Sections 3(1) (v) and (va) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not made out, the
Hon'ble Supreme Court has interfered and reversed the order of the High
Court and quashed the entire criminal proceedings. He refers to paragraphs
3 and 4 of the said judgment, which read as under:
"3. We have heard Shri Nagamuthu, learned senior counsel
for the appellants - original accused and the respondent
appearing in person. We have also gone through the
complaint and considered the allegations in the complaint
made against the accused. Having considered the allegations
in the complaint and the material on record, it appears that
initiation of the criminal proceedings by the respondent
against the appellants - original accused for the offence under
the provisions of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 is nothing but an
abuse of process of law and the court and also provision of
the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989. It appears that a private dispute was
going on between the parties with respect to the illegal
construction. As per the allegations in the complaint, the
original complainant had purchased the vacant land and
constructed the building. It is alleged that adjacent to his
house and on the common pathway, the accused have
unlawfully encroached upon the pathway and started
constructing the temple and thereby have put up illegal
construction on his water pipeline, sewage pipeline and EB
Cable. In the entire complaint, there are no allegations that
the complainant is obstructed and/or interfered with
enjoyment of his right on his property deliberately and willfully
knowing that complainant belongs to SC/ST. From the material
on record, it appears that a civil dispute is converted into
criminal dispute and that too for the offence under the
provisions of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989. Prior to filing of the
complaint, it appears that the temple was already in existence
since many years. The complainant, who resides adjacent to
the temple, filed WP No. 1272 of 2007 before the Madras High
Court. Pursuant to the order passed by the High Court, the
Commissioner of Corporation, Chennai conducted the
inspection and found that there was absolutely no
encroachment by the temple. It appears that thereafter the
complainant filed another Writ Petition No. 30326 of 2013
before the Madras High Court. The High Court directed the
official respondent to proceed with the inquiry against both
the parties. At this stage, it is required to be noted that it was
the case on behalf of the original accused that in fact
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complainant had violated all building norms and had
constructed a building in blatant violation of the set-back rules
and had also put-up unauthorized construction on the ground
floor and first floor. That thereafter, the Temple filed writ
petition being No. 3322 of 2017 before the High Court. The
Division Bench of the High Court vide order dated 10.2.2017
stayed the proceedings against temple. It appears that
thereafter the complainant filed a private complaint for the
aforesaid offences under the provisions of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989. From the aforesaid, it seems that the private civil
dispute between the parties is converted into criminal
proceedings. Initiation of the criminal proceedings for the
offences under Sections 3(1)(v) and (va) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989, therefore, is nothing but an abuse of process of law and
Court. From the material on record, we are satisfied that no
case for the offences under Sections 3(1)(v) and (va) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 is made out, even prima facie. None of
the ingredients of Sections 3(1)(v) and (va) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989 are made out and/or satisfied. Therefore, we are of the
firm opinion and view that in the facts and circumstances of
the case, the High Court ought to have quashed the criminal
proceedings in exercise of powers under Section 482 of the
Code of Criminal Procedure. The impugned judgment and
order passed by the High Court, therefore, is unsustainable
and the same deserves to be quashed and set aside and the
criminal proceedings initiated against the appellants deserves
to be quashed and set aside.
4. In view of the above and for the reasons stated above,
present appeal succeeds. The impugned judgment and order
passed by the High Court dismissing the writ petition is hereby
quashed and set aside. The criminal proceedings initiated
against the appellants, initiated by the respondent herein -
original complainant for the offence under Sections 3(1)(v)
and (va) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 including summons issued
by the learned Special Court in a private complaint filed by the
respondent herein are hereby quashed and set aside. Present
appeal is allowed accordingly."
14. Mr. Pandey Neeraj Rai, learned counsel for the petitioners further
submits that in the case of Ramesh Chandra Vaishya v. State of Uttar
Pradesh and another, reported in (2023 SCC OnLine SC 668), the
charge-sheet as well as criminal proceedings were under challenge and in
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paragraph 18 of the said judgment, facts were taken care of by the Hon'ble
Supreme Court and in view of that, the Hon'ble Supreme Court has
interfered. He refers paragraphs 18 and 23 of the said judgment, which
read as under:
"18. That apart, assuming arguendo that the appellant had
hurled caste related abuses at the complainant with a view to
insult or humiliate him, the same does not advance the case
of the complainant any further to bring it within the ambit of
section 3(1)(x) of the SC/ST Act. We have noted from the first
F.I.R. as well as the charge- sheet that the same makes no
reference to the utterances of the appellant during the course
of verbal altercation or to the caste to which the complainant
belonged, except for the allegation/observation that caste-
related abuses were hurled. The legislative intent seems to be
clear that every insult or intimidation for humiliation to a
person would not amount to an offence under section 3(1)(x)
of the SC/ST Act unless, of course, such insult or intimidation
is targeted at the victim because of he being a member of a
particular Scheduled Caste or Tribe. If one calls another an
idiot (bewaqoof) or a fool (murkh) or a thief (chor) in any
place within public view, this would obviously constitute an act
intended to insult or humiliate by user of abusive or offensive
language. Even if the same be directed generally to a person,
who happens to be a Scheduled Caste or Tribe, per se, it may
not be sufficient to attract section 3(1)(x) unless such words
are laced with casteist remarks. Since section 18 of the SC/ST
Act bars invocation of the court's jurisdiction under section
438, Cr. P.C. and having regard to the overriding effect of the
SC/ST Act over other laws, it is desirable that before an
accused is subjected to a trial for alleged commission of
offence under section 3(1)(x), the utterances made by him in
any place within public view are outlined, if not in the F.I.R.
(which is not required to be an encyclopaedia of all facts and
events), but at least in the charge-sheet (which is prepared
based either on statements of witnesses recorded in course of
investigation or otherwise) so as to enable the court to
ascertain whether the charge sheet makes out a case of an
offence under the SC/ST Act having been committed for
forming a proper opinion in the conspectus of the situation
before it, prior to taking cognisance of the offence. Even for
the limited test that has to be applied in a case of the present
nature, the charge-sheet dated 21st January, 2016 does not
make out any case of an offence having been committed by
the appellant under section 3(1)(x) warranting him to stand a
trial.
23. Based on the facts and circumstances of the case, we
have little hesitation in holding that even though the appellant
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might have abused the complainant but such abuse by itself
and without anything more does not warrant subjecting the
appellant to face a trial, particularly in the clear absence of
the ingredient of intentional insult of such a degree that it
could provoke a person to break public peace or commit any
other offence."
15. Mr. Pandey Neeraj Rai, learned counsel for the petitioners further
submits that if a private dispute is there and for that unnecessarily the
provision of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 is invoked, the Court can exercise its power under
Article 226 of the Constitution of India or Section 482 of Cr.P.C., as has been
held by the Hon'ble Supreme Court in the case of Hitesh Verma v. State
of Uttarakhand and another, reported in [(2020) 10 SCC 710]. He
refers paragraphs 1 and 24 of the said judgment, which read as under:
"1. The challenge in the present appeal is to an order
passed by the High Court of Uttarakhand at Nainital on 20-7-
2020 [Hitesh Verma v. State of Uttarakhand, 2020 SCC OnLine
Utt 356] whereby the petition filed by the appellant under
Section 482 of the Code of Criminal Procedure, 1973 ("the
Code") for quashing the charge-sheet as well as the
summoning order dated 25-6-2020 was dismissed.
24. In view of the above facts, we find that the charges
against the appellant under Section 3(1)(r) of the Act are not
made out. Consequently, the charge-sheet to that extent is
quashed. The appeal is disposed of in the above terms."
16. Relying on this judgment, Mr. Pandey Neeraj Rai, learned counsel for
the petitioners submits that if the case of abuse of process of law is made
out, the High Court is well within its jurisdiction to exercise its power under
Article 226 of the Constitution of India or Section 482 of Cr.P.C.
17. Mr. Pandey Neeraj Rai, learned counsel for the petitioners also
submits that only requirement is to find out whether the case of abuse of
process of law is made out or not and if the Court is satisfied that the case
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is malafidely lodged, the Court can exercise its power in appropriate cases.
He submits that in the facts of the present cases, malafide is involved and in
view of that, the writ petitions are maintainable.
18. Mr. Sumeet Gadodia, learned counsel for the petitioner in W.P.(Cr.)
No.327 of 2023 submits that the writ petition is maintainable. He adopted
the argument of Mr. Pandey Neeraj Rai. He further submits that so far as his
case is concerned, abuse of process of law is there and malafidely the case
has been lodged and in view of that, the writ petition is maintainable.
19. Mrs. Vandana Singh, learned counsel for the respondent-State
submits that inherent power of the High Court under Article 226 of the
Constitution of India or Section 482 Cr.P.C. is not in dispute and in
appropriate cases, the High Court can exercise its jurisdiction, however, she
submits that when cognizance order is there, i.e. intermediary order and in
view of that, Section 14-A of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 is attracted. She also submits that this
aspect of the matter has been recently considered by the Hon'ble Patna
High Court in the case of Suman Mahto & others v. The State of Bihar
& others, reported in MANU/BH/0951/2023. She refers paragraphs 12
and 13 of the said judgment, which read as under:
"12. The decision in the case of Girish Kumar Suneja Vs.
Central Bureau of Investigation reported in (2017) 14 SCC
809, of the Supreme Court revisited the concept of
intermediate order, while addressing the question of the bar
under Section 397(2) of the Cr.P.C., para 21 of which is
relevant and is being reproduced hereinbelow:-
"21. The concept of an intermediate order was further
elucidated in Madhu Limaye v. State of Maharashtra
(1977) 4 SCC 551 : 1978 SCC (Cri) 10] by
contradistinguishing a final order and an interlocutory
order. This decision lays down the principle that an
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intermediate order is one which is interlocutory in
nature but when reversed, it has the effect of
terminating the proceedings and thereby resulting in a
final order. Two such intermediate orders immediately
come to mind--an order taking cognizance of an
offence and summoning an accused and an order for
framing charges. Prima facie these orders are
interlocutory in nature, but when an order taking
cognizance and summoning an accused is reversed, it
has the effect of terminating the proceedings against
that person resulting in a final order in his or her
favour. Similarly, an order for framing of charges if
reversed has the effect of discharging the accused
person and resulting in a final order in his or her favour.
Therefore, an intermediate order is one which if passed
in a certain way, the proceedings would terminate but if
passed in another way, the proceedings would
continue."
(underscored for emphasis)
13. The decision rendered in the case of Girish Kumar
Suneja (supra) clearly lays down that an order taking
cognizance is not an 'interlocutory order' rather an
intermediate order. Taking a cue from Girish Kumar Suneja
(supra), we have no hesitation in coming to a definite
conclusion that an order taking cognizance passed under the
Act is not an 'interlocutory order' rather an 'intermediate
order' and, therefore, appealable under Section 14A of the
Act."
20. Mr. Deepankar, learned counsel for the respondent-State adopts the
arguments advanced by Mrs. Vandana Singh, learned counsel for the
respondent-State.
21. In view of the above submissions of the learned counsel for the
parties, the Court has gone through the materials on record. The
extraordinary jurisdiction of this Court under Article 226 of the Constitution
of India has been invoked by the petitioners for quashing of the entire
criminal proceedings including the order taking cognizance. There are line of
judgments on the point of maintainability of the writ petition and some of
those judgments have been relied by the learned counsel appearing for
respondent no.2 as well as petitioners and the respondent-State.
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22. If a person is doing the work of public element and not the State
within the meaning of Article 12 of the Constitution of India and the Court
comes to a conclusion that public element is involved therein, even in such
cases, the High Court is empowered to exercise its power under Article 226
of the Constitution of India. In this connection, the case was decided by the
Hon'ble Supreme Court in the case of Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust
and others v. V. R. Rudani and others , reported in [(1989) 2 SCC
691].
23. If the case of abuse of process of law is there, the question remains
as to whether the High Court can exercise its power under Article 226 of the
Constitution of India or not. The answer to this question is already there in
the recent judgment passed by the Hon'ble Supreme Court in the case of
Ramawatar (supra), wherein, it has been held by the Hon'ble Supreme
Court in paragraphs 15 and 16 of the said judgment, which read as under:
"15. Ordinarily, when dealing with offences arising out of
special statutes such as the SC/ST Act, the Court will be
extremely circumspect in its approach. The SC/ST Act has
been specifically enacted to deter acts of indignity, humiliation
and harassment against members of Scheduled Castes and
Scheduled Tribes. The SC/ST Act is also a recognition of the
depressing reality that despite undertaking several measures,
the Scheduled Castes/Scheduled Tribes continue to be
subjected to various atrocities at the hands of upper-castes.
The Courts have to be mindful of the fact that the SC/ST Act
has been enacted keeping in view the express constitutional
safeguards enumerated in Articles 15, 17 and 21 of the
Constitution, with a twin-fold objective of protecting the
members of these vulnerable communities as well as to
provide relief and rehabilitation to the victims of caste-based
atrocities.
16. On the other hand, where it appears to the Court that
the offence in question, although covered under the SC/ST
Act, is primarily civil or private where the alleged offence has
not been committed on account of the caste of the victim, or
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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. On similar lines, when considering
a prayer for quashing on the basis of a compromise/
settlement, if the Court is satisfied that the underlying
objective of the SC/ST Act would not be contravened or
diminished even if the felony in question goes unpunished,
the mere fact that the offence is covered under a 'special
statute' would not refrain this Court or the High Court, from
exercising their respective powers under Article 142 of the
Constitution or Section 482 Cr. P.C."
24. The said judgment was further recently considered by the Hon'ble
Supreme Court in the case of Sri Gulam Musfafa v. The State of
Karnataka and another, reported in (2023 SCC OnLine SC 603). In
view of that, it would be said that the propositions laid down therein, are
not disputed and they do not prejudice the version of respondent no.2.
25. The Court is required to consider even if the allegations are taken to
be true on their face value and if it does not constitute any offence under
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 against the aggrieved person, the Court can exercise its power under
Article 226 of the Constitution of India and in such a situation, if the High
Court has not exercised its power under Article 226 of the Constitution of
India, it will amount to abandon the said provision.
26. There is no doubt that when alternative remedy is there particularly
arising out of the special statute, the Courts are restraining itself in
maintaining the writ petitions and appropriate orders are being passed. That
is not in dispute and that has been held in the judgment relied by Mr.
Sarkhel, learned counsel for respondent no.2 in the cases of Thansingh
Nathmal, Nivedita Sharma and Phoenix ARC Private Limited (supra) .
27. In the case of Thansingh Nathmal (supra), it has also been discussed
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in paragraph 7, on which much reliance has been placed by the learned
counsel for respondent no.2, that the very amplitude of the jurisdiction
demands that it will ordinarily be exercised subject to certain self-imposed
limitations and the Court finds that the same is not in dispute.
28. In the judgment relied by Mr. Sarkhel, learned counsel for respondent
no.2 passed by the Full Bench of the Hon'ble Allahabad High Court, the
judgment passed by the Hon'ble Supreme Court in Ramawatar (supra) was
not considered and considering this aspect of the matter, one of the learned
Single Judge of the Hon'ble Allahabad High Court in the case of Devendra
Yadav (supra) has quashed the entire criminal proceedings considering that
Ramawatar (supra) case was not considered. It has been informed by
Mr. Kaushik Sarkhel, learned counsel for respondent no.2 that the order
passed by the learned Single Judge of the Allahabad High was has been
referred to the larger Bench.
29. In the case of Nivedita Sharma (supra), the case was considered
under the Consumer Protection Act, 1986 and considering that there are
provisions of appeal/revision under the said Act and that is why, the said
case was decided stating that alternative remedy is available and in view of
that, that petition was not fit to be entertained. It is well settled that once
the party has chosen a forum, he is required to go on that. In that case, the
aggrieved person has chosen forum of District Consumer Redressal Forum
and that is why, in that background, that order was passed and the same is
not in dispute.
30. Right from the judgment of the Hon'ble Supreme Court in the case of
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State of Haryana and others v. Bhajan Lal and others , reported in
[1992 Supp (1) SCC 335] till the recent judgment of the Hon'ble
Supreme Court in the case of Haji Iqbal @ Bala through S.P.O.A. v.
State of U.P. and others, reported in (2023 SCC OnLine SC 946), it
has been categorically held by the Hon'ble Supreme Court that if abuse of
process of law is there, the High Court can exercise its jurisdiction under
Article 226 of the Constitution of India or Section 482 of Cr.P.C. In
paragraph 102 of the judgment in the case of Bhajan Lal (supra), certain
criteria have been made out to quash even the FIR.
31. In the case of Haji Iqbal (supra), recently the Hon'ble Supreme Court
has categorically held that where the complaint case is filed with malafide
intention, every care is being taken by the complainant to make out the
case and even ingredient is tried to be shown in such cases. The Court
further held that if such a situation is there, the High Court is required to
read things in between the lines. Paragraph 15 of the judgment passed in
Haji Iqbal (supra) reads as under:
"15. At this stage, we would like to observe something
important. Whenever an accused comes before the Court
invoking either the inherent powers under Section 482 of the
Code of Criminal Procedure (CrPC) or extraordinary
jurisdiction under Article 226 of the Constitution to get the FIR
or the criminal proceedings quashed essentially on the ground
that such proceedings are manifestly frivolous or vexatious or
instituted with the ulterior motive for wreaking vengeance,
then in such circumstances the Court owes a duty to look into
the FIR with care and a little more closely. We say so because
once the complainant decides to proceed against the accused
with an ulterior motive for wreaking personal vengeance, etc.,
then he would ensure that the FIR/complaint is very well
drafted with all the necessary pleadings. The complainant
would ensure that the averments made in the FIR/complaint
are such that they disclose the necessary ingredients to
constitute the alleged offence. Therefore, it will not be just
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enough for the Court to look into the averments made in the
FIR/complaint alone for the purpose of ascertaining whether
the necessary ingredients to constitute the alleged offence are
disclosed or not. In frivolous or vexatious proceedings, the
Court owes a duty to look into many other attending
circumstances emerging from the record of the case over and
above the averments and, if need be, with due care and
circumspection try to read in between the lines. The Court
while exercising its jurisdiction under Section 482 of the CrPC
or Article 226 of the Constitution need not restrict itself only
to the stage of a case but is empowered to take into account
the overall circumstances leading to the initiation/registration
of the case as well as the materials collected in the course of
investigation. Take for instance the case on hand. Multiple
FIRs have been registered over a period of time. It is in the
background of such circumstances the registration of multiple
FIRs assumes importance, thereby attracting the issue of
wreaking vengeance out of private or personal grudge as
alleged."
32. Alternative remedy is not always bar if a case is entertained even in
civil cases without jurisdiction and the writ petition can be maintained under
Article 226 of the Constitution of India, as has been held by the Hon'ble
Supreme Court in the case of Whirlpool Corpn. v. Registrar of Trade
Marks, reported in [(1998) 8 SCC 1]. Thus in appropriate cases, Article
226 of the Constitution of India can be entertained by the High Court,
however, the power must be exercised with care and circumspection and
that has been held in plethora of judgments by the Hon'ble Supreme Court
as well as the High Courts. If the FIR is registered malafidely under the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the
same can be considered in light of paragraph 102 of the judgment passed
Bhajan Lal (supra) under Article 226 of the Constitution of India and if the
case is coming within the said parameters, the High Court can exercise its
power.
33. Even accepting the argument of the learned counsel for the
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respondent-State that summoning order is an intermediary order and only
Section 14-A of the Act can be invoked, the Court finds that the argument is
available and in appropriate cases where the case of quashing is not made
out and if the Court comes to a conclusion that there is no abuse of process
of law, the Court may not entertain the petition under Article 226 of the
Constitution of India considering that alternative remedy is there, however,
if the case of abuse of process of law is made out, inherent power of the
High Court cannot be taken away and only requirement is that the Court
has to look as to whether the case of any abuse of process of law is made
out or not.
34. If the case of abuse of process of law is made out, the High Court
is well within its jurisdiction to exercise its power under Article 226 of
the Constitution of India or Section 482 of Cr.P.C. even if the
case is arising under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, as has been held by the Hon'ble
Supreme Court in the case of Ramawatar (supra), which has been recently
considered by the Hon'ble Supreme Court in the case of Sri Gulam Mustafa
(supra).
35. Accordingly, the preliminary objection made by respondent no.2 is
answered. The preliminary issue is decided as such.
36. Mr. Sarkhel, learned counsel for respondent no.2 submits that since
the preliminary issue has been decided against him, on merit these matters
may kindly be taken on any other day, which is being opposed by Mr.
Pandey Neeraj Rai, learned counsel for the petitioners.
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37. However in the interest of justice, time as prayed for on behalf of
respondent no.2 is allowed.
38. Let these matters appear on 20.12.2023.
39. Interim orders passed in respective cases shall remain in force, till the
next date.
(Sanjay Kumar Dwivedi, J.)
Ajay/ A.F.R.
