# Anil Kumar Tripathi v. State of U.P & Anr

- **Citation:** (2014) 1 ILRA 433
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-03-28
- **Case number:** U/S 482/378/407 No. 1773 of 2011
- **Bench:** Zaki Ullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-tripathi-v-state-of-u-p-anr-42842
- **Pages:** 4

## Headnote

Cr. P.C.-Section 482-Application to set-a-side
charge sheet offence under section 332, 353,
504, 506 IPC-applicant practicing Advocate
tried to pass his car-some how informant a
police constable-escaped-after parking the
car applicant came back caused heart by
slopping complainant-duty of complainant
was to control the traffic and not to check
inside the car-merely by passing car-can not
be termed intention to cause harm-no
occasion
for
applicant
to
stoppling
complainant after parking the car-did not
deter the complainant from discharging
public duty-ingredients for offence under
section 332, 353 not-attracted-Magistrate
without
scrutinizing
the
matter
under
section 190(1) Cr.P.C.-passed impugned
charge-sheet-if
proceeding
allowed
to
continue-amount to abused the process of
Court-charge sheet quashed.

Held:Para-8
The court has mechanically passed the order
and took cognizance without scrutinizing the
contents of the charge-sheet. The court
should have scrutinized the matter in view of
Section 190(1) Cr.P.C., it was the duty of the
court to ascertain as to what are the offences
and whether the offences are made out or
not. If the facts do not constitute the offence,
it would not be proper for the court to just
take cognizance. The cognizance means the
constitution
of
the
offence.
In
the
aforementioned
circumstances,
there
is
nothing like voluntarily causing hurt. The
allegations appear to be plain that the
applicant-Advocate
passed
the
vehicle
besides the complainant, who escaped unhurt
but there is nothing like voluntarily causing
hurt. Therefore, the application under Section
482 Cr.P.C. is liable to be allowed.

Case Law Discussed:
(2008) 1 SCC 474; (2006) 7 SCC 296

## Text

1 All] Anil Kumar Tripathi Vs. State of U.P. & Anr.

433
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.03.2014

BEFORE
THE HON'BLE ZAKI ULLAH KHAN, J.

U/S 482/378/407 No. 1773 of 2011

Anil Kumar Tripathi...................Petitioner
Versus
State of U.P & Anr.... .. .....Respondents

Counsel for the Petitioner:
A.K. Tripathi (In Person)

Counsel for the Respondents:
Govt. Advocate

Cr. P.C.-Section 482-Application to set-a-side
charge sheet offence under section 332, 353,
504, 506 IPC-applicant practicing Advocate
tried to pass his car-some how informant a
police constable-escaped-after parking the
car applicant came back caused heart by
slopping complainant-duty of complainant
was to control the traffic and not to check
inside the car-merely by passing car-can not
be termed intention to cause harm-no
occasion
for
applicant
to
stoppling
complainant after parking the car-did not
deter the complainant from discharging
public duty-ingredients for offence under
section 332, 353 not-attracted-Magistrate
without
scrutinizing
the
matter
under
section 190(1) Cr.P.C.-passed impugned
charge-sheet-if
proceeding
allowed
to
continue-amount to abused the process of
Court-charge sheet quashed.

Held:Para-8
The court has mechanically passed the order
and took cognizance without scrutinizing the
contents of the charge-sheet. The court
should have scrutinized the matter in view of
Section 190(1) Cr.P.C., it was the duty of the
court to ascertain as to what are the offences
and whether the offences are made out or
not. If the facts do not constitute the offence,
it would not be proper for the court to just
take cognizance. The cognizance means the
constitution
of
the
offence.
In
the
aforementioned
circumstances,
there
is
nothing like voluntarily causing hurt. The
allegations appear to be plain that the
applicant-Advocate
passed
the
vehicle
besides the complainant, who escaped unhurt
but there is nothing like voluntarily causing
hurt. Therefore, the application under Section
482 Cr.P.C. is liable to be allowed.

Case Law Discussed:
(2008) 1 SCC 474; (2006) 7 SCC 296

(Delivered by Hon'ble Zaki Ullah Khan, J.)

1. The instant application under
Section 482 Cr.P.C. has been filed by Shri
Anil Kumar Tripathi, a practicing Advocate
of the High Court, in person, challenging
the summoning order dated 02.03.2009
passed by A.C.J.M., C.B.I, Lucknow. By
the impugned application, the applicant has
prayed that the Court may set aside the
charge-sheet dated 27.12.2008 (Annexure
No.2) relating to Case Crime No.567 of
2008, under Sections 332, 353, 504 and 506
I.P.C., Police Station Wazirganj, District
Lucknow.

2.

Shri Anil Kumar Tripathi,
Advocate, arguing in person, challenged the
F.I.R. lodged by Raj Kumar Yadav
(H.C.No.0558). The applicant alleged that
the complainant in his F.I.R. stated that on
28.11.2008 at about 10:00 a.m. an advocate
whose name is Anil Kumar Tripathi came in
his vehicle at the gate where the complainant
was guarding and the applicant tried to pass
the vehicle besides the complainant and he
escaped unhurt as he saw the incoming
vehicle from opposite direction; that the
applicant immediately after parking the
vehicle came to Gate No.5 of the High Court
and he cautioned that this time the
complainant escaped unhurt but in future he
will be run over by his car; that when the
complainant questioned that how he could
434 INDIAN LAW REPORTS ALLAHABAD SERIES

run over his car, then the applicant-Advocate
voluntarily caused hurt by slapping the
complainant and threatened that one day he
will run over the car on him, then he will not
be in a position to check the car.

3. The applicant arguing in person
alleged that the F.I.R. did not constitute
any offence under Sections 332, 353, 504 &
506 I.P.C. because while driving the car he
neither run over the complainant nor he
made any gesture and he also did not utter
any word to insult the Home guard. On the
contrary, the Home Guard alleged that after
parking the car the applicant-Advocate came
and then slapped him and threatened that
next time he will pull down the Home Guard
so that he will not be in a position to check
the car. The applicant argued that the Home
Guard has no power to check the car. Since
he was only placed to guard the gate but he
has no jurisdiction to check the car, all the
allegations made against the applicant are
uncalled for and allegations did not constitute
any offence as alleged. Therefore, the F.I.R.
is liable to be quashed and any action taken
on the F.I.R. is liable to be quashed.

4. Heard Shri Anil Kumar Tripathi,
applicant in person and learned A.G.A.
for the State.

5. Learned A.G.A. rectified the
arguments advanced by the applicant and
specified that H.C. does not mean Home
Guard. It is H.C and not H.G. The
complainant is Head Constable and not Home
Guard and he has got every right to check the
vehicle. Although, hurt has not been caused
by the vehicle but subsequently the applicant
came and slapped the complainant while he
was discharging his duty and threatened,
therefore, the offence is complete. Since the
cognizance has been taken on charge-sheet
submitted by the police, the Court is seized
with the power under Section 482 Cr.P.C. and
the matter cannot be quashed. Section 482
Cr.P.C. is reproduced herein below:-

"482. Saving of inherent power of
High Court:- Nothing in this Code shall
be deemed to limit or affect the inherent
powers of the High Court to make such
orders as may be necessary to give effect
to any order under this Code, or to
prevent abuse of the process of any Court
or otherwise to secure the ends of justice."

6. Section 482 Cr.P.C. clearly reveals
that ends of justice would be better served if
valuable time of the Court is spent in hearing
those appeals rather than entertaining petitions
under Section 482 at an interlocutory stage
which after filed with some oblique motive in
order to circumvent the prescribed procedure,
or to delay the trial which enable to win over
the witness or may disinterested in giving
evidence, ultimately resulting in miscarriage of
justice. Hon'ble the Apex Court has laid down
this ratio in Hamida vs. Rashid, (2008) 1 SCC
474. It means that the duty of the court is to
scrutinize
whether
it
would result in
miscarriage of justice if the order is not
expunged. The view is directly suggests that
inherent jurisdiction under Section 482 Cr.P.C.
should be exercised sparingly, carefully and
with caution but only when such exercise is
justified by the tests specifically laid down in
the section itself. The powers under Section
482 Cr.P.C. are so wide that the High Court
can exercise jurisdiction suo motu in the
interest of justice. It can do so while exercising
other jurisdictions such as appellate or
revisional jurisdiction. No formal application
for invoking inherent jurisdiction is necessary.
Inherent jurisdiction can be exercise in respect
of substantive as well as procedural matters. It
can as well be exercised in respect of incidental
or supplemental power irrespective of nature of
proceedings; Popular Muthiah v. State, (2006)
7 SCC 296. As far as the powers of the High
1 All] Anil Kumar Tripathi Vs. State of U.P. & Anr.

435
Court under Section 482 Cr.P.C. are concerned,
these powers are unlimited and inherent in
nature, therefore, the arguments placed by
learned A.G.A. are that charge-sheet has been
submitted will not stop from exercising the
powers under Section 482 Cr.P.C.

6. It is, therefore, necessary to look into
the merits and demerits of the case. The
Head Constable has alleged that after parking
the vehicle, the applicant-Advocate slapped
the Head Constable and threatened him that
in future he will run over the car and he will
not in a position to check the vehicle. It is
interesting to note that the duties of the
constable posted outside the High Court is
only to check the incoming and out coming
vehicles to facilitate the traffic and not to
check individual car. However, if there is
some hindrance, they can report for
individual checking to superior officer posted
there. His duty is only to facilitate the traffic
and to regularize the traffic. As per
allegations, the applicant has only tried to
pass the vehicle besides Head Constable.
There was no intention to cause hurt. The
complainant immediately withdrew himself
from the path, therefore, there was no
incident and he was not hurt. Section 332 of
I.P.C. is reproduced as under:-

"332. Voluntarily causing hurt to deter
public servant from his duty.-- Whoever
voluntarily causes hurt to any person being a
public servant in the discharge of his duty as
such public servant, or with intent to prevent or
deter that person or any other public servant
from discharging his duty as such public servant,
or in consequence of anything done or attempted
to be done by that person in the lawful discharge
of his duty as such public servant, shall be
punished
with
imprisonment
of
either
description for a term which may extend to three
years, or with fine, or with both."

7. The essential ingredients of
voluntarily causing hurt; that means the
applicant-Advocate must have voluntarily
caused hurt while parking the vehicle. He did
not cause any hurt nor deter the complainant
from observing the performance of his duty. It
was just a sheer chance that the vehicle passed
besides the complainant. Similarly, Section
353 of I.P.C. is reproduced as under:-

"353. Assault or criminal force to
deter public servant from discharge of his
duty.-- Whoever assaults or uses criminal
force to any person being a public servant
in the execution of his duty as such public
servant, or with intent to prevent or deter
that person from discharging his duty as
such public servant, or in consequence of
anything done or attempted to be done by
such person to the lawful discharge of his
duty as such public servant, shall be
punished with imprisonment of either
description for a term which may extend
to two years, or with fine, or with both."

8. The ingredients of Section 353
Cr.P.C. are also not attracted as the applicantAdvocate did not deter the public servant
from discharging of duty. It was routine
manner in which he passed by his vehicle. It
is the subsequent act of the applicantAdvocate that creates the offence as per the
allegations of complainant-Head Constable,
after parking the vehicle, the applicantAdvocate came and slapped him. The main
allegation of the complainant is that he has
been slapped while he was performing his
duty. The question is that whether he has
been deterred from performing the duty, as
such, the ordinary course could have been
that aggrieved by his behaviour, the Head
Constable should have reported the matter to
the Registrar of this Court or to any higher
police officer nearby and then lodged the
F.I.R. because the circumstances do warrant
436 INDIAN LAW REPORTS ALLAHABAD SERIES

since the Head Constable is supposed to be
dedicated person and while in duty he should
perform
his
duty
meticulously.
The
Advocate has no grudge against duty
personnel and he parked his vehicle and
while coming to Gate No.5 he has no
business to challenge the constable. There
was no occasion for him to make altercation
with the constable because he did not create
any hindrance either in parking the vehicle or
elsewhere and he even did not check him
while he was driving. The allegations are that
subsequently he came and challenged, it
appears that the offence under Sections, 332
& 353 are not attracted and, therefore, it
would not be proper for prosecution to
continue the proceedings unnecessarily and
to waste precious time of Court and
definitely it will cover gross abuse of the
powers of any court because the Court has
exercised the jurisdiction without observing
the due formalities as mentioned in the Act.
The court has mechanically passed the order
and took cognizance without scrutinizing the
contents of the charge-sheet. The court
should have scrutinized the matter in view of
Section 190(1) Cr.P.C., it was the duty of the
court to ascertain as to what are the offences
and whether the offences are made out or
not. If the facts do not constitute the offence,
it would not be proper for the court to just
take cognizance. The cognizance means the
constitution
of
the
offence.
In
the
aforementioned circumstances, there is
nothing like voluntarily causing hurt. The
allegations appear to be plain that the
applicant-Advocate
passed
the
vehicle
besides the complainant, who escaped unhurt
but there is nothing like voluntarily causing
hurt. Therefore, the application under Section
482 Cr.P.C. is liable to be allowed.

9. The application is allowed and
Charge-sheet dated 27.07.2008 relating to
Case Crime No.567 of 2008, under Sections
332, 353, 504 and 506 I.P.C. is hereby
quashed, which is pending before A.C.J.M.,
C.B.I., Lucknow.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.04.2014

BEFORE
THE HON'BLE SUDHIR KUMAR SAXENA, J.

Service Single No. 2228 of 2014

Prakash Agarwal... ............Petitioner
Versus
Registrar General Allahabad High Court
Allahabad & Ors... ....Respondents

Counsel for the Petitioner:
Dr. Ghanshyam Das Mishra, Pawan Kumar
Tiwari

Counsel for the Respondents:
Manish Kumar

Constitution
of
India,
Art.-226Compassionate appointment-can not be
denied on financial ground-except the
requirement under Rule 5-consideration
should be made within three month in
absence of period prescribed under rule-if
qualified for class III post be appointed
only on class III and not on class 4th -
certain guide lines issued-order denying
appointment on financial considerationwholly beyond statutory requirement-if
appointment denied-reason be recorded.

Held: Para-22 & 30
22. Rule 5 makes its incumbent upon
the
appointing
authority
to
give
suitable
employment
if
applicant
fulfills the conditions contemplated
under Rule 5. State Government has
reserved the right to condone the
delay in case applicant moved the
application beyond five years, taking
into consideration the undue hardship
in
any
particular
case.
Appointee
under Rules has been obligated to
maintain other members of the family