# Ashwnee Kumar & Anr v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 651
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-06
- **Case number:** Criminal Appeal No. 410 of 2023
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashwnee-kumar-anr-v-state-of-u-p-ors-49498
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 323, 504 & 506 - Scheduled
Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 - Section 3(1)(x),
3(1)(r) - Criminal Procedure Code, 1973 -
Inherent Powers of High Court - Quashing
of Summoning Order - False Implication -
Public View Requirement -The appellants,
Ashwnee Kumar and Avinash Bhatt, challenged
the summoning orders dated 11.04.2019 and
08.12.2022 in Case Crime No. 1613 of 2017
under Sections 323, 504, 506 IPC and Section
3(1)(x) of the SC/ST Act, alleging false
implication due to village rivalry.

Held: (1) The appeal was allowed, and the
summoning orders were quashed. (2) The FIR,
lodged under Section 3(1)(x) of the SC/ST Act
(corrupting or fouling water sources), was
misconceived as the allegations did not pertain
to such acts but at best related to Section
3(1)(r) (intentional insult or intimidation to
humiliate an SC/ST member in public view). (3)
The allegations did not satisfy Section 3(1)(r) as
the incident did not occur in a public place or
public
view,
rendering
the
SC/ST
Act
inapplicable, as per Hitesh Verma Vs St. of
Uttarakhand. (4) The allegations under IPC
Sections 323, 504, and 506 were also not
substantiated, as the FIR appeared motivated
by village rivalry and lacked credible evidence.
(5) The summoning orders were set aside due
to the failure to establish a prima facie case,
with bleak chances of conviction, aligning with
guidelines in St. of Har. Vs Bhajanlal and
Neeharika Infrastructure Pvt. Ltd. Vs St. of
Mah.. (6) The High Court's inherent powers
were exercised to prevent abuse of process and
secure justice, as the proceedings were based
on a wrongly applied legal provision and mala
fide allegations, as per S.W. Palankattkar Vs St.
of Bihar. (7) The court emphasized that
quashing is warranted when uncontroverted
allegations fail to establish an offence or when
continuing
proceedings
serves
no
useful
purpose.
Case Law Cited:

## Text

10 All. Ashwnee Kumar & Anr.Vs. State of U.P. & Ors.
651
considering the law laid down by the
Hon'ble Apex Court in the case of Hitesh
Verma (Supra), this Court is of the view
that the learned court below has failed to
appreciate the material available on record. The
summoning order dated 21.08.2021 passed by the
court below is liable to be reversed and set aside as
well as entire proceedings of the aforesaid case is
liable to be quashed.

13. Further the Apex Court has also laid
down the guidelines where the criminal
proceedings could be interfered and quashed in
exercise of its power by the High Court in the
following cases:- (i) R.P. Kapoor Vs. State of
Punjab, AIR 1960 S.C. 866, (ii) State of
Haryana Vs. Bhajanlal, 1992 SCC (Crl.)426,
(iii) State of Bihar Vs. P.P. Sharma, 1992 SCC
(Crl.)192, (iv) Zandu Pharmaceutical Works
Ltd. Vs. Mohd. Saraful Haq and another,
(Para-10) 2005 SCC (Cri.) 283 and (v)
Neeharika Infrastructure Pvt. Ltd. Vs. State of
Maharashtra, AIR 2021 SC 1918.

14. From the aforesaid decisions the Apex
Court has settled the legal position for quashing of
the proceedings at the initial stage. The test to be
applied by the court is to whether uncontroverted
allegation as made prima facie establishes the
offence and the chances of ultimate conviction is
bleak and no useful purpose is likely to be served
by allowing criminal proceedings to be continued.

15. In S.W. Palankattkar & others Vs.
State of Bihar, 2002 (44) ACC 168, it has been
held by the Hon'ble Apex Court that quashing of
the criminal proceedings is an exception than a
rule. The inherent powers of the High Court itself
envisages three circumstances under which the
inherent jurisdiction may be exercised:-(i) to give
effect an order under the Code, (ii) to prevent
abuse of the process of the court ; (iii) to otherwise
secure the ends of justice. The power of High
Court is very wide but should be exercised very
cautiously to do real and substantial justice for
which the court alone exists.

16. Accordingly, the appeal is allowed and
in view of the observations made above, the entire
proceedings of Special Trial No.944/2021 (State
vs. Vinod & Another), including cognizance and
summoning order dated 21.08.2021 under Section
323, 504 and 506 I.P.C. and Section 3(1)Da of
SC/ST Act, passed by Additional Session
Judge/Special Judge (SC/ST Act), Bahraich,
arising out of F.I.R. No.166/2021 under Section
323, 504 and 506 I.P.C. and Section 3(1)Da &
Dha of SC/ST Act, Police Station-Payagpur,
District-Bahraich are hereby quashed so far as it
relates to the instant appellant, namely-Shiv
Sagar Alias Shiv Sagar Giri.

17. The party shall file computer
generated copy of such order downloaded from
the official website of High Court Allahabad or
certified copy issued from the Registry of the
High Court, Allahabad.

18.

The
concerned
Court/Authority/Official
shall
verify
the
authenticity of such computerized copy of the
order from the official website of High
Court
Allahabad
and shall make a
declaration of such verification in writing.
----------
(2023) 10 ILRA 651
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.10.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 410 of 2023

Ashwnee Kumar & Anr. ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
652 INDIAN LAW REPORTS ALLAHABAD SERIES
Saharsh Srivastava, Dharmendra Kumar Bhatt,
Tushar Bhushan

Counsel for the Respondents:
G.A., Santosh Kumar Kanaujia

Criminal Law - Indian Penal Code, 1860 -
Sections 323, 504 & 506 - Scheduled
Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 - Section 3(1)(x),
3(1)(r) - Criminal Procedure Code, 1973 -
Inherent Powers of High Court - Quashing
of Summoning Order - False Implication -
Public View Requirement -The appellants,
Ashwnee Kumar and Avinash Bhatt, challenged
the summoning orders dated 11.04.2019 and
08.12.2022 in Case Crime No. 1613 of 2017
under Sections 323, 504, 506 IPC and Section
3(1)(x) of the SC/ST Act, alleging false
implication due to village rivalry.

Held: (1) The appeal was allowed, and the
summoning orders were quashed. (2) The FIR,
lodged under Section 3(1)(x) of the SC/ST Act
(corrupting or fouling water sources), was
misconceived as the allegations did not pertain
to such acts but at best related to Section
3(1)(r) (intentional insult or intimidation to
humiliate an SC/ST member in public view). (3)
The allegations did not satisfy Section 3(1)(r) as
the incident did not occur in a public place or
public
view,
rendering
the
SC/ST
Act
inapplicable, as per Hitesh Verma Vs St. of
Uttarakhand. (4) The allegations under IPC
Sections 323, 504, and 506 were also not
substantiated, as the FIR appeared motivated
by village rivalry and lacked credible evidence.
(5) The summoning orders were set aside due
to the failure to establish a prima facie case,
with bleak chances of conviction, aligning with
guidelines in St. of Har. Vs Bhajanlal and
Neeharika Infrastructure Pvt. Ltd. Vs St. of
Mah.. (6) The High Court's inherent powers
were exercised to prevent abuse of process and
secure justice, as the proceedings were based
on a wrongly applied legal provision and mala
fide allegations, as per S.W. Palankattkar Vs St.
of Bihar. (7) The court emphasized that
quashing is warranted when uncontroverted
allegations fail to establish an offence or when
continuing
proceedings
serves
no
useful
purpose.
Case Law Cited:

1. Hitesh Verma Vs St. of Uttarakhand, (2020)
10 SCC 710;

2. R.P. Kapoor Vs St. of Punj., AIR 1960 SC 866;

3. St. of Har. Vs Bhajanlal, 1992 SCC (Cri) 426;

4. St. of Bihar Vs P.P. Sharma, 1992 SCC (Cri)
192;

5. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq, 2005 SCC (Cri) 283;

6. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Mah., AIR 2021 SC 1918;

7. S.W. Palankattkar Vs St. of Bihar, 2002 (44)
ACC 168.

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Shri Tushar Bhushan,
learned counsel for the appellants as well as
Sri Santosh Kumar Kanaujia, learned
counsel for the opposite party no. 3 and
Shri Ashok Kumar Srivastava, learned
AGA for the State and perused the entire
record.

2. Learned A.G.A. has already filed
the counter affidavit. In reply thereto
learned counsel for the appellant has filed
the rejoinder affidavit. Vide order dated
19.7.2023 learned counsel for the opposite
party No.3 was granted three weeks time to
file counter affidavit, but till today no
counter affidavit has been filed.

3. Learned counsel for the opposite
party No.3 submits that he will argue the
matter without counter affidavit.

4. The instant appeal has been filed by
the appellants, Ashwnee Kumar and
Avinash Bhatt with a prayer to quash the
impugned
summoning
order
dated
10 All. Ashwnee Kumar & Anr.Vs. State of U.P. & Ors.
653
11.04.2019 as well as the impugned
consequential summoning order dated
08.12.2022 of Case Crime No.1613 of
2017, under Sections 323, 504, 506 I.P.C.
and Section 3(1)(X) of the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989, Police Station
Kotwali Sadar, District Lakhimpur Kheri
pending before the learned Special Judge,
S.C./S.T. Act (A.D.J.-II), Lakhimpur Kheri.

5. Learned counsel for the appellants
submits that the respondent No.3 has
lodged the first information report by
making false and baseless allegations. And
the
allegations
levelled
against
the
appellants are made with malafide intention
due to village party bandi. No such incident
took place, as alleged by the prosecution.

6. Learned counsel for the appellants
submits that there were certain substitutions
made in the the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 on 26-01-2016 and the present
F.I.R. was lodged in section 3(1)(x) of the
S.C./ S.T. Act 1989 under the wrong
pretext ignoring the substitution made on
26-01-2016.

7. Learned Counsel for the appellants
places reliance upon the said substitution in
section 3(1)(x) of the S.C./ S.T. Act 1989
which is reproduced below:-

Section 3. Punishments for offences
atrocities.

(1) Whoever, not being a member of a
Scheduled Caste or a Scheduled

Tribe,--

(x) corrupts or fouls the water of any
spring, reservoir or any other source
ordinarily used by members of the
Scheduled Castes or the Scheduled Tribes
so as to render it less fit for the purpose for
which it is ordinarily used;

8. Learned counsel for the appellant
further submits that looking into the
allegations made by the complainant, upon
which the F.I.R. was registered on 23-112017 does not prima facie disclose any act
of the appellants under section 3(1)(x) of
the S.C./ S.T. Act in as much as the alleged
act of the appellants as narrated in the
contents of the FIR at best disclose the
commission of offence under section
3(1)(r) of the S.C/ S.T. Act, 1989. And
once the FIR was registered under the
wrong section then it was incumbent upon
the police officials to rectify the same and
file the charge sheet under correct Sections.
section 3(1)(r) of the S.C./ S.T. Act 1989
which is reproduced below:-

Section 3. Punishments for offences
atrocities.

(1) Whoever, not being a member of a
Scheduled Caste or a Scheduled Tribe,--

(r) intentionally insults or intimidates
with intent to humiliate a
member of a
Scheduled Caste or a Scheduled Tribe in
any place within public view;

9. Several other submissions in order
to demonstrate the falsity of the allegations
made against the appellants have also been
placed forth before the Court. The
circumstances which, according to the
counsel, led to the false implication of the
accused have also been touched upon at
length. It has been assured on behalf of the
appellants that he is ready to cooperate with
the process of law and shall faithfully make
himself available before the court whenever
required and is also ready to accept all the
conditions which the Court may deem fit to
impose upon him. It has also been pointed
654 INDIAN LAW REPORTS ALLAHABAD SERIES
out that the accused are not having any
criminal history.

10. Learned counsel for the appellants
further
submitted
that
the
impugned
summoning order dated 11-04-2019 passed
by the learned court below is in complete
disregard of the facts.

11. Learned counsel for the appellants
has further submitted that the case lodged
under Section 3(1) (x) of S.C./S.T. Act did
not apply against the appellants because as
per the complaint, the incident does not
took place in the public view and public
place. In support of his argument, learned
counsel for the appellants has relied upon a
judgment rendered by the Hon'ble Supreme
Court in the case of Hitesh Verma Vs.
State of Uttarakhand, (2020) 10 SCC 710
and placed reliance upon para 13 and 18 of
the
aforesaid
judgment,
which
are
reproduced hereunder:-

"13. All insults or intimidations to a
person will not be an offence under the Act
unless such insult or intimidation is on
account of victim belonging to Scheduled
Caste or Scheduled Tribe. The object of the
Act is to improve the socio-economic
conditions of the Scheduled Castes and the
Scheduled Tribes as they are denied
number of civil rights. Thus, an offence
under the Act would be made out when a
member of the vulnerable section of the
Society
is
subjected
to
indignities,
humiliations and harassment. The assertion
of title over the land by either of the parties
is not due to either the indignities,
humiliations or harassment. Every citizen
has a right to avail their remedies in
accordance with law. Therefore, if the
appellant or his family members have
invoked jurisdiction of the civil court, or
that respondent No.2 has invoked the
jurisdiction of the civil court, then the
parties are availing their remedies in
accordance with the procedure established
by law. Such action is not for the reason
that respondent No.2 is member of
Scheduled Caste.
18. Therefore, offence under the Act is not
established merely on the fact that the
informant is a member of Scheduled Caste
unless there is an intention to humiliate a
member of Scheduled Caste or Scheduled
Tribe for the reason that the victim belongs
to such caste. In the present case, the
parties are litigating over possession of the
land. The allegation of hurling of abuses is
against a person who claims title over the
property. If such person happens to be a
Scheduled Caste, the offence under Section
3(1)(r) of the Act is not made out."

12. Learned counsel for the appellants
submitted that in view of the judgment
rendered by the Hon'ble Supreme Court, no
offence of S.C./S.T. Act are applicable
even though offence under the provisions
of I.P.C. are also not applicable. There was
no occasion for the appellants to harass the
opposite party no.3 or to use physical force
on him. The summoning order passed by
learned court below is not sustainable in the
eyes of law, therefore, it may be quashed.

13. Learned A.G.A. opposed the
prayer for quashing of the aforesaid
summoning order and submitted that prima
facie offence is made out, however, he is
unable to dispute the contentions raised by
learned counsel for the appellants.

14. After perusing the record in the
light of the submissions made at the bar
and after taking an overall view of all the
facts and circumstances of this case, the
nature of evidence and as per the the
contents of the FIR at best disclose the
10 All. Ashwnee Kumar & Anr.Vs. State of U.P. & Ors.
655
commission of offence under section
3(1)(r) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 and that to was neither in public
place nor public view as such aforesaid
section
is
not
attracted
against
the
appellants, even though the other Sections
of I.P.C. are also not attracted against the
appellants, as such, considering the law laid
down by the Hon'ble Apex Court in the
case of Hitesh Verma (Supra), this Court
is of the view that the learned court below
has failed to appreciate the material
available on record. The summoning order
dated 11-04-2019 passed by the court
below is liable to be reversed and set aside
as well as entire proceedings of the
aforesaid case is liable to be quashed.

15. Further the Apex Court has also
laid down the guidelines where the criminal
proceedings
could
be
interfered
and
quashed in exercise of its power by the
High Court in the following cases:-(i) R.P.
Kapoor Vs. State of Punjab, AIR 1960
S.C. 866, (ii) State of Haryana Vs.
Bhajanlal, 1992 SCC (Crl.)426, (iii) State
of Bihar Vs. P.P. Sharma, 1992 SCC
(Crl.)192, (iv) Zandu Pharmaceutical
Works Ltd. Vs. Mohd. Saraful Haq and
another, (Para-10) 2005 SCC (Cri.) 283
and

(v) Neeharika Infrastructure Pvt.
Ltd. vs. State of Maharashtra, AIR 2021
SC 1918.

16. From the aforesaid decisions the
Apex Court has settled the legal position
for quashing of the proceedings at the
initial stage. The test to be applied by the
court
is
to
whether
uncontroverted
allegation as made prima facie establishes
the offence and the chances of ultimate
conviction is bleak and no useful purpose is
likely to be served by allowing criminal
proceedings to be continued.

17. In S.W. Palankattkar & Others
Vs State of Bihar, 2002 (44) ACC 168, it
has been held by the Hon'ble Apex Court
that quashing of criminal proceedings is an
exception than a rule. The inherent powers
of the High Court itself envisages three
circumstances under which the inherent
jurisdiction may be exercised :- (i) to give
effect an order under the Code, (ii) to
prevent abuse of the process of the court:
(iii) to otherwise secure the ends of justice.
The power of High Court is very wide but
should be exercised very cautiously to do
real and substantial justice for which the
court alone exists.

18. Accordingly, the appeal is
allowed and in view of the observation
made above, the impugned summoning
order dated 11.04.2019 as well as the
impugned consequential summoning order
dated 08.12.2022 of Case Crime No.1613
of 2017, under Sections 323, 504, 506
I.P.C. and Section 3(1)(X) of the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989, Police Station
Kotwali Sadar, District Lakhimpur Kheri
pending before the learned Special Judge,
S.C./S.T. Act (A.D.J.-II), Lakhimpur Kheri.
is hereby quashed so far as it relates to the
instant appellants Ashwnee Kumar and
Avinash Bhatt.

19. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad or certified copy issued from the
Registry of the High Court, Allahabad.

20.

The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
656 INDIAN LAW REPORTS ALLAHABAD SERIES
the order from the official website of High
Court
Allahabad
and shall make a
declaration of such verification in writing.
----------
(2023) 10 ILRA 656
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.10.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE UMESH CHANDRA SHARMA,
J.

Criminal Appeal No. 1185 of 2019

Rahul ...Appellant
Versus
State of U.P.. ...Respondent

Counsel for the Appellant:
Shyam Kinkar Pandey, Atul Verma, Hari Krishna
Verma,
Himanshu
Tiwari,
Rajesh
Kumar,
Rajeshwar

Counsel for the Respondents:
G.A.

Criminal Law -Indian Penal Code, 1860 -
Sections 299, 300, 302, 304, 307/34, 323,
354 & 452 - Arms Act, 1959 - Section 4/25
- Culpable Homicide Vs Murder - Joint
Liability - House Trespass - Outraging
Modesty - Criminal Appeal Criminal Appeal
No. 1185 of 2019 against the judgment of the
Sessions Judge, Lucknow, dated 30.04.2019,
convicting the appellant under Sections 452,
354, 307/34, 302/34 IPC, and Section 4/25
Arms Act for an incident on 19.07.2011, where
the appellant and co-accused (juvenile) entered
the informant's house, molested his sister (PW2), and attacked her and her mother (deceased)
with a knife, resulting in the mother's death due
to septicemia after 12 days. The High Court
found no premeditation, as the incident arose
from
a
sudden
quarrel
over
marriage
discussions, and the appellant's role was limited
to holding PW-2, with injuries caused by the coaccused. Conviction under Section 302/34 IPC
altered to Section 304 Part I IPC (culpable
homicide not amounting to murder) due to lack
of intent to kill, supported by Atul Thakur and
Veeran. Conviction under Section 307/34 IPC
modified to Section 323 IPC, as injuries to PW-2
were simple. Section 452 IPC conviction set
aside, as entry was not forcible or with criminal
intent. Convictions under Section 354 IPC and
Section 4/25 Arms Act upheld, as unchallenged
evidence proved molestation and knife recovery.
Sentence
reduced
to
time
served
(since
19.07.2011), with fines to be deposited within
30 days.

Appeal partly allowed.

Case Law Cited:

1. Nand Kishore Vs St. of MP, (2011) 4 CrLJ
4243 (SC) (Para 51)

2. Lallan Rai Vs St. of Bihar, (2003) 1 SCC 268
(Para 52)

3. Pyarelal Vs St. of UP, AIR 1987 SC 852 (Para
53)

4. Mahesh Vs St. of MP, AIR 2012 SC 2172 (Para
54)

5. Chhotu Vs St. of Mah., AIR 1997 SC 3501
(Para 55)

6. Atul Thakur Vs St. of H.P., (2018) 2 SCC 496
(Para 67)

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

(1) Heard Sri Atul Verma, learned
counsel
for
the
appellant,
learned
Additional Government Advocate for the
State and perused the record.

(2) This appeal has been preferred by
the appellant against the order passed by
the
Sessions
Judge,
Lucknow
dated
30.04.2019 in Sessions Trial No. 215 of
2012 (State Vs. Rahul) arising out of Case
Crime No. 219 of 2011, under Sections
354, 452, 307, 302 IPC, Police Station