# Gopal Mishra v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 273
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-08
- **Case number:** Crl. Misc. Writ Petition No. 16343 of 2020
- **Bench:** Surya Prakash Kesarwani, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gopal-mishra-v-state-of-u-p-ors-47167
- **Pages:** 4

## Headnote

Section 438 Cr.P.C. -shall apply to cases
under
the
Scheduled
Castes
and
Scheduled Tribes Act, 1989 if complainant
does not make out a prima facie case for
applicability of the said act- in such eventthe bar created by section 18 and 18 (A)
shall not apply.

W.P. disosed off. (E-7)

List of Cases cited:

## Text

8 All. Gopal Mishra Vs. State of U.P. & Ors.
273
absence thereof, the allegations made in the
writ petition cannot be accepted.

28. For all the reasons afore-stated
and the law laid down by Hon'ble Supreme
Court in the judgments referred above, the
writ petition is dismissed with cost of
Rs.05 lakhs (five lakhs), which shall be
deposited by the petitioner with the High
Court Legal Services Committee, High
Court Allahabad, within one month from
today.

29. A copy of this order along with
copy of the writ petition be also sent by the
Registrar General of this Court to the Bar
Council of Delhi for taking appropriate
action against the petitioner - Dr. Mukut
Nath Verma, Advocate, (Advocate Roll
No.D/1062/2014) in accordance with law
and without being influenced by any of the
observations made in the body of this
order.
----------

(2021)08ILR A273
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.01.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE SHAMIM AHMED, J.

Crl. Misc. Writ Petition No. 16343 of 2020

Gopal Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri P.K. Singh

Counsel for the Respondents:
A.G.A.
Section 438 Cr.P.C. -shall apply to cases
under
the
Scheduled
Castes
and
Scheduled Tribes Act, 1989 if complainant
does not make out a prima facie case for
applicability of the said act- in such eventthe bar created by section 18 and 18 (A)
shall not apply.

W.P. disosed off. (E-7)

List of Cases cited:

1. Rahna Jalal Vs St. of Kerala & anr. (Criminal
Appeal No. 883) of 2020, decided on 17.12.2020

2. Prithvi Raj Chauhan Vs U.O.I. & ors., (2020) 4
SCC 727

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Shamim Ahmed, J.)

1. Heard learned counsel for the
petitioner and learned A.G.A.

2. This writ petition has been filed,
praying for the following relief:-

"(i) Issue a writ, order or
direction in the nature of certiorari
quashing the impugned First information
Report dated 11.10.2020 registered as
Case Crime No. 0476 of 2020, under
Sections 34, 452, 354, 323, 504, 506 I.P.C.
and Section 3 (1) (dha) of SC/ST Act, 1989,
Police Station Shivli, District Ramabai
Nagar (Annexure No.1 to the writ petition.)

(ii) Issue a writ, order or
direction in the nature of mandamus
directing the respondent no.2 not to arrest
the petitioner in pursuance of the impugned
First information Report dated 11.10.2020
registered as Case Crime No. 0476 of
2020, under Sections 34, 452, 354, 323,
504, 506 I.P.C. and Section 3 (1) (dha) of
SC/ST Act, 1989, Police Station Shivli,
274 INDIAN LAW REPORTS ALLAHABAD SERIES
District Ramabai Nagar (Annexure No.1 to
the writ petition.)

3. Learned counsel for the petitioner
submits that no offence under Section 3 (i)
(dh)
of
the
Scheduled
Castes
and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 is made out, inasmuch as, as per
allegations made in the impugned FIR,
neither the incident took place at any public
place nor any specific role of the petitioner
has been assigned. It is further submitted
that accused Nos. 1 and 2 namely, Deepak
and Anil Kumar @ Kater are close relatives
of the informant-respondent no.3 and all
are residing in one and the same house.
Accused No.1 Deepak is "Dever" and
accused No.2 Anil Kumar @ Kater is the
"Nephew" of the informant-respondent
no.3 and the petitioner, who is the accused
No.3 has merely tried to intervene between
the petitioner and her Dever and Nephew
and consequently he has been falsely
implicated. He further submitted that
although no prima facie case under SC/ST
Act has been made out and yet petitioner
could not apply for anticipatory bail as
Sections 18 and 18-A of the Act, 1989
specifically bar the applicability of Section
438 Cr. P.C.

4. Learned A.G.A. submitted that
since on bare reading of the FIR, a
cognizable offence is made out, therefore,
no interference can be made with the
impugned FIR.

Discussion and Finding

5. We have carefully considered the
submissions of the learned counsel for the
parties.

6. As per submissions of the learned
counsel for the petitioner, the provisions of
anticipatory bail under Section 438 Cr. P.C.
shall not be available to the petitioner to
apply for anticipatory bail in view of the
bar imposed under Sections 18 and 18A of
Act 1989.

7. For ready reference, the provisions
of Sections 18, 18-A and Section 3 (1)
(Dha) of Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989
are reproduced below:

The
Scheduled
Castes
and
Scheduled Tribes (Prevention of Atrocities)
Act 1989 also contains similar provisions,
which exclude the application of Section
438 of Cr. PC. Sections 18 and 18-A
provide as follows:-

"18. Section 438 of the Code not
to apply to persons committing an offence
under the Act.--Nothing in Section 438 of
the Code shall apply in relation to any case
involving the arrest of any person on an
accusation of having committed an offence
under this Act.

18-A. No enquiry or approval
required.--(1) For the purposes of this Act-
-(a) preliminary enquiry shall not be
required
for
registration
of
a
first
information report against any person;
or(b) the investigating officer shall not
require
approval
for
the
arrest,
if
necessary, of any person,against whom an
accusation of having committed an offence
under this Act has been made, and no
procedure other than that provided under
this Act or the Code shall apply.(2)The
provisions of Section 438 of the Code shall
not apply to a case under this Act,
notwithstanding any judgment or order or
direction of any Court."

3(1) (ध) लोक दृष्टि में आने वाले
ष्टकसी स्थान पर जाष्टि के नाम से अनुसूष्टिि
जाष्टि या अनुसूष्टिि जनजाष्टि के ष्टकसी
सदस्य को गाली गलौज करेगा।
8 All. Gopal Mishra Vs. State of U.P. & Ors.
275

8. Similar submissions with regard to
exclusion of Sections 18 and 18-A of Act,
1989 was considered by Hon'ble Supreme
Court in the case of Rahna Jalal Versus
State of Kerala and another (Criminal
Appeal No. 883) of 2020, decided on
17.12.2020, and it was observed as under:-

15. Section 18 explicitly excludes
the application of Section 438 of the CrPC
in relation to any case involving the arrest
of any person on an accusation of having
committed an offence under the Act. Subsection (2) of Section 18-A specifically
excludes the application of the provisions
of
Section
438
of
the
CrPC,
notwithstanding any judgment, order or
direction of a court. The provisions of
Section 18 and 18A have been interpreted
by a three Judge Bench of this Court
Crl.A./202012 in Prathvi Raj Chauhan
v.Union of India and Others(2020) 4 SCC
727("Chauhan"). Justice Arun Mishra
speaking for himself and Justice Vineet
Saran, while construing these provisions,
observed that:

"11. Concerning the applicability
of provisions of Section 438 CrPC, it shall
not apply to the cases under the 1989 Act.
However, if the complaint does not make out
a prima facie case for applicability of the
provisions of the 1989 Act, the bar created by
Sections 18 and 18-A(i) shall not apply. We
have clarified this aspect while deciding the
review petitions."

16. The same view has been taken
in the concurring judgment of Justice S
Ravindra Bhat, in the following observations:

"32.As far as the provision of
Section 18-A and anticipatory bail is
concerned, the judgment of Mishra, J. has
stated that in cases where no prima facie
materials exist warranting arrest in a
complaint, the court has the inherent power
to direct a pre-arrest bail."

17. Thus, even in the context of
legislation, such as the Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities)Act 1989, where a bar is
interposed by the provisions of Section 18
and Sub-section (2) of Section 18-A on the
application of Section 438 of the CrPC, this
Court has held that the bar will not apply
where the complaint does not make out "a
prima faciecase" for the applicability of the
provisions of the Act.A statutory exclusion
of the right to access remedies for bail is
construed strictly, for a purpose. Excluding
access to bail as a remedy,impinges upon
human liberty. Hence, the decision in
Chauhan(supra) heldthat the exclusion will
not be attracted where the complaint does
not prima facieindicate a case attracting
the applicability of the provisions of the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act 1989.

18. For the abovereasons, we
have come to the conclusion thaton a true
and harmonious construction of Section
438 of CrPCand Section 7(c) of the Act,
there is no bar on granting anticipatory
bail for an offencecommittedunder the Act,
provided that the competent courtmust hear
the married Muslim woman who has made
the
complaint
before
granting
the
anticipatory bail. It would be at the
discretion of the court to grant ad-interim
relief to the accused during the pendency of
the anticipatory bail application, having
issued notice to the married Muslim
woman.

9. Perusal of the law laid down by
Hon'ble Supreme Court in the case of
Rahna Jalal (supra) and in the case of
Prithvi Raj Chauhan vs Union of India
and others, (2020) 4 SCC 727 (supra)
would show that Section 438 shall apply
to the cases under the Act, 1989 if the
complainant does not make out a prima
276 INDIAN LAW REPORTS ALLAHABAD SERIES
facie case for applicability of the
provisions of the Act, 1989. If an accused
is able to demonstrate that the complaint
does not make out "a prima facie case
for applicability of the provisions of the
Act, 1989, then the bar created by
Sections 18 and 18(A) shall not apply.

10. In view of the above discussion we
hold that provision of Section 438 Cr. P.C.
shall be available to an accused for
anticipatory bail for alleged offences under
the Scheduled Castes and Scheduled Tribes
Act, 1989, if the accused/applicant is able to
demonstrate that the complaint/F.I.R. does
not make out " a prima facie" case for
applicability of the provisions of the Act
1989. In such cases the bar created under
sections 18 and 18A of the Act, 1989 shall
not apply.

11. Since the learned counsel for the
petitioner has taken a stand before us that
prima facie no case has been made out under
Section 3 (1) (dh) of the Act, 1989, therefore,
it is for the petitioner to demonstrate the
position before the competent court in his
anticipatory bail application and if the
petitioner succeeds in demonstrating, then the
bar of Sections 18 and 18-A of the Act, 1989
shall not come in the way of the application
of the petitioner for anticipatory bail under
Section 438, Cr.P.C.

12. With the aforesaid observations, we
dispose of this writ petition, leaving it open
to the petitioner to apply for anticipatory bail
before the competent authority. It is made
clear that we have not expressed any opinion
on merits of the case of the petitioner.
----------
(2021)08ILR A276
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2021
BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Crl. Misc. Writ Petition No. 17665 of 2020

Sheoraj Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ishir Sripat

Counsel for the Respondents:
A.G.A.

Challenged made to the FIR -to quashcannot be examined by the Writ Court-as
questions of facts and appreciation of
evidence -does not fall within the arena of
jurisdiction
under
Article
226
of
Constitution of India.

W.P. dismissed. (E-7)

List of Cases cited:

1. St. of Har. & ors. Vs Ch.Bhajan Lal, AIR 1992
SC 605

2. U.O.I.Vs Prakash P. Hinduja & anr., (2003) 6
SCC 195

3. Ajit Singh @ Muraha Vs St. of U.P. (2006(56)
ACC433)

4. Satya Pal Vs St.of U.P. (2000 Cr.L.J. 569)

5.St. of Orissa Vs Saroj Kumar Sahoo (2005) 13
SCC 540

(Delivered by Hon'ble Gautam
Chowdhary, J.)

1. Heard Sri Ishir Sripat, learned
counsel for the petitioners and learned
A.G.A. for the State.