# Kaisar Jaha v. The S.P.,Distt. Sultanpur & Ors

- **Citation:** (2024) 10 ILRA 902
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-25
- **Case number:** Application U/S 482 Nos. 9566 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaisar-jaha-v-the-s-p-distt-sultanpur-ors-51157
- **Pages:** 5

## Headnote

A. Criminal Law
- Maintainability
-
Jurisdiction - Bharatiya Nagrik Suraksha
Sanhita (BNSS) - Section 175(3) - The
inherent power can be invoked to make
such orders as may be necessary to
prevent abuse of the process of any Court
or otherwise to secure the ends of justice -
10 All. Kaisar Jaha Vs. The S.P., Distt. Sultanpur & Ors.
903
When a statutory remedy of filing a revision
before this Court itself is available to the
applicant which revision will also be placed
before an Hon'ble Single Judge Bench of this
Court, although the application u/s 528 of BNSS
would be maintainable, it would not be proper
for this Court to exercise it discretion of invoking
its inherent powers when the petitioner has got
a statutory remedy available u/s 438 BNSS,
which remedy lies before this Court itself.
Although the application u/s 528 BNSS would be
maintainable, it would not be entertainable in
view of the peculiar facts and circumstances of
the case. (Para 12, 15)

The order under challenge has been passed by
a Sessions Court and, therefore, the revision
would lie before this Court itself. The revision as
well the application u/s 528 BNSS, both are
assigned to Single Judge Benches of this Court.
The scope of enquiry and interference in both
the proceedings would also be the same.
Therefore, the functionality of an application u/s
528 BNSS and a revision u/s 438 BNSS would be
the same. The only difference in the two
proceedings would be that the application u/s
528 BNSS has been placed today before Judge
'A' and the revision u/s 438 BNSS would be
placed on some other day before Judge 'B'.
(Para 13)

Accordingly, the application is dismissed leaving
it open to the applicant to avail the statutory
remedy u/s 438 BNSS available to her.

Application dismissed. (E-4)

Precedent followed:

## Text

902 INDIAN LAW REPORTS ALLAHABAD SERIES
still
have
adverse
impact
and
the
Appointing
Authority
would
take
a
decision after considering the seriousness
of the crime.

21. In the present case, while
technically the principle in paragraph
No.38.8 might have relevance as remarked,
this Court is of clear opinion that on facts,
it would not apply. The reason is that there
was absolutely not a shred of evidence ever
forthcoming against the petitioner in the
crime at any stage of the matter. If there
were some material against the petitioner,
with credibility attached to it, the petitioner
would have been charge-sheeted like the
other four accused nominated alongside
him. The fact that the charge-sheeted
accused were acquitted by the Court shows
that the prosecution was not able to
establish its case at all against men, who
were accused alongside the petitioner in the
crime. But, the fact that the Police could
not lay its hands on any evidence relating
to the petitioner's complicity in the crime,
even as much as to warrant his joining
investigation or seeking bail, as a person
wanted in the crime, inevitably shows that
the petitioner's nomination was nothing
more than a false script on a piece of paper.
Merely, because someone has chosen to
falsely nominate a person in a crime, about
which the Police too on investigation do
not find any evidence, cannot lead to the
conclusion that non-disclosure of the
offence
must
invite
cancellation
of
candidature. Indeed, a conclusion of this
kind, given the nature of the offence, the
proceedings during investigation, the noncomplicity for the petitioner found by the
Police and the acquittal of the co-accused,
all
read
together,
would
be
a
disproportionate measure to take on the
respondents' part. In fact, on this state of
things for the S.P. to think that this is a case
where the petitioner's candidature ought be
cancelled, in our considered opinion, is a
perverse conclusion.

22. In the result, this writ petition
succeeds and is allowed. The impugned
order dated 08.07.2024 passed by the
Superintendent of Police, Mainpuri is
hereby quashed. A mandamus is issued to
the Superintendent of Police, Mainpuri,
ordering him to consider the petitioner's
case for appointment as a Constable,
without
reference
to
the
case
once
registered against him and pass necessary
orders, granting him notional seniority with
his batch, within a period of six weeks of
receipt of a copy of this judgment.

23. Costs shall be easy.
----------
(2024) 10 ILRA 902
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.10.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 Nos. 9566 of 2024

Kaisar Jaha ...Applicant
Versus
The S.P.,Distt. Sultanpur & Ors.
 ...Respondents

Counsel for the Applicant:
Manoj Kumar Nishad

Counsel for the Respondents:
G.A.

A. Criminal Law
- Maintainability
-
Jurisdiction - Bharatiya Nagrik Suraksha
Sanhita (BNSS) - Section 175(3) - The
inherent power can be invoked to make
such orders as may be necessary to
prevent abuse of the process of any Court
or otherwise to secure the ends of justice -
10 All. Kaisar Jaha Vs. The S.P., Distt. Sultanpur & Ors.
903
When a statutory remedy of filing a revision
before this Court itself is available to the
applicant which revision will also be placed
before an Hon'ble Single Judge Bench of this
Court, although the application u/s 528 of BNSS
would be maintainable, it would not be proper
for this Court to exercise it discretion of invoking
its inherent powers when the petitioner has got
a statutory remedy available u/s 438 BNSS,
which remedy lies before this Court itself.
Although the application u/s 528 BNSS would be
maintainable, it would not be entertainable in
view of the peculiar facts and circumstances of
the case. (Para 12, 15)

The order under challenge has been passed by
a Sessions Court and, therefore, the revision
would lie before this Court itself. The revision as
well the application u/s 528 BNSS, both are
assigned to Single Judge Benches of this Court.
The scope of enquiry and interference in both
the proceedings would also be the same.
Therefore, the functionality of an application u/s
528 BNSS and a revision u/s 438 BNSS would be
the same. The only difference in the two
proceedings would be that the application u/s
528 BNSS has been placed today before Judge
'A' and the revision u/s 438 BNSS would be
placed on some other day before Judge 'B'.
(Para 13)

Accordingly, the application is dismissed leaving
it open to the applicant to avail the statutory
remedy u/s 438 BNSS available to her.

Application dismissed. (E-4)

Precedent followed:

1. Vipin Sahaiand & anr. Vs Central Bureau of
Investigation, 2024 SCC OnLine SC 511 (Para 3)

2. Prabhu Chawla, Vs St. of Raj.& anr., (2016)
16 SCC 30 (Para 4)

3. Mohit Vs St. of U.P., (2013) 7 SCC 789 (Para
8)

4. U.O.I. Vs Cipla Ltd., (2017) 5 SCC 262 (Para
14)

Present petition filed u/s 528, BNSS, has
challenged the validity of an order dated
28.08.2024 passed by learned Special
Judge, P.O.C.S.O. Act/Additional Sessions
Judge in Criminal Misc. Case No.360 of
2024 whereby an application u/s 175(3)
of BNSS has been rejected by the trial
Court.

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Abhyudaya Mishra,
learned counsel for the petitioner and Sri
Alok Kumar Tiwari, the learned AGA for
the State.

2. By means of the instant writ
petition filed under 528 of the Bharatiya
Nagrik
Suraksha
Sanhita
(hereinafter
referred to as BNSS), the petitioner has
challenged the validity of an order dated
28.08.2024 passed by learned Special
Judge, P.O.C.S.O. Act/Additional Sessions
Judge in Criminal Misc. Case No.360 of
2024 whereby an application under Section
175(3) of BNSS [comparable to Section
156 (3) of Cr.P.C.] has been rejected by the
trial Court.

3. Sri Alok Kumar Tiwari, the
learned A.G.A. has raised a preliminary
objection that the petitioner has got a
statutory remedy of filing a revision against
the aforesaid order and, therefore, the
inherent powers of this Court cannot be
invoked by the applicant. He has relied
upon a decision of the Hon'ble Supreme
Court in the case of Vipin Sahni & Anr. v.
Central Bureau of Investigation; 2024
SCC OnLine SC 511 wherein the Hon'ble
Supreme Court has held that the where a
specific remedy of filing a revision was
available, a petition under Section 482
Cr.P.C. could not be filed.

4. Replying to the aforesaid
preliminary
objection
of
the
learned
A.G.A., Sri Abhyudaya Mishra, learned
904 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel for the petitioner has relied upon a
judgment of the Hon'ble Supreme Court in
the case of Prabhu Chawla v. State of
Rajasthan & Anr.; (2016) 16 SCC 30,
wherein it has been held that the
availability of statutory remedy of revision
is
not
an
absolute
bar
against
maintainability of an application under
Section 482 Cr.P.C.

5. Section 528 of BNSS provides
as follows: -

"528.
Nothing
in
this
Sanhita 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 Sanhita, or to
prevent abuse of the process of any
Court or otherwise to secure the
ends of justice."

6. The aforesaid provision is in
pari materia to the provision contained in
Section 482 Cr.P.C., which was as follows:
-

"482. Saving of inherent
powers 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."

7. Therefore, the law as explained
through various precedents regarding scope
of exercise of the inherent power under
Section 482 would also apply to Section
528 BNSS.
8. Vipin Sahni (Supra) relies upon
an earlier decision in the case of Mohit
versus State of U.P.: (2013) 7 SCC 789,
wherein it was held that: -

"28. So far as the inherent
power of the High Court as
contained in Section 482 CrPC is
concerned, the law in this regard is
set at rest by this Court in a catena
of decisions. However, we would
like to reiterate that when an order,
not interlocutory in nature, can be
assailed in the High Court in
revisional jurisdiction, then there
should be a bar in invoking the
inherent jurisdiction of the High
Court. In other words, inherent
power of the Court can be
exercised when there is no remedy
provided in the Code of Criminal
Procedure for redressal of the
grievance. It is well settled that the
inherent power of the Court can
ordinarily be exercised when there
is no express provision in the Code
under which order impugned can
be challenged."

9. However, in Prabhu Chawla v.
State of Rajasthan & Anr.; (2016) 16
SCC 30, a three Judge Bench of the
Hon'ble Supreme Court overruled the
decision in Mohit (Supra) by stating that
"the Division Bench, particularly in para
28, in Mohit in respect of inherent power of
the High Court in Section 482 CrPC does
not state the law correctly. We record our
respectful disagreement." The Hon'ble
Supreme Court further held that: -

"6. ... A fortiori, there can
be no total ban on the exercise of
such wholesome jurisdiction where,
in the words of Krishna Iyer, J.
10 All. Kaisar Jaha Vs. The S.P., Distt. Sultanpur & Ors.
905
"abuse of the process of the
court
or
other
extraordinary
situation
excites
the
Court's
jurisdiction. The limitation is selfrestraint,
nothing
more".
(Raj
Kapoor v. State, (1980) 1 SCC 43,
para 10)
We venture to add a further
reason in support. Since Section
397 CrPC is attracted against all
orders other than interlocutory, a
contrary view would limit the
availability of inherent powers
under Section 482 CrPC only to
petty
interlocutory
orders!
A
situation wholly unwarranted and
undesirable."

10. The two Judge Bench of the
Hon'ble Supreme Court which decided Vipin
Sahni (Supra) after relying upon the earlier
two Judge Bench decision in the case of
Mohit(Supra), did not take note of the three
Judge Bench decision in the case of Prabhu
Chawla (Supra), which will prevail over the
two Judge Bench decision. Thus the law as it
exists now is that there are no absolute
restrictions on the inherent powers of this
Court and availability of a remedy of filing a
revision would not create an absolute bar
against the inherent powers of this Court
being invoked. However, the inherent power
can be invoked only to make such orders as
may be necessary to give effect to any order
under this Sanhita, or to prevent abuse of the
process of any Court or otherwise to secure
the ends of justice.

11. The learned Counsel for the
petitioner agrees that the petitioner has the
option to file a revision under Section 438
of BNSS, but he insists that when the
petitioner has got two remedies available,
he has the discretion to choose any one of
the two remedies available to him.
12. Although availability of a
statutory remedy under Section 438 of
BNSS may not be an absolute bar against
exercise of the inherent powers of this
Court, it is certainly a factor which has to
be taken into consideration by this Court to
ascertain as to whether it is necessary to
exercise the inherent power of this Court.
The inherents power can be invoked to
make such orders as may be necessary to
prevent abuse of the process of any Court
or otherwise to secure the ends of justice.

13. The order under challenge has
been passed by a Sessions Court and,
therefore, the revision would lie before this
Court itself. The revision as well the
application under Section 528 BNSS, both
are assigned to Single Judge Benches of
this Court. The scope of enquiry and
interference in both the proceedings would
also
be
the
same.
Therefore,
the
functionality of an application under
Section 528 BNSS and a revision under
Section 438 BNSS would be the same. The
only difference in the two proceedings
would be that the application under Section
528 BNSS has been placed today before
Judge 'A' and the revision under Section
438 BNSS would be placed on some other
day before Judge 'B'.

14. In Union of India v. Cipla
Ltd., (2017) 5 SCC 262, the Hon'ble
Supreme Court held that the Court is
required to adopt a functional test vis-à-vis
the litigation and the litigant. What has to
be seen is whether there is any functional
similarity in the proceedings between one
court and another or whether there is some
sort of subterfuge on the part of a litigant. It
is this functional test that will determine
whether a litigant is indulging in forum
shopping or not. The facts stated above
clearly establish that it is a typical example
906 INDIAN LAW REPORTS ALLAHABAD SERIES
of forum shopping, which practice has
always been deprecated by the Courts.

15.

Having
considered
the
aforesaid facts and circumstances of the
case, this Court is of the considered view
that when a statutory remedy of filing a
revision before this Court itself is available
to the applicant which revision will also be
placed before an Hon'ble Single Judge
Bench
of
this
Court,
although
the
application under Section 528 of BNSS
would be maintainable, it would not be
proper for this Court to exercise it
discretion of invoking its inherent powers
when the petitioner has got a statutory
remedy available under Section 438 BNSS,
which remedy lies before this Court itself.
For the aforesaid reasons, this Court finds
that although the application under Section
528 BNSS would be maintainable, it would
not be entertainable in view of the peculiar
facts and circumstances of the case.

16. Accordingly, the application is
dismissed leaving it open to the applicant to
avail the statutory remedy under Section
438 BNSS available to her.
----------
(2024) 10 ILRA 906
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.10.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

First Appeal No. 20 of 2023

Shashi Pal ...Appellant
Versus
Sachin Kumar Pal ...Respondent

Counsel for the Appellant:
Anup Kumar Mishra
Counsel for the Respondent:
Manjeet Singh

Civil Law- Appeal under Section 19 (1) of
the
Family
Court
Act,
1984-Hindu
Adoptions and Maintenance Act, 1956 -
Section 18 - Maintainability of claim for
maintenance under Section 18 despite
parallel proceedings under Section 125
Cr.P.C. - Held, proceedings under Section
125 Cr.P.C. are summary in nature and do
not bar a separate suit under Section 18 of
the 1956 Act - Claim under Section 18
maintainable when prior maintenance
under Cr.P.C. has been disclosed
-
Directions in Rajnesh v. Neha, (2021) 2
SCC 324, followed.

Code of Criminal Procedure, 1973 -
Section 125 - Proceedings under Section
125 Cr.P.C. do not preclude a subsequent
claim for maintenance under personal law
statutes - Principles of adjustment and
set-off to apply to avoid overlapping
maintenance orders- Maintenance must
be realistic and meet basic sustenanceAppeal partly allowed. (Paras 12, 16, 17,
and 21)

HELD:
Having regard to the rival submissions of the
learned Counsel for the parties and going
through the record available before this Court,
the point of consideration before us is twofold,
(I) whether suit filed by the appellant under
Section
18
of
the
Hindu
Adoption
and
Maintenance
Act,
1956
is
maintainable
especially in view of the order of maintenance
granted under Section 125 of the Cr.P.C.?; and
(ii) whether quantum of maintenance granted
by the Family Court vide impugned order is
adequate, if no, then what reliefs. (Para 12)

Later on, the Apex Court in its celebrated
judgment in Rajnesh v. Neha & anr. : (2021) 2
SCC
324
has
laid
down
comprehensive
guidelines pertaining to overlapping jurisdiction
among courts when concurrent remedies for
grant of maintenance are available under the
Special Marriage Act, 1954, Section 125 Cr.P.C.,
the Protection of Women from Domestic
Violence Act, 2005, Hindu Marriage Act, 1955
and Hindu Adoptions and Maintenance Act,