# Mithun Kumar Nishad v. State of U.P. & Anr

- **Citation:** (2019) 3 ILRA 83
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-18
- **Case number:** U/S 482/378/407 No. 7406 of 2019
- **Bench:** Vikas Kuvar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mithun-kumar-nishad-v-state-of-u-p-anr-44828
- **Pages:** 7

## Headnote

Code,
1973,
section 482 and 438 - Scope- Allegations
made in the FIR taken on face value, in
their entirety, disclose commission of
the offence by the accused-applicant.
Grant of interim protection to accused
from arrest - Shall not be permissible as
the same would be dilution of the
express prohibition made under Section
18 of the SC/ST Act.

Offences under Sections 354(Ka)(Ga) I.P.C.
and Section 3(1)(xi) of SC/ST Act - Section 18
of the SC/ST Act - Allegations made in the FIR
taken on face value, in their entirety, disclose
commission of the offence by the accusedapplicant.
The
ingredients
of
Section
354(Ka)(Ga) of the I.P.C and Section 3(1)(xi)
84 INDIAN LAW REPORTS ALLAHABAD SERIES
of
SC/ST
Act
-
made
out.
(Paras
6,12,13,16,18)
Application u/s 482 Cr.P.C rejected (E-3)

List of cases cited:-

## Text

3 All. Mithun Kumar Nishad Vs. & Anr. Vs. State of U.P.& Anr.
83

37. The grant of interim order as to
stay of arrest till the accused applicant
surrender and applies for bail before the
court concerned is not justifiable as prima
facie the allegations in the FIR and
materials in charge-sheet tend to fulfill
the ingredients of offence under relevant
provision of SC/ST Act which stand
parallel to the offence under Sections 323,
504, 506 of the IPC. As such the
prosecution is found legitimate. Any such
grant of interim stay on arrest, impliedly
would have effect of diluting the rigour of
the legislative intention behind the
enactment of Section 18 in the said Act.

38. In view of the above, the
application under Section 482 Cr.P.C. for
quashing
the
charge-sheet
and
the
proceeding of case crime no. 80/2019
S.T. No.319/2019 (State of U.P. Vs.
Surendra Tiwari and Anr.) pending in the
court of Special Judge, SC/ST Act,
Pratapgarh is declined and the same is
disposed of with following directions:-

(i) The accused/applicants to
appear before the court promptly without
any further delay.

(ii)
In
case
the
accused/applicants move any prayer for
bail the same shall be decided by the
court concerned as soon as practicably
possible, even on the same day, keeping
in mind the purpose of issuance of
processes like summon, bailable warrant
or non bailable warrant, as the case may
be, is to procure and ensure the
attendance of the accused in the trial
pending against him.

(iii) The court concerned is
directed to consider the prayer while
hearing the accused at the time of framing
of charges under Sections 227/228 of the
Cr.P.C. with regard to the offences
punishable under SC/ST Act with clarity
as to the specific provision of law under
which particularly offence therein is made
out or not and accordingly to proceed
further.

Registry is directed to send a
copy of the order to the court concerned.
----------
(2019)11ILR A83

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.10.2019

BEFORE
THE HON'BLE VIKAS KUVAR SRIVASTAVA , J.

U/S 482/378/407 No. 7406 of 2019

Mithun Kumar Nishad ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Dhananjai Kumar Tripathi.

Counsel for the Opposite Parties:
G.A.

A.
Criminal
Procedure
Code,
1973,
section 482 and 438 - Scope- Allegations
made in the FIR taken on face value, in
their entirety, disclose commission of
the offence by the accused-applicant.
Grant of interim protection to accused
from arrest - Shall not be permissible as
the same would be dilution of the
express prohibition made under Section
18 of the SC/ST Act.

Offences under Sections 354(Ka)(Ga) I.P.C.
and Section 3(1)(xi) of SC/ST Act - Section 18
of the SC/ST Act - Allegations made in the FIR
taken on face value, in their entirety, disclose
commission of the offence by the accusedapplicant.
The
ingredients
of
Section
354(Ka)(Ga) of the I.P.C and Section 3(1)(xi)
84 INDIAN LAW REPORTS ALLAHABAD SERIES
of
SC/ST
Act
-
made
out.
(Paras
6,12,13,16,18)
Application u/s 482 Cr.P.C rejected (E-3)

List of cases cited:-

1. Inder Mohan Goswami Vs St. of Uttaranchal
(2007)12 SCC

2. St. of Har. & ors. Vs Bhajan Lal & ors. AIR
(1992) SC 604

3. Amrawati & anr. Vs St. of U.P. (20040 (57)
ALR 290

4. Lal Kamlendra Pratap Singh Vs St. of U.P.
(2009) (3) ADJ 322 (SC)

5. Vilas Pawar Vs St. of M.H., (2012) 8 SCC
795 : 3 SCC (Cri) 1062

(Delivered by Hon'ble Vikas Kuvar Srivastava, J. )

1. The application in hand is moved
under section 482 of Criminal procedure
code, 1973 by learned counsel Sri
Dhananjai Kumar Tripathi on behalf of
applicant accused involved in case crime
no 1312 of 2017 registered under Section
354(Ka)(Ga) I.P.C. and Section 3(1)(xi)
of SC/ST Act (which shall hereinafter be
addressed as SC/ST Act), Police Station
Risia District- Bahraich. The applicant
seeks following reliefs, praying to:-

"WHEREFORE, it is most humbly
prayed that this Hon'ble Court may kindly
be pleased to quash the impugned charge
sheet (Police Report) bearing No.63 of
2017, dated 02.11.2017, vide case crime
No.1312 of 2017, under Section -
354(Ka)(Ga) IPC and Section 3(1)(xi) at
Police Station Risia, District Bahraich
and
the order
of
cognizance
and
summoning order dated 24.11.2017 as
well as non bailable warrant dated
05.07.2018, passed by learned Special
Judge SC/ST Act, Bahraich, in Special
Criminal Case No.261 of 2017. In Re:-
"State Versus Mithun Kumar" and further
proceedings of the case in pursuance
thereof, in the ends of justice."

2. The grounds upon which the
relief to quash the charge-sheet as pleaded
in the application are-

(i) That petitioner is quite
innocent, he has committed no offence as
alleged in the impugned first information
report and he has been falsely implicated
in
the
alleged
offence
by
the
complainant/opposite party no.2 due to
enmity.

(ii) That no offence under
Section - 354(Ka)(Ga) I.P.C. and Section
3(1)(xi) SC/ST is made out against the
applicant.

(iii) applicant is a law abiding
and peace loving person.

(iv) no summon whatsoever has
ever been served upon the petitioner till
date.

3. Heard the learned counsel for the
applicant
and
the
Learned
A.G.A.
appearing on behalf of the state opposite
parties. Perused the materials available on
record.

4. Before entering into merit of the
case it would be relevant to keep into
mind the scope and ambit of section 482
of
Criminal
Procedure
Code
and
circumstances under which the extra
ordinary power of the court inherent
therein as provisioned in the said Section
of the Criminal Procedure Code can be
exercised. It is explained in a plethora of
3 All. Mithun Kumar Nishad Vs. State of U.P.& Anr.
85
judgement of the Honorable Apex Court.
One of those judgement is Inder Mohan
Goswami
v.
State
of
Uttaranchal
(2007)12 SCC 1, para 23 is quoted here
under:-

"23. This court in a number of
cases has laid down the scope and ambit
of courts powers under section 482
Cr.P.C. Every High Court has inherent
power to act ex debito justitiae to do real
and
substantial
justice,
for
the
administration of which alone it exists, or
to prevent abuse of the process of the
court. Inherent power under section 482
Cr.P.C. can be exercised:

(i) to give effect to an order
under the Code;

(ii) to prevent abuse of the
process of court, and

(iii) to otherwise secure the
ends of justice"

5. On bare reading of F.I.R., it
reveals that applicant belonging to upper
caste at about 4:00 p.m. when informant
was taking bath in her house peeping her
through a hole in the bathing place from
the wall of his house. When a girl
belonging
to
scheduled
caste,
the
informant protested the applicant came at
the bathing place and caught hold her and
told her daringly, earlier I was peeping
you but now will see directly standing in
front of you. Simultaneously he vegan to
tease her by touch on her private parts
doing indecent activities. He insisted to
marry with him, threatening to make viral
some
pornographic
photos
of
the
informant prepared by him. When the
informant made noise, the applicantaccused fled away threatening to forcibly
marry her. Thereafter the informant
immediately approached to the police
station. FIR was not lodged. The incident
is of 26 of May, 2017. They sent the
information to S.P., Bahraich through
Registered Post on 29.5.2017 but FIR
could be lodged only on order of
Magistrate passed under Section 156 (3)
of the Criminal Procedure Code. The
correlative Section under Scheduled Caste
and Schedule Tribes (Prevention of
Atrocities) Act as amended up to date
dealing with punishment for shown
offences committed under Indian Penal
Code against a member of Scheduled
Caste runs as under:-

"3(1)(xi) assaults or uses force
to any woman belonging to a Scheduled
Caste or a Scheduled Tribe with intent to
dishonour or outrage her modesty;"

6. From the allegations in the FIR, it
is very clear that allegations made therein
even if on their face value be taken to be
true in their entirety, they disclose the
commission of offence from which the
accused applicant is slapped as they fulfill
the ingredients of Section 354(Ka)(Ga) of
the I.P.C., which runs as under:-

354A. Sexual harassment and
punishment for sexual harassment-

(1) A man committing any of the
following acts?

(i)
physical
contact
and
advances
involving
unwelcome
and
explicit sexual overtures; or

(ii) a demand or request for
sexual favours; or

(iii)
showing
pornography
against the will of a woman; or
86 INDIAN LAW REPORTS ALLAHABAD SERIES

(iv) making sexually coloured
remarks, shall be guilty of the offence of
sexual harassment.

(2) Any man who commits the
offence specified in clause (i) or clause
(ii) or clause (iii) of sub-section (1) shall
be punished with rigorous imprisonment
for a term which may extend to three
years, or with fine, or with both.

(3) Any man who commits the
offence specified in clause (iv) of subsection (1) shall be punished with
imprisonment of either description for a
term which may extend to one year, or
with fine, or with both.

354C. Voyeurism-

Any man who watches, or
captures the image of a woman engaging
in a private act in circumstances where
she would usually have the expectation of
not
being
observed
either
by
the
perpetrator or by any other person at the
behest of the perpetrator or disseminates
such image shall be punished on first
conviction with imprisonment of either
description for a term which shall not be
less than one year, but which may extend
to three years, and shall also be liable to
fine, and be punished on a second or
subsequent conviction, with imprisonment
of either description for a term which
shall not be less than three years, but
which may extend to seven years, and
shall also be liable to fine. Explanations-

(1) For the purpose of this
section, "private act" includes an act of
watching carried out in a place which, in
the circumstances, would reasonably be
expected to provide privacy and where the
victim's genitals, posterior or breasts are
exposed or covered only in underwear; or
the victim is using a lavatory; or the victim
is doing a sexual act that is not of a kind
ordinarily done in public.

(2) Where the victim consents to
the capture of the images or any act, but
not to their dissemination to third persons
and where such image or act is
disseminated, such dissemination shall be
considered an offence under this section."

7. This is pertinent to mention here
that charge sheet after due investigation
has been filed in the court, the court has
taken
cognizance
and
consequent
thereupon
issued
summons
to
the
applicant accused.

8. In para 102 of the State of
Haryana & Ors. Vs. Bhajan Lal & Ors.
reported in AIR 1992 SC 604, Hon'ble
Supreme Court has illustrated several
circumstances wherein the extraordinary
power under Section 482 of Criminal
Procedure Code maybe exercised for the
purpose of preventing an abuse of process
or to secure the ends of Justice or to
enforce
the
order
of
the
court.
Illustrations given in para 102 quoted
hereunder are treated as guidelines for the
purpose of exercising of powers under
section 482 of Criminal Procedure Code:-

"102.(1) Where the allegations
made in the first information report or the
complaint, even if they are taken at their
face value and accepted in their entirety
do not prima facie constitute any offence
or make out a case against the accused."

(2) where the allegations in the
First Information Report and other
materials, if any, accompanying the F.I.R.
do not disclose a cognizable offence,
justifying an investigation by police
officers under Section 156(1) of the Code
3 All. Mithun Kumar Nishad Vs. State of U.P.& Anr.
87
except under an order of a Magistrate
within the purview of Section 155(2) of
the Code;

(3) where the uncontroverted
allegations made in the FIR or 'complaint
and the evidence collected in support of
the same do not disclose the commission
of any offence and make out a case
against the accused;

(4) where the allegations in the FIR do
not constitute a cognizable offence but
constitute only a non-cognizable offence,
no investigation is permitted by a police
officer without an order of a Magistrate
as contemplated under Section 155(2) of
the Code;

(5) where the allegations made
in the FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach a
just conclusion that there is sufficient
ground
for
proceeding
against
the
accused;

(6) where there is an express
legal bar engrafted in any of the
provisions of the Code or the concerned
Act (under which a criminal proceeding is
instituted)
to
the
institution
and
continuance of the proceedings and/or
where there is a specific provision in the
Code or the concerned Act, providing
efficacious redress for the grievance of
the aggrieved party;

(7) where a criminal proceeding
is manifestly attended with mala fide
and/or
where
the
proceeding
is
maliciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him due
to private and personal grudge."

9. On perusal of the FIR allegations
in the light of the provisions under
Section 354A and 354C that the activities
of the applicant accused as alleged fulfill
the ingredients of the aforesaid Sections
of IPC which prima facie shows the act of
outraging the modesty of a women or to
cause her dishonored trying to sexual
exploit her. SC/ST Act also provides that
if a person other than scheduled caste and
schedule tribe use force to any women
belonging
to
scheduled
caste
and
scheduled tribe with intention to dishonor
or outrage her modesty is said to have
committed an offence under the SC/ST
Act. As such prima facie there are
sufficient material on record in the shape
of charge sheet whereupon the Magistrate
took cognizance of the offence and issued
summons to the applicant-accused.

10. The offence as prima facie
appears to have been committed on
perusal of FIR and from materials
collected by police, does not fall within
the ambit of any of the illustration given
in the decision of Apex Court.

11. In para 27 of the Inder Mohan
Goswami (Supra), Hon'ble Supreme
Court has held as under:-

"The powers possessed by the
High Court under section 482 of the Code
are very wide and the very plenitude of the
power requires great caution in its exercise.
The court must be careful to see that its
decision in exercise of this power is based on
sound principles. The inherent power should
not be exercised to stifle a legitimate
prosecution.
The
High
Court
should
normally refrain from giving a prima facie
decision in a case where all the facts are
incomplete and hazy; more so, when the
evidence has not been collected and
88 INDIAN LAW REPORTS ALLAHABAD SERIES
produced before the court and the issues
involved, whether factual or legal, are of
such magnitude that they cannot be seen in
their true perspective without sufficient
material. Of course, no hard and fast rule can
be laid down in regard to cases in which the
High Court will exercise its extraordinary
jurisdiction of quashing the proceedings at any
stage."

12. When there is no prima facie case
as to the abuse of process on the basis
whereof the charge sheet and the order of
the Magistrate taking cognizance be quash,
the another ground taken by the applicant
accused that the summons was not issued to
him after cognizance is baseless from the
perusal of the order of Magistrate of taking
cognizance. Moreover, if the accused have
knowledge of the pendency of criminal
proceeding against him and approaches to
the High Court for the quashing of charge
sheet and summoning order then he cannot
be said unaware of the pendency for reason
of service of summons. If the allegations as
non service of summons is taken as true
then also merely because of that the FIR
and the charge sheet which are found legal
and without any error cannot be quashed.
So far as the ground as to the infringing a
personal liberty is concerned, the applicant
accused when knows about the process
issued by the court against him for his
appearance it is not good on his part of
disobey the process of not appearing their
and approaching the High Court for
quashing the charge sheet and cognizance
order. The purpose of issuing process like
summons, despite service on defying by the
accused on appear, issuing bailable warrant
and when that is different defying by not
appearing before the Court when issuing
non bailable warrant. All are aimed only to
procure and ensure the attendance of
applicant accused in court.

13. In the present case a legitimate
prosecution
is
pending
against
the
accused, therefore, quashing of charge
sheet or the order of Magistrate taking
cognizance there on would not be liable
to be quashed exercising power under
Section 482 of Criminal Procedure Code.

14. The accused applicant though
not pleaded in their application but argued
that in the alternative, if the case is not
made out with regard to the abuse of
process or in any other ground of Section
482 Cr.P.C. then benefit of interim stay of
the arrest be given in view of the settled
law laid by this Court in the case of
Amrawati and another Vs. State of U.P.
reported in 2004 (57) ALR 290 as well as
judgment passed by Hon'ble Apex Court
reported in 2009 (3) ADJ 322 (SC) Lal
Kamlendra Pratap Singh Vs. State of
U.P.

15. With regard to the law laid down
in the above decisions of our own High
Court and affirmed by Hon'ble Supreme
Court, it would be pertinent that the
direction contained therein as to grant of
interim bail or interim stay of arrest, was
issued when Section 438 of the Criminal
Procedure Code was not applicable in
State of U.P. Now the said provision of
Cr.P.C. for granting anticipatory bail is
made applicable to the State of U.P. also.

16. Since, the matter is of an offence
under SC/ST Act and same is found
prima facie established, the question is
whether the accused may be given order
of grant of interim protection to him form
arrest. Section 18 of the SC/ST Act
provides as under:-

"18. Section 438 of the Code
not to apply to persons committing an
3 All. Achutya Nand Mishra Vs. State of U.P.
89
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."

17. In Vilas Pawar v. State of
Maharashtra, (2012) 8 SCC 795 : 3 SCC
(Cri) 1062, the nature and scope of
Section 18 of the SC/ST Act is held as
under:-

"Nature and scope- Section 18 of
the SC/ST Act creates a bar for invoking
Section 438 Cr.P.C. However, a duty is cast on
the court to verify the avernments in the
complaint and to find out whether an offence
under Section 3(1) of the SC/ST act has been
prima facie made out. In other words, if there
is a specific avernment in the complaint,
namely insult or intimidation with intent to
humiliate by calling with caste, name the
accused persons are not entitled to anticipatory
bail. When an offence is registered against a
person under the provisions of the SC/ST Act,
no court shall entertain an application for
anticipatory bail, unless it prima facie finds
that such an offence is not made out, Vilas
Pawar v. State of Maharashtra, (2012) 8 SCC
795 : 3 SCC (Cri) 1062."

18. In the present case from the FIR
allegations the offence under Section
3(1)(xi) SC/ST 18. Act as amended on
18.6.2019
is
found
prima
facie
constituting the offence where the court
has taken cognizance and issued process
for trial to the accused applicant, if he
failed to appear or intentionally defied the
process, whatsoever may be arresting the
stay in the meantime prior to the date the
accused appears/surrenders and applies
for the bail shall not be permissible as the
same would be dilution of the express
prohibition made under Section 18 of the
SC/ST Act.

19. The petition being not tenable
and baseless and accordingly dismissed
----------

(2019)11ILR A89

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.10.2019

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN , J.

U/S 482/378/407 No. 7524 of 2019

Achutya Nand Mishra ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Mahmood Alam, Sri Abdul Ahad, Sri
Gayasudden.

Counsel for the Opposite Party:
G.A.

A. Criminal Law-Criminal Procedure Code,
1973 - Section 167 (2) Cr.P.C.- Charge
sheet not filed although mandatory period
of 90 days expired. Even more than
fourteen months' period has lapsed since
the
accused-petitioner
is
in
judicial
custody-Offences under Sections 3/4/5/9
of the Official Secret Act-Complaint under
those sections has not been filed and
sanction for prosecution has not been
obtained-Detention of the petitioner is
prima facie illegal-Matter remanded back.
(Para 3,5,6,7,8)

Application u/s 482 Cr.Pc disposed of (E-3)

Case Law relied upon/discussed: -

1. Sayed Mohd. Ahmad Kazmi Vs St. (Govt. of
NCT of Delhi) and ors., (2012) 12 SCC 1

2. Suresh Kumar Bhikamchand Jain Vs St. of
MH & anr., (2013) 3 SCC 77