# Pawan Kumar @ Pawan Yadav v. State of U.P. & Anr

- **Citation:** (2024) 2 ILRA 213
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-16
- **Case number:** Application U/S 482 No. 730 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-pawan-yadav-v-state-of-u-p-anr-51411
- **Pages:** 11

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 438 & 482 - Indian Penal
Code, 1860 - Sections 376 & 504 -
Scheduled Castes and Scheduled Tribes
214 INDIAN LAW REPORTS ALLAHABAD SERIES
(Prevention of Atrocities) Act, 1989 -
Sections 3(2)(v), 14-A & 18-A - Application
U/s 482 Cr.P.C. - for quashing the charge-sheet
and
the
impugned
summoning
order
-
preliminary objection - regarding maintainability
of the Application u/s 482 Cr.P.C. by relying
upon the Full Bench judgment rendered in
'Ghulam Rasool Khan & ors. Vs St. of U.P. &
Others', - Applicant has a statutory remedy to
file an appeal under Section 14-A of the SC/ST
Act, 1989 - Applicant placed reliance upon the
judgments passed in 'Ramavatar Vs St. of M.P.', 'B.
Venkateswaran Vs P. Bakthavatchalam', and 'Arnab
Manoranjan Goswami Vs St. of Mah.', - Court
observed that, judgments placed by the applicant are
not binding precedents against the Full Bench
decision in 'Ghulam Rasool Khan' case - and the
scope of enquiry in an appeal under Section 14-A is
broader than that under Section 482 Cr.P.C., which
cannot entertain disputed questions of fact, making
the appeal a more efficacious remedy - held, an
application under Section 482 Cr.P.C. is not
maintainable where the applicant has a statutory
remedy of filing an appeal under section 14-A of the
Act, 1989 - accordingly, this application is dismissed -
with a liberty to the applicant to avail the remedy of
appeal under Section 14-A of the Act, 1989.
(Para - 27, 28, 29, 30)

Application Dismissed. (E-11)

List of referred Cases: -

## Text

2 All. Pawan Kumar @ Pawan Yadav Vs. State of U.P. & Anr.
213
collected by the I.O. for the purpose of
framing of charge. It may be noted that
such discretionary power is inherent by
virtue of his holding of a criminal court. It
will be unmeaning that a Magistrate, while
exercising powers of a criminal court is
restrained from applying his judicial mind.
In my view, if at the time of framing of
charge, the court comes to conclusion that
some other offence for which the accused
was not chargesheeted is prima facie made
out from the available material on record,
he shall be perfectly within his powers to
frame the charge, irrespective of the fact
whether cognizance of that particular
offence-if I may use the word, is not taken.
This is why it is rightly said that
cognizance of a case is taken and not of
offence. If such a narrow interpretation of
judicial powers is made it will lead to
unforeseen
complications.
Moreover,
cognizance is a word having different
connotations at different stages of a
criminal case. The court is even invested
with the power to add or alter charge at any
stage of the trial u/s 216 of Cr.P.C. In my
view, no fetters can be put on so as to sap
out the life from statutory provisions.

08. Having observed as aforesaid, I
point out that the court has not referred to
material on record which prima facie made
out the offences under Section 66C and
67A of the I.T. Act. The point, thus
involved may require filtering through all
the material as available in the case diary as
well as hearing both the sides. There is also
a probability, as suggested by learned
A.G.A. that besides offence under I.T Act,
offences under Indian Penal Code may be
made out. As this may require considering
the entire facts and evidence as collected by
the I.O. hence matter, in my view, should
be left open for the court concerned to
adjudicate. At the same time the trial court
definitely need not go into evidentiary
value of the material collected at this stage
and need not conduct any roving enquiry,
but shall briefly point out the facts which in
its view constitute the ingredients of the
offence as defined by the statute.

09. In the above circumstances, orders
dated 13.05.2022 and 12.02.2019 passed by
the revisional court as well as the trial court
respectively are set aside to the extent that
offence under Section 67A and 66C of the
I.T. Act are made out.

10. The petition is therefore disposed
of with a direction to the court below to
pass an order afresh after affording an
opportunity of hearing to both the sides.The
court while passing an order shall not be
influenced by the observations made in
para-6 of this order.
----------
(2024) 2 ILRA 213
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.02.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 No. 730 of 2024

Pawan Kumar @ Pawan Yadav ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Rakesh Kumar Agarwal, Saksham Agarwal

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 438 & 482 - Indian Penal
Code, 1860 - Sections 376 & 504 -
Scheduled Castes and Scheduled Tribes
214 INDIAN LAW REPORTS ALLAHABAD SERIES
(Prevention of Atrocities) Act, 1989 -
Sections 3(2)(v), 14-A & 18-A - Application
U/s 482 Cr.P.C. - for quashing the charge-sheet
and
the
impugned
summoning
order
-
preliminary objection - regarding maintainability
of the Application u/s 482 Cr.P.C. by relying
upon the Full Bench judgment rendered in
'Ghulam Rasool Khan & ors. Vs St. of U.P. &
Others', - Applicant has a statutory remedy to
file an appeal under Section 14-A of the SC/ST
Act, 1989 - Applicant placed reliance upon the
judgments passed in 'Ramavatar Vs St. of M.P.', 'B.
Venkateswaran Vs P. Bakthavatchalam', and 'Arnab
Manoranjan Goswami Vs St. of Mah.', - Court
observed that, judgments placed by the applicant are
not binding precedents against the Full Bench
decision in 'Ghulam Rasool Khan' case - and the
scope of enquiry in an appeal under Section 14-A is
broader than that under Section 482 Cr.P.C., which
cannot entertain disputed questions of fact, making
the appeal a more efficacious remedy - held, an
application under Section 482 Cr.P.C. is not
maintainable where the applicant has a statutory
remedy of filing an appeal under section 14-A of the
Act, 1989 - accordingly, this application is dismissed -
with a liberty to the applicant to avail the remedy of
appeal under Section 14-A of the Act, 1989.
(Para - 27, 28, 29, 30)

Application Dismissed. (E-11)

List of referred Cases: -

1. St. of Har. Vs Bhajan Lal - 1992 Supp. (1)
SCC 335,

2. Deepak Gulati Vs St. of Har. - (2013) 7 SCC
675,

3. Arnab Manoranjan Goswami Vs St. of Mah. -
(2021) 2 SCC 427,

4. Shueb Mahmood Kidwai @ Bobby Vs St. of
U.P. - 2021(4)ADJ 244: 2021(4) ALJ 28,

5. Amar Nath Vs St. of Har., (1977) 4 SCC 137,

6. Madhu Limaye Vs St. of Mah., (1977) 4 SCC
551,
7. In Re : Provision of Section 14 (a) of SC/ST
(Prevention of Atrocities) Amendment Act -
(2018) 6 ALJ 631 = 2018 SCC OnLine All 2087,
8. Ghulam Rasool Khan Vs St. of U.P., 2022 SCC
OnLine All 975,

9. Abhishek Awasthi @ Bholu Awasthi Vs St. of
U.P. & anr., Application under Section 482 No.
8635 of 2023 - order dated 20.09.2023,

10. Union Territory of Ladakh Vs Jammu &
Kashmir National Conference, 2023 SCC OnLine
SC 1140,

11. Devendra Yadav Vs St. of U.P., 2023 SCC
OnLine All 164,

12. Ramawatar Vs St. of M.P.: 2021 SCC OnLine
SC 966 decided on 25.10.2021,

13. B. Venkateswaran Vs P. Bakthavatchalam :
2023 SCC OnLine SC 14,

14. P. S. Sathappan Vs Andhra Bank Ltd.,
(2004) 11 SCC 672,

15. Amrendra Pratap Singh Vs Tej Bahadur
Prajapati, (2004) 10 SCC 65,

16. U.O.I. Vs Cipla Ltd., (2017) 5 SCC 262,

17. Prithvi Raj Chauhan Vs U.O.I. : (2020) 4
SCC 727.

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

1. Heard Sri Saksham Agarwal, the
learned counsel for the applicant and Sri
Anurag
Verma,
the
learned A.G.A-I
appearing on behalf of the State.

2. By means of the instant application
filed under Section 482 Cr.P.C., the
applicant has sought quashing of the charge
sheet dated 10.01.2024 submitted in
furtherance of F.I.R. No. 0797 of 2023,
dated 26.11.2023, Police Station P.G.I.,
Lucknow under Sections 376, 504 I.P.C.
and 3 (2) (v) of the Schedule Castes and
Scheduled tribes (Prevention of Atrocities)
Act, 1989 and also the order dated
2 All. Pawan Kumar @ Pawan Yadav Vs. State of U.P. & Anr.
215
20.01.2023 passed by the learned Special
Judge (SC/ST Act), Lucknow in Sessions
Trial No. 87 of 2024, whereby the Court
has taken cognizance of the aforesaid
offences and has summoned the applicant
to face trial for the offences.

3. Sri. Anurag Verma, the learned
A.G.A.-I has raised a preliminary objection
that the applicant has a statutory remedy of
filing an appeal under Section 14-A of the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (which
will hereinafter be referred to as 'the Act of
1989'). He has placed reliance upon the
Full Bench judgment in the case of
Ghulam Rasool Khan and others versus
State of U. P. and others : 2022 (8) A.D.J.
691: 2022 SCC OnLine All 975.

4.

In
reply to the
aforesaid
preliminary
objection,
Sri.
Saksham
Agarwal, the learned Counsel for the
applicant has submitted that the powers
under Section 482 Cr.P.C. are inherent
powers and there can be no fetters on the
exercise of this power. He has submitted
that the applicant has been charged for
commission of offences under Sections
376, 504 I.P.C. and 3 (2) (v) of the Act of
1989. Section 3 (2) (v) of the Act of 1989
provides that whoever, not being a member
of a Scheduled Caste or a Scheduled Tribe
commits any offence under the Indian
Penal Code punishable with imprisonment
for a term of ten years or more against a
person or property knowing that such
person is a member of a Scheduled Caste or
a Scheduled Tribe or such property belongs
to such member, shall be punishable with
imprisonment for life and with fine. The
learned Counsel for the applicant has
submitted that there is no substantive
offence defined by Section 3 (2) (v) of the
Act of 1989 and this provision merely
makes a provision for imposing an
enhanced punishment for certain offences
under the I.P.C. under certain conditions.
He has made some more submissions to
impress upon the Court that the offences
alleged are not made out against the
applicant even as per the prosecution case,
but those arguments need to be gone into
only if the objection against maintainability
of the application is overcome.

5. In support of his submissions, Sri.
Agarwal has placed reliance upon the
judgments in the cases of State of
Harayana versus Bhajan Lal : (1992)
Supp 1 SCC 335, Deepak Gulati versus
State of Haryana : (2013) 7 SCC 675,
Arnab Manoranjan Goswami v. State of
Maharashtra : (2021) 2 SCC 427, Shueb
Mahmood Kidwai @ Bobby versus State of
U.P. ̧ 2021(4)ADJ 244: 2021(4) ALJ 28.

6. Section 482 Cr.P.C. provides 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. Article 215 of the Constitution of
India provides that the High Courts shall be
Court of records and shall have all the
powers of such courts. A court of record is
undoubtedly a superior court which is itself
competent to determine the scope of its
jurisdiction. Section 482 Cr.P.C. does not
confer any new powers on the High Court.
It merely clarifies that nothing contained in
the Cr.P.C. will limit or affect the inherent
powers of the High Court to make such
216 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

8. In Amar Nath v. State of Haryana,
(1977) 4 SCC 137, the Hon'ble Supreme
Court held that: -

"3. ... It is well settled that the
inherent powers of the Court can
ordinarily be exercised when there is no
express provision on the subject-matter.
Where there is an express provision,
barring a particular remedy, the Court
cannot resort to the exercise of inherent
powers."

9. In Madhu Limaye v. State of
Maharashtra, (1977) 4 SCC 551, again it
was reiterated that: -

"8.... We may read the language
of Section 482 (corresponding to Section
561-A of the old Code) of the 1973 Code. It
says:

"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.

At the outset the following
principles may be noticed in relation to the
exercise of the inherent power of the High
Court which have been followed ordinarily
and generally, almost invariably, barring a
few exceptions:

"(1) That the power is not to be
resorted to if there is a specific provision
in the Code for the redress of the
grievance of the aggrieved party;

(2) That it should be exercised
very sparingly to prevent abuse of process
of any Court or otherwise to secure the
ends of justice;

(3) That it should not be
exercised as against the express bar of law
engrafted in any other provision of the
Code."

10. Section 14-A of the Act of 1989
provides as follows: -

"14-A.
Appeals.-
(1)
Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2
of 1974), an appeal shall lie, from any
judgment, sentence or order, not being an
interlocutory order, of a Special Court or
an Exclusive Special Court, to the High
Court both on facts and on law.

(2)
Notwithstanding
anything
contained in sub-section (3) of Section 378
of the Code of Criminal Procedure, 1973 (2
of 1974), an appeal shall lie to the High
Court against an order of the Special Court
or the Exclusive Special Court granting or
refusing bail.

(3)
Notwithstanding
anything
contained in any other law for the time
being in force, every appeal under this
section shall be preferred within a period of
ninety days from the date of the judgment,
sentence or order appealed from:

Provided that the High Court may
entertain an appeal after the expiry of the
said period of ninety days if it is satisfied
that the appellant had sufficient cause for
not preferring the appeal within the period
of ninety days:

Provided further that no appeal
shall be entertained after the expiry of the
period of one hundred and eighty days.

(4) Every appeal preferred under
sub-section (1) shall, as far as possible, be
disposed of within a period of three months
from the date of admission of the appeal."
2 All. Pawan Kumar @ Pawan Yadav Vs. State of U.P. & Anr.
217

11. When the applicant has a statutory
remedy of appeal under Section 14-A of the
1989 Act available to him as a matter of
right, and that appeal would also lie before
this High Court, albeit before another
Bench, there cannot be justification in
bypassing the statutory remedy of appeal
and invoking the inherent powers of this
Court, which are meant to be exercised in
exceptional circumstances only.

12. In this regard, it is to be kept in
mind that in State of Haryana v. Bhajan
Lal, 1992 Supp (1) SCC 335, the Hon'ble
Supreme Court has cautioned that: -

"103. We also give a note of
caution to the effect that the power of
quashing a criminal proceeding should be
exercised
very
sparingly
and
with
circumspection and that too in the rarest
of rare cases; that the court will not be
justified in embarking upon an enquiry as
to the reliability or genuineness or
otherwise of the allegations made in the
FIR or the complaint and that the
extraordinary or inherent powers do not
confer an arbitrary jurisdiction on the
court to act according to its whim or
caprice."
(Emphasis supplied)

13. In "In Re : Provision of Section
14 (a) of SC/ST (Prevention of Atrocities)
Amendment Act" ; (2018) 6 ALJ 631 =
2018 SCC OnLine All 2087, the five
questions considered by the Full Bench,
and answers given to those questions, were
as follows: -

"A. Whether provisions of subsection (2) of Section 14-A and the second
proviso to subsection (3) of Section 14-A of
the Amending Act, are violative of Articles
14 and 21 of the Constitution, being unjust,
unreasonable and arbitrary?

While we reject the challenge to
section 14A(2), we declare that the second
proviso to Section 14A(3) is clearly
violative of both Articles 14 and 21 of the
Constitution. It is not just manifestly
arbitrary, it has the direct and unhindered
effect of taking away the salutary right of a
first appeal which has been recognised to
be an integral facet of fair procedure
enshrined in Article 21 of the Constitution.
The absence of discretion in the Court to
consider condonation of delay even where
sufficient cause may exist renders the
measure wholly capricious, irrational and
excessive. It is consequently struck down.

B. Whether in view of the
provisions contained in Section 14-A of the
Amending Act, a petition under the
provisions of Article 226/227 of the
Constitution of India or a revision under
Section 397 of the Code of Criminal
Procedure or a petition under Section 482
Cr.P.C., is maintainable. OR in other
words, whether by virtue of Section 14-A of
the Amending Act, the powers of the High
Court under Articles 226/227 of the
Constitution or its revisional powers or the
powers under Section 482 Cr.P.C. stand
ousted?

We therefore answer Question (B)
by holding that while the constitutional
and inherent powers of this Court are not
"ousted" by Section 14A, they cannot be
invoked in cases and situations where an
appeal would lie under Section 14A.
Insofar as the powers of the Court with
respect to the revisional jurisdiction is
concerned, we find that the provisions of
Section
397
Cr.P.C.
stand
impliedly
excluded by virtue of the special provisions
made in Section 14A. This, we hold also in
light of our finding that the word "order"
as occurring in sub-section(1) of Section
218 INDIAN LAW REPORTS ALLAHABAD SERIES
14A would also include intermediate
orders.

C.
Whether
the
amended
provisions of Section 14-A would apply to
offences
or
proceedings
initiated
or
pending prior to 26 January 2016?

We hold that the provisions of
Section 14A would be applicable to all
judgments, sentences or orders as well as
orders granting or refusing bail passed or
pronounced after 26 January, 2016. We
further clarify that the introduction of this
provision would not effect proceedings
instituted or pending before this Court
provided they relate to a judgment,
sentence or order passed prior to 26
January 2016. The applicability of Section
14A does not depend upon the date of
commission
of
the
offence.
The
determinative factor would be the date of
the order of the Special Court or Exclusive
Court.

D. Whether upon the expiry of the
period of limitation for filing of an appeal
as specified in the second proviso to
Section 14-A(3), Section 439 Cr.P.C. and
the powers conferred on the High Court in
terms thereof would stand revived?

We
hold
that
the
powers
conferred on the High Court under Section
439 Cr.P.C. do not stand revived. We find
ourselves unable to sustain the line of
reasoning adopted by the learned Judge in
Rohit that the provisions of Section 439
Cr.P.C. would remain in suspension during
the period of 180 days and thereafter revive
on its expiry. The conclusion so arrived at
cannot be sustained on any known
principle of statutory interpretation. We are
therefore, constrained to hold that both
Janardan Pandey

 as well as Rohit do not lay down the
correct law and must, as we do, stand
overruled.

E. Whether the power to directly
take cognizance of offences shall be
exercisable by the existing Special Courts
other than the Exclusive Special Courts or
Special Courts to be specified under the
amended Section 14?"

The existing Special Courts do
not have the jurisdiction to directly take
cognisance of offences under the 1989 Act.
This power stands conferred only upon the
Exclusive Special Courts to be established
or the Special Courts to be specified in
terms of the substituted section 14.
However it is clarified that the substitution
of Section 14 by the Amending Act does not
have the effect of denuding the existing
Special Courts of the authority to exercise
jurisdiction in respect of proceedings under
the 1989 Act. They would merely not have
the power to directly take cognizance of
offences and would be bound by the rigours
of Section 193 Cr.P.C. Even if cognizance
has been taken by the existing Special
Courts directly in light of the uncertainty
which prevailed, this would not ipso facto
render the proceedings void ab initio.
Ultimately it would be for the objector to
establish
serious
prejudice
or
a
miscarriage of justice as held in Rati
Ram."

14. In Ghulam Rasool Khan v. State
of U.P., 2022 SCC OnLine All 975, another
Full Bench of this Court dealt with the
following questions: -

(i) Whether a Single Judge of this
Court while deciding Criminal Appeal
(Defective) No. 523/2017 In re : Rohit v.
State
of
U.P.
vide
judgment
dated
29.08.2017
correctly
permitted
the
conversion of appeal under Section 14 A of
the Act, 1989 into a bail application by
exercising the inherent powers under
Section 482 of the Cr. P.C.?
2 All. Pawan Kumar @ Pawan Yadav Vs. State of U.P. & Anr.
219

(ii) Whether keeping in view the
judgment of Rohit (supra), an aggrieved
person will have two remedies available of
preferring an appeal under the provisions
of Section 14 A of the Act, 1989 as well as a
bail application under the provisions of
Section 439 of the Cr. P.C.?

(iii) Whether an aggrieved person
who has not availed of the remedy of an
appeal under the provisions of Section 14 A
of Act, 1989 can be allowed to approach
the
High
Court
by
preferring
an
application under the provisions of Section
482 of the Cr. P.C.?

(iv) What would be the remedy
available to an aggrieved person who has
failed to avail the remedy of appeal under
the provision of Act, 1989 and the time
period for availing the said remedy has
also lapsed?

15. The Full Bench answered the
aforesaid questions as follows: -

(i) Question No. (I) is answered
in negative as Rohit v. State of U.P., (2017)
6 ALJ 754 has been overruled by Full
Bench of this Court in In Re : Provision of
section 14 (a) of SC/ST (Prevention of
Atrocities) Amendment Act, 2015, (2018) 6
ALJ 631.

(ii) Question No. (II) is answered
in negative holding that an aggrieved
person will not have two remedies namely,
i.e. filing an appeal under Section 14A of
the 1989 Act as well as filing a bail
application in terms of Section 439 Cr. P.C.

(iii)
Question
No.
(III)
is
answered in negative holding that the
aggrieved person having remedy of appeal
under Section 14A of the 1989 Act, cannot
be allowed to invoke inherent jurisdiction
of this Court under Section 482 Cr. P.C.

(iv) Question No. (IV) - There will
be no limitation to file an appeal against an
order under the provisions of 1989 Act.
Hence, the remedies can be availed of as
provided.

16. The learned A.G.A. has informed
the Court that the following questions have
been referred by the order dated 20.09.2023
passed in Abhishek Awasthi @ Bholu
Awasthi versus State of U.P. and another,
Application under Section 482 No. 8635 of
2023 and other connected matters: -

(i) Whether a Single Judge of this
Court while deciding Criminal Appeal
(Defective) No. 523/2017 In re : Rohit Vs.
State of U.P. and another vide judgment
dated 29.08.2017 correctly permitted the
conversion of appeal under Section 14 A of
the Act, 1989 into a bail application by
exercising the inherent powers under
Section 482 of the Cr.P.C.?

(ii) Whether keeping in view the
judgment of Rohit (supra), an aggrieved
person will have two remedies available of
preferring an appeal under the provisions
of Section 14 A of the Act, 1989 as well as a
bail application under the provisions of
Section 439 of the Cr.P.C.?

(iii)
Whether
an
aggrieved
person who has not availed of the remedy
of an appeal under the provisions of
Section 14 A of Act, 1989 can be allowed
to approach the High Court by preferring
an application under the provisions of
Section 482 of the Cr.P.C.?

(iv) What would be the remedy
available to an aggrieved person who has
failed to avail the remedy of appeal under
the provision of Act, 1989 and the time
period for availing the said remedy has
also lapsed?""

17. Although the questions have been
referred to a larger Bench by means of an
220 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 20.09.2023 passed by a
coordinate
Bench
of
this
Court
at
Allahabad in Application under Section 482
No. 8635 of 2023 and other connected
matters, the decision in Ghulam Rasool
Khan (Supra) will hold good till a decision
is taken by a larger Bench. In this regard, a
reference to the following passage from
judgment of the Hon'ble Supreme Court in
Union Territory of Ladakh v. Jammu &
Kashmir National Conference, 2023 SCC
OnLine SC 1140 will be appropriate: -

"35. We are seeing before us
judgments and orders by High Courts not
deciding cases on the ground that the
leading judgment of this Court on this
subject is either referred to a larger Bench
or a review petition relating thereto is
pending. We have also come across
examples of High Courts refusing deference
to judgments of this Court on the score that
a later Coordinate Bench has doubted its
correctness. In this regard, we lay down the
position in law. We make it absolutely
clear that the High Courts will proceed to
decide matters on the basis of the law as it
stands. It is not open, unless specifically
directed by this Court, to await an
outcome of a reference or a review
petition, as the case may be. It is also not
open to a High Court to refuse to follow a
judgment by stating that it has been
doubted by a later Coordinate Bench..."
(Emphasis supplied)

18. Therefore, the mere reference of
the aforesaid questions would not dilute the
binding nature of the law laid down in
Ghulam Rasool Khan (Supra).

19. The learned Counsel for the
applicant has placed reliance upon the
judgment in the case of Devendra Yadav v.
State of U.P., 2023 SCC OnLine All 164,
wherein a coordinate Bench of this Court
noted the contention that Ghulam Rasool
(Supra) does not take into consideration the
judgment in the case of Ramawatar v. State
of Madhya Pradesh: 2021 SCC OnLine
SC 966 decided on 25.10.2021, wherein the
Hon'ble Supreme Court held that:-

"where it appears to the Court
that the offence in question, although
covered under the SC/ST Act, is primarily
private or civil in nature, or where the
alleged offence has not been committed on
account of the caste of the victim, or where
the continuation of the legal proceedings
would be an abuse of the process of law,
the Court can exercise its powers to quash
the proceedings. On similar lines, when
considering a prayer for quashing on the
basis of a compromise/settlement, if the
Court is satisfied that the underlying
objective of the Act would not be
contravened or diminished even if the
felony in question goes unpunished, the
mere fact that the offence is covered under
a 'special statute' would not refrain this
Court or the High Court, from exercising
their respective powers under Article 142
of the Constitution or Section 482 Cr. P.C."

20. The coordinate Bench merely
noted the contention of the learned Counsel
for the applicant that Gulam Rasool Khan
(supra) has been decided without taking
into consideration the ratio laid down in the
judgment of Ramawatar v. State of M.P.
and thus could be safely be termed as per
incurim. Without expressing its view on
this Submission, the Coordinate Bench
took into consideration another judgment of
the Hon'ble Supreme Court in the case of
B. Venkateswaran v. P. Bakthavatchalam :
2023 SCC OnLine SC 14, in which the
Hon'ble Apex Court has opined that:-
2 All. Pawan Kumar @ Pawan Yadav Vs. State of U.P. & Anr.
221

"From the aforesaid, it seems
that the private civil dispute between the
parties
is
converted
into
criminal
proceedings. Initiation of the criminal
proceedings for the offences under Sections
3(1)(v) and (va) of the Scheduled Castes
and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989, therefore, is nothing
but an abuse of process of law and Court.
From the material on record, we are
satisfied that no case for the offences under
Sections 3(1)(v) and (va) of the Scheduled
Castes
and
the
Scheduled
Tribes
(Prevention of Atrocities) Act, 1989 is made
out, even prima facie. None of the
ingredients of Sections 3(1)(v) and (va) of
the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989
are made out and/or satisfied. Therefore,
we are of the firm opinion and view that in
the facts and circumstances of the case, the
High Court ought to have quashed the
criminal proceedings in exercise of powers
under Section 482 of the Code of
Criminal Procedure. The impugned
judgment and order passed by the High
Court, therefore, is unsustainable and
the same deserves to be quashed and set
aside and the criminal proceedings
initiated against the appellants deserves
to be quashed and set aside."

The coordinate Bench concluded in
Devendra Yadav (Supra) that: -

"15. Thus from the aforesaid
discussions, it is clear that Hon'ble Apex
Court has clearly and time and again have
opined that elaborating the aforesaid
provision of full bench of this Court as well
as Hon'ble Apex Court and taking the help
of the aforesaid judgments, the Court is of
the considered opinion that 482 Cr. P.C.
application could be filed assailing the
summoning order.

21. While deciding the Devendra
Yadav (Supra), this point appears to have
escaped consideration of the coordinate
Bench that in none of the judgments in the
case of Ramawatar v. State of M.P. and
B. Venkateswaran v. P. Bakthavatchalam ,
the question of effect of Section 14-A of the
1989 Act
on
maintainability
of
an
application under Section 482 Cr.P.C. was
neither raised, nor decided.

22. It is settled law that a judgment is
an authority for what it actually decides and
not for what can be deduced from it. In a
Constitution Bench judgment in the case of
P. S. Sathappan v. Andhra Bank Ltd.,
(2004) 11 SCC 672, it was held that: -

"118. ...It is well known that a
judgment is an authority for what it decides
and not what may even logically be
deduced therefrom.
* * *

144. While analysing different
decisions rendered by this Court, an
attempt has been made to read the
judgments as should be read under the rule
of precedents. A decision, it is trite, should
not be read as a statute.

145. A decision is an authority
for the questions of law determined by it.
While applying the ratio, the court may not
pick out a word or a sentence from the
judgment divorced from the context in
which
the
said
question
arose
for
consideration. A judgment, as is well
known, must be read in its entirety and the
observations made therein should receive
consideration in the light of the questions
raised before it. [See Haryana Financial
Corpn. v. Jagdamba Oil Mills (2002) 3
SCC 496, Union of India v. Dhanwanti
Devi (1996) 6 SCC 44, Nalini Mahajan
(Dr.)
v.
Director
of
Income
Tax
(Investigation) (2002) 257 ITR 123 (Del)
State of U.P. v. Synthetics and Chemicals
222 INDIAN LAW REPORTS ALLAHABAD SERIES
Ltd. (1991)4 SCC 139, A-One Granites v.
State of U.P. (2001) 3 SCC 537, and
Bhavnagar University v. Palitana Sugar
Mill (P) Ltd. (2003) 2 SCC 111],

146.
Although
decisions
are
galore on this point, we may refer to a
recent one in State of Gujarat v. Akhil
Gujarat Pravasi V.S. Mahamandal (2004) 5
SCC 155, wherein this Court held:

"It is trite that any observation
made during the course of reasoning in a
judgment should not be read divorced from
the context in which it was used."

147. It is further well settled that
a decision is not an authority for the
proposition which did not fall for its
consideration."

23. Again, in Amrendra Pratap Singh
v. Tej Bahadur Prajapati, (2004) 10 SCC
65, the Hon'ble Supreme Court reiterated
that: -

"A
judicial
decision
is
an
authority for what it actually decides and
not for what can be read into it by
implication or by assigning an assumed
intention to the judges, and inferring from
it a proposition of law which the judges
have not specifically laid down in the
pronouncement."

24. Since the question of effect of
Section 14-A of the 1989 Act upon
maintainability of an application under
Section 482 Cr.P.C. was neither raised nor
decided
in
Ramawatar

and
B.
Venkateswaran (Supra), the aforesaid
judgments are not binding precedents
on the aforesaid point. Therefore, these
judgments would not affect the binding
nature of the Full Bench judgment in
the case of Ghulam Rasool Khan
(Supra).

25. The learned Counsel for the
applicant has placed reliance upon the
following passage from the judgment in the
case of Arnab Manoranjan Goswami v.
State of Maharashtra, (2021) 2 SCC 427
but the question of maintainability of an
application under Section 482 Cr.P.C.
where the applicant has a statutory remedy
available under Section 14-A of the Act,
was not involved in Arnab Manoranjan
Goswami (Supra) and, therefore, the
aforesaid case would be of no avail for
decision of the question of maintainability
raised by the learned A.G.A.-I.

26. The learned Counsel for the
applicant has also relied upon the judgment
in the case of Prithvi Raj Chauhan versus
Union of India : (2020) 4 SCC 727
wherein the petitioners had questioned the
provisions inserted by way of carving out
Section 18-A of the Act of 1989, which
provide that 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. The Hon'ble Supreme Court
held 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."

However, while deciding the
aforesaid question, the Hon'ble Supreme
Court also observed that: -

"12.
The
Court
can,
in
exceptional cases, exercise power under
Section 482 CrPC for quashing the cases to
prevent misuse of provisions on settled
parameters, as already observed while
2 All. Sabir Ali Vs. The State of U.P. & Ors.
223
deciding the review petitions. The legal
position is clear, and no argument to the
contrary has been raised."

27. While making the aforesaid
observation, the Hon'ble Supreme Court
did not take into consideration the
provision contained in Section 14-A of the
Act of 1989. Therefore, the case of Prithvi
Raj Chauhan (Supra) is also not relevant
for
deciding
maintainability
of
an
application under Section 482 Cr.P.C.
where the applicant has a statutory remedy
of filing an appeal under Section 14-A of
the Act of 1989.

28. 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.

29. In the present case, the applicant
has a statutory remedy of filing an appeal
under Section 14-A of the 1989 Act, which
remedy is available to him as a matter of
right, and that appeal would also lie before
this High Court, albeit before a different
Bench. The scope of enquiry in the appeal
will obviously be larger than the scope of
enquiry while deciding an application
under Section 482 Cr.P.C., where disputed
questions of facts cannot be entertained.
Thus the appeal would appear to be more
beneficial to the applicant. The only reason
for filing an application under Section 482
Cr.P.C. instead of filing an appeal appears
to be avoiding a particular Bench of this
Court itself. The facts stated above
clearly establish that it is a typical
example of forum shopping, which
practice has always been deprecated by
the Courts.

30. In view of the foregoing
discussions, the application under Section
482 Cr.P.C. is dismissed leaving it open for
the applicant to file an appeal under Section
14-A of the Scheduled Caste and the
Scheduled Tribes (Prevention of Atrocities)
Act, 1989.
---------
(2024) 2 ILRA 223
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.02.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 No. 1140 of 2024

Sabir Ali ...Applicant
Versus
The State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Dilip Kumar Shukla

Counsel for the Opposite Parties:
G.A., Aprajita Bansal

Criminal Law - Criminal Procedure Code,
1973 - Sections 41(1), 161 & 482 - Indian
Electricity Act, 2003 - Section 135 -
Application u/section 482 Cr.P.C. - filed for
quashing of the charge-sheet and the order
taking cognizance - offence of theft of
electricity - FIR lodged - applicant filed a writ
petition - disposed of - with the observation
that the applicant may avail benefit under
Section 41(1) Cr.P.C. - charge-sheet -
cognizance taken - trial initiated - instant writ
petition - Court observed that (i) nonsubmission of videographic evidence does