# Rakesh Mishra & Ors v. State of U.P. & Anr

- **Citation:** (2023) 5 ILRA 1233
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-27
- **Case number:** Application U/S 482. No. 1695 of 2023
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-mishra-ors-v-state-of-u-p-anr-50163
- **Pages:** 7

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 156(3), 200,202 - Indian
Penal Code, 1860 - Sections 323, 427,
504, 506 , The Scheduled Caste and the
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 3 (1) Da
Dha - Against the judgment and orders
passed in S.C S.T Act remedy has been
provided u/s 14-A of the Act of 1989 but it
cannot be challenged under Articles 226
or 227 of the Constitution of India,
Revision under Section 397 Cr.P.C or by an
Application U/s 482 Cr.P.C. - even if an
applicant has been failed in filing an
appeal under Section 14-A of the SC ST
Act, it can be preferred any time. (Para -
15,16)

Complainant (opposite party no. 2) moved an
application under Section 156 (3) Cr.P.C -
converted into complaint - deposition under
Sections 200 and 202 Cr.P.C. - applicants were
summoned for their appearance as accused -
circumstances mentioned by the Apex Court not
present
-
Maintainability
of
Petition
-
summoning order under challenged - which is
appealable - u/s Section 14-A of the S.C. / S.T
Act). (Para - 6,11)

HELD:-Application under Section 482 Cr.P.C not
maintainable
and
liable
to
be
rejected.
Applicants can file an appeal under Section 14-A
of the S.C/S.T Act. (Para -22)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:

## Text

5 All. Rakesh Mishra & Ors. Vs. State of U.P. & Anr.
1233
defendants have taken the plea that they
were not raising any new construction
activity and only some repair work was
going on in the old existing construction
where the defendants are residing, such an
act would not amount any destruction or
damage to the joint property, nor would
result in appropriation by the defendants of
any part of land in name of raising
construction. In these circumstances, I do
not find, the judgment passed by the
District Judge suffering from any manifest
error of law and facts.

33. However, it is left open for the
petitioner to either seek amendment in the
suit to add a relief for partition or to file a
fresh suit for partition and also maintain an
application of injunction afresh in the event
any new construction activity is undertaken
upon a joint land.

34. With liberty aforesaid, this
petition stands disposed of.

35. Cost made easy.
----------
(2023) 5 ILRA 1233
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application U/S 482. No. 1695 of 2023

Rakesh Mishra & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Syed Imran Ibrahim, Sri Vinay Kumar
Rai

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 156(3), 200,202 - Indian
Penal Code, 1860 - Sections 323, 427,
504, 506 , The Scheduled Caste and the
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 3 (1) Da
Dha - Against the judgment and orders
passed in S.C S.T Act remedy has been
provided u/s 14-A of the Act of 1989 but it
cannot be challenged under Articles 226
or 227 of the Constitution of India,
Revision under Section 397 Cr.P.C or by an
Application U/s 482 Cr.P.C. - even if an
applicant has been failed in filing an
appeal under Section 14-A of the SC ST
Act, it can be preferred any time. (Para -
15,16)

Complainant (opposite party no. 2) moved an
application under Section 156 (3) Cr.P.C -
converted into complaint - deposition under
Sections 200 and 202 Cr.P.C. - applicants were
summoned for their appearance as accused -
circumstances mentioned by the Apex Court not
present
-
Maintainability
of
Petition
-
summoning order under challenged - which is
appealable - u/s Section 14-A of the S.C. / S.T
Act). (Para - 6,11)

HELD:-Application under Section 482 Cr.P.C not
maintainable
and
liable
to
be
rejected.
Applicants can file an appeal under Section 14-A
of the S.C/S.T Act. (Para -22)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:

1. Gulam Rasool Khan & ors.Vs St. of U.P. &
ors., Criminal Appeal No. 1000 of 2018

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

3. Lalita Kumari, (2014) 2 SCC 1

4. U.O.I. Vs St. of Maha. & ors., (2020) 4 SCC
761
1234 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Ram Awtar Vs St. of M.P. , 2021 SCC OnLine
SC 966

6. Ram Gopal & anr. Vs St. of M.P. , 2021 SCC
OnLine SC 834

7. Gulam Rasool Khan Vs St. of U.P., Criminal
Appeal No. 1000 of 2018

8. Dr. Sah Faisal Vs U.O.I. & anr., (2020) 4 SCC1

9. N.I.C. Ltd Vs Pranay Sethi & ors., (2017) 16
S.C.C 680

10. Sandeep Kumar Vs St. of Maha., (2014) 16
SCC 623

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

1. Heard Sri Syed Imran Ibrahim,
learned counsel for the applicants, Sri
Pankaj Kumar Tripathi, learned A.G.A for
the State and perused the record.

2. This application under Section 482
Cr.P.C has been moved to quash the
summoning order dated 10.11.2022 arising
out of Special Case No. 70 of 2019 - (Amar
Singh Vs. Rakesh Mishra and others) under
Sections 323, 427, 504, 506 I.P.C &
Section 3 (1) X, of the Scheduled Caste and
the Scheduled Tribes (Prevention of
Atrocities) Act, 1989, Police Station
Highway, district Mathura as well as all
consequential proceedings of Case No. 70
of 2019, pending in the Court of Special
Judge, SC/ST At, Mathura.

3. In brief, the facts of the case are
that opposite party no. 2, Amar Sigh, the
complainant moved an application under
Section 156 (3) Cr.P.C to lodge an F.I.R
under the aforesaid Sections against the
applicants in respect of commission of
crime at 09:00 a.m on 28.07.2019 with the
allegations that the applicant and four five
other persons armed with Lathi, sticks and
other weapons reached at his land, broke
the boundary wall through a J.C.B Machine
and caused a loss of Rs.50,000/-. When
they were prevented they abused, saying
the applicant and his brother to be Chamar
Dherh and assaulted the complainant and
his brother.

4. The complainant ranged up 100
number and when police reached on the
spot, they scrapped giving threatening to
their life. The 100 number police carried
the complainant and his brother Kundan
Singh, Kedar Singh at the P.S. where the
complainant presented a written complaint,
but the Highway P.S. did not take any
action in the matter. The accused persons
are the Gunda and miscreants, who want to
occupy the complainant's land by dint of
his muscle power. The applicant also
moved a complaint to S.S.P, Mathura on
31st July, 2019, and again sent an
application
on
13.08.2019
to
S.S.P,
Mathura and other superior authorities but
no action was taken , hence application u/s
156 (3) Cr.P.C was moved.

5. The aforesaid application was
converted into complaint. The statement of
the complainant was recorded under
Section 200 Cr.P.C. The statements of P.W.
1 Kundan Singh, P.W. 2 Kedar Singh and
P.W 3 Vinod Kumar were recorded under
Section 202 Cr.P.C. On 10.11.2022, the
learned
Special
Judge
(SC/ST
Act)
Mathura, summoned the applicants under
Sections 323, 504, 506, 427 I.P.C and
Section 3 (1) Da Dha of the S.C/S.T Act,
for their appearance on 16.12.2022.

6. Being aggrieved, the accused
applicants have preferred this Application
under Section 482 Cr.P.C. At the time of
5 All. Rakesh Mishra & Ors. Vs. State of U.P. & Anr.
1235
hearing, the learned A.G.A raised an
objection that in view of the Full Bench
Judgement of this Court passed in Gulam
Rasool Khan & Ors. Vs. State of U.P. &
Ors. Criminal Appeal No. 1000 of 2018 on
28.07.2022, (appeal can be preferred u/s
Section 14-A of the S.C. / S.T Act), this
petition is not maintainable. By this
application basically the summoning order
has been challenged, which is appealable.

7. Contrary to that the learned counsel
for the applicant relying on several
judgments, which are discussed herein
argued that the application under Section
482 Cr.P.C is maintainable against the
order passed by the learned Special Judge
(SC/ST Act) even in cases wherein an order
has been passed under the S.C. S.T Act.

8. It would be proper to mention
Section 14-A of the SC ST Act, which is
here in below :-

"14A.
(1)
Notwithstanding
anything contained in the Code of Criminal
Procedure,1973, 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,
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.".

9. The judicial precedent referred by
the learned counsel for the applicant are
categorically discussed herein below.

a) Prithvi Raj Chauhan Vs.
Union of India & Ors. (2020) 4 SCC 727,
this was the case, in which an anticipatory
bail under Section 438 Cr.P.C had been
preferred, Hon'ble the Apex Court held that
the grant of anticipatory bail under Section
438 Cr.P.C is barred in respect of offences
under the S.C S.T Act of 1989 however,
where the prima-facie case are not made
out, anticipatory bail can be granted in
appropriate circumstances, with exercising
the of power u/s 482 Cr.P.C.

b). It has also been held that
preliminary inquiry before the registration
of F.I.R in respect of occurrence under the
Act of 1989 can only be in circumstances
enumerated in Lalita Kumari, (2014) 2
SCC 1.

c). In para 12 of the judgment it
has
been
held
that
in
exceptional
1236 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances and strictly in parameter laid
down in the judgment, quashment to
proceedings under the Act of 1989 can be
prayed under Section 482 Cr.P.C for
preventing the misuse of law.

d). Para 12 of the judgment is
reproduced herein below:-

"12) Dr. Ashok Dhamija, learned
counsel for the CBI, submitted that the use
of the word "shall" under Section 154(1) of
the Code clearly mandates that if the
information given to a police officer relates
to the commission of a cognizable offence,
then it is mandatory for him to register the
offence. According to learned counsel, in
such circumstances, there is no option or
discretion given to the police. He further
contended that the word "shall" clearly
implies a mandate and is unmistakably
indicative of the statutory intent. What is
necessary, according to him, is only that
the information given to the police must
disclose commission of a cognizable
offence. He also contended that Section 154
of the Code uses the word "information"
simpliciter and does not use the qualified
words such as "credible information" or
"reasonable complaint". Thus, the intention
of the Parliament is unequivocally clear
from the language employed that a mere
information relating to commission of a
cognizable offence is sufficient to register
an FIR. He also relied on Bhajan Lal
(supra), Ramesh Kumari (supra), Aleque
Padamsee
(supra),
Lallan
Chaudhary
(supra), Superintendent of Police, CBI vs.
Tapan Kumar Singh (2003) 6 SCC 175,
M/s
Hiralal
Rattanlal
(supra),
B.
Premanand (supra), Khub Chand vs. State
of Rajasthan AIR 1967 SC 1074, P.
Sirajuddin (supra), Rajinder Singh Katoch
(supra), Bhagwant Kishore Joshi (supra),
State of West Bengal vs. Committee for
Protection of Democratic Rights, West
Bengal (2010) 3 SCC

571. He also pointed out various
safeguards provided in the Code against
filing a false case. In the end, he concluded
by reiterating that the registration of FIR is
mandatory under Section 154 of the Code,
if the information discloses commission of
a cognizable offence and no preliminary
inquiry is permissible in such a situation.
Further,
he
also
clarified
that
the
preliminary inquiry conducted by the CBI,
under certain situations, as provided under
the CBI Crime Manual, stands on a
different footing due to the special
provisions relating to the CBI contained in
the Delhi Special Police Establishment Act,
1946, which is saved under Sections 4(2)
and 5 of the Code.

e). From the above, it is very
much clear that only in exceptional cases
the High Court can exercise its power
under Section 482 Cr.P.C in case of any
order passed under the S.C. S.T Act. Here
no such exceptional circumstances are into
existence, hence this Court is of the view
that in the present case the aforesaid
precedent does not apply.

f). Union of India Vs. State of
Maharashtra & Ors. (2020) 4 SCC 761, this
case was also in respect of grant of
anticipatory
bail
regarding
the
offence
committed under the Act of 1989. In this case
it has been held that if information discloses a
cognizable offence, registration of F.I.R is
mandatory and no recourse to Section 438
Cr.P.C is permissible, so far as, exercise of
power under Section 482 Cr.P.C is concerned,
paras 52 and 60 of this judgment are relevant
which are reproduced herein below:

52. It is an unfortunate state of
affairs that the caste system still prevails
5 All. Rakesh Mishra & Ors. Vs. State of U.P. & Anr.
1237
in the country and people remain in
slums,
more
particularly,
under
skyscrapers,
and
they
serve
the
inhabitants of such buildings.

60. By the guidelines issued, the
anomalous situation may crop up in
several cases. In case the appointing
authority forms a view that as there is no
prima facie case the incumbent is not to
be arrested, several complications may
arise. For the arrest of an offender, maybe
a public servant, it is not the provision of
the general law of Cr.PC that permission
of the appointing authority is necessary.
No such statutory protection provided to a
public servant in the matter of arrest
under the IPC and the Cr.PC as such it
would be discriminatory to impose such
rider in the cases under the Act of 1989.
Only in the case of discharge of official
duties, some offence appears to have been
committed, in that case, sanction to
prosecute may be required and not
otherwise. In case the act is outside the
purview of the official discharge of duty,
no such sanction is required. "

10. From the scrutiny of the aforesaid
part of the judgment it is very much clear
that there might be certain false cases in
which interference by the High Court
exercising its power under Section 482
Cr.P.C. might be necessary. As per para 60
of the judgment, if there is apprehension of
arrest, harassment and false implication, the
applicant may approach the High Court for
quashment of the F.I.R under Section 482
Cr.P.C and in this case also the Hon'ble, the
Apex
Court
has
propounded
similar
preposition of law as held in the Case of
Prithviraj Chauhan (supra).

11. Hear the complainant - opposite
party no. 2 had moved an application under
Section 156 (3) Cr.P.C, which was
converted into complaint and in which after
deposition under Sections 200 and 202
Cr.P.C., the applicants were summoned for
their appearance as accused. Here the
circumstances mentioned by the Apex
Court are not present. Hence, this Court is
of the view that in the facts and
circumstances of this case, this precedent
also does not support the contention of the
applicants.

12. Learned counsel for the applicant
have also relied on the judicial precedent
Ram Awtar Vs. State of MP 2021 SCC
OnLine SC 966 and Ram Gopal and
another Vs. State of M.P. 2021 SCC
OnLine SC 834. In both the cases the
parties had entered into compromise and
thereafter a question arose that when a
criminal case under the S.C / S.T Act is not
compoundable in view of Section 320
Cr.P.C whether the High Court or the
Supreme Court can entertain the petition
for quashment of the entire criminal
proceedings under Article 142, 226 and 227
of the Constitution of India and Section 482
of the Cr.P.C.

13. Hon'ble the Apex Court held that
no useful purpose would be served keeping
the matter pending if the parties have
compromised the case. Since the parties
had entered into compromise and also
considering the old pendency of the case, it
was held that in the facts and circumstances
of the case in hand, the proceedings of the
criminal case under the S.C. S.T Act may
also be quashed u/s 482 Cr.P.C.

14. Here no such circumstances with
regard to compromise are present. The
applicants are challenging the summoning
order and opposite party no. 2, the
complainant is prosecuting the impugned
1238 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal case, Hence, this Court is of the
view that these judicial precedents have no
applicability in favour of the applicants due
the change of facts and circumstances of
the case.

15. Learned A.G.A has relied on the
judgment passed in Gulam Rasool Khan
Vs. State of U.P., Criminal Appeal No.
1000 of 2018 decided on July, 28, 2022
Full Bench decision of this Court, in which
relying on the judgement in Re: provision
of Section 14(a) of SC ST (Prevention of
Atrocities) Amendment Act, 2015 (2018) 6
ALJ 631 concluded that against the
judgment and orders passed in S.C S.T Act
remedy has been provided u/s 14-A of the
Act of 1989 but it can not be challenged
under Articles
226
or 227 of
the
Constitution of India, Revision under
Section 397 Cr.P.C or by an Application
U/s 482 Cr.P.C.

16. It has also been held that since in
Re: provisions of Section 14-A of the SC
ST Amendment Act 2015 (supra), the
provisions of Section 14-A (3) has been
held to be in violation of Article 14 and 21
of the Constitution of India and the same
has been struck down. Therefore, even if an
applicant has been failed in filing an appeal
under Section 14-A of the SC ST Act, it
can be preferred any time.

17. Learned counsel for the applicant
argued
that
since
the
judgment
of
Prithviraj Chauhan, Ram Awtar, Ram
Gopal and Union of India Vs. State of
Maharashtra properly have not been
discussed by the Full Bench of this Court,
while passing the judgment in the case of
Gulam Rasool Khan & Ors. (supra). The
judgement of Full Bench of this Court
would be barred by the principle of per in
curium.

18. In this regard learned counsel for
the applicant has relied on Dr. Sah Faisal
vs. Union of India and another (2020) 4
SCC-1, N.I.C. Ltd Vs. Pranay Sethi and
others (2017) 16 S.C.C 680 Sandeep
Kumar Vs. State of Maharashtra (2014)
16 SCC 623, in which it has been laid
down that if a judgment of Division Bench,
Full Bench, or High Court has not been
discussed on the very impugned point
involved in the case, later judgments would
be barred by the principle of per incurium.

19. Certainly, while pronouncing the
judgment in Gulam Rasool Khan & Ors.
(supra), the aforesaid judgments have not
been discussed by the Full Bench of this
Court, but it has also been discussed by this
Court that in Prithviraj Chauhan, Ram
Awtar, Ram Gopal (supra), and Union of
India Vs. State of Maharashtra (Supra),
facts and circumstances of the concerned
cases were totally different from the facts
and circumstances of the case in hand.
Since the relevant discussion has also
been mentioned earlier, there is no need
to reiterate it again, but it is very much
clear that the Hon'ble Supreme Court has
made an obitor dicta opinion that in
extraordinary and exceptional cases, a
petition under Section 482 Cr.P.C may be
entertained.

20. This court is of the considered
view that the circumstances pointed out in
the judgment cited by the learned counsel
for the applicants are not here. Hence, the
judgement of Gulam Rasool Khan & Ors
(Supra) the Supreme Court is not barred by
principle of per incurium.

21. This judgement has been passed
directly in respect of S.C / S.T Act and
Section 14-A of the aforesaid Act with
regard
to
the
provision
of
appeal.
5 All. Ashok Kumar Singh Vs. State of U.P. & Anr.
1239

22. On the basis of facts and
circumstances, it is concluded that this
application under Section 482 Cr.P.C is not
maintainable and is liable to be rejected.
However, remedy is open to the applicants
for filing an appeal under Section 14-A of
the S.C / S.T Act.

23. This Application under Section
482, is accordingly dismissed.
----------
(2023) 5 ILRA 1239
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.04.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482. No. 4003 of 2023

Ashok Kumar Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ravi Kant Pandey

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Section
482
-
Inherent power , Section 319 - Power
to
proceed
against
other
persons
appearing to be guilty of offence - much
stronger evidence than mere possibility
of complicity is required in the cases,
where the trial court is invoking the
jurisdiction under section 319 of Cr.P.C.
while summoning the accused - power
given to the court under section 319 of
Cr.P.C.
is
a
discretionary
and
extraordinary - should be exercised
sparingly and further it is not to be
exercised in supine and cavalier manner
-
strong
and
cogent
evidence
is
warranted
for
test
of
degree
of
satisfaction.(Para - 27)
Application under section 319 Cr.P.C. - trial
court summoned applicant - statements of P.W.-
1 to P.W.-3 mentioned in verbatim in the order -
recorded prima-facie case against applicant -
thus applicant summoned - Initially named in
initial
information
report
-
investigation
expunged - no material evidence found - final
report
submitted
-
without
applicant
involvement. (Para - 25)

HELD:-Trial court found prima-facie, a case
against applicant. No such finding or the degree
of satisfaction recorded that there are much
stronger case available against the applicant.
Trial court ignored the law enunciated by the
Apex Court. Impugned order set aside. Matter
remitted back to trial court to take a fresh
decision. (Para - 29,30,31)

Application u/s 482 Cr.P.C. allowed. (E-7)

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. At the very outset, Sri Kailash Nath
Mishra, learned counsel appearing for the
opposite party no. 2 has raised a
preliminary objection that this application
under
section
482
Cr.P.C.
is
not
maintainable against the order dated 06-042023 passed by the learned Additional
District & Sessions Judge, Gonda.

2 . He added that the impugned order
has been passed while invoking the
jurisdiction under section 319 of Cr.P.C.
and it's not an interlocutory order and the
same is revisable and therefore invoking
the inherent powers under section 482 of
Cr.P.C., is barred as the inherent power can
be invoked, when there is no overt or
express
provision
in
the
Criminal
Procedure
Code
or
otherwise
any
alternative remedy is available.

3. In support of his contentions, he
has placed reliance on the Judgment of the
Apex Court rendered in the case of Mohit