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

- **Citation:** (2025) 5 ILRA 205
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-15
- **Case number:** Criminal Misc. Writ Petition No. 9733 of 2025
- **Bench:** Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shashank-mishra-v-state-of-u-p-ors-53341
- **Pages:** 6

## Headnote

Law
-
Constitution
of
Indian,1950 - Article 226 & 227 - Criminal
Procedure Code, 1973 - Section 50 -
Indian Penal Code, 1860 -Sections 120-B,
307,
323,
498-A
&
506
-
Dowry
Prohibition Act, 1961 - Sections 3 & 4 -
Writ Petition - FIR - Arrest - Allegation of
procedural
irregularity
-
Accused-petitioner
contends neither he nor his family was informed
of grounds of arrest - produced before remand
magistrate - grievance that Remand Magistrate
failed to address procedural lapse or afford fair
hearing - relying on Supreme Court's decision in
Prabir Purkayastha Vs St. (NCT of Delhi),
petitioner moved application before Additional
Sessions Judge seeking to set aside remand
order - Application remain pending - present
writ petition filed seeking direction to decide
said application expeditiously - court observed
that - (i) petitioner's bail application already
rejected on merits by coordinate bench, (ii)
entertaining present writ would amount to
indirectly overturning coordinate bench's order
and directing lower court to review its bail
rejection, (iii) petition suffers from unexplained
delay and laches, (iv) petitioner failed to raise
issue of illegal arrest during bail proceedings
before Sessions Court or High Court, - court
held that, (i) collateral challenge is legally
impermissible and tantamount to subverting the
hierarchy and finality of judicial orders, (ii) writ
jurisdiction under Article 226 cannot be invoked
to bypass statutory remedies under Cr.P.C. -
accordingly, writ petition is dismissed. (Para -
14, 15, 16, 17)

Writ Petition Dismissed. (E-11)

List of Cases cited:

## Text

5 All. Shashank Mishra Vs. State of U.P. & Ors.
205
towards the sentence awarded by this Court
in terms of Section 428 Cr.P.C.

58. It is directed that the accusedappellant shall furnish personal bond and
two sureties in the like amount to the
satisfaction of the court concerned within
four weeks from the date of his release
from jail in compliance with the provisions
of Section 437-A Cr.P.C.

59. Let the trial court record along
with a copy of this judgment be transmitted
forthwith to the learned trial Court
concerned for information and necessary
compliance through fax/ e-mail.
----------
(2025) 5 ILRA 205
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2025

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE ANIL KUMAR-X J.

Criminal Misc. Writ Petition No. 9733 of 2025

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

Counsel for the Petitioner:
Krishna Kumar, Praveen Shrivastav

Counsel for the Respondents:
G.A.

Criminal
Law
-
Constitution
of
Indian,1950 - Article 226 & 227 - Criminal
Procedure Code, 1973 - Section 50 -
Indian Penal Code, 1860 -Sections 120-B,
307,
323,
498-A
&
506
-
Dowry
Prohibition Act, 1961 - Sections 3 & 4 -
Writ Petition - FIR - Arrest - Allegation of
procedural
irregularity
-
Accused-petitioner
contends neither he nor his family was informed
of grounds of arrest - produced before remand
magistrate - grievance that Remand Magistrate
failed to address procedural lapse or afford fair
hearing - relying on Supreme Court's decision in
Prabir Purkayastha Vs St. (NCT of Delhi),
petitioner moved application before Additional
Sessions Judge seeking to set aside remand
order - Application remain pending - present
writ petition filed seeking direction to decide
said application expeditiously - court observed
that - (i) petitioner's bail application already
rejected on merits by coordinate bench, (ii)
entertaining present writ would amount to
indirectly overturning coordinate bench's order
and directing lower court to review its bail
rejection, (iii) petition suffers from unexplained
delay and laches, (iv) petitioner failed to raise
issue of illegal arrest during bail proceedings
before Sessions Court or High Court, - court
held that, (i) collateral challenge is legally
impermissible and tantamount to subverting the
hierarchy and finality of judicial orders, (ii) writ
jurisdiction under Article 226 cannot be invoked
to bypass statutory remedies under Cr.P.C. -
accordingly, writ petition is dismissed. (Para -
14, 15, 16, 17)

Writ Petition Dismissed. (E-11)

List of Cases cited:

1. U.O.I.& anr. vs Kirloskar Pneumatic Co. Ltd.-
(1996) 4 SCC 453,

2. Eastern Coalfields Ltd. Vs Dugal Kumar - AIR
2008 SC 3000,

3. Shankar Ramchandra Abhyankar Vs Krishnaji
Dattatreya Bapat - AIR 1970 SC 1,

4. Lallubhai Jogibhai Patel Vs U.O.I.- (1981) 2
SCC 427,

5. Manjeet Singh @ Inder @ Manjeet Singh
Chana Vs St. of U.P. & ors.- Criminal Misc. Writ
Petition No.934 of 2025,

6. Sachin Soni @ Aansu @ Sachin Kumar Soni
Vs St. of U.P. & ors.- Criminal Misc. Writ Petition
No. 905 of 2025,

7. Prabir Purkayastha Vs State (NCT of Delhi)
(supra) - LAWS (SC)-2024-5-46,
206 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Mohammad Amir Kasab @ Abu Mujahid Vs St.
of Mah. - (2012) 8 SCC 1 (Paras 484-488),

9. Pankaj Bansal Vs U.O.I.- LAWS (SC)-2023-103,

10. Vihaan Kumar Vs St. of Har. - LAWS (SC)-
2025-2-20 (Para-21)

11. Ashish Kakkar Vs UT of Chandigarh -
Criminal Appeal No.1518 of 2025 arising out of
SLP (Crl.) No.1662 of 2025 decided on
25.03.2025.

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.
&
Hon'ble Anil Kumar-X, J.)

1. Heard Sri Praveen Shrivastava,
learned counsel for the petitioner; Sri
Paritosh Malviya, learned AGA-I for the
State-respondents; and perused the material
available on record.

2. The present writ petition has
been filed seeking the following relief:

"(i) Issue an order or direction in
the nature of Mandamus directing the
learned Additional District Judge, Fast
Track Court (O.A.W.), Jhansi, to decide the
pending application dated 29.04.2025,
annexed herewith as Annexure No. 5 to the
petition, strictly in light of the principles
laid down by the Hon'ble Supreme Court
and reiterated by this Hon'ble Court in
Writ Petition No. 934 of 2025 (Manjeet
Singh @ Inder @ Manjeet Singh Chana Vs.
State of U.P. & Others), annexed as
Annexure No. 4 to the petition."

3. The petitioner contends that an
FIR bearing Case Crime No. 396 of 2023
was registered against him under Sections
498-A, 323, 506, 120-B, and 307 of the
Indian Penal Code, 18601, along with
Sections 3 and 4 of the Dowry Prohibition
Act, 19612, at Police Station Navabad,
District Jhansi, on 09.10.2023. He was
arrested the following day, i.e., on
10.10.2023. It is specifically asserted that at
the time of his arrest, the grounds thereof
were
neither
disclosed
to
him
nor
communicated to any of his family
members or any person authorized by him.
Drawing attention to the arrest memo
(Annexure No. 2), learned counsel submits
that the same does not indicate any distinct
column containing the grounds of arrest.
When the petitioner was produced before
the
learned
Remand
Magistrate
on
10.10.2023, the said irregularity was
overlooked. It is further pointed out,
referring to Annexure No. 1, the remand
sheet, that the learned Magistrate did not
record any observation regarding the noncompliance by the Investigating Officer in
respect of the mandatory requirement of
disclosing
the
grounds
of
arrest.
Furthermore, the petitioner was not granted
an effective opportunity of hearing at the
stage of remand proceedings.

4. In view of the aforesaid
circumstances, the petitioner preferred an
application dated 29.04.2025 before the
Additional Sessions Judge, Fast Track
Court, Jhansi, praying for setting aside of
the remand order in light of the law laid
down by the Hon'ble Supreme Court in
Prabir Purkayastha Vs. State (NCT of
Delhi) (supra)3. Hence, the instant writ
petition has been filed seeking a direction
in the nature of Mandamus to the said court
to
expeditiously
decide
the
pending
application
dated
29.04.2025,
in
consonance with the principles laid down
in the judgments cited above.

5. Learned counsel has placed
strong reliance on a catena of decisions
5 All. Shashank Mishra Vs. State of U.P. & Ors.
207
including Mohammad Amir Kasab @
Abu Mujahid Vs. State of Maharashtra,4
Prabir Purkayastha (Supra), Pankaj
Bansal Vs. Union of India5, Vihaan
Kumar Vs. State of Haryana6, and
Ashish Kakkar Vs. UT of Chandigarh7.
These decisions, it is contended, underscore
the imperative of compliance with the
mandate of Section 50 Cr.P.C. and Article
22(1) of the Constitution of India. In each
of these cases, the Hon'ble Supreme Court
has
consistently
held
that
noncommunication of the grounds of arrest
renders the arrest unconstitutional and
illegal, warranting the release of the
accused.

6. Further reliance is placed on the
recent judgment dated 09.04.2025 passed
by a Division Bench of this Court in
Manjeet Singh @ Inder @ Manjeet
Singh Chana Vs. State of U.P. and
Others8, and the judgment of the same
date in Sachin Soni @ Aansu @ Sachin
Kumar Soni Vs. State of U.P. and
Others9, wherein this Court, following the
aforesaid principles, set aside the orders of
judicial remand and ordered the release of
the
petitioners
on
account
of
noncommunication of grounds of arrest.

7. On the other hand, Sri Paritosh
Malviya, learned AGA, appearing for the
State-respondents, has opposed the petition,
contending
that
criminal
proceedings
against the petitioner are already at an
advanced stage. It is submitted that the case
has been committed to the Court of
Sessions and is currently pending trial
before the Additional Sessions Judge, Fast
Track Court, Jhansi. The petitioner's bail
application has already been rejected by the
learned Magistrate and Sessions Court, and
subsequently by this Court, vide order
dated 15.04.2024. In these circumstances, it
is argued that the relief sought through the
present writ petition is not maintainable at
this belated stage.

8. We have considered the rival
submissions advanced by learned counsel
for the parties, perused the material on
record
and
have
given
thoughtful
consideration to the judicial precedents
cited.

9. The arrest memo, annexed as
Annexure No. 2, reveals that the arresting
officer merely mentioned the case crime
number under which the petitioner was
apprehended and recorded the name and
mobile number of his uncle to whom the
arrest information was conveyed. However,
the
remand
sheet
dated
10.10.2023
(Annexure No. 1) discloses that when the
petitioner
was
produced
before
the
Magistrate, he was offered legal assistance
through free legal aid, which he declined.
The same document records that the
petitioner was afforded an opportunity of
hearing. Apparently an opportunity of legal
assistance
was
provided
which
was
declined by the petitioner himself, and he
also failed to raise any grievance at the
stage of remand. As such he cannot claim
before this Court to have been denied the
opportunity. The law is well settled that a
party who chooses not to avail of a remedy
or right at the appropriate stage cannot be
permitted to agitate the same at a later point
in time. Thus, this contention of the
petitioner lacks merit.

10. The other limb of the argument
that the grounds of arrest were not
communicated appears to have some
substance. The arrest memo merely reflects
the case crime number but does not
disclose the actual grounds or basis of
arrest. Such mere reference cannot be
208 INDIAN LAW REPORTS ALLAHABAD SERIES
equated with "communication of grounds
of arrest" as envisaged under Article 22(1)
of the Constitution of India and Section 50
Cr.P.C. In Lallubhai Jogibhai Patel Vs.
Union of India10, the Hon'ble Apex Court
interpreted the term "communicate" to
mean imparting sufficient knowledge of the
basic facts constituting the grounds of
arrest, in writing, and in a language
understood by the accused. In the present
case, such effective communication appears
to be lacking.

11. Notwithstanding the above, it is
pertinent to note that the petitioner has
approached this Court nearly one and a half
years
after
the
arrest.
During
this
intervening period, his bail applications
were rejected at multiple stages including
by this Court. As such the instant matter is
distinguishable with Manjeet Singh (Supra)
and Sachin Soni (Supra). At no point prior
to the present proceedings did the petitioner
raise the issue of illegal arrest or violation
of his constitutional rights. The legal
position laid down in Vihaan Kumar
(supra) cannot be stretched to imply that a
litigant who remained silent throughout
can, at any stage, invoke the extraordinary
jurisdiction under Article 226 to challenge
his remand. The same is reproduced herein
below:-

"21. Therefore, we conclude:

a) The requirement of informing
a person arrested of grounds of arrest is a
mandatory requirement of Article 22(1);

b) The information of the grounds
of arrest must be provided to the arrested
person in such a manner that sufficient
knowledge of the basic facts constituting
the grounds is imparted and communicated
to the arrested person effectively in the
language which he understands. The mode
and method of communication must be such
that the object of the constitutional
safeguard is achieved;

c) When arrested accused alleges
non-compliance with the requirements of
Article 22(1), the burden will always be on
the Investigating Officer/Agency to prove
compliance with the requirements of Article
22(1);

d) Non-compliance with Article
22(1) will be a violation of the fundamental
rights of the accused guaranteed by the
said Article. Moreover, it will amount to a
violation of the right to personal liberty
guaranteed
by
Article
21
of
the
Constitution. Therefore, non-compliance
with the requirements of Article 22(1)
vitiates the arrest of the accused. Hence,
further orders passed by a criminal court of
remand are also vitiated. Needless to add
that it will not vitiate the investigation,
charge sheet and trial. But, at the same
time, filing of chargesheet will not validate
a breach of constitutional mandate under
Article 22(1);

e) When an arrested person is
produced before a Judicial Magistrate for
remand, it is the duty of the Magistrate to
ascertain whether compliance with Article
22(1) and other mandatory safeguards has
been made; and

f) When a violation of Article
22(1) is established, it is the duty of the
court to forthwith order the release of the
accused. That will be a ground to grant
bail even if statutory restrictions on the
grant
of
bail
exist.
The
statutory
restrictions do not affect the power of the
court to grant bail when the violation of
Articles 21 and 22 of the Constitution is
established."

12. In clause (f) of the judgment in
Vihaan Kumar (supra), the Supreme
Court clearly observed that release on the
ground of violation of constitutional rights
5 All. Shashank Mishra Vs. State of U.P. & Ors.
209
can be granted only if such violation is
brought to the notice of the Court by the
accused or otherwise. In the case at hand,
the record confirms that legal aid was
offered to the petitioner, which he declined.
He neither challenged his arrest earlier nor
made
any
grievance
during
bail
proceedings. The present petition appears
to be a disguised attempt to secure release
on grounds that were never taken or
agitated before the appropriate forums.

13. This Court further notes that
entertaining the present writ petition would
effectively amount to nullifying the order
passed by a coordinate Bench of this Court
on 15.04.2024 rejecting the petitioner's
bail. Such an action is not legally
permissible, as it would amount to
reviewing the said order under the guise of
fresh relief. The doctrine of merger, as
expounded
in Shankar
Ramchandra
Abhyankar Vs. Krishnaji Dattatreya
Bapat11, is applicable. The remedy now
sought is not distinct but is essentially a
reiteration of the relief already denied. The
same is extracted as below:-

"3. Now as is well known Section
115 of the Civil Procedure Code empowers
the High Court to call for the record of any
case which has been decided by any court
subordinate to it and in which no appeal
lies to it. It can interfer if the subordinate
court appears to have exercised the
jurisdiction not vested in it by law or to
have failed to exercise the jurisdiction so
vested or to have acted in the exercise of its
jurisdiction
legally
or
with
material
illegality. The limits of the jurisdiction of
the High Court under this section are well
defined by a long course of judicial
decisions. If the revisional jurisdiction is
invoked and both parties are heard and an
order is made the question is whether the
orders of the subordinate court has become
merged in the order of the High Court. If it
has got merged and the order is only of the
High Court, the order of the subordinate
court cannot be challenged or attacked by
another set of proceedings in the High
Court, namely, by means of a petition
under
Article
226
or
227
of
the
Constitution. It is only if by dismissal of the
revision
petition
the
order
of
the
subordinate court has not become merged
in that of the High Court that it may be
open to party to invoke the extraordinary
writ jurisdiction of that court. There again
the question will arise whether it would be
right and proper for the High Court to
interfere with an order of a subordinate
court in a writ petition when a petition for
revision under Section 115, C.P.C., against
the same order has been dismissed. Such a
consideration will also enter into the
exercise of discretion in a petition under
Article 225 or 227."

14. A perusal of the said judgment
is sufficient to cover this particular matter.
Here, the bail application of petitioner was
rejected by High Court. It is apparent that
grievance of illegal arrest was not raised
either before Session Judge or High Court.
Consequences which will follow, if this
writ petition is allowed, were considered by
us. Allowing this petition by setting the
petitioner at liberty will result in upsetting
the earlier order passed by another bench,
vide which bail of petitioner was rejected
on merits. It will mean that custody of
petitioner, which was earlier held legal by
another bench, will be reviewed by this
Bench after holding that the custody of
petitioner was illegal from the very
beginning. Interpretation of what has been
held in Vihan ( Supra) and other judgments
referred above can not be stretched so far.
Allowing the writ petition will also mean to
210 INDIAN LAW REPORTS ALLAHABAD SERIES
direct Additional District Court Fast Track
to review its earlier order of bail rejection.
Doctrine of merger as held in Shankar
Ramchandra ( Supra) is applicable here
also. Bail rejected by Session Judge was
also rejected by High Court. Allowing the
writ petition will mean to direct Additional
District Judge Fast Track Court to consider
the application dated 29.04.2025 and
indirectly asking to reconsider the bail
application rejected by the High Court.

15. Moreover, the petition suffers
from gross delay and laches, which remain
unexplained. In Eastern Coalfields Ltd.
Vs. Dugal Kumar12, the Hon'ble Supreme
Court observed that constitutional remedies
must be sought promptly and diligently.
The belated filing of the present petition
casts serious doubt on the bona fides of the
petitioner and indicates an ulterior motive
of forum-shopping. Relevent extract is
elucidated as below:-

"It is well-settled that under Article
226 of the Constitution, the power of a High
Court to issue an appropriate writ, order or
direction is discretionary. One of the grounds
to refuse relief by a writ Court is that the
petitioner is guilty of delay and laches. It is
imperative, where the petitioner invokes extraordinary remedy under Article 226 of the
Constitution, that he should come to the Court
at the earliest reasonably possible opportunity.
Inordinate delay in making the motion for a
writ is indeed an adequate ground for refusing
to exercise discretion in favour of the
applicant." (Emphasis supplied)

16. This Court is of the considered
view that the extraordinary writ jurisdiction
under Article 226 of the Constitution of
India cannot be invoked to circumvent the
statutory remedies provided under the
Cr.P.C. Judicial orders, once passed, attain
sanctity and cannot be lightly unsettled by
collateral proceedings. Entertaining such
petitions
would
open
floodgates
of
litigation and severely impair the integrity
of judicial decisions. The same was held in
Union Of India And Anr vs Kirloskar
Pneumatic Company Limited13 as, "The
power conferred by Article 226/227 is
designed to effectuate the law, to enforce
the Rule of law and to ensure that the
several authorities and organs of the
State act in accordance with law. It
cannot be invoked for directing the
authorities to act contrary to law."

17. The final prayer in the writ
petition-seeking a writ of mandamus to
the Additional Sessions Judge for disposal
of the application dated 29.04.2025 is not
based on sound legal footing. It essentially
aims to override or indirectly invalidate the
judicial remand and the rejection of bail
orders already passed. Such a course is
legally impermissible and tantamount to
subverting the hierarchy and finality of
judicial orders.

18. In light of the aforementioned
discussion, this Court finds no merit in the
writ petition. Accordingly, the same stands
dismissed.
----------
(2025) 5 ILRA 210
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2025

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE MADAN PAL SINGH, J.

Criminal Misc. Writ Petition No. 16327 of 2024

Kamalveer Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents