# Sher Ali v. State of U.P. & Anr

- **Citation:** (2021) 10 ILRA 517
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-02-17
- **Case number:** Application U/S 482 Cr.P.C. No. 12850 of 2021
- **Bench:** Anil Kumar Ojha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sher-ali-v-state-of-u-p-anr-46364
- **Pages:** 5

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 - Section
323, 504 and 506 - SC/ST (Prevention of
Atrocities) Amendment Act, 2015 - Section
3(1)(D), Dha , Section 14A(1) - Appeals -
taking cognizance of an offence and
summoning the accused is intermediate
order. (Para - 6)

Police submitted charge-sheet against applicant
for the offence - cognizance order passed by
Special Judge SC/ST Act - summoned applicant
to face trial - Application filed U/S 482 to quash
entire criminal proceeding .
518 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD:-If any intermediate order is passed by
Special Court or an exclusive Special Court in
case relating to an offence in the S.C./S.T. Act,
that will come in the category of order as
provided under Section 14A(1) of SC/ST Act
against which only an appeal shall lie before the
High Court, both on facts and on law.
Application U/s 482 Cr.P.C. cannot be filed
against cognizance order passed by Special
Judge, S.C./S.T. Act. (Para - 10,11)

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

List of Cases cited:-

## Text

10 All. Sher Ali Vs. State of U.P. & Anr.
517
upon the earlier decision of Masiuddin v.
Commissioner Allahabad, found that mere
involvement in criminal case cannot in any
way affect the public security or public
interest. The law propounded in the said
decisions has been subsequently following
in Habib v. State of U.P. 2002 44 ACC 783.

10. In the matter of Mulayam Singh
(supra), the court has taken the view that
mere involvement in a criminal case is no
ground for cancelling a arms licence under
Section 17 of the Act, 1959. Paragraphs 8
and 12 of the said judgment are quoted
below:-

"8. Even otherwise, it is well
settled that mere involvement in a criminal
case is no ground for cancelling a licence
under Section 17 of the Act."

11. After considering the fact and
judgments relied upon, it is held that only
apprehension or pendency of solitary
criminal case not coupled with factum of
fraud can be a ground for cancellation of
arms licence. In the present case, petitioner
has
neither
obtained
arms
licence
fraudulently nor having any criminal
history, but it has been cancelled only on
the ground of apprehension, which is bad
and not sustainable in the eye of law.

12. Therefore, the impugned orders
dated 10.5.2016 passed by respondent no.
3-District
Magistrate,
Gorakhpur
and
17.2.2018
passed
by
Divisional
Commissioner, Gorakhpur-respondent no.
2 are hereby quashed. The writ petition is
allowed.
The
District
Magistrate,
Gorakhpur is directed to issue the arms
licence in favour of the petitioner within a
period of two months from the date of
production of computer generated copy of
this order after verifying the same from
official website of Allahabad High Court.
In case term of arms licence has been
expired, he shall also renew the same in
accordance with law within the same
period.

13. After issuance of arms licence his
pistol shall also be released from the
Malkhana
of
Police
Station
Gagaha
forthwith.
----------
(2021)10ILR A517
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.10.2021

BEFORE

THE HON'BLE ANIL KUMAR OJHA, J.

Application U/S 482 Cr.P.C. No. 12850 of 2021

Sher Ali ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri A Kumar Srivastava, Sri Anand Kumar
Upadhyay, Husnaara Khatoon, Sri Ramesh
Prasad

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 - Section
323, 504 and 506 - SC/ST (Prevention of
Atrocities) Amendment Act, 2015 - Section
3(1)(D), Dha , Section 14A(1) - Appeals -
taking cognizance of an offence and
summoning the accused is intermediate
order. (Para - 6)

Police submitted charge-sheet against applicant
for the offence - cognizance order passed by
Special Judge SC/ST Act - summoned applicant
to face trial - Application filed U/S 482 to quash
entire criminal proceeding .
518 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD:-If any intermediate order is passed by
Special Court or an exclusive Special Court in
case relating to an offence in the S.C./S.T. Act,
that will come in the category of order as
provided under Section 14A(1) of SC/ST Act
against which only an appeal shall lie before the
High Court, both on facts and on law.
Application U/s 482 Cr.P.C. cannot be filed
against cognizance order passed by Special
Judge, S.C./S.T. Act. (Para - 10,11)

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

List of Cases cited:-

1. Girish Kumar Suneja Vs CBI, (2017) 14 SCC
809

2. Madhu Limaye Vs St of Mah., (1997) 4 SCC
551

(Delivered by Hon'ble Anil Kumar Ojha, J.)

1. Heard learned counsel for the
applicant, learned A.G.A. for the State and
perused the record.

2. This Application U/s 482 Cr.P.C.
has been filed with a prayer to quash the
entire criminal proceeding of Special S.T.
No. 187 of 2020 U/s 323, 504 and 506
I.P.C. and Section 3(1)(D), Dha SC/ST
Act,
P.S.
Naini,
District
Prayagraj
pending before learned Special Judge
SC/ST Act, Allahabad (Prayagraj) arising
out of Case Crime No. 0223 of 2020 U/s
323, 504, 506 I.P.C. and Section 3(1)(D),
Dha SC/ST Act, P.S. Naini, District
Prayagraj alongwith charge-sheet dated
09.07.2020 submitted by the police
against the applicant for the offence as
well as cognizance order dated 2.12.2020
passed by learned Special Judge SC/ST
Act, Allahabad (Prayagraj).

3. In Girish Kumar Suneja v. CBI,
(2017) 14 SCC 809, three Judge Bench of
Hon'ble Apex Court has made following
observations in para nos. 21, 22 and 23:

"21.
The
concept
of
an
intermediate order was further elucidated
in Madhu Limaye v. State of Maharashtra
by contradistinguishing a final order and
an interlocutory order. This decision lays
down the principle that an intermediate
order is one which is interlocutory in
nature but when reversed, it has the effect
of terminating the proceedings and thereby
resulting in a final order. Two such
intermediate orders immediately come to
mind-an order taking cognizance of an
offence and summoning an accused and an
order for framing charges. Prima facie
these orders are interlocutory in nature,
but when an order taking cognizance and
summoning an accused is reversed, it has
the effect of terminating the proceedings
against that person resulting in a final
order in his or her favour. Similarly, an
order for framing of charges if reversed
has the effect of discharging the accused
person and resulting in a final order in his
or her favour. Therefore, an intermediate
order is one which if passed in a certain
way, the proceedings would terminate but if
passed in another way, the proceedings
would continue.

22. The view expressed in Amar
Nath and Madhu Limaye was followed in
K.K. Patel v. State of Gujarat wherein a
revision petition was filed challenging the
taking of cognizance and issuance of a
process. It was said :

It is now well-nigh settled that in
deciding whether an order challenged is
interlocutory or not as for Section 397(2) of
the Code, the sole test is not whether such
order was passed during the interim stage
(vide Amar Nath v. State of Haryana,
10 All. Sher Ali Vs. State of U.P. & Anr.
519
Madhu Limaye v. State of Maharashtra,
V.C. Shukla v. State through CBI and
Rajendra Kumar Sitaram Pande v. Uttam.
The feasible test is whether by upholding
the objections raised by a party, it would
result in culminating the proceedings, if so
any order passed on such objections would
not be merely interlocutory in nature as
envisaged in Section 397(2) of the Code. In
the present case, if the objection raised by
the appellants were upheld by the Court the
entire prosecution proceedings would have
been terminated. Hence, as per the said
standard, the order was revisable."

23. We may note that in different
cases, different expressions are used for the
same category of orders-sometimes it is
called an intermediate order, sometimes a
quasi-final order and sometimes it is called
an order that is a matter of moment. Our
preference
is
for
the
expression
"intermediate order" since that brings out
the nature of the order more explicitly."

4. From the perusal of the prayer
made by applicant, it is clear that applicant
has prayed to quash the cognizance order
dated 2.12.2020 passed by learned Special
Judge SC/ST Act, Allahabad (Prayagraj)
which reads as follows:

"02.12.2019-

आज वििेचक क्षेत्राविकारी
करछना
प्रयागराज अपराि संख्या-223/2020, िारा -
323, 504 ि 506 भारतीय दंड संविता एिं
िारा- 8(1) D, Dh अनु0 जावत/अनु0 जन0
अत्याचार वन0 अवि0 थाना नैनी से सम्बंवित
समस्त प्रपत्र एिं आरोपपत्र के साथ न्यायलय
में उपस्थथत िैं। उनके द्वारा अवभयुक्त शेर
अली के विरुद्ध िारा- 323,504 ि 506 भारतीय
दंड संविता एिं िारा-3(2) D, Dh अनु0
जावत/अनु0 जन अत्याचार वन0 अवि0 में
आरोपपत्र दास्िल वकया गया िै ।

अवभयुक्त की वगरफ्तारी वििेचना के
दौरान निीं की गयी िै। वििेचक द्वारा
संकवलत वकये गए साक्ष्ों का सम्यक
पररशीलन वकया और संकवलत साक्ष्ों के
आिार पर अवभयुक्त के विरूद्ध प्रसंज्ञान
वलया जाता िै। दजज रवजस्टर िो। अवभयुक्त
शेर अली के विरुद्ध सम्मन जारी िो। पत्रािली
वदनांक 05.01.2021 को पेश िो।"

In Re: Provision of Section 14a
of SC/ST (Prevention of Atrocities)
Amendment Act, 2015, full Bench of this
Court has held as follows:

"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
520 INDIAN LAW REPORTS ALLAHABAD SERIES
made in Section 14A. This, we hold
also in light of our finding that the
word "order" as occurring in subsection(1) of Section 14A would also
include intermediate orders."

5. Perusal of the record reveals
that applicant has also prayed to quash
cognizance
order
dated
2.12.2020
passed by Special Judge SC/ST Act,
Allahabad (Prayagraj) by which learned
Special
Judge
SC/ST
Act
has
summoned the applicant to face the trial
U/s 323, 504 and 506 I.P.C. and Section
3(1)(D), Dha SC/ST Act to face the
trial.

6. In Girish Kumar Suneja v. CBI
(Supra), Honble Apex Court in para 21
has specifically stated referring the
judgement of Madhu Limaye Vs. State
of Maharashtra (1997) 4 SCC 551 that
taking cognizance of an offence and
summoning the accused is intermediate
order, thus impugned cognizance order
dated 2.12.2020 is an intermediate
order.

7. Now it is to be seen whether
Application U/s 482 Cr.P.C. lies against
the impugned cognizance order dated
2.12.2020 or appeal will lie under
Section 14A(1) of the S.C./S.T. Act.

8. Relevant portion of Section
14A(1) of the S.C./S.T. Act. are quoted
below for ready reference:

"14A.
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."From the perusal of provisions of
Section 14A(1) of the Scheduled Castes
and the Scheduled Tribes (Prevention of
Atrocities Act), 1989, it is clear that an
Appeal shall lie from any judgement,
cognizance order, order not being
interlocutory order of Special Court, or
an exclusive Special Court to the High
Court, both on facts and on law."

9. Full Bench of this Court in Re:
Provision of Section 14a of SC/ST
(Prevention of Atrocities) Amendment
Act, 2015 while answering question B
has specifically stated- "we hold also in
light of our finding that the word "order"
as occurring in sub-section(1) of Section
14A would also include intermediate
orders."

10. Thus if any intermediate order is
passed by Special Court or an exclusive
Special Court in case relating to an
offence in the S.C./S.T. Act, that will
come in the category of order as provided
under Section 14A(1) of SC/ST Act
against which only an appeal shall lie
before the High Court, both on facts and
on law.

11. In view of the above discussion,
I am of the considered opinion that
Application U/s 482 Cr.P.C. cannot be
filed against cognizance order dated
2.12.2020 passed by learned Special
Judge,
S.C./S.T.
Act,
Allahabad
(Prayagraj).

12. This Application U/s 482
Cr.P.C.
is
disposed
of
with
the
observation that applicant is permitted to
file fresh petition before the appropriate
forum.
----------
10 All. Teetu Vs. State of U.P.
521
(2021)10ILR A521
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.10.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 6279 of 2010

Teetu ...Appellant(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Govind Saran Hajela, Sri Yogesh
Srivastava, Sri Noor Mohammad

Counsel for the Respondent:
A.G.A.

Quantum of Sentence- Principle of
Proportionality- While determining the
quantum of sentence, the court should
bear
in
mind
the
'principle
of
proportionality'.
Sentence
should
be
based on facts of a given case. Gravity of
offence, manner of commission of crime,
age and sex of accused should be taken
into
account.
The
criminal
justice
jurisprudence adopted in the country is
not retributive but reformative and
corrective. At the same time, undue
harshness
should
also
be
avoided
keeping
in
view
the
reformative
approach underlying in our criminal
justice system. All measures should be
applied to give them an opportunity of
reformation in order to bring them in the
social stream.

Settled
law
that
Sentence
should
be
proportionate to the nature and gravity of the
offence while taking into account the age and
sex of the accused and as the judicial system of
India is reformative and not retributive, hence
effort should be made to bring back the accused
in the social stream.
Quantum of Sentence- Conviction under
section 376 IPC- Sentenced to undergo
rigorous imprisonment for life- Appellant
already
undergone
12
years
of
incarceration- Sentence awarded by
learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Appellant is languishing in jail
for the last more than 12 years. Since, the
appellant has already served 12 years in
jail, ends of justice will be met if sentence
is
reduced
to
the
period
already
undergone.

Under the facts of the case, sentence of
imprisonment for life held to be too harsh and
disproportionate to the offence hence sentence
reduced to the period already undergone. ( Para
13, 14, 15, 17, 18, 19)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

1. Mohd. Giasuddin Vs St. of A.P., [AIR 1977 SC
1926],

2. Deo Narain Mandal Vs St. of U.P. [(2004) 7
SCC 257]

3. Ravada Sasikala Vs St. of A.P. AIR 2017 SC
1166

(Delivered by Hon'ble Ajai Tyagi, J.)

1. By way of this appeal, the
appellant-Teetu
has
challenged
the
Judgment and order 21.08.2010 passed by
court of Additional Sessions Judge/FTC 3,
Firozabad in Session Trial No.84 of 2010
arising out of Case Crime No.482 of 2009
under Section 376 Indian Penal Code,
Police
Station-Rasoolpur,
DistrictFirozabad whereby the accused-appellant
was convicted under Section 376 IPC and
sentenced to imprisonment for life with
fine of Rs.5,000/- and in case of default of
payment of fine, to undergo further
imprisonment for one year.