# Shivam Kashyap v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 2 ILRA 1232
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-13
- **Case number:** Application u/s 482 No. 12798 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivam-kashyap-v-state-of-u-p-anr-opp-parties-51330
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 482 - Indian Penal Code,
1860 - Sections 147, 148, 302 & 307 -
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Sections 3(2)(v), 14-A, 18 & 18-A -
Application U/s 482 Cr.P.C. - for quashing the
charge-sheet and the entire criminal proceeding
-
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', - court finds that, applicant
has a statutory remedy to file an appeal under
Section 14-A of the SC/ST Act, 1989 - and the
judgments placed by the applicant in support of
maintainability would not affect the binding
nature of the law laid down by the Full Bench in
a case of 'Ghulam Rasool Khan- - Court held
that - law on the point stands clarified by two
full benches that inherent power u/s 482 Cr.P.C.
cannot be invoked in cases where an appeal
would lie under section 14-A of the Act, 1989 -
therefore, instant application stands dismissed
with liberty to the applicant to available the
statutory remedy of filing an appeal under
section 14-A, accordingly.
(Para - 12, 13, 14, 15)

Application Dismissed. (E-11)

List of referred Cases: -

## Text

1232 INDIAN LAW REPORTS ALLAHABAD SERIES
not requested. Also the payment of the
cheque in question was stopped by
applicants much after the alleged payment
in cash to the complainant was made, and
concededly, no intimation in this regard
was sent to the applicants.

11. Apart from the above, a perusal of
the vernacular of the photo copy of the
receipt dated 7th August, 2015 (Annexure17) would show that it is issued by Munna,
and it also contains the shop number as 608
with an amount mentioned against it as Rs.
15,908/-
till
June,
2015.
Even
the
applicants have mentioned in paragraph 13
of the application that the sum of Rs.
15,908/- was also paid to the complainant
as maintenance charges, thus, the stand of
the applicants that a sum of Rs. 20,000/-
was paid against the cheque dated 7th
August, 2015 cannot be accepted for want
of evidence, particularly when in the
counter affidavit, the complainant has
specifically denied the receipt of cash
amount of Rs. 20,000/- as alleged by the
applicants.

12. Consequently, in view of the
above background, this Court has no
hesitation in holding that the ground raised
by the accused-applicants for quashing of
the impugned complaint are based upon
disputed facts, and as the instrument in
question carries a presumption that it was
issued for discharge of debt or other
liability, therefore, the applicants are
required to rebut the same by leading their
defence evidence.

13. At this stage, learned counsel for
the applicants has pointed out that the
applicants have also moved an application
under Section 340 Cr.P.C. against the
landlord-opposite party no. 2 for filing
forged letters at pages 11, 12 and 13 of the
counter affidavit, which are written by the
landlord to the applicant no. 2 relating to
the extension of lease agreement, and on
these letters, the signatures of the applicant
no. 2 with the stamp has been forged. The
document is being questioned only on the
ground that it contains the signature and
stamp of applicant no. 2 which is not
possible, but admittedly, there is no denial
of the contents and substance of these
letters, therefore, prima facie, it does not
seem to be a case of any forgery. Thus, no
interference is called for in the application
under Section 340 Cr.P.C. also.

14. No other argument has been
raised.

15. Resultantly, without meaning any
expression of opinion on the merits of this
case, this Court is not inclined to exercise
the inherent powers under Section 482
Cr.P.C and the application is hereby
dismissed.

16. However, it is made clear that it
shall be open for the applicants to lead
evidence before the trial court in support of
the defence raised herein.
----------
(2024) 2 ILRA 1232
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.02.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application u/s 482 No. 12798 of 2023

Shivam Kashyap ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel
for
the
Applicant:
2 All. Shivam Kashyap Vs. State of U.P. & Anr.
1233
Trideep Narayan Pandey, Deepankar Kumar,
Priya Singh

Counsel for the Opp. Parties:
G.A., G.K. Dikshit, Gopal Krishna Dixit

Criminal Law - Criminal Procedure Code,
1973 - Sections 482 - Indian Penal Code,
1860 - Sections 147, 148, 302 & 307 -
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Sections 3(2)(v), 14-A, 18 & 18-A -
Application U/s 482 Cr.P.C. - for quashing the
charge-sheet and the entire criminal proceeding
-
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', - court finds that, applicant
has a statutory remedy to file an appeal under
Section 14-A of the SC/ST Act, 1989 - and the
judgments placed by the applicant in support of
maintainability would not affect the binding
nature of the law laid down by the Full Bench in
a case of 'Ghulam Rasool Khan- - Court held
that - law on the point stands clarified by two
full benches that inherent power u/s 482 Cr.P.C.
cannot be invoked in cases where an appeal
would lie under section 14-A of the Act, 1989 -
therefore, instant application stands dismissed
with liberty to the applicant to available the
statutory remedy of filing an appeal under
section 14-A, accordingly.
(Para - 12, 13, 14, 15)

Application Dismissed. (E-11)

List of referred Cases: -

1. Ghulam Rasool Khan Vs St. of U.P., 2022 (8)
ADJ 691 = 2022 SCC OnLine All 975,

2. In Re: Provision of Section 14 (a) of SC/ST
(Prevention of Atrocities) Amendment Act -
(2018) 6 ALJ 631 = 2018 SCC OnLine All 2087,

3. U.O.I. Vs St. of Mah. - 2020 (4) SCC 761,

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

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

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

1. Heard Sri Trideep Narayan and Ms.
Charu
Singh Advocates,
the
learned
counsel for the applicant, Sri Anurag
Verma, the learned A.G.A.-I appearing on
behalf of the State and Sri G. K. Dikshit,
the learned counsel for the opposite party
no.2/complainant.

2. By means of the instant application
filed under Section 482 Cr.P.C., the
applicant has challenged validity of the
charge-sheet dated 12.10.2023 and the
entire
proceedings
of
Sessions
Case
No.3088 of 2023, arising out of Case Crime
No.385 of 2023, under Sections 147, 148,
302, 307 I.P.C. & Section 3 (2) 5 of
Scheduled Caste and the Scheduled Tribes (
Prevention
of Atrocities) Act,
1989,
registered at Police Station Sushant Golf
City, District Lucknow, pending in the
Court of Special Judge, SC/ST Act,
Lucknow.

3. The learned A.G.A.-I has raised a
preliminary objection that the applicant has
not
challenged
the
validity
of
the
summoning order and without him having
been summoned, the applicant would have
no cause of action to challenge the
proceedings. He has submitted that the
applicant has the statutory remedy of filing
an appeal under Section 14-A of the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989. He
has placed reliance upon the Full Bench
judgment in the case of Ghulam Rasool
Khan and others versus State of U. P.
1234 INDIAN LAW REPORTS ALLAHABAD SERIES
and others : 2022 (8) A.D.J. 691 = 2022
SCC OnLine All 975.

4.

In
reply to the
aforesaid
preliminary objection, the learned Counsel
for the applicant has placed reliance upon
the Full Bench judgment in "In re
Provision of Section 14A of SC/ST
(Prevention of Atrocities) Amendment
Act, 2015" : 2018 SCC OnLine All 2087
and
Union
of
India
v.
State
of
Maharashtra, (2020) 4 SCC 761.

5. Section 14-A of the Scheduled
Castes and Scheduled tribes (Prevention of
Atrocities)
Act,
1989
(which
will
hereinafter be referred to as 'the Act')
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.

6. A bare perusal of Section 14-A of the
Act shows that it starts with the words
"Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of
1974)".

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, 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.
2 All. Shivam Kashyap Vs. State of U.P. & Anr.
1235

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
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
inRohitthat 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
bothJanardan Pandeyas well asRohitdo 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
cognizance 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
1236 INDIAN LAW REPORTS ALLAHABAD SERIES
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
notipso
factorender the proceedings voidab initio.
Ultimately it would be for the objector to
establish
serious
prejudice
or
a
miscarriage of justice as held inRati Ram."

8. 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.
523/2017In
re
:
Rohitv.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
Section482of theCr. P.C.?

(ii) Whether keeping in view the
judgment ofRohit(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
Section439of theCr. 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 Section482of theCr.
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?

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

(i) Question No. (I) is answered in
negative asRohitv.State of U.P., (2017) 6 ALJ
754 has been overruled by Full Bench of this
Court inIn Re : Provision of section 14 (a)
ofSC/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
Section439Cr. 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
Section482Cr. 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.

10. 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.?
2 All. Shivam Kashyap Vs. State of U.P. & Anr.
1237

(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?""

11. Although the questions have been
referred to a larger Bench by means of an
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
referenceor 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
CoordinateBench. In any case, when faced
with conflicting judgments by Benches of
equal strength of this Court, it is the earlier
one which is to be followed by the High
Courts,
as
held
by
a
5-Judge
BenchinNational
Insurance
Company
Limitedv.Pranay Sethi,(2017) 16 SCC 680.
The High Courts, of course, will do so with
careful
regard
to
the
facts
and
circumstances of the case before it."

12. In Union of India v. State of
Maharashtra, (2020) 4 SCC 761 relied
upon by the learned Counsel for the
applicant, the question involved was
regarding the bar created under Section 18
of the Act against grant of anticipatory bail
in offences under the Act and the question
of maintainability of an Application under
Section 482 Cr.P.C. was not involved in
that case. Therefore, that judgment is no
relevant for the decision of the point
involved in the present case.

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

14. In view of the aforesaid
discussion, the law on the point stands
clarified by two Full Benches, that inherent
powers of this Court under Section 482
Cr.P.C. cannot be invoked in cases and
1238 INDIAN LAW REPORTS ALLAHABAD SERIES
situations where an appeal would lie under
Section 14A and aggrieved person having
remedy of appeal under Section 14A of the
1989 Act, cannot be allowed to invoke
inherent jurisdiction of this Court under
Section482Cr. P.C.

15. Accordingly, as the applicant has
the remedy of filing an appeal under
Section 14-A available to him, he cannot
invoke the inherent powers of this Court
under Section 482 Cr.P.C. The application
under Section 482 Cr.P.C. is dismissed for
this reason, leaving it open to 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 1238
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.08.2023

BEFORE

THE HON'BLE GAJENDRA KUMAR, J.

Application u/s 482 No. 28166 of 2023

Harkesh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Raghuveer Singh

Counsel for the Opp. Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Section 321 - Withdrawal from
prosecution, Indian Penal Code, 1860 -
Sections 147, 148, 149, 435, 427, 395,
397, 506 - Court must ensure the Public
Prosecutor's decision isn't improper or an
attempt
to
interfere
with
justice
-
Withdrawal from prosecution requires
legitimate
reasons,
good
faith,
and
consideration of public policy and justice
and not to thwart or stifle the process of
law.(Para - 7)

FIR against 24 persons for setting company
property on fire, theft, and physical altercation -
Public
Prosecutor
moved
to
withdraw
prosecution based on the UP-Government's
directive - citing incident's connection to
farmer's agitation and interest of justice -
Sessions court rejected application - noting the
case involved riot, loot, harm to police
personnel, and absconding accused persons.

(Para-7)

HELD:
-
Trial
court
erred
in
rejecting
withdrawal application without considering if the
Public
Prosecutor
acted
in
good
faith.
Application for withdrawal under Section 321
Cr.P.C. requires court to assess legitimacy and
public interest. Impugned order set aside. Case
remanded to trial court for fresh consideration
after hearing both sides. (Para -7,8,9)

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

List of Cases cited:

1. St. of Kerala Vs K Ajith & ors., (2021) 6 SCR
774

2. St. of Bihar Vs Ram Naresh Pandey & anr,,
AIR 1957 SC 389

3.
M.N
Sankarayaraynan
Nair
Vs
P.V
Balakrishnan, (1972) 1 SCC 318

4. R.K. Jain Vs St. through Special Police
Establishment & ors,, (1980) 3 SCC 435

5. Sheonandan Paswan Vs. St. of Bihar & ors.,
(1987) 1 SCC 288

6. Yerneni Raja Ramchandar Vs St. of A.P. &
ors,, (2009) 15 SCC 604

7. Bairam Muralidhar Vs St. of A.P., (2014) 10
SCC 380

(Delivered by Hon'ble Gajendra Kumar, J.)