# Shueb Mahmood Kidwai @ Bobby v. State of U.P

- **Citation:** (2021) 3 ILRA 92
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-23
- **Case number:** Application U/S 482/378/407 No. 3044 of 2017
- **Bench:** Rajan Roy, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shueb-mahmood-kidwai-bobby-v-state-of-u-p-46994
- **Pages:** 14

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 228 - framing of
charge, Section 232 - reference by Single
Judge - acquittal ,U.P. Gangster and AntiSocial Activities (Prevention) Act, 1986 -
Section 2/3 - Jurisdiction of the High Court
is not barred in a challenge to an order
framing charge irrespective of the label of a
petition be it under Section 397 or 482
Cr.P.C. or Article 227 of Constitution of India
- challenge to an order of charge should be
entertained in rarest of rare case only to
correct the patent error of jurisdiction and
not to re-appreciate the matter - Availability
of an alternative remedy under the Cr.P.C.
does not put an absolute bar on the exercise
of power under Section 482 Cr.P.C -
applicant cannot as a matter of right, seek
quashing of the proceedings, if there are
good reasons on which the High Court could
decline to exercise its inherent powers.(Para
- 16,18,20)

(B) Constitution of India - Article 215 -
high courts to be courts of record - High
courts have inherent powers in criminal
matters not by virtue of section 482 Cr.P.C
but because the power's inherent in high
court, as superior court of record by virtue
of article 215 of constitution of India as it
is a protector of Fundamental Right. (Para -
11)

Applicant along with 24 others prosecuted
under Section 2/3 of the U.P. Gangster and
Anti-Social Activities (Prevention) Act, 1986 -
charge-sheet - cognizance taken in 2000 -
Sessions Court
framed the charges on
27.08.2002 - prima-facie opinion of learned
single judge - after framing of charge without
supervening development in the form of
judicial
order,
interference
with
the
proceedings of the Trial under Section 482
Cr.P.C. may not be permissible - because
prayer for quashing the entire proceedings
initiated
on
charge-sheet
cannot
be
questioned as the Trial Court has already held
by judicial order passed under Section 228
Cr.P.C. - that prima-facie commission of
offences is made out - Observation - without
questioning the correctness of that order,
allowing an application for quashing of
proceedings would amount to falsifying the
records of the Court where order directing
charge to be framed stands unchallenged -
there is a legal hurdle by virtue of Section 232
Cr.P.C. which provides a remedy to the
applicant, in entertaining this application
under Section 482 Cr.P.C. (Para - 4,7,8)

HELD: - We cannot say that, in the
eventualities mentioned in the referred order,
in no circumstances would an application
under Section 482 Cr.P.C. be maintainable i.e.
it will not lie. The guiding principle is as to
whether in the facts of a case continuance of
proceedings amount to abuse of the process
of the Court and/or whether interference of
the High Court is necessary to secure the
ends of justice or not? Based on these two
principles the facts of each case are required
to be assessed by the High Court when the
power and jurisdiction under Section 482
Cr.P.C. is invoked. (Para - 24)

Reference answered. (E-6)

List of Cases cited: -
3 All. Shueb Mahmood Kidwai @ Bobby Vs. State of U.P.
93

## Text

_Characters 0–39,874 of 49,127. This is a partial read: ask again with offset=39874 for what follows._

92 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Accordingly, the application
under Section 482 Cr.P.C. is dismissed.
----------
(2021)03ILR A92
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.02.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SAURABH LAVANIA, J.

Application U/S 482/378/407 No. 3044 of 2017

Shueb Mahmood Kidwai @ Bobby
 ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Shishir Singh Chauhan

Counsel for the Opposite Parties:
Govt. Advocate

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 228 - framing of
charge, Section 232 - reference by Single
Judge - acquittal ,U.P. Gangster and AntiSocial Activities (Prevention) Act, 1986 -
Section 2/3 - Jurisdiction of the High Court
is not barred in a challenge to an order
framing charge irrespective of the label of a
petition be it under Section 397 or 482
Cr.P.C. or Article 227 of Constitution of India
- challenge to an order of charge should be
entertained in rarest of rare case only to
correct the patent error of jurisdiction and
not to re-appreciate the matter - Availability
of an alternative remedy under the Cr.P.C.
does not put an absolute bar on the exercise
of power under Section 482 Cr.P.C -
applicant cannot as a matter of right, seek
quashing of the proceedings, if there are
good reasons on which the High Court could
decline to exercise its inherent powers.(Para
- 16,18,20)

(B) Constitution of India - Article 215 -
high courts to be courts of record - High
courts have inherent powers in criminal
matters not by virtue of section 482 Cr.P.C
but because the power's inherent in high
court, as superior court of record by virtue
of article 215 of constitution of India as it
is a protector of Fundamental Right. (Para -
11)

Applicant along with 24 others prosecuted
under Section 2/3 of the U.P. Gangster and
Anti-Social Activities (Prevention) Act, 1986 -
charge-sheet - cognizance taken in 2000 -
Sessions Court
framed the charges on
27.08.2002 - prima-facie opinion of learned
single judge - after framing of charge without
supervening development in the form of
judicial
order,
interference
with
the
proceedings of the Trial under Section 482
Cr.P.C. may not be permissible - because
prayer for quashing the entire proceedings
initiated
on
charge-sheet
cannot
be
questioned as the Trial Court has already held
by judicial order passed under Section 228
Cr.P.C. - that prima-facie commission of
offences is made out - Observation - without
questioning the correctness of that order,
allowing an application for quashing of
proceedings would amount to falsifying the
records of the Court where order directing
charge to be framed stands unchallenged -
there is a legal hurdle by virtue of Section 232
Cr.P.C. which provides a remedy to the
applicant, in entertaining this application
under Section 482 Cr.P.C. (Para - 4,7,8)

HELD: - We cannot say that, in the
eventualities mentioned in the referred order,
in no circumstances would an application
under Section 482 Cr.P.C. be maintainable i.e.
it will not lie. The guiding principle is as to
whether in the facts of a case continuance of
proceedings amount to abuse of the process
of the Court and/or whether interference of
the High Court is necessary to secure the
ends of justice or not? Based on these two
principles the facts of each case are required
to be assessed by the High Court when the
power and jurisdiction under Section 482
Cr.P.C. is invoked. (Para - 24)

Reference answered. (E-6)

List of Cases cited: -
3 All. Shueb Mahmood Kidwai @ Bobby Vs. State of U.P.
93
1. Ahmed Ali Quraishi Vs St. of U.P. & anr., AIR
2020 SCC 788

2. Asian Resurfacing of Road Agency Private
Ltd. Vs C.B.I., (2018) 16 SCC 299

3. Prabhu Chawla Vs St. of Raj. & anr., (2016)
16 SCC 30

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard.

2. This is an application under Section
482
Cr.P.C.
filed
by
the
applicant
challenging the entire proceedings with
respect to the applicant/ accused pending
before
the
court
of
Special
Judge,
Gangsters Act, Lucknow bearing Sessions
Trial No. 199 of 2000 ( State of U.P.
Versus Mukhtar Ansari) in Case Crime No.
428 of 1999, Police Station Hazratganj,
District Lucknow.

3. This case has been placed before
this Division Bench in view of a reference
made by a learned Single Judge of this
Court vide his order dated 12.12.2017
which reads as under:-

"Supplementary affidavit filed on
behalf of the applicant is taken on record.

Heard counsel for the parties.

In continuation of Court's order
dated 09.05.2017, it is hereby observed that
applicant was required to show whether
final report submitted by the police against
the accused has been accepted by the Court
or not. Vide annexure SA-2 there is primafacie evidence that the final report
submitted by the police has been accepted
by the Court. Five cases shown to be
registered against the present applicant. In
four of them he has been acquitted and in
one, final report submitted by the police,
has been accepted.

Perusal of the order dated
14.06.2000 indicates that cognizance was
taken in the year 2000, charge was framed
on 27.08.2008 vide annexure 5 out of 19
witnesses 18 have been cross examined.
The question is whether at this stage
accused/applicant is entitled to move
application under Section 482 Cr.P.C.
During arguments, learned counsel for the
applicant has referred annexure 7 to
annexure
12
to
show
that
similar
applications under Section 482 Cr.P.C.
moved on behalf of co-accused have been
allowed by this Court. From annexure 7 to
10, the order have been passed on
concession by learned AGA. However,
orders annexure 11 and 12 have been
passed even though on behalf of the State
quashing of charge sheets was vehemently
opposed. In both these cases, learned
Single Judge has opined that when in all
the 4 cases shown in the Gang Chart, the
applicant has been acquitted, prosecution
of the applicant under Gangster Act should
not be continued. Thereafter he has
quashed proceedings of Sessions Trial
No.199 of 2000, under Section 2/3 UP
Gangster Act going on against co-accused
Ram Kumar Singh and Akhtar Husain alias
Sarju.

In my opinion after framing of
charge without supervening development in
the form of judicial order, interference with
the proceedings of the trial under Section
482 Cr.P.C. may not be permissible
because prayer for quashing the entire
proceeding initiated on charge sheet
cannot be question as the trial court has
already held by a judicial order passed
under Section 228 Cr.P.C. that primafacie
commission of offences is made out. Now
without questioning the correctness of that
order allowing an application for quashing
of proceeding would amount to falsifying
the record of that court where order
94 INDIAN LAW REPORTS ALLAHABAD SERIES
directing charge to be framed stand
unchallenged. In the present case, there is
also legal hurdle invoking power under
Section 482 Cr.P.C. due to provisions
contained in Section 232 Cr.P.C. a remedy
available to the applicant under Code of
Criminal Procedure. Therefore, he cannot
be prayed for invoking inherent jurisdiction
of this Court.

Keeping in view the judicial
discipline, I think this matter should be
heard by a Larger Bench to decide as to
whether after framing of charge and where
substantial part of prosecution evidence
has been adduced, an application under
Section 482 Cr.P.C. for quashing entire
proceedings of that Session Trial on the
behest of the accused specially in Sessions
Trial would be maintainable or not.

Office is directed to put up this
matter
before
the
Hon'ble
Chief
Justice/Hon'ble
Senior
Judge
for
nomination.

Till the next date of listing,
proceedings of aforesaid Session Trial
shall remain stayed against the present
applicant. "

4. The applicant alongwith 24 others
has been prosecuted under Section 2/3 of
the
U.P.
Gangster
and
Anti
Social
Activities (Prevention) Act, 1986. A
charge-sheet dated 14.06.2005 under the
said Act, was filed by the Police,
cognizance of which was taken by the court
below sometime in 2000. The Sessions
Court framed the charges on 27.08.2002.
The said proceedings were not challenged
initially as according to the Counsel for the
applicant the cause did not arise earlier.

5. It is only when in four criminal
cases out of the five criminal cases
mentioned in the Gang Chart, the applicant
was acquitted and a final report which was
submitted in respect to Case Crime No. 390
of 1998 was allegedly accepted, that he
filed this application under Section 482
Cr.P.C.
before
the
High
Court
on
06.05.2017.

6. Initially the learned Single Judge
expressed a prima-facie opinion that the
proceedings relating to the Sessions Trial in
question could not be quashed as out of the
five cases in one case final report, though it
has been submitted, had not been accepted.
Thereafter, the matter came up before a Coordinate
Bench
of
this
Court
on
12.12.2017, when the aforesaid reference
order was passed. The learned Single Judge
referring to Annexure S.A.-2 to the
supplementary
affidavit
which
is
a
Questionnaire and not an order of the court
below expressed a prima-facie opinion that
there is prima-facie evidence that final
report submitted by the police has been
accepted by the Court in the 5th criminal
case also. The learned Single Judge has
noticed that cognizance of the charge-sheet
which was filed in Sessions Trial in
question was taken in 2000. Charge was
framed on 27.08.2008 and 18 out of 19
witnesses had been examined. Then he
posed a question as to whether at this stage
accused/applicant is entitled to move an
application under Section 482 Cr.P.C.? He
has then noticed the argument advanced on
behalf of the applicant with reference to
certain documents on record that similar
application under Section 482 Cr.P.C.
moved by the co-accused had been allowed
by this Court. The learned Single Judge
then noticed the opposition on behalf of the
State in quashing the charge-sheets in those
proceedings.

7. He has then expressed a primafacie opinion that after framing of charge
without supervening development in the
3 All. Shueb Mahmood Kidwai @ Bobby Vs. State of U.P.
95
form of judicial order, interference with the
proceedings of the Trial under Section 482
Cr.P.C. may not be permissible because
prayer for quashing the entire proceedings
initiated
on
charge-sheet
cannot
be
questioned as the Trial Court has already
held by judicial order passed under Section
228 Cr.P.C. that prima-facie commission of
offences is made out. The learned Single
Judge has then observed that without
questioning the correctness of that order,
allowing an application for quashing of
proceedings would amount to falsifying the
records of the Court where order directing
charge to be framed stands unchallenged.

8. The learned Single Judge has then
observed that there is a legal hurdle by
virtue of Section 232 Cr.P.C. which
provides a remedy to the applicant, in
entertaining this application under Section
482 Cr.P.C.

9. He has for all these reasons referred
the matter to be considered by a larger
Bench.

10. It is against this backdrop that the
matter has been placed before us.

11. The High Court has inherent
powers in criminal matters not by virtue of
Section 482 Cr.P.C. but because the powers
inherent in High Court, as a superior Court
of record by virtue of Article 215 of the
Constitution of India and as it is a protector
of fundamental rights of citizens. Section
482 Cr.P.C. merely makes explicit what is
otherwise inherent in the High Court.
Nevertheless, when we see the provision
contained in Section 482 Cr.P.C. it says,
"nothing in this Court shall be deemed to
limit or effect the inherent powers of the
High Court to make such orders, as may be
necessary to give effect to any order under
this Court, or to prevent abuse of the
process of any Court or otherwise to secure
the ends of justice". Thus, the said
provision
merely
clarifies
that
the
provisions of Criminal Procedure Code
shall not in any way limit or effect the
inherent powers of the High Court.

12. Inherent powers of the High Court
can be exercised to- (i) make such orders as
may be necessary to give effect to any
order under this Code, (ii) to prevent abuse
of the process of any Court (iii) otherwise
to secure the ends of justice.

13. The scope of inherent powers, the
circumstances and manner in which they
are to be exercised is no longer res-integera
as it has been dealt with in a catena of
decisions of Hon'ble Supreme Court of
India as also this Court. We do not wish to
burden our judgment by citing a number of
precedents on this issue, suffice it to say
that in a recent decision of the Hon'ble
Supreme Court of India Ahmed Ali
Quraishi Versus State of U.P. And Others
reported in AIR 2020 SCC 788 the law in
this regard has been discussed and
explained at length. We may fruitfully refer
paragraph nos. 10 to 16 of the said report,
which are as under:-

"10. Before we enter into facts of
the present case and submissions made by
the learned counsel for the parties, it is
necessary to look into the scope and ambit
of inherent jurisdiction which is exercised
by the High Court under Section 482
CrPC. This Court had the occasion to
consider the scope and jurisdiction of
Section 482 CrPC. This Court in State of
Haryana v. Bhajan Lal[State of Haryana v.
Bhajan Lal, 1992 Supp (1) SCC 335 : 1992
SCC
(Cri)
426]
,
had
elaborately
considered the scope and ambit of Section
96 INDIAN LAW REPORTS ALLAHABAD SERIES
482 CrPC/Article 226 of the Constitution in
the context of quashing the criminal
proceedings. In para 102, this Court
enumerated seven categories of cases
where power can be exercised under
Article 226 of the Constitution/Section 482
CrPC by the High Court for quashing the
criminal proceedings. Para 102 is as
follows:-

"102. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated by
this Court in a series of decisions relating
to the exercise of the extraordinary power
under Article 226 or the inherent powers
under Section 482 of the Code which we
have extracted and reproduced above, we
give the following categories of cases by
way of illustration wherein such power
could be exercised either to prevent abuse
of the process of any court or otherwise to
secure the ends of justice, though it may not
be possible to lay down any precise, clearly
defined and sufficiently channelised and
inflexible guidelines or rigid formulae and
to give an exhaustive list of myriad kinds of
cases wherein such power should be
exercised.

(1) Where the allegations made in
the first information report or the complaint,
even if they are taken at their face value and
accepted in their entirety do not prima facie
constitute any offence or make out a case
against the accused.

(2) Where the allegations in the
first information report and other materials,
if any, accompanying the FIR do not disclose
a
cognizable
offence,
justifying
an
investigation by police officers under Section
156(1) of the Code except under an order of a
Magistrate within the purview of Section
155(2) of the Code.

(3) Where the uncontroverted
allegations made in the FIR or complaint and
the evidence collected in support of the same
do not disclose the commission of any offence
and make out a case against the accused.

(4) Where, the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable offence,
no investigation is permitted by a police
officer without an order of a Magistrate as
contemplated under Section 155(2) of the
Code.

(5) Where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of which
no prudent person can ever reach a just
conclusion that there is sufficient ground for
proceeding against the accused.

(6) Where there is an express legal
bar engrafted in any of the provisions of the
Code or the Act concerned (under which a
criminal proceeding is instituted) to the
institution
and
continuance
of
the
proceedings and/or where there is a specific
provision in the Code or the Act concerned,
providing
efficacious
redress
for
the
grievance of the aggrieved party.

(7) Where a criminal proceeding is
manifestly attended with mala fide and/or
where the proceeding is maliciously instituted
with an ulterior motive for wreaking
vengeance on the accused and with a view to
spite him due to private and personal
grudge."

11. This Court in Vineet Kumar v.
State of U.P. [Vineet Kumar v. State of
U.P., (2017) 13 SCC 369 : (2017) 4 SCC
(Cri) 633] , had considered the jurisdiction
of the High Court under Section 482 CrPC.
In the above case also, the Additional Civil
Judicial Magistrate had summoned the
accused for offences under Sections 452,
376 and 323 IPC and the criminal revision
against the said order was dismissed by the
District Judge.

12. This Court time and again
has examined the scope of jurisdiction of
3 All. Shueb Mahmood Kidwai @ Bobby Vs. State of U.P.
97
the High Court under Section 482 CrPC
and laid down several principles which
govern the exercise of jurisdiction of the
High Court under Section 482 CrPC. A
three-Judge Bench of this Court in State of
Karnataka v. L. Muniswamy[State of
Karnataka v. L. Muniswamy, (1977) 2 SCC
699 : 1977 SCC (Cri) 404] , held that the
High Court is entitled to quash a
proceeding if it comes to the conclusion
that allowing the proceeding to continue
would be an abuse of the process of the
court or that the ends of justice require that
the proceeding ought to be quashed. In
para 7 of the judgment, the following has
been stated: (SCC p. 703)

"7. ... In the exercise of this
wholesome power, the High Court is
entitled to quash a proceeding if it comes to
the conclusion that allowing the proceeding
to continue would be an abuse of the
process of the court or that the ends of
justice require that the proceeding ought to
be quashed. The saving of the High Court's
inherent powers, both in civil and criminal
matters, is designed to achieve a salutary
public purpose which is that a court
proceeding ought not to be permitted to
degenerate into a weapon of harassment or
persecution. In a criminal case, the veiled
object behind a lame prosecution, the very
nature of the material on which the
structure of the prosecution rests and the
like would justify the High Court in
quashing the proceeding in the interest of
justice. The ends of justice are higher than
the ends of mere law though justice has got
to be administered according to laws made
by the legislature. The compelling necessity
for making these observations is that
without a proper realisation of the object
and purpose of the provision which seeks to
save the inherent powers of the High Court
to do justice, between the State and its
subjects, it would be impossible to
appreciate the width and contours of that
salient jurisdiction."

13. A three-Judge Bench in State
of Karnataka v. M. Devendrappa [State of
Karnataka v. M. Devendrappa, (2002) 3
SCC 89 : 2002 SCC (Cri) 539] , had the
occasion to consider the ambit of Section
482 CrPC. By analysing the scope of
Section 482 CrPC, this Court laid down
that authority of the court exists for
advancement of justice and if any attempt is
made to abuse that authority so as to
produce injustice, the court has power to
prevent abuse. It further held that court
would be justified to quash any proceeding
if it finds that initiation/continuance of it
amounts to abuse of the process of court or
quashing of these proceedings would
otherwise serve the ends of justice. The
following was laid down in para 6: (SCC p.
94)

"6. ... All courts, whether civil or
criminal possess, in the absence of any
express provision, as inherent in their
constitution, all such powers as are
necessary to do the right and to undo a
wrong in course of administration of justice
on the principle quando lex aliquid alicui
concedit, concedere videtur et id sine quo
res ipsae esse non potest (when the law
gives a person anything it gives him that
without which it cannot exist). While
exercising powers under the section, the
court does not function as a court of appeal
or revision. Inherent jurisdiction under the
section though wide has to be exercised
sparingly, carefully and with caution and
only when such exercise is justified by the
tests specifically laid down in the section
itself. It is to be exercised ex debito justitiae
to do real and substantial justice for the
administration of which alone courts exist.
Authority
of
the
court
exists
for
advancement of justice and if any attempt is
made to abuse that authority so as to
98 INDIAN LAW REPORTS ALLAHABAD SERIES
produce injustice, the court has power to
prevent abuse. It would be an abuse of
process of the court to allow any action
which would result in injustice and prevent
promotion of justice. In exercise of the
powers court would be justified to quash
any
proceeding
if
it
finds
that
initiation/continuance of it amounts to
abuse of the process of court or quashing
of these proceedings would otherwise serve
the ends of justice. When no offence is
disclosed by the complaint, the court may
examine the question of fact. When a
complaint is sought to be quashed, it is
permissible to look into the materials to
assess what the complainant has alleged
and whether any offence is made out even if
the allegations are accepted in toto."

14. Further in para 8 the
following was stated: (Devendrappa case
[State of Karnataka v. M. Devendrappa,
(2002) 3 SCC 89 : 2002 SCC (Cri) 539] ,
SCC p. 95)

"8. ... Judicial process should
not be an instrument of oppression, or,
needless harassment. Court should be
circumspect and judicious in exercising
discretion and should take all relevant
facts
and
circumstances
into
consideration before issuing process, lest
it would be an instrument in the hands of
a
private
complainant
to
unleash
vendetta to harass any person needlessly.
At the same time the section is not an
instrument handed over to an accused to
short-circuit a prosecution and bring
about its sudden death. The scope of
exercise of power under Section 482 of
the Code and the categories of cases
where the High Court may exercise its
power under it relating to cognizable
offences to prevent abuse of process of
any court or otherwise to secure the ends
of justice were set out in some detail by
this Court in State of Haryana v. Bhajan
Lal [State of Haryana v. Bhajan Lal,
1992 Supp (1) SCC 335 : 1992 SCC (Cri)
426] ."

15. In Sunder Babu v. State of
T.N. [Sunder Babu v. State of T.N.,
(2009) 14 SCC 244 : (2010) 1 SCC (Cri)
1349] , this Court was considering the
challenge to the order of the Madras
High Court where application was under
Section 482 CrPC to quash criminal
proceedings under Section 498-A IPC
and Section 4 of the Dowry Prohibition
Act, 1961. It was contended before this
Court that the complaint filed was
nothing but an abuse of the process of
law and allegations were unfounded. The
prosecuting agency contested the petition
filed under Section 482 CrPC taking the
stand that a bare perusal of the complaint
discloses commission of alleged offences
and, therefore, it is not a case which
needed to be allowed. The High Court
accepted the case of the prosecution and
dismissed the application. This Court
referred to the judgment in Bhajan Lal
case [State of Haryana v. Bhajan Lal,
1992 Supp (1) SCC 335 : 1992 SCC (Cri)
426] and held that the case fell within
Category 7. The Supreme Court relying
on Category 7 has held that the
application under Section 482 deserved
to be allowed and it quashed the
proceedings.

16. After considering the earlier
several judgments of this Court including
the case of State of Haryana v. Bhajan
Lal [State of Haryana v. Bhajan Lal,
1992 Supp (1) SCC 335 : 1992 SCC (Cri)
426] , in Vineet Kumar [Vineet Kumar v.
State of U.P., (2017) 13 SCC 369 :
(2017) 4 SCC (Cri) 633] , this Court laid
down following in para 41: (Vineet
Kumar case [Vineet Kumar v.State of
U.P., (2017) 13 SCC 369 : (2017) 4 SCC
(Cri) 633] , SCC p. 387)
3 All. Shueb Mahmood Kidwai @ Bobby Vs. State of U.P.
99

"41. Inherent power given to the
High Court under Section 482 CrPC is with
the purpose and object of advancement of
justice. In case solemn process of Court is
sought to be abused by a person with some
oblique motive, the Court has to thwart the
attempt at the very threshold. The Court
cannot permit a prosecution to go on if the
case falls in one of the categories as
illustratively enumerated by this Court in
State of Haryana v.Bhajan Lal [State of
Haryana v. Bhajan Lal, 1992 Supp (1) SCC
335 : 1992 SCC (Cri) 426] . Judicial
process is a solemn proceeding which
cannot be allowed to be converted into an
instrument of operation or harassment.
When there are materials to indicate that a
criminal proceeding is manifestly attended
with
mala
fide
and
proceeding
is
maliciously instituted with an ulterior
motive, the High Court will not hesitate in
exercise of its jurisdiction under Section
482 CrPC to quash the proceeding under
Category 7 as enumerated in State of
Haryana v. Bhajan Lal [State of Haryana
v. Bhajan Lal, 1992 Supp (1) SCC 335 :
1992 SCC (Cri) 426] , which is to the
following effect: (SCC p. 379, para 102)

''102. ... (7) Where a criminal
proceeding is manifestly attended with
mala fide and/or where the proceeding is
maliciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge.'

Above Category 7 is clearly
attracted in the facts of the present case.
Although, the High Court [Vineet Kumar v.
State of U.P., 2016 SCC OnLine All 1445]
has noted the judgment of State of Haryana
v.Bhajan Lal [State of Haryana v. Bhajan
Lal, 1992 Supp (1) SCC 335 : 1992 SCC
(Cri) 426] , but did not advert to the
relevant facts of the present case, materials
on which final report was submitted by the
IO. We, thus, are fully satisfied that the
present is a fit case where the High Court
ought to have exercised its jurisdiction
under Section 482 CrPC and quashed the
criminal proceedings."

14. The aforesaid exposition of law in
our humble opinion, provides sufficient
guidance to the exercise of inherent powers
by the High Court under Section 482
Cr.P.C..

15. The case of Asian Resurfacing of
Road Agency Private Ltd. Versus C.B.I.
reported in (2018) 16 SCC 299 also acts as
a guidance to the High Court in exercise of
its power under Section 482 Cr.P.C. and
helps us in answering the question referred
to us by the learned Single Judge. We may
in this context refer to paragraphs 27, 28
and 37 of the judgment. The said
paragraphs are as under:-

"27. Thus, even though in dealing
with
different
situations,
seemingly
conflicting observations may have been
made while holding that the order framing
charge was interlocutory order and was not
liable to be interfered with under Section
397(2) or even under Section 482 CrPC,
the principle laid down in Madhu Limaye
[Madhu Limaye v. State of Maharashtra,
(1977) 4 SCC 551 : 1978 SCC (Cri) 10]
still holds the field. Order framing charge
may not be held to be purely an
interlocutory order and can in a given
situation be interfered with under Section
397(2) CrPC or 482 CrPC or Article 227 of
the Constitution which is a constitutional
provision but the power of the High Court
to interfere with an order framing charge
and to grant stay is to be exercised only in
an exceptional situation.

28. We have thus no hesitation in
concluding that the High Court has
100 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction in an appropriate case to
consider the challenge against an order
framing charge and also to grant stay but
how such power is to be exercised and
when stay ought to be granted needs to be
considered further............

37. Thus, we declare the law to
be that order framing charge is not purely
an interlocutory order nor a final order.
Jurisdiction of the High Court is not barred
irrespective of the label of a petition, be it
under Sections 397 or 482 CrPC or Article
227 of the Constitution. However, the said
jurisdiction is to be exercised consistent
with the legislative policy to ensure
expeditious disposal of a trial without the
same being in any manner hampered. Thus
considered, the challenge to an order of
charge should be entertained in a rarest of
rare case only to correct a patent error of
jurisdiction and not to reappreciate the
matter. Even where such challenge is
entertained and stay is granted, the matter
must be decided on day-to-day basis so that
stay does not operate for an unduly long
period. Though no mandatory time-limit
may be fixed, the decision may not exceed
two-three months normally. If it remains
pending longer, duration of stay should not
exceed six months, unless extension is
granted by a specific speaking order, as
already indicated.

16. It has been categorically held in
the aforesaid case that order framing charge
may not be held purely interlocutory order
and can in a given situation be interfered
with under Section 397(2) Cr.P.C. or 482
Cr.P.C. or Article 227 of the Constitution
of India, but the power of the High Court to
interfere with an order framing charge and
to grant stay is to be exercised only in an
exceptional situation. Jurisdiction of the
High Court is not barred in a challenge to
an order framing charge irrespective of the
label of a petition be it under Section 397
or
482 Cr.P.C.
or
Article
227
of
Constitution
of
India.
However,
the
challenge to an order of charge should be
entertained in rarest of rare case only to
correct the patent error of jurisdiction and
not to re-appreciate the matter.

17. As would evident from the
concurring judgment of Justice Rohinton
Fali Nariman in the said case (Paragraph 54
of the Report) the inherent power of the
High Court referred in Section 482 Cr.P.C.
is not conferred by the Code of Criminal
Procedure. The said provision only saves
the already existing inherent powers, which
in fact is vested upon the High Court by the
Constitution itself, inter-alia under Article
215 of the Constitution of India. Also as,
such High Court have the power, nay, the
duty to protect fundamental rights of the
citizen under Article 226 of Constitution of
India, the inherent power to do justice in
cases involving the liberty of the citizen
would also sound in Article 21 of the
Constitution of India. It has been held in
the said case that Section 19(3) (c) of the
Prevention of Corruption Act, 1988 cannot
be read as a ban on maintainability of a
petition filed before a High Court under
Section 482 Cr.P.C. The non obstante
clause in Section 19(3) applies only to the
Code of Criminal Procedure, meaning
thereby, it does not apply to the inherent
powers of the High Court which flow from
the Constitution. Paragraph 54 of the
judgment reads as under:-

"54. It is thus clear that the
inherent power of a court set up by the
Constitution is a power that inheres in such
court because it is a superior court of
record, and not because it is conferred by
the Code of Criminal Procedure. This is a
power vested by the Constitution itself,
3 All. Shueb Mahmood Kidwai @ Bobby Vs. State of U.P.
101
inter alia, under Article 215 as aforestated.
Also, as such High Courts have the power,
nay, the duty to protect the fundamental
rights of citizens under Article 226 of the
Constitution, the inherent power to do
justice in cases involving the liberty of the
citizen would also sound in Article 21 of
the
Constitution.
This
being
the
constitutional position, it is clear that
Section 19 (3)(c) cannot be read as a ban
on the maintainability of a petition filed
before the High Court under Section 482 of
the Code of Criminal Procedure, the nonobstante clause in Section 19 (3) applying
only to the Code of Criminal Procedure.
The judgment of this Court in Satya
Narayan Sharma Vs. State of Rajasthan,
Paras 14 and 15 does not, therefore, lay
down the correct position in law. Equally,
in Para 17 of the said judgment, despite the
clarification that proceedings can be
"adapted" in appropriate cases, the Court
went on to hold that there is a blanket ban
of stay of trials and that, therefore, Section
482, even as adapted, cannot be used for
the aforesaid purpose. This again is
contrary to the position in law as laid down
hereinabove. This case, therefore, stands
overruled."

18. Availability of an alternative
remedy under the Cr.P.C. does not put an
absolute bar on the exercise of power under
Section 482 Cr.P.C., nevertheless while
exercising such powers the High Court
would be loathe to bypass the remedies
available under the Code and exercise its
inherent
powers
unless
there
is
a
compelling and exceptional necessity of
preventing abuse of process of Court or to
secure the ends of justice, that too,
sparingly and for good reasons. The legal
position
in
this
regard
has
been
recapitulated by the Supreme Court of
India in the case of Prabhu Chawla Vs.
State of Rajasthan and Another reported
in (2016) 16 SCC 30. Paragraph 4 to 6 of
the said judgment reads as under:-

"4. Mr. P.K. Goswami, learned
Senior
Advocate
for
the
appellants
supported the view taken by this Court in
Dhariwal Tobacco Products Ltd. He
pointed out that in para 6 of this judgment
S.B. Sinha, J. took note of several earlier
judgments of this Court including that in
R.P. Kapur Vs. State of Punjab and Som
Mittal Vs. State of Karnataka for coming to
the conclusion that :

"6. .... Only because a revision
petition is maintainable, the same by
itself.... would not constitute a bar for
entertaining an application under Section
482 of the Code."

5. Mr Goswami also placed
strong reliance upon the judgment of
Krishna Iyer, J. in a Division Bench in Raj
Kapoor V. State Relying upon the judgment
of a Bench of three judges in Madhu
Limaye Vs. State of Maharashtra and
quoting therefrom, Krishna Iyer, J. in his
inimitable style made the law crystal clear
in para 10 which runs as follows:

"10. The first question is as to
whether the inherent power of the High
Court under Section 482 stands repelled
when the revisional power under Section
397 overlaps. The opening words of Section
482 contradict this contention because
nothing of the Code, not even Section 397,
affect the amplitude of the inherent power
preserved in so many terms by the
language of Section 482. Even so, a
general principle pervades this branch of
law when a specific provision is made: easy
resort to inherent power is not right except
under compelling circumstances. Not that
there is absence of jurisdiction but that
inherent power should not invade areas set
apart for specific power under the same
102 INDIAN LAW REPORTS ALLAHABAD SERIES
Code. in Madhu Limaye Vs. State of
Maharashtra this Court has exhaustively
and if I may say so with great respect,
correctly discussed and delineated the law
beyond mistake. While it is true that
Section 482 is pervasive it should not
subvert legal interdicts written into the
same Code, such, for instance, in Section
397(2). Apparent conflict may arise in
some situations between the two provisions
and a happy solution. 'would be to say that
the bar provided in sub-section (2) of
Section 397 operates only in exercise of the
revisional power of the High Court,
meaning thereby that the High Court will
have no power of revision in relation to any
interlocutory order. Then in accordance
with one of the other principles enunciated
above, the inherent power will come into
play, there being no other provision in the
Code for the redress of the grievance of the
aggrieved party. But then, if the order
assailed is purely of an interlocutory
character which could be corrected in
exercise of the revisional power of the High
Court under the 1898 Code, the High Court
will refuse to exercise its inherent power.
But in case the impugned order clearly
brings about a situation which is an abuse
of the process of the court or for the
purpose of securing the ends of justice
interference
by
the
High
Court
is
absolutely
necessary,
then
nothing
contained in Section 397 (2) can limit or
affect the exercise of the inherent power by
the High Court. But such cases would be
few and far between. The High Court must
exercise the inherent power very sparingly.
One such case would be desirability of the
quashing of a criminal proceeding initiated
illegally, vexatiously or as being without
jurisdiction'.

In short, there is not total ban on
the exercise of inherent power where abuse
of the process of the court or other
extraordinary situation excites the Court's
jurisdiction. The limitation is self-restraint,
nothing more The policy of the law is clear
that interlocutory orders, pure and simple,
should not be taken up to the High Court
resulting in unnecessary litigation and
delay. At the other extreme, final orders are
clearly capable of being considered in
exercise of inherent power, if glaring
justice stares the court in the face. In
between is a tertium quid, as Untwalia, J.
has pointed out as for example, where it is
more than a purely interlocutory order and
less than a final disposal. The present case
falls under that category where the accused
complain of harassment through the
Court's process. Can we state that in this
third category the inherent power can be
exercised? In the words of Untawalia, J.:

'10. ... The answer is obvious that
the bar will not operate to prevent the
abuse of the process of the court and/or to
secure the ends of justice. The label of the
petition filed by an aggrieved party is
immaterial. The High Court can examine
the matter in any appropriate case under
its inherent powers. The present case
undoubtedly falls for exercise of the power
of the High Court in accordance with
Section 482 of the 1973 Code, even
assuming, although not accepting, that
invoking the revisional power of the High
Court is impermissible.'

I am, therefore clear in my mind
that the inherent power is not rebuffed in
the case situation before us. Counsel on
both sides, sensitively responding to our
allergy for legalistics, rightly agreed that
the fanatical insistence on the formal filing
of a copy of the order under cessation need
not take up this Court's time. Our
conclusion concurs with the concession of
counsel on both sides that merely because a
copy of the order has not been produced,
despite its presence in the records in the
3 All. Shueb Mahmood Kidwai @ Bobby Vs. State of U.P.
103
court, it is not possible for me to hold that
the entire revisory power stands frustrated
and the inherent power stultified."

6. In our considered view any
attempt to explain the law further as
regards the issue relating to inherent
power of the High Court under Section
482 CrPC is unwarranted. We would
simply reiterate that Section 482 begins
with a non obstante clause to state:

"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 this Code, or to
prevent abuse of the process of any court
or otherwise to secure the ends of
justice."

A fortiori, there can be no total
ban on the exercise of such wholsesome
jurisdiction where, in the words of
Krishna Iyer, J.

"abuse of the process of the
court or other extraordinary situation
excites the Court's jurisdiction. The
limitation is self-restraint, nothing more".

We venture to add a further
reason in support.