# Smt. Usha v. State of U.P. & Anr. 2272 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 5 ILRA 2271
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-08
- **Case number:** Criminal Appeal No. 10230 of 2023
- **Bench:** Manoj Baja
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-usha-v-state-of-u-p-anr-2272-indian-law-reports-allahabad-series-52063
- **Pages:** 20

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 164, 156(3),
173(2), 157, 190, 193, 202, 203, 313, 386,
397 & 482 - Indian Penal Code, 1860 -
Sections 147, 148, 307, 323, 324, 325,
504 & 506 - Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Sections 3(1)(r),
3(1)(s), 14-A & 14-A(1) - Appeals - against
order of cognizance - named FIR - investigation
- final report against accused for offence u/s 324
IPC - complainant, filed Application for addition
of offences u/s 325, 327 IPC - allowed - hence
appeals - examination of evidence - court finds
that, reliance placed upon by the appellants on
the pendency of the civil dispute between the
parties in the given set of facts and
circumstances of the case is misplaced, as the
offence contained in FIR relates to the offences
against a human body, which is also supported
by the medical evidence thus, it cannot be said
that ingredients to constitute the offences are
not made out against accused - However, as far
as the addition of offences in final report is
concern - same is apparently not sustainable
- held, (i) Trial court is well within its
jurisdiction and powers to frame charges
against the accused - (ii) offences cannot be
either added or subtracted in the Police Report
at the stage of taking cognizance u/s 190
Cr.P.C. - Hence, impugned order to the extent
of whereby the claim of the complainant has
been accepted for additions of offence is not
sustainable - and - it is open for the accused
to press their respective claims before the
Special Court at the stage of consideration of
the final report for framing charges - Appeals
are partly allowed.
(Para - 37, 38, 39, 40)

Appeals are partly allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,529 of 69,530. This is a partial read: ask again with offset=39529 for what follows._

5 All. Smt. Usha Vs. State of U.P. & Anr.
2271
2023 0 Supreme( All) 1217, wherein it is
held as under :-
 "38. Thus, in such facts and
circumstances, the ingredients of Section
34 I.P.C., i.e. the common intention to kill
the deceased Om Prakash is not established
from the evidences. At best, as per
prosecution case, the exhortation was to
beat. No evidence was led by the
prosecution that during the course of
alleged beating, any of the accused
appellants
herein
have
exhorted
or
instigated the accused Rekhpal Singh to kill
the deceased Om Prakash. In such facts
and circumstances, even if it is assumed
that the accused Rekhpal fired by his
licensed DBBL gun to kill Om Prakash,
then it was an unilateral act of the accused
Rekhpal. Thus, the alleged gun shot injury
allegedly caused by the accused Rekhpal to
the deceased Om Prakash, is not in
furtherance of common intention shared by
the accused appellants Vinod and Pramod.
In the absence of any common intention of
the accused anterior in time to kill the
deceased, showing a pre-arranged plan
and prior concert. No evidence could be led
by the prosecution to establish a prior
conspiracy or pre-meditation or common
intention formed either prior to or in the
course of occurrence of the crime, to kill the
deceased Om Prakash. In the absence of
meeting of minds or sharing of common
intention by the accused appellants to kill
the deceased, Section 34 I.P.C. could not be
invoked.
Consequently,
the
accused
appellants cannot be convicted under
Section 302 I.P.C. inasmuch as it is not the
case of the prosecution that the accused
appellants have killed the deceased Om
Prakash. "

Learned counsel for the appellants
submits that in absence of clear evidence
from the prosecution regarding meeting of
minds or sharing of common intention by
all the accused to kill the deceased, Section
34 IPC cannot be invoked.

52. In view of the judgments in
Suresh
Sakharam
Nangare's
Case
(Supra), Chhota Ahirwar Case (Supra)
and Vinod and others' Case (Supra), we
find that charge against appellants-Toran
Yadav, Bhan Singh and Ballu alias Balak
Das under Section 302/34 of IPC is not
proved.

53. In view of above, we dismiss the
appeal for Shankar Yadav alias Daddi,
Santosh Singh, Kalloo alias Kalyan Singh
and Raghubir Yadav However, we allow
the appeal on behalf of Toran Yadav, Bhan
Singh and Ballu alias Balak Das as these
three appellants were convicted in the aid
of section 34 of IPC and therefore they
are acquitted of the charges. All the three
appellants-Toran Yadav, Bhan Singh and
Ballu alias Balak Das are on bail. Their
bail stands discharged. The impugned
judgment of conviction and order of
sentence shall stand modified to the
aforesaid extent.

54. Record and proceedings be
sent to the Trial Court forthwith.
----------
(2024) 5 ILRA 2271
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.05.2024

BEFORE

THE HON'BLE MANOJ BAJAJ, J.

Criminal Appeal No. 10230 of 2023
With other connected cases

Smt. Usha ...Appellant
Versus
State of U.P. & Anr. ...Respondents
2272 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Ashutosh Sharma

Counsel for the Respondents:
G.A., Subedar Mishra

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 164, 156(3),
173(2), 157, 190, 193, 202, 203, 313, 386,
397 & 482 - Indian Penal Code, 1860 -
Sections 147, 148, 307, 323, 324, 325,
504 & 506 - Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Sections 3(1)(r),
3(1)(s), 14-A & 14-A(1) - Appeals - against
order of cognizance - named FIR - investigation
- final report against accused for offence u/s 324
IPC - complainant, filed Application for addition
of offences u/s 325, 327 IPC - allowed - hence
appeals - examination of evidence - court finds
that, reliance placed upon by the appellants on
the pendency of the civil dispute between the
parties in the given set of facts and
circumstances of the case is misplaced, as the
offence contained in FIR relates to the offences
against a human body, which is also supported
by the medical evidence thus, it cannot be said
that ingredients to constitute the offences are
not made out against accused - However, as far
as the addition of offences in final report is
concern - same is apparently not sustainable
- held, (i) Trial court is well within its
jurisdiction and powers to frame charges
against the accused - (ii) offences cannot be
either added or subtracted in the Police Report
at the stage of taking cognizance u/s 190
Cr.P.C. - Hence, impugned order to the extent
of whereby the claim of the complainant has
been accepted for additions of offence is not
sustainable - and - it is open for the accused
to press their respective claims before the
Special Court at the stage of consideration of
the final report for framing charges - Appeals
are partly allowed.
(Para - 37, 38, 39, 40)

Appeals are partly allowed. (E-11)

List of Cases cited:

1. St. of Har. Vs Bhajan Lal (1992 SCC (CR.)
426),
2. In re Provision of Section 14-A of SC/ST Act
2015 Vs NIL (2018 SCC Online All 2087),

3. Ghulam Rassol Khan & ors.Vs St. of UP &
ors.(Cri. Appeal No. 1000/2018),

4. Shantaben Burabhai Bhuriya Vs Anand
Athabhai Chaudhari (2021 SCC Online SC 974),

5. Gyandendra Maurya @ Gollu Vs UOI &
ors.(Cri. Misc. WP No. 7522 of 2022),

6. Ajay Kumar Parmar Vs St. of Raj. (2012 12
SCC 406),

7. Raj Kapoor & ors. Vs St. & ors. (AIR 1980 SC
258),

8. St. of Orissa Vs Debendra Nath Padhi (AIR
2005 SC 359),

9. Amit Kapoor Vs Ramesh Chander & ors. (2012
9 SCC 460),

10. Ramawatar Vs St. of Madhya Pradesh (2022
13 SCC 635),

11. Gulam Mustafa Vs The St. of Karnataka &
ors. (AIR 2023 SC 2999),

12. Gian Singh Vs St. of Punj. & anr. (2012 (4)
RCR (Criminal) 543),

(Delivered by Hon'ble Manoj Bajaj, J.)

1. Appellants-Accused have filed the
above separate appeals under Section 14A(1) Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989
to challenge the impugned order dated
17.8.2023 passed by Special Judge (SC/ST
Act), Mathura in Case Crime No. 321 of
2022, under Sections 147, 148, 323, 504,
506 I.P.C. and Sections 3(1)(r), 3(1)(s)
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989,
whereby while taking cognizance of the
offences contained in final report under
Section 173(2) Cr.P.C. dated 2.1.2023,
additionally cognizance in respect of the
5 All. Smt. Usha Vs. State of U.P. & Anr.
2273
offences punishable under Section 325, 307
I.P.C. has also been taken, by allowing the
application filed by respondent no.2complainant.

2. Briefly, the facts leading to the
appeals are that complainant-Lekhi S/o
Lachchi got lodged F.I.R. dated 24.10.2022
bearing Case Crime No. 321 of 2022
(Annexure No.6), wherein it is alleged that
on 24.10.2022 at around 4:00 p.m., he
reached on his tractor at his land comprised
in Khasra No. 71 measuring 0.405 hectare
for ploughing, which was taken by him on
lease from Mohan Singh S/o Ratiram.
When the complainant started the work,
suddenly Badani, Lakhkhi S/o Nandram,
Kanhiya S/o Raggo, Usha W/o Keshav,
Parwati W/o Lakhkhi, Pooran Devi W/o
Badani, Rajkumar S/o Laxman, Vishnu S/o
Lakhkhi, Keshav S/o Lakhkhi, Lalaram S/o
Gyasi, Tejpal S/o Gyasi, all residents of
Gazipur armed with sticks, sharp edged
weapon (Farsa) and rods arrived there and
attacked the complainant. The assault
resulted in head injury and fractures to the
complainant, who fell down and turned
unconscious. When complainant gained
consciousness, the accused persons abused
him in the name of his caste and also
threatened him. On these broad allegations,
the F.I.R. was registered for alleged
commission of offences punishable under
Section 147, 148, 323, 504, 506 I.P.C. and
Section 3(1)(r), 3(1)(s) Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter referred
to as 'Atrocities Act, 1989').

3. After registration of the F.I.R., the
investigation in the case was conducted and
upon conclusion of the same, a final report
dated 2.1.2023, under Section 173(2)
Cr.P.C. was filed against the accusedappellants, wherein during investigation, in
addition to the offences contained in F.I.R.,
the offence punishable under Section 324
I.P.C. was also incorporated.

4. Thereafter, the complainant
moved an application dated 7.8.2023
(Annexure No.11) before the Special Court,
Mathura and prayed that cognizance in
respect of the offences punishable under
Sections 325, 307 I.P.C. be also taken, and
the Special Court, Mathura vide impugned
order dated 17.10.2023 allowed the
application moved by the complainant and
proceeded to take cognizance of offences
contained in the final report dated 2.1.2023,
under Section 173(2) Cr.P.C. as well as for
the offences punishable under Sections
325, 307 I.P.C. Hence, these appeals.

5. Pursuant to the notice issued in
these appeals, the opposite parties were
served and complainant filed his counter
affidavit in Criminal Appeal No. 10230 of
2023, wherein he refuted the grounds raised
by the appellants. It is pleaded that the
record of the case, including the medical
examination
report
of
the
injuredcomplainant clearly a case for alleged
commission of offences punishable under
Sections 147, 148, 307, 323, 324, 325, 504,
506 I.P.C. and Section 3(1)(r), 3(1)(s) of
"Atrocities Act, 1989" is made out,
therefore, Special Court, Mathura has
rightly accepted the application of the
complainant while passing the cognizance
order dated 17.8.2023. In the end, it is
prayed that appeals be dismissed.

6. Learned counsel for appellants
has argued that the land comprised in Khata
No. 29, Khasra No. 2 measuring 2.651
hectare and land comprised in Khasra No.
71 measuring 1.554 hectare situated at
Mauja
Ghazipur,
Tehsil
Gowardhan,
District Mathura is a subject matter of civil
2274 INDIAN LAW REPORTS ALLAHABAD SERIES
dispute between the parties and in this
regard, a civil suit bearing O.S. No. 192 of
2022 (Annexure No.1), titled Nandram Vs.
Mohan Singh, is pending adjudication
before Civil Judge (J.D.), Chhata, Mathura,
wherein the gift deed dated 8.4.2022 relied
upon by Mohan Singh has been challenged.
Learned counsel submits that after filing of
the suit, defendant-Mohan Singh also filed
a civil suit bearing O.S. No. 234 of 2022
(Annexure No.2), titled Mohan Singh Vs.
Kushagra Gupta and others, seeking
permanent injunction. Learned counsel
refers to the report dated 15.7.2022 by
Ameen (Annexure No. 3) to contend that
the appellants were found in possession of
the suit property.

7. Learned counsel for appellants has
further pointed out that on 24.10.2022 Tara
and Sunil along with other unknown
persons were consuming liquor in the
agriculture field of appellants and when
Usha Devi confronted them, they molested
her and her mother-in-law. According to
the learned counsel, Tara is maternal uncle
of defendant-Mohan Singh, and in this
regard, a case F.I.R. dated 24.10.2022
bearing Case Crime No. 320 of 2022
(Annexure No.5) was registered against
accused persons for alleged commission of
offences punishable under Sections 354,
323, 504, 506 I.P.C. Learned counsel for
appellants has vehemently argued that in
retaliation to the civil litigation and
criminal
case,
opposite
party
no.2complainant has falsely implicated the
appellants through Case Crime No. 321 of
2022, wherein investigation was not
conduced properly, as while filing the
charge sheet, the offence punishable under
Section 324 I.P.C. was also added.

8. Learned counsel for appellants
submits that Special Court, Mathura while
considering the final report under Section
173(2) Cr.P.C. for the purposes of taking
cognizance of the offences has erroneously
allowed the claim of the complainant and
has also taken the cognizance in respect of
the offences punishable under Sections 325
and 307 I.P.C. Learned counsel submits
that Special Court, Mathura has not
examined the facts and circumstances of
the case carefully and has wrongly passed
the impugned order dated 17.8.2023,
whereas no offence as alleged would be
made out against the accused, as the
necessary ingredients to constitute the
alleged offences are missing. In support of
his arguments, learned counsel has placed
reliance upon the decision of Hon'ble
Supreme Court State of Haryana Vs.
Bhajan Lal 1992 SCC(Cr.) 426. Learned
counsel submits that if, the allegations
contained in the prosecution case are taken
to be true on its face value, no offence
would be made out, therefore, he prayed
that impugned order dated 17.8.2023 be set
aside and the criminal proceedings against
the appellants be dropped.

9. The prayer is opposed by learned
A.G.A., who is assisted by learned counsel
for complainant-respondent no.2. Learned
counsel for respondent no.2 has argued that
merely because a civil dispute between the
parties is pending, that alone would not be
a ground to disbelieve the case of the
prosecution, as the evidence regarding
injuries suffered by the injured are
supported with documentary evidence.
Learned counsel for opposite party no.2
submits that since the investigation in the
case was not conducted properly and the
charge sheet was not filed in respect of the
serious offences committed by the accused,
therefore, the complainant-respondent no.2
rightly availed his right to seek indulgence
of the Special Court, Mathura for redressal
5 All. Smt. Usha Vs. State of U.P. & Anr.
2275
of his grievance. According to learned
counsel, while passing the cognizance
order dated 17.8.2023, the Special Court,
Mathura has given valid reasons and no
interference is warranted by this Court. He
prays that appeals be dismissed.

10. Learned counsel for the parties
have been heard and with their assistance
case file has been perused carefully.

11. Amid growing confusion on
choice of availing the remedy by a litigant,
against an order taking cognizance of the
offence(s) based upon police report under
Section 173(2) Cr.P.C., passed by Special
Court constituted under "Atrocities Act,
1989" i.e. either to file a statutory appeal
under Section 14-A of "Atrocities Act
1989" or by invoking inherent powers
under Section 482 Code of Criminal
Procedure, this Court deems it appropriate
to analyse this question before adjudicating
the appeal on its merits. Previously, twice
this question has been examined by two full
benches of this Court in In re Provision of
Section 14A of SC/ST (Prevention of
Atrocities) Amendment Act, 2015 Vs. Nil,
2018 SCC OnLine All 2087 and Ghulam
Rassol Khan and others Vs. State of U.P.
And others, passed in Criminal Appeal
No. 1000 of 2018, but, the conflicting
views by the co-ordinate Benches of this
Court are still continuing.

12. Full Bench of this Court in the
case of re Provision of Section 14A of
SC/ST
(Prevention
of
Atrocities)
Amendment Act, 2015, (Supra) had
formulated
five
questions
for
consideration and question 'B' related to
the exercise of powers under Section 482
Cr.P.C. by the High Court and the same
reads as under:-

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 (in short 'Cr.P.C.)
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 ? "

13. Upon considering the various
decisions of the Hon'ble Supreme Court
and the High Courts, the Full Bench
answered the said question in the following
manner:-

"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."

14. The subsequent decision by Full
Bench of this Court in Gulam Rasool
Khan's case (Supra), also echoes the voice
of the decision by the earlier Full Bench,
wherein it is held that in view of Section 14A of "Atrocities Act, 1989" aggrieved
person cannot be allowed to invoke the
inherent powers under Section 482 Cr.P.C.
2276 INDIAN LAW REPORTS ALLAHABAD SERIES

15.

Frequently,
the
petitions
originally filed under Section 482 Cr.P.C.
challenging
such
an
order
taking
cognizance of offences based on police
report have been received for adjudication,
after those were converted as appeals under
Section 14-A of "Atrocities Act, 1989".
Recently, to solve the puzzle, another coordinate Bench of this Court has again
referred this issue before the larger Bench
vide order dated 20.9.2023 passed in
Application U/S 482 No. 8635 of 2023,
which is pending consideration.

16. The Code of Criminal
Procedure, 1973 provides for two modes of
criminal prosecution, one based upon
police investigation report, whereas other is
founded on directly instituted private
complaint before the Magistrate and these
procedures are contained in Chapter XII
and XV, respectively. The prosecution in a
complaint case begins with the filing of the
complaint directly before the court of
competent jurisdiction and in the said
procedure, the police has no role, except to
hold an inquiry under Section 202 Cr.P.C., if,
directed by the court. The said inquiry is also
for an extremely limited purpose of
ascertaining the truth in the allegations
contained in the complaint. The procedure
meant for a complaint case contemplates that
Magistrate shall record the statements of
complainant and other witnesses under
Section 200 Cr.P.C. and upon considering the
same the Magistrate may either dismiss the
complaint under Section 203 Cr.P.C. or may
issue
process
against
accused.
After
appearance of the accused, the trial would
progress further based upon the classification
of the offences i.e. either before the court of
Sessions or the Magistrate.

17. Unlike the complaint case, the
prosecution based upon police report
consists of two stages; First- upon an
information
to
the
police,
a
First
Information Report is registered, regarding
alleged
commission
of
cognizable
offence(s) followed by submission of
special report to the concerned court as
envisaged under Section 157 Cr.P.C. and
thereafter a thorough investigation in the
alleged
crime
is
conducted.
After
completion of investigation, the final report
is prepared as contemplated under Section
173(2) Cr.P.C. for submission before the
court
of
competent
jurisdiction
for
consideration. Second- The trial court
examines the final report, and, if, a prima
facie case is made out against the accused,
the cognizance of offence(s) is taken and
then comes the stage of framing of charges
against the accused. After commencement
of trial, the prosecution witnesses are
examined and after discharge of onus by
prosecution, the accused is called upon for
explanation, if, so required and thereafter,
the defence evidence, if any, is recorded.
Lastly, the trial court delivers the final
judgment of conviction or acquittal.

18. Ordinarily, the trial before the
court
of
sessions
commences
after
committal of the case by the Magistrate as
the cognizance of offences directly by
Sessions Court is prohibited by Section 193
Cr.P.C., but Section 14 of "Atrocities Act,
1989" contains an exception to Section 193
Cr.P.C. in respect of offences punishable
under "Atrocities Act, 1989", as it provides
that the courts established or specified
under the "Atrocities Act of 1989" shall
have power to directly take cognizance of
the offences. Section 14 reads as under:-

14. Special Court and Exclusive
Special Court.-

(1) For the purpose of providing
for speedy trial, the State Government
5 All. Smt. Usha Vs. State of U.P. & Anr.
2277
shall, with the concurrence of the Chief
Justice of the High Court, by notification in
the Official Gazette, establish an Exclusive
Special Court for one or more Districts:
 Provided that in Districts where
less number of cases under this Act is
recorded, the State Government shall, with
the concurrence of the Chief Justice of the
High Court, by notification in the Official
Gazette, specify for such Districts, the
Court of Session to be a Special Court to try
the offences under this Act:

Provided further that the Courts
so established or specified shall have
power to directly take cognizance of
offences under this Act.

(2) It shall be the duty of the State
Government to establish adequate number
of Courts to ensure that cases under this Act
are disposed of within a period of two
months, as far as possible.

(3) In every trial in the Special
Court or the Exclusive Special Court, the
proceedings shall be continued from dayto-day until all the witnesses in attendance
have been examined, unless the Special
Court or the Exclusive Special Court finds
the adjournment of the same beyond the
following day to be necessary for reasons
to be recorded in writing:

Provided that when the trial
relates to an offence under this Act, the trial
shall, as far as possible, be completed
within a period of two months from the date
of filing of the charge sheet.

19. Thus, by virtue of this statutory
provision, the powers vested with the
Magistrate to either direct registration of
case for investigation contained in Section
156(3) Cr.P.C. or cognizance of offences
contemplated by Section 190 Cr.P.C. can
also be exercised by the Special Court
constituted under Atrocities Act, 1989. This
issue has already been dealt with by the
Hon'ble Supreme Court in the case of
Shantaben Burabhai Bhuriya vs. Anand
Athabhai Chaudhari, (2021) SCC Online
SC 974, which has been followed by this
Court in Gyanendra Maurya @ Gullu Vs.
Union of India and others, passed in
Criminal Misc. Writ Petition No. 7522 of
2022.
In
this
regard,
the
relevant
observations contained in Gyanendra's
case (Supra) read as under:-

"34. We have already held that
Section 156(3) of Code 1973 will apply to
investigation of an offence under the Act
1989 and as per Section 156(3) of Code
1973 a Magistrate empowered under
Section 190 of Code 1973 can order such
investigation and as, in view of proviso to
Section 14 of the Act 1989 read with Section
190 of Code 1973, it is the Courts
established or specified under the Act 1989
which can take cognizance directly in
respect of an offence under the Act 1989,
therefore, the Magistrate can not and
should not take cognizance of an offence
under the Act 1989 as such power when
specifically vested with the Special Courts
under the Act 1989 should be exercised by
the latter as held in Shantaben Burabhai
Bhuriya vs. Anand Athabhai Chaudhari1,
therefore, this power under Section 156(3)
of Code 1973 has to be exercised by such
Exclusive or Special Courts and not the
Magistrate.

20. The expression "cognizance" as
contained in Section 190 Cr.P.C. has not
been defined in the Code of Criminal
Procedure, but the same has been analyzed
by the Hon'ble Supreme Court as well as
various High Courts, and consistently it has
been held that whenever a court of
competent jurisdiction applies its judicial
mind to the complaint or the police report,
as the case may be, the cognizance of
2278 INDIAN LAW REPORTS ALLAHABAD SERIES
offences is said to be taken. Here it
becomes relevant to examine Section 14-A
of "Atrocities Act, 1989", which provides
for a remedy of appeal in respect of
judgment and other decisions passed by
Special Court. The Section 14-A reads as
under:-

"14-A.
(1)
Notwithstanding
anything contained in the Code of Criminal
Procedure,1973, an appeal shall lie, from
any judgment, sentence or order, not being
an interlocutory order, of a Special Court
or an Exclusive Special Court, to the High
Court both on facts and on law.

(2) Notwithstanding anything
contained in sub-section (3) of section 378
of the Code of Criminal Procedure, 1973,
an appeal shall lie to the High Court
against an order of the Special Court or the
Exclusive Special Court granting or
refusing bail.

(3) Notwithstanding anything
contained in any other law for the time
being in force, every appeal under this
section shall be preferred within a period of
ninety days from the date of the judgment,
sentence or order appealed from:

Provided that the High Court
may entertain an appeal after the expiry of
the said period of ninety days if it is
satisfied that the appellant had sufficient
cause for not preferring the appeal within
the period of ninety days:

Provided further that no appeal
shall be entertained after the expiry of the
period of one hundred and eighty days.
 (4) Every appeal preferred under
sub-section (1) shall, as far as possible, be
disposed of within a period of three months
from the date of admission of the appeal.".

21. At this juncture, it would be apt to
note that many orders like refusing or
granting bail to an accused, discharge of
accused or framing charges against an
accused are not appealable as per the
provisions of Cr.P.C., but by virtue of
Section 14-A of "Atrocities Act, 1989"
even an appeal lies against such orders. Of
course, the remedy of appeal is provided by
the "Atrocities Act, 1989", but such appeals
are to be adjudicated by following the
procedure of adjudication of appeals
enshrined under Chapter XXIX Cr.P.C.,
particularly the Section 386 Cr.P.C., which
defines the powers of appellate court. The
said Section 386 Cr.P.C. reads as under:-

386. Powers of the Appellate
Court.

- After perusing such record and
hearing the appellant or his pleader, if he
appears, and the Public Prosecutor, if he
appears, and in the case of an appeal under
Section 377 or Section 378, the accused, if
he appears, the Appellate Court may, if it
considers that there is no sufficient ground
for interfering, dismiss the appeal, or may
-

(a) in an appeal from an order of
acquittal, reverse such order and direct
that further inquiry be made, or that the
accused be re-tried or committed for trial,
as the case may be, or find him guilty and
pass sentence on him according to law;

(b) in an appeal from a conviction
-(i)reverse the finding and sentence and
acquit or discharge the accused, or order
him to be re-tried by a Court of competent
jurisdiction subordinate to such Appellate
Court or committed for trial, or(ii)alter the
finding,
maintaining
the
sentence,
or(iii)with or without altering the finding,
alter the nature or the extent, or the nature
and extent, of the sentence, but not so as to
enhance the same;

(c) in an appeal for enhancement
of sentence -(i)reverse the finding and
sentence and acquit or discharge the
5 All. Smt. Usha Vs. State of U.P. & Anr.
2279
accused, or order him to be re-tried by a
Court competent to try the offence,
or(ii)alter the finding maintaining the
sentence, or(iii)with or without altering the
finding, alter the nature or the extent, or the
nature and extent, of the sentence, so as to
enhance or reduce the same;

(d) in an appeal from any other
order, alter or reverse such order;

(e) make any amendment or any
consequential or incidental order that may
be just or proper :

Provided that the sentence shall
not be enhanced unless the accused has had
an opportunity of showing cause against
such enhancement :

Provided
further
that
the
Appellate Court shall not inflict greater
punishment for the offence which in its
opinion the accused has committed, than
might have been inflicted for that offence by
the Court passing the order or sentence
under appeal.

22. A reading of the above section
would show that Clauses (a), (b) and (c) of
the above section are only relating to the
appeals against acquittal, conviction and
enhancement of sentence, respectively,
therefore, an appeal challenging the order
taking cognizance of offences would fall
with the ambit of Clause (d). The above
Section also indicates that appellate
jurisdiction can be effectively exercised, if,
an appeal is founded on substance, coupled
with reasoning, whereupon the impugned
decision of the trial court is based. Of
course, trial proceedings may carry more
procedural aspects, but the appellate court
is not supposed to pay much importance to
the procedural aspect over and above the
material substance. In criminal law there is
only one remedy of criminal appeal,
therefore, it is incumbent for the appellate
court to examine the substance threadbare
to test the correctness and validity of an
order under challenge in an appeal.

23. Most importantly, at the stage
of considering the final report under
Section 173(2) Cr.P.C. for the purposes of
taking cognizance, neither the complainant
is heard nor any opportunity of hearing is
provided to the accused, and this exercise
only consists of examining the police report
carefully to find out, if, the same is
complete in all respects and contains the
relevant material such as statements of
witnesses recorded under Sections 161 and
164 Cr.P.C., other documentary evidence
collected during investigation etc. and
makes out a case for further proceedings.
Thus,
assuming
the
conclusion
of
Investigating Officer to be correct, the court
passes the cognizance order only to indicate
the initiation of criminal proceedings in
respect of the alleged commission of
offences.

24. Time and again it has been held
that at the stage of passing the cognizance
order detail reasons are not required to be
given by the court and in this regard
reference can be made to the decision of
Hon'ble Supreme Court in the case of Ajay
Kumar Parmar Vs. State of Rajasthan,
(2012) 12 SCC 406, wherein the following
observation have been made:-

"19. The Magistrate, in exercise
of its power under Section 190 CrPC, can
refuse to take cognizance if the material on
record warrants so. The Magistrate must,
in such a case, be satisfied that the
complaint, case diary, statements of the
witnesses recorded under Sections 161 and
164 CrPC, if any, do not make out any
offence. At this stage, the Magistrate
performs a judicial function. However, he
cannot appreciate the evidence on record
2280 INDIAN LAW REPORTS ALLAHABAD SERIES
and reach a conclusion as to which
evidence is acceptable, or can be relied
upon. Thus, at this stage appreciation of
evidence is impermissible. The Magistrate
is not competent to weigh the evidence and
the balance of probability in the case."

25. Besides, by now it is also a settled
law that while examining the final report
under Section 173(2) Cr.P.C., even at the
stage of framing of charges against the
accused, the trial court is not required to
examine the proposed defence of the
accused. Since, the examination is confined
to
the
material
collected
during
investigation, therefore, appeal against the
order taking cognizance filed on the
strength of the proposed defence by the
accused
would
otherwise
contain
a
material, which was neither before the trial
court nor was examined while passing the
order taking cognizance of offences. But,
strangely the appellate jurisdiction is
frequently invoked by the accused persons
under Section 14-A of "Atrocities Act,
1989" by relying upon the proposed
defence or other relevant material, whereas
the same cannot be analyzed for the first
time, that too by the appellate court in
exercise of appellate powers.

26. Comparatively, as far as the trial
proceedings based upon a complaint case is
concerned, the same is different in nature as
in the said procedure, the evidence of
complainant
and
other
witnesses
is
recorded by the trial court itself, whereupon
it forms an opinion to find out, if, a prima
facie case for alleged commission of
offences is made out for issuance of the
process against the accused, or the
complaint is dismissed under Section 203
Cr.P.C. Thus, any order passed by Special
Court in a complaint case can be effectively
assailed in an appeal provided under
Section 14-A of "Atrocities Act, 1989". In
other words, the appellate court would be
examining the evidence on record and the
reasons given by the Special Court while
passing the order under challenge in appeal.

27. Doubtlessly, the nature of the
order taking cognizance of offences on a
police report cannot be construed as an
interlocutory order to hold that in terms of
Section 14-A of "Atrocities Act, 1989", no
appeal against such an order would lie, but
in essence the remedy of appeal may not be
effective, particularly when the order under
challenge does not contain elaborate
reasoning. Examining this issue from
another angle, it is noticed that in many
cases under other penal laws, the challenge
to such orders taking cognizance of
offences by the court of competent
jurisdiction, are made by filing a petition
under Section 482 Cr.P.C., and not by
availing the alternative statutory remedy of
revision.

28. Now, here the question arises
that even if, the remedy of appeal is
available to the litigant in terms of Section
14-A of "Atrocities Act, 1989" against an
order of taking cognizance of offences,
whether inherent powers of this Court
envisaged under Section 482 Cr.P.C. can be
invoked to challenge such an appealable
order as well as the entire criminal
proceedings? The inherent powers vested
with the High Court under Section 482
Cr.P.C. is extraordinary in nature and the
same has been examined by the Hon'ble
Supreme Court on numerous occasions and
in the various decisions it has been
invariably held that these powers can be
exercised irrespective of the availability of
the alternative remedy, if, the case falls
within the guidelines and parameters laid
down by the Hon'ble Supreme Court. As
5 All. Smt. Usha Vs. State of U.P. & Anr.
2281
far as the maintainability of a petition under
Section 482 Cr.P.C. is concerned, there is
no bar to exercise the said inherent powers.
The Hon'ble Supreme Court in Raj Kapoor
and others Vs. State and others, AIR 1980
SC 258, while discussing the inherent
powers of the High Court vested under
Section 482 Cr.P.C., made the following
observations:-

 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
in the Code, not even Section 397 can 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 Code.

In Madhu Limaye's case 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 s.
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 or the
other principle 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 assailed is purely on
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 the desirability of
the quashing of a criminal proceeding
initiated illegally, vexatiously or as being
without jurisdiction."

In short, there is no 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
injustice 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 courts process. Can we state that in this
third category the inherent power can be
exercised ? In the words of Untwalia. J.:
2282 INDIAN LAW REPORTS ALLAHABAD SERIES

"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
an 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."

29. Further, the Hon'ble Supreme
Court in Bhajan Lal's case (Supra) laid
down the guidelines for exercise of inherent
powers under Section 482 Cr.P.C. The
relevant observation reads as under:-

8.1. In the exercise of the extraordinary power under Article 226 or the
inherent powers under Section 482 of the
Code of Criminal Procedure, the following
categories of cases are given 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 guide- ï7 myriad kinds of cases
wherein such power should be exer- cised:

(a) 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;