# Surendra Tiwari @ Surendra Prasad Tiwari & Anr v. State of U.P.& Anr

- **Citation:** (2019) 3 ILRA 70
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-17
- **Case number:** U/S 482/378/407 No. 7348 of 2019
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-tiwari-surendra-prasad-tiwari-anr-v-state-of-u-p-anr-44941
- **Pages:** 14

## Headnote

Law-Criminal
Procedure
Code, 1973 - Section 482 - Sections
227/228 Cr.P.C - Accused having no
criminal history - may be a relevant fact
to be proved as evidence in defence. It is
immaterial to consider whether or not
the charge sheet is liable to be quashed.

B. Evidence Law-Indian Evidence Act,

## Text

_Characters 0–39,821 of 43,844. This is a partial read: ask again with offset=39821 for what follows._

70 INDIAN LAW REPORTS ALLAHABAD SERIES

28. In para 27 of the Inder Mohan
Goswami (Supra), Hon'ble Supreme
Court has held as under:-

"The powers possessed by the High
Court under section 482 of the Code are very
wide and the very plenitude of the power
requires great caution in its exercise. The
court must be careful to see that its decision in
exercise of this power is based on sound
principles. The inherent power should not be
exercised to stifle a legitimate prosecution.
The High Court should normally refrain from
giving a prima facie decision in a case where
all the facts are incomplete and hazy; more
so, when the evidence has not been collected
and produced before the court and the issues
involved, whether factual or legal, are of such
magnitude that they cannot be seen in their
true perspective without sufficient material.
Of course, no hard and fast rule can be laid
down in regard to cases in which the High
Court
will
exercise
its
extraordinary
jurisdiction of quashing the proceedings at
any stage."

29. In Umesh Kumar Vs. State of
Andhra Pradesh reported in AIR 2014
SC 1106, Hon'ble the Apex Court has
held
that
criminal
prosecution
if
otherwise justifiable and possess upon
adequate evidence does not become
vitiated on account of malafide aur
political mandata of First Information
Report or complaint. In para 12 of the
aforesaid judgement the Hon'ble Supreme
Court has held that once criminal law is
put in motion and after investigation the
charge sheet is filed, it requires scrutiny
in the court of law only.

30. The applicant accused has itself
placed the order sheet of the court below
from the date of summoning order dated
17.01.2017 to 18.07.2019 in Sessions
Trial No.22/2017 running before the
Special Judge, SC/ST Act, Lucknow. The
order sheet on reading cumulatively
reveals that since date of summoning the
process is being repeated for compliance
and still the accused applicant instead of
appearing
before
the
court
despite
knowledge of the summoning order
preferred
to
come
to
invoke
the
extraordinary power of the High Court for
quashing of the charge sheet and
summoning order.

31. The extraordinary power of the
court should be exercised sparingly where
the applicant has established prima facie
case with regard to abuse of process. The
materials placed by him do not impulse
necessity to quash the charge sheet and
summoning order.

32. Therefore, the application under
section 482 Cr.P.C. moved with the relief
sought
therein
for
quashment
of
summoning order dated 17.1.2017 and
charges sheet arisen out of case crime
No.867 of 2016 Under Section 147, 323
IPC and Section 3(1)(X) SC/ST Act
Police Station Kakori District Lucknow,
for the reasons having no merit and is
liable to be rejected and accordingly
dismissed.
----------
(2019)11ILR A70

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.10.2019

BEFORE
THE HON'BLE VIKAS KUVAR SRIVASTAVA , J.

U/S 482/378/407 No. 7348 of 2019

Surendra Tiwari @ Surendra Prasad
Tiwari & Anr. ...Applicants
Versus
3 All. Surendra Tiwari @ Surendra Prasad Tiwari & Anr. Vs. State of U.P.& Anr.
71
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Dev Mani Mishra.

Counsel for the Opposite Parties:
G.A.

A.
Criminal
Law-Criminal
Procedure
Code, 1973 - Section 482 - Sections
227/228 Cr.P.C - Accused having no
criminal history - may be a relevant fact
to be proved as evidence in defence. It is
immaterial to consider whether or not
the charge sheet is liable to be quashed.

B. Evidence Law-Indian Evidence Act,
1872. Section 3, Interpretation clause -
Explanation (e) makes plain - That a
man has a certain reputation, is a fact.".
It
would
require
proof.
Thus
the
reputation of the applicant accused, as
claimed by him is not relevant at the
stage of framing of charge.

C. Criminal Law-Criminal Procedure Code,
1973 - Counter/Cross Case - Different
versions of the parties as to one/same
incident form a Cross Case - once prima
facie, the offence punishable under Section
323, 504 and 506 IPC is found established
from the allegations made in the F.I.R. and
the evidence collected during investigation
in that case, the submission of chargesheet in such a case cannot be questioned
as
mechanically
submitted
without
application of mind by the Investigating
Officer.

D.
Criminal
Law-Criminal
Procedure
Code, 1973 - Section 204. Non-mention
of SC/ST Act in FIR and charge sheet.
Still charge under SC/ST Act may be
framed. Though there is an obscurity as
to that provision of law in the FIR or
charge-sheet, it cannot be prima facie
held that no offence is made out under
provisions of the SC/ST Act. The court
taking cognizance had to be reminded of
its
duty
to
evaluate
the
material
allegations also with regard to the
offence, if any, under the SC/ST Act at the
time of hearing the applicant accused on
framing of charges under Section 227/228
of the Cr.P.C. The court has to pass a
reasoned and cogent order as to the
commission of offence under SC/ST Act.

In view of the above, the application under
Section 482 Cr.P.C. for quashing the chargesheet and the proceeding of case crime no.
80/2019 S.T. No.319/2019 (State of U.P. Vs.
Surendra Tiwari and Anr.) pending in the court
of Special Judge, SC/ST Act, Pratapgarh is
declined and the same is disposed of with
following directions:-

(i) The accused/applicants to appear before
the court promptly without any further delay.

(ii) In case the accused/applicants move any
prayer for bail the same shall be decided by
the court concerned as soon as practicably
possible, even on the same day, keeping in
mind the purpose of issuance of processes like
summon, bailable warrant or non bailable
warrant, as the case may be, is to procure and
ensure the attendance of the accused in the
trial pending against him.

(iii) The court concerned is directed to
consider the prayer while hearing the accused
at the time of framing of charges under
Sections 227/228 of the Cr.P.C. with regard to
the offences punishable under SC/ST Act with
clarity as to the specific provision of law under
which particularly offence therein is made out
or not and accordingly to proceed further.

Registry is directed to send a copy of the
order to the court concerned.

Application u/s 482 Cr.P.C. disposed of
 (E-3)

(Delivered by Hon'ble Vikas Kuvar
Srivastava, J. )

1. The application in hand is moved
under section 482 of Criminal procedure
code, 1973 by learned counsel Sri Dev
Mani Mishra on behalf of applicant
accused involved in case crime no.
72 INDIAN LAW REPORTS ALLAHABAD SERIES
80/2019 under Sections 323, 504, 506
IPC & Section 3(1)(D) of Scheduled
Caste and Scheduled Tribes Act (which
shall hereinafter be addressed as SC/ST
Act), Police Station - Aspur Deosara,
District Pratapgarh. The applicant seeks
following reliefs, praying to:-

"That under the facts and
circumstances of the case, it is very
respectfully prayed that this Hon'ble
Court may kindly be pleased to allow this
petition and quash the impugned Charge
sheet
dated
18.07.2019,
U/S-
323,504,506, I.P.C, and 3(1)(D) S.c & S.t
Act.
Police
Station-Aspur
Deosara,
District- Pratapgarh, filed in F.I.r No.
0080/2019, U/S- 323,504,506, I.P.C, and
3(1)(D) S.c & S.t Act. Police Station-
Aspur Deosara, District- Pratapgarh,
contained and annexed as annexure no. 2
to this petition. Further it is prayed that
this Hon'ble Court may graciously be
pleased to quash the entire proceedings of
S.T. No. 319/2019 state of U.P. versus
Surendra Tiwari and Another, pending
before special judge S.c & S.t Act.
Pratapgarh, In the interest of justice."

2. The grounds upon which the
relief to quash the charge-sheet is sought,
as pleaded in the application are-

(i) applicants have no criminal
history.

(ii) the allegations labelled
against the applicants in the present case
are nothing but an attempt to save himself
from own wrong by the informant.

3. Learned A.G.A concentrating
over the ground that just because the
applicant has no criminal history, the FIR,
charge
sheet
as
well
as
criminal
proceeding initiated against him do not
become shaky and suspicious in itself. He
further argued that each and every case is
to be looked into with respect to the
particular allegations made therein and so
far as the fact of accused having no
criminal history is concerned, it may be a
relevant fact to be stated as evidence in
defence, however it is immaterial for
considering whether or not the charge
sheet is liable to be quashed. The
argument of the learned A.G.A is
supported with the interpretation of word
'fact' as interpreted under Section 3 of the
Evidence Act, the 'interpretation clause',
which is quoted hereunder provide as
following:-

"Fact". --"Fact" means and
includes--

(1) any thing, state of things, or
relation of things, capable of being
perceived by the senses;

(2) any mental condition of
which
any
person
is
conscious.
Illustrations

(a) That there are certain objects
arranged in a certain order in a certain
place, is a fact.

(b) That a man heard or saw
something, is a fact.

(c) That a man said certain
words, is a fact.

(d) That a man holds a certain
opinion, has a certain intention, acts in
good faith, or fraudulently, or uses a
particular word in a particular sense, or is
or was at a specified time conscious of a
particular sensation, is a fact.

(e) That a man has a certain
reputation, is a fact."

4. In view of the above, the
reputation of the applicant accused, as
3 All. Surendra Tiwari @ Surendra Prasad Tiwari & Anr. Vs. State of U.P.& Anr.
73
claimed by him of having no criminal
antecedent is of no avail at this stage
where evidence is not being appreciated
for the purpose of evaluating the
allegations made against him in the FIR
and the charge-sheet.

5. The other ground on the basis of
which the relief of quashing the chargesheet and the entire proceeding is sought
raises an issue "whether the allegations
labelled against the applicants in present
case, are nothing but an attempt by the
informant to save himself from his own
wrong" is to be examined carefully so as
to prevent abuse of process, if any, is
being done.

6. In R. Kalyani vs. Janak C. Mehta
and Ors. (2009) 1 SCC 516, the Hon'ble
Supreme Court has held as under:-

"9(2). For the said purpose, the
court, save and except in very exceptional
circumstances, would not look to any
document relied upon by the defence".

7. Heard the learned counsel for the
applicant
and
the
learned
A.G.A.
appearing on behalf of the state opposite
parties. Perused the materials available on
record.

8. Before entering into merit of the
present application under Section 482 of
Criminal Procedure Code, 1973 (shall
hereinafter be read as Cr.P.C. only) it
would be relevant to keep in mind, the
scope and ambit of Section 482 of Cr.P.C.
and circumstances under which the extra
ordinary power of the court inherent
therein as provisioned in the said section
of the Criminal Procedure Code can be
exercised. It is explained in a plethora of
judgements of the Honorable Apex Court,
such as in Inder Mohan Goswami v.
State of Uttaranchal (2007)12 SCC 1, is
quoted hereunder:-

"23. This court in a number of
cases has laid down the scope and ambit
of courts powers under section 482
Cr.P.C. Every High Court has inherent
power to act ex debito justitiae to do real
and
substantial
justice,
for
the
administration of which alone it exists, or
to prevent abuse of the process of the
court. Inherent power under section 482
Cr.P.C. can be exercised:

(i) to give effect to an order
under the Code;

(ii) to prevent abuse of the
process of court, and

(iii) to otherwise secure the
ends of justice"

9. In the case of Parbatbhai Ahir vs.
State of Gujarat (2017) 9 SCC 641, again
the Hon'ble Supreme Court has had an
occasion to consider whether the High
Court
can
quash
the
FIR/complaint/criminal proceedings, in
exercise of the inherent jurisdiction under
Section 482 Cr.P.C. held as under:-

"15. Considering a catena of
decisions of this Court on the point, this
Court
summarized
the
following
propositions:

"(1)
Section
482
CrPC
preserves the inherent powers of the High
Court to prevent an abuse of the process
of any court or to secure the ends of
justice. The provision does not confer new
powers. It only recognizes and preserves
74 INDIAN LAW REPORTS ALLAHABAD SERIES
powers which is inherent in the High
Court.

(2) The invocation of the
jurisdiction of the High Court to quash a
first information report or a criminal
proceeding
on
the
ground
that
a
settlement has been arrived at between
the offender and the victim is not the same
as the invocation of jurisdiction for the
purpose of compounding an offence.
While compounding an offence, the power
of the court is governed by the provisions
of Section 320 Cr.P.C. The power to
quash under Section 482 is attracted even
if the offence is non compoundable.

(3) In forming an opinion
whether
a
criminal
proceeding
or
complaint should be quashed in exercise
of its jurisdiction under Section 482, the
High Court must evaluate whether the
ends of justice would justify the exercise
of the inherent power.

(4) While the inherent power of
the High Court has a wide ambit and
plenitude it has to be exercised (i) to
secure the ends of justice, or (ii) to
prevent an abuse of the process of any
court.

(5) the decision as to whether a
complaint or first information report
should be quashed on the ground that the
offender and victim have settled the
dispute, revolves ultimately on the facts
and circumstances of each case and no
exhaustive elaboration of principles can
be formulate.

(6) In the exercise of the power
under Section 482 and while dealing with
a plea that the dispute has been settled,
the High Court must have due regard to
the nature and gravity of the offence.
Heinous and serious offences involving
mental depravity or offences such as
murder,
rape
and
dacoity
cannot
appropriately be quashed though the
victim or the family of the victim have
settled the dispute. Such offences are,
truly speaking, not private in nature but
have a serious impact upon society. The
decision to continue with the trial in such
cases is founded on the overriding
element of public interest in punishing
persons for serious offences.

(7)
As
distinguished
from
serious offences, there may be criminal
cases which have an overwhelming or
predominant element of a civil dispute.
They stand on a distinct footing insofar as
the exercise of the inherent power to
quash is concerned.

(8) Criminal cases involving
offences which arise from commercial,
financial, mercantile, partnership or
similar transactions with an essentially
civil
flavour
may
in
appropriate
situations fall for quashing where parties
have settled the dispute.

(9) In such a case, the High
Court may quash the criminal proceeding
if in view of the compromise between the
disputants, the possibility of a conviction
is remote and the continuation of a
criminal
proceeding
would
cause
oppression and prejudice;

(10) There is yet an exception to
the principle set out in Propositions (8)
and
(9)
above.
Economic
offences
involving the financial and economic
wellbeing of the State have implications
which lie beyond the domain of a mere
dispute between private disputants. The
High Court would be justified in declining
3 All. Surendra Tiwari @ Surendra Prasad Tiwari & Anr. Vs. State of U.P.& Anr.
75
to quash where the offender is involved in
an activity akin to a financial or
economic fraud or misdemeanour. The
consequences of the act complained of
upon the financial or economic system
will weigh in the balance.

10. The Hon'ble Supreme Court in
R.P. Kapur v. State of Punjab reported
in (1960 CriLJ 1239) summarized some
categories of cases where inherent power
can and should be exercised to quash the
proceedings:

(i) where it manifestly appears
that there is a legal bar against the
institution
or
continuance
of
the
proceedings;

(ii) where the allegations in the
first information report or complaint
taken at their face value and accepted in
their entirety do not constitute the offence
alleged;

(iii)
where
the
allegations
constitute an offence, but there is no legal
evidence
adduced
or
the
evidence
adduced clearly or manifestly fails to
prove the charge.

11. In State of Haryana & Ors. Vs.
Bhajan Lal & Ors. reported in AIR 1992
SC 604, Hon'ble Supreme Court has
illustrated several circumstances wherein
the extraordinary power under section
482 of Criminal Procedure Code may be
exercised for the purpose of preventing an
abuse of process or to secure the ends of
Justice or to enforce the order of the
court. Illustrations quoted hereunder are
treated as guidelines for the purpose of
exercising of powers under section 482 of
Criminal Procedure Code:-

"102.(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 F.I.R.
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 concerned
Act (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 concerned Act, providing
76 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

12. In view of the aforesaid
judgment of Hon'ble Supreme Court,
before going into discussion, it would be
necessary here to have a look upon the
facts of the case in hand. Briefly stating,
the F.I.R, as lodged by opposite party
no.2 in the present application, bearing
Crime No.80/2019 registered at Police
Station
-
Aspur
Deosara,
District
Pratapgarh under Sections 323, 504, 506
I.P.C. read with Section 3(1)(D) SC/ST
Act (as amended on 18.6.2019) the
present
applicant
(the
accused
in
aforesaid case crime) along with his
companions ran cows into the field in the
night of 18.6.2019 at about 8:00 p.m. The
cattles so pushed in the field began to
graze the crops grown in the field. When
the informant tried to stop this the
applicant accused began to abuse in filthy
language threatening to kill, attacked on
him with lathi and danda. When the
informant made hue and cry, for his
rescue, the wife of informant rushed up to
save him then the applicant accused
assaulted her also with lathi and danda.
The informant (opposite party no.2)
informed the concerned police station but
instead of registering his FIR he was
scolded and driven away. The informant
and his wife were not heard by police.

13. On the other hand with regard to
the same incident the F.I.R. bearing
No.76/2019 has been filed by the accused
applicant on 19.6.2019, in the same
Police Station under Sections 427, 452,
506, 504, 323 I.P.C. with the similar
allegations, alleging that the incident
occurred on 18.6.2019 at about 8:00 p.m
in night wherein they were assaulted in a
scuffle with the opposite party no.2 of the
present case.

14. In the aforesaid reference, it has
been submitted on behalf of the informant
of Case Crime No.80/2019 that the
accused applicant belong to the upper
caste of the society and the opposite party
no.2, (informant) belongs to scheduled
case, due to this fact the Informant and
his wife were not heard by the Police and
their FIR was not registered. However,
both the parties to the incident have their
counter version to each other.

15. On hearing the parties, the issues
arising
in
this
application
are
as
following:-

(i) As to which version is true
out of the two counter versions with
regard to the same incident in two FIR's.

(ii) whether the investigating
officer without any application of mind,
over the materials collected by him
mechanically forwarded the charge sheet
to the court concerned.

(iii) whether the court of Special
Judge, SC/ST Act has applied its mind
while taking cognizance of the offences
on the basis of material collected and
placed by the Investigating Officer in the
charge sheet.

16. So far as the happening of
incident with regard to which allegations
are made in the FIR is concerned, the
3 All. Surendra Tiwari @ Surendra Prasad Tiwari & Anr. Vs. State of U.P.& Anr.
77
same is almost admitted and will be
treated as prima facie true for the reason
that the applicant accused have also
lodged an FIR for the same incident.

17. The role of accused applicant in
an admitted incident is to be tested on the
basis of evidences which is matter of trial
and any defence taken by accused at this
stage cannot be entertained.

18. If an incident, of scuffling and
beating each other, occurs in between two
groups of people and both of them have
complained of the incident to the police,
putting
their
own
versions,
though
incriminating each other and exculpating
themselves, at least the occurrence of
incident is admittedly established. In such a
circumstance the counter versions of the
parties to the same incident form cross cases.
There is no express provision in Criminal
Procedure Code for their investigation or
trial separately. Therefore, the investigating
officer has a duty to carefully collect the
evidence with regard to the role of accused
in such cases as to which one of them is
aggressor in causing the incident or in
defence, and also their individual role in the
offence. Therefore the allegations in the
F.I.R. if fulfill the ingredients of the offence,
the FIR is to be treated as deserving for
investigation. After collecting the prima facie
evidence, the investigating officer has to
place them on record along with the name
and details of witnesses and documentary
evidence. In the light of the above discussion
it would be necessary to go through the
relevant Section of I.P.C. namely Sections
323, 504 and 506 as well as those under the
SC/ST Act.

19. In view of the above, it would be
necessary
to
examine
whether
the
allegations made in the FIR are fulfilling
the ingredients of the offences with which
the accused are slapped.

20. Section 323 IPC runs as under:-

S.323.
Punishment
for
Voluntarily causing Hurt- Whoever, except
in the case provided for by section 334,
voluntarily causes hurt, shall be punished
with imprisonment of either description for
a term which may extend to one year, or
with fine which may extend to one thousand
rupees, or with both.

Section 319 of the I.P.C. defines
"Hurt", whoever causes bodily pain
disease or injury to any person is said to
cause hurt. Section 323 of the I.P.C. is
with regard to the punishment to a person
who does any act with the intention
thereby, causing hurt to any person, with
the knowledge that he is likely thereby to
cause hurt to any person, shall be
punishable with the imprisonment for one
year or fine of Rs.1,000/- or both as such
the FIR allegations no doubt fulfill the
ingredients of offence punishable under
Section 323

21. Section 504 IPC runs as under :-

S.504. Intentional insult with
intent to provoke breach of the peace.--
Whoever
intentionally
insults,
and
thereby gives provocation to any person,
intending or knowing it to be likely that
such provocation will cause him to break
the public peace, or to commit any other
offence,
shall
be
punished
with
imprisonment of either description for a
term which may extend to two years, or
with fine, or with both.

Section 504 of the I.P.C. makes
the offence of causing insult intentionally
with intent to provoke breach of the
78 INDIAN LAW REPORTS ALLAHABAD SERIES
peace. In the present case the accused
applicant by pushing the cattle into the
field of the informant with intent to
destroy the crops grown therein, and
when the informant forbid him to do so,
the applicant accused along with other
companions abusing in filthy language
began to beat the informant. The FIR
lodged by the applicant accused himself
admits that the informant scuffled with
him and also incident of beating occurred
thereby.
Prima
facie,
the
aforesaid
allegations coming out from both the
FIR's lodged with regard to the same
incident, no doubt prima facie fulfills the
allegations of intentional insult with
intent to provoke breach of peace.

22. Sections 503 and 506 IPC runs
as under:-

S.503. Criminal intimidation.--
Whoever threatens another with any
injury to his person, reputation or
property, or to the person or reputation of
any one in whom that person is interested,
with intent to cause alarm to that person,
or to cause that person to do any act
which he is not legally bound to do, or to
omit to do any act which that person is
legally entitled to do, as the means of
avoiding the execution of such threat,
commits
criminal
intimidation.
Explanation.--A threat to injure the
reputation of any deceased person in
whom the person threatened is interested,
is within this section. Illustration A, for
the purpose of inducing B to desist from
prosecuting a civil suit, threatens to burn
B's house. A is guilty of criminal
intimidation.

S.506. Punishment for criminal
intimidation.--Whoever
commits,
the
offence of criminal intimidation shall be
punished with imprisonment of either
description for a term which may extend
to two years, or with fine, or with both; If
threat be to cause death or grievous hurt,
etc.--And if the threat be to cause death
or grievous hurt, or to cause the
destruction of any property by fire, or to
cause an offence punishable with death or
1[imprisonment
for
life],
or
with
imprisonment for a term which may
extend to seven years, or to impute,
unchastity to a woman, shall be punished
with imprisonment of either description
for a term which may extend to seven
years, or with fine, or with both.

Section 506 IPC which makes
punishable
the
offence
of
criminal
intimidation as defined under Section 503
of I.P.C. is also prima facie being
constituted from the allegations made in
the FIR by the informant against the
applicant/accused. As per the allegations
made in the FIR it comes out, that when
forbidden by the informant the accused
applicant criminally intimidated him with
threat to his life and limbs.

23. In the light of the above
discussion, it is clear that prima facie the
offence punishable under Section 323,
504 and 506 IPC are found established
from the allegations made in the F.I.R.
and as such from the evidence collected
during the investigation, the submission
of charge-sheet cannot be said to be
forwarded mechanically without applying
the mind by the Investigating Officer to
the court for cognizance of offence.

24. The charge sheet has not only
been submitted before the court with
regard to the offences under Section 323,
504, 506 IPC but also with regard to the
offence under SC/ST Act. The court has
3 All. Surendra Tiwari @ Surendra Prasad Tiwari & Anr. Vs. State of U.P.& Anr.
79
taken cognizance as pleaded in the
application
itself,
along
with
other
provisions of Indian Penal Code and the
offence under Section 3(1)(D) of the
SC/ST Act. From the material placed
before this court, particularly the certified
copy of the charge sheet dated 18.7.2019
filed in the court of Additional District
and
Sessions
Court-3,
SC/ST
Act,
Pratapgarh whereupon Sessions Trial
no.319/2019 is founded the offence
mentioned to be under Section 3(1)(x)
SC/ST Act. Section 3 (1)(x) of the SC/ST
Act (as amended) runs as under:-

"intentionally
insults
or
intimidates with the intent to humiliate a
member of a Scheduled Caste or a
Scheduled Tribe in any place within
public view"

25. On further perusal of the
material placed before the Court, it
appears that the offence being entertained
by Special Court on the charge sheet
submitted by the police under Section
3(1)(D) of the SC/ST Act.

26. On perusal of the F.I.R., which
is found registered along with Sections
323, 504, 506 I.P.C. and under Section
3(1)(D) of the SC/ST Act. There is no
section 3(1)(D) in the Act. If the same be
read as Section 3(1)(d), the same runs as
under:-

"(d) garlands with footwear or
parades naked or semi-naked a member
of a Scheduled Caste or a Scheduled
Tribe;"

27. The allegations made in the FIR
are prima facie though fulfilling the
ingredients of offence under Section
3(1)(x) SC/ST Act but not 3(1)(d) SC/ST
Act, so far as the Section 3(1)(D) is
concerned does not exist in the Act. There
is no allegation of insult or intimidation
with intent to humiliate the informant as a
member
of
Scheduled
Caste
and
Scheduled Tribes community in any place
within public view. Even then the charge
sheet is forwarded and the special court
SC/ST Act took cognizance of the offence
mechanically, with an obscurity as to
which provision of law in SC/ST Act
applies.

28. In para 27 of the Inder Mohan
Goswami (Supra), Hon'ble Supreme
Court has held as under:-

"27. The powers possessed by
the High Court under section 482 of the
Code are very wide and the very
plenitude of the power requires great
caution in its exercise. The court must be
careful to see that its decision in exercise
of this power is based on sound
principles. The inherent power should not
be exercised to stifle a legitimate
prosecution. The High Court should
normally refrain from giving a prima
facie decision in a case where all the facts
are incomplete and hazy; more so, when
the evidence has not been collected and
produced before the court and the issues
involved, whether factual or legal, are of
such magnitude that they cannot be seen
in their true perspective without sufficient
material. Of course, no hard and fast rule
can be laid down in regard to cases in
which the High Court will exercise its
extraordinary jurisdiction of quashing the
proceedings at any stage."

29. In Inder Mohan Goswami
(Supra), Hon'ble Apex Court in para 28
observed as under:-
80 INDIAN LAW REPORTS ALLAHABAD SERIES

"28. This Court in State of
Karnataka v. L. Muniswamy and Ors.
reported in 1977CriLJ1125 observed that
the wholesome power under section 482
Cr.P.C. entitles the High Court to quash a
proceeding
when
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 High Courts have
been invested with inherent powers, both
in civil and criminal matters, to achieve a
salutary
public
purpose.
A
court
proceeding ought not to be permitted to
degenerate into a weapon of harassment
or persecution. The court observed in this
case that ends of justice are higher than
the ends of mere law though justice must
be administered according to laws made
by the legislature. This case has been
followed in a large number of subsequent
cases of this court and other courts."

30. Hon'ble Apex Court in the case
of Madhavrao Jiwajirao Scindia &
Others v. Sambhajirao Chandrojirao
Angre & Others (1988) 1 SCC 692
observed as under:

"7. The legal position is well
settled that when a prosecution at the
initial stage is asked to be quashed, the
test to be applied by the court is as to
whether the uncontroverted allegations as
made prima facie establish the offence. It
is also for the court to take into
consideration any special features which
appear in a particular case to consider
whether it is expedient and in the interest
of justice to permit a prosecution to
continue. This is so on the basis that the
court cannot be utilized for any oblique
purpose and where in the opinion of the
court chances of an ultimate conviction is
bleak and, therefore, no useful purpose is
likely to be served by allowing a criminal
prosecution to continue, the court may
while taking into consideration the special
facts of a case also quash the proceeding
even though it may be at a preliminary
stage."

31. In the present case, when there
is no prima facie case as to the abuse of
process on the basis whereof the charge
sheet and the order of the Magistrate
taking cognizance be quashed, the other
ground taken by the applicant accused
that the summon was not issued to him
after cognizance is baseless from the
perusal of the order of Magistrate of
taking cognizance. Moreover, if the
accused have knowledge of the pendency
of criminal proceeding against him and
approaches to the High Court for the
quashing of charge sheet and summoning
order then he cannot be said to be
unaware of the issuance of summon and
its pendency. If the allegations as to the
non service of summons is taken as true,
then also merely because of that the FIR
and the charge sheet which are found
legal and without any error quashing of
further proceeding would not be justified
on the said ground of alleged non service
of summon.

32. So far as the infringement of
personal
liberty
is
concerned,
the
applicant accused when knows about the
process issued by the court against him
for his appearance it is not good and
bonafide on his part to disobey the
process by not appearing there, but to
approach the High Court for quashing the
charge sheet and cognizance order on
frivolous grounds. The purpose of issuing
process like summons, despite service of
summon and on defiance on the part of
3 All. Surendra Tiwari @ Surendra Prasad Tiwari & Anr. Vs. State of U.P.& Anr.
81
the accused in not appearing, issuance of
bailable warrant and when that too is
avoided issuance of non bailable warrant,
all are aimed only to procure and ensure
the attendance of applicant accused in
court for trial. When he appears before
the court for trial, he would have
sufficient opportunity at every stage
therein of being heard by putting defence
against prosecution.

33. In the present case, so far as the
proceeding under Sections 323, 504, 506
I.P.C. is concerned, the submission of
charge sheet as well the taking of
cognizance of the offence by the court
therein
is
free
of
any
impunity.
Simultaneously the cognizance of offence
under the Scheduled Caste and Scheduled
Tribes is concerned, prima facie, from the
allegations made in the FIR and the
material in the charge-sheet seems to be
discrepant with regard to the provision of
SC/ST Act wherein the cognizance of the
offence is taken. There is an obscurity as
to the provision. However, only for the
reason that the provision of law as quoted
in the FIR or charge-sheet is obscure it
cannot be prima facie held that from the
allegations in the FIR no offence is being
made out in any provisions of the SC/ST
Act. There as allegations in the FIR as to
the humiliation and criminal intimidation
of the informant. As such in the present
case the prosecution cannot be said
illegitimate.

34. The court concerned which has
took cognizance under the SC/ST Act is
to be reminded of its duty to evaluate the
material allegations with regard to the
offence whether or not being constituted
under any relevant provision thereto,
existing
in
Scheduled
Caste
and
Scheduled Tribes Act at the time of
hearing the applicant accused on framing
of charges under Section 227/228 of the
Cr.P.C. The court has to pass a reasoned
and cogent order as to the commission of
offence under SC/ST Act.

35. The accused applicant though
not pleaded in their application, but
argued that in the alternative, if the case is
not made out with regard to the abuse of
process or on any other ground under
Section 482 Cr.P.C. then benefit of
interim stay of the arrest be given in view
of the settled law laid by this Court in the
case of Amrawati and another Vs. State
of U.P. reported in 2004 (57) ALR 290
as well as judgment passed by Hon'ble
Apex Court reported in 2009 (3) ADJ 322
(SC) Lal Kamlendra Pratap Singh Vs.
State of U.P.

36. Hon'ble Apex Court in the case
of Inder Mohan Goswami (Supra)
under the head "Personal liberty and the
interest of the State" held as under:-

Personal liberty and the interest
of the State Civilized countries have
recognized that liberty is the most
precious of all the human rights. The
American Declaration of Independence
1776, French Declaration of the Rights of
Men and the Citizen 1789, Universal
Declaration of Human Rights and the
International Covenant of Civil and
Political Rights 1966 all speak with one
voice - liberty is the natural and
inalienable right of every human being.
Similarly, Article 21 of our Constitution
proclaims that no one shall be deprived of
his liberty except in accordance with the
procedure prescribed by law.

48. The
issuance
of
nonbailable warrants involves interference
82 INDIAN LAW REPORTS ALLAHABAD SERIES
with
personal
liberty.
Arrest
and
imprisonment means deprivation of the
most precious right of an individual. Therefore,
the courts have to be extremely careful before
issuing non-bailable warrants.

49. Just as liberty is precious
for an individual so is the interest of the
society in maintaining law and order.
Both are extremely important for the
survival of a civilized society. Sometimes
in the larger interest of the Public and the
State it becomes absolutely imperative to
curtail freedom of an individual for a
certain period, only then the non-bailable
warrants should be issued.

When non-bailable warrants
should be issued

Non-bailable warrant should be
issued to bring a person to court when
summons of bailable warrants would be
unlikely to have the desired result. This
could be when:

* it is reasonable to believe that
the person will not voluntarily appear in
court; or

* the police authorities are
unable to find the person to serve him
with a summon;

* it is considered that the
person could harm someone if not placed
into custody immediately.

50. As far as possible, if the
court is of the opinion that a summon will
suffice in getting the appearance of the
accused in the court, the summon or the
bailable warrants should be preferred.
The warrants either bailable or nonbailable should never be issued without
proper scrutiny of facts and complete
application of mind, due to the extremely
serious consequences and ramifications
which ensue on issuance of warrants. The
court
must
very
carefully
examine
whether the Criminal Complaint or FIR
has not been filed with an oblique motive.

51. In complaint cases, at the
first instance, the court should direct
serving of the summons along with the
copy of the complaint. If the accused seem
to be avoiding the summons, the court, in
the second instance should issue bailable-
warrant.