# Sushil Kumar Singh v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 97
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-22
- **Case number:** Criminal Misc. Application U/S 482 No. 43713 of 2022
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-singh-v-state-of-u-p-anr-50062
- **Pages:** 6

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections - 419, 420, 467, 468, 471, 504 &
506 - The Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989
- Section 3(1)(Da) & 3(1)(Dha), The
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Amendment Act,
2015 - Section 14A - 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 -
When a statutory remedy is created by
enactment for redressal of grievances, the
exercise of inherent power by way of a
petition U/S 482 Cr.P.C. could not be
invoked
ignoring
the
statutory
dispensation.(Para -14)

(B) Code of Criminal Procedure, 1973 -
Section 5 - Saving - when a special Act,
provides remedy of appeal 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, the special
provision in the Act would prevail over the
general provision. (Para - 6)

(C) Code of Criminal Procedure, 1973 -
Section 482 - inherent powers under
section 482 Cr.P.C. can be exercised only
when no other remedy is available to the
litigant and not where a specific remedy is
provided by any particular statute.(Para -
15)

Application seeks to quash proceedings,
including charge sheet and cognizance order -
Objection
related
to
maintainability
of
application
-
applicant
has
a
statutory
alternative remedy to appeal
-
against
cognizance/summoning order under Section
14-A
of
the 1989
Act
-
petition
not
maintainable - due to non-obstant clause in
Section 14-A - appeals must lie from a Special
Court judgment to the High Court (Para -
2,3)
98 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD:-If an effective statutory alternative
remedy is available, this court should refrain
from exercising its extraordinary power under
section 482 Cr.P.C., especially when the
applicant has not availed of that remedy.
Direction to applicant to avail remedy of appeal
available to him under the Statute before the
appropriate forum.(Para - 15,18)

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

List of Cases cited:

## Text

4 All. Sushil Kumar Singh Vs. State of U.P.& Anr.
97
Section 204 (2) Cr.P.C. is meant only to
safeguard the interest of the accused
against undue harassment at the hands of
unscrupulous
litigants
and
not
to
circumscribe the power of the Magistrate to
issue summons to any witness, on the
application of the prosecution, as provided
under Section 254 (2) Cr.P.C. Further, even
if it is held that the provisions of Section
204(2) Cr.P.C. are mandatory, that by itself,
would not vitiate the issue of process or the
jurisdiction of the Court.

11. In view of the above, this Court is
of the opinion that the prayer for quashing
the impugned summoning order dated
04.09.2015
as
well
as
the
entire
proceedings of the aforesaid case are
refused, as I do not see any abuse of the
court's process.

12. This application under Section 482
Cr.P.C. lacks merit and is, accordingly,
dismissed.
----------
(2023) 4 ILRA 97
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.03.2023

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Misc. Application U/S 482 No. 43713 of
2022

Sushil Kumar Singh ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Sugendra Kumar Yadav, Sri Dilendra
Pratap Singh, Sri Anoop Trivedi (Sr.
Advocate)

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections - 419, 420, 467, 468, 471, 504 &
506 - The Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989
- Section 3(1)(Da) & 3(1)(Dha), The
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Amendment Act,
2015 - Section 14A - 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 -
When a statutory remedy is created by
enactment for redressal of grievances, the
exercise of inherent power by way of a
petition U/S 482 Cr.P.C. could not be
invoked
ignoring
the
statutory
dispensation.(Para -14)

(B) Code of Criminal Procedure, 1973 -
Section 5 - Saving - when a special Act,
provides remedy of appeal 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, the special
provision in the Act would prevail over the
general provision. (Para - 6)

(C) Code of Criminal Procedure, 1973 -
Section 482 - inherent powers under
section 482 Cr.P.C. can be exercised only
when no other remedy is available to the
litigant and not where a specific remedy is
provided by any particular statute.(Para -
15)

Application seeks to quash proceedings,
including charge sheet and cognizance order -
Objection
related
to
maintainability
of
application
-
applicant
has
a
statutory
alternative remedy to appeal
-
against
cognizance/summoning order under Section
14-A
of
the 1989
Act
-
petition
not
maintainable - due to non-obstant clause in
Section 14-A - appeals must lie from a Special
Court judgment to the High Court (Para -
2,3)
98 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD:-If an effective statutory alternative
remedy is available, this court should refrain
from exercising its extraordinary power under
section 482 Cr.P.C., especially when the
applicant has not availed of that remedy.
Direction to applicant to avail remedy of appeal
available to him under the Statute before the
appropriate forum.(Para - 15,18)

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

List of Cases cited:

1. Ghulam Rasool Khan & ors. Vs St. of UP &
ors., 2022 0 Supreme (All) 608

2. Criminal Writ- Public Interest Litigation No. -
8 of 2018

3. Ramavawatar Vs St. of M.P., 2021 0 Supreme
(SC) 625

4. Hitesh Verma Vs St. of Uttarakhand & anr.,
2020 0 Supreme (SC) 653

5. Arnit Das Vs St. of Bihar, 2000 (5) SCC 488

6. N. Bhargavan Pillai Vs St. of Kerala, AIR 2004
SC 2317

7. Madhu Limaye Vs St. of Maha., AIR 1978 SC
47

8. St. of Har. Vs Bhajan Lal ,1992 Supp. (1) SCC
335

(Delivered by Hon'ble Shekhar Kumar
Yadav, J.)

1. Heard Sri Anoop Trivedi, learned
Senior Counsel for the applicant, Sri R.P.
Mishra, learned A.G.A. for the State and
perused the material available on record.
2. The present application U/S 482 Cr.P.C.
has been filed by the applicant with the
prayer to quash the entire proceedings of
S.T. No. 469 of 2022 (State Vs Sushil
Kumar Singh) arising gout of Case Crime
No. 45 of 2018, under Sections 419, 420,
467, 468, 471, 504, 506 I.P.C. and Section
3(1)(Da) & 3(1)(Dha) of SC/ST Act, P.S.-
Khajani, District- Gorakhpur including the
charge sheet as well as cognizance order
dated
8.2.2022
passed
by
learned
Additional District Judge (Special Judge)
S.C./S.T. Act, Gorkahpur.

3. A preliminary objection has been
raised
by
learned
A.G.A.
regarding
maintainability of the application on the
ground that the applicant has a statutory
alternative remedy of appeal challenging
the cognizance/summoning order under
Section 14-A of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Amendment Act, 2015 (in short 1989 Act).
It is submitted that the present 482 petition
is not maintainable in view of opening line
of Section 14-A of the Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Act, 1989, which is a statutory
provision and this section starts with non
obstant
clause
that
"Notwithstanding
anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), an appeal
shall lie, from any judgment, sentence or
order, not being an interlocutory order,
of a Special Court or an Exclusive
Special Court, to the High Court both on
facts and on law." In support of his
contention, learned A.G.A. has relied upon
the Full Bench decisions of this Court in
the case of Ghulam Rasool Khan and
others Vs State of UP and others, 2022 0
Supreme (All) 608 and In Re:-Provision
of Section 14 A of SC/ST (Prevention of
Atrocities)
Amendment
Act,
2015
(CRIMINAL
WRIT-
PUBLIC
INTEREST LITIGATION No. - 8 of
2018) decided on 10.10.2018.

4. On the other hand, learned counsel
for the applicant submitted that against the
order impugned, petition under section 482
4 All. Sushil Kumar Singh Vs. State of U.P.& Anr.
99
Cr.P.C. would be maintainable. He further
submitted that the inherent power of the
High Court under Section 482 Cr.P.C.
cannot be ousted by Section 14-A of the
Act. He relied upon the judgement of Apex
Court rendered in Ramavawatar Vs State
of Madhya Pradesh, 2021 0 Supreme
(SC) 625 & Hitesh Verma Vs State of
Uttarakhand
and
another,
2020
0
Supreme (SC) 653.

5. Learned AGA has further pointed
out that the Hon'ble Apex Court has never
considered the issue, in the cases relied
upon by the learned counsel for the
applicants, as to whether appeal would lie
under Section 14-A of the Act, 1989 or
petition U/S 482 Cr.P.C. would lie against
the cognizance order passed of special
Court, therefore, the decisions relied upon
by the learned counsel for the applicant
cannot be said to be a binding. In support
of his argument, learned A.G.A. relied
upon the case of Arnit Das Vs Sate of
Bihar, 2000 (5) SCC 488, in which while
examining the binding effect of such a
decision, the Apex Court observed that
"A
decision
not
expressed,
not
accompanied
by
reasons
and
not
proceedings on a conscious consideration
of an issue cannot be deemed to be a law
declared to have a binding effect as is
contemplated by Article 141. That which
has escaped in the judgement is not the
ratio decidendi. This is the rule of sub
silentio, in the technical sense when a
particular
point
of
law
was
not
consciously determined". He has also
relied upon the case of N. Bhargavan
Pillai Vs. State of Kerala, AIR 2004 SC
2317, to contend that if any view has
been expressed without analyzing the
statutory provision, it cannot be treated as
a binding precedent.

6. Learned A.G.A. further taking
recourse to Section 5 of the Code of
Criminal Procedure has also contended that
when a special Act, provides remedy of
appeal 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, the special provision in the Act
would prevail over the general provision.

7. In the case of Ramavawatar
(supra) the issue was whether criminal
proceedings
arising
out
of
non
compoundable offence can be quashed
against a person accused of hurting the
sentiments of the victim who belongs to the
Scheduled Caste category by exercising
special powers of the court? The Hon'ble
Apex Court has ruled that where it appears
to the Court that the offence in question,
although covered under the SC/ST Act, is
(i) primarily private or civil in nature;,
or (ii) where the alleged offence has not
been committed on account of the caste
of the victim; or (iii) where the
continuation of the legal proceedings
would be an abuse of the process of law,
the Court can exercise its powers to quash
the proceedings.

8. However, in the case of Hitesh
Verma (supra), appellant had sought
quashing of the charge-sheet on the ground
that the allegation does not make out an
offence under the Act against the appellant
merely because respondent No. 2 was a
Scheduled Caste since the property dispute
was not on account of the fact that
respondent No. 2 was a Scheduled Caste.
The property disputes between a vulnerable
section of the society and a person of upper
caste will not disclose any offence under
the Act unless, the allegations are on
100 INDIAN LAW REPORTS ALLAHABAD SERIES
account of the victim being a Scheduled
Caste.

9. This Court is also mindful of the
two Full Bench decisions of this Court
rendered in Ghulam Rasool Khan and
Others Vs State of UP and Another, 2022
Latest Case Law 8330 Alld and In Re:-
Provision of Section 14 A of SC/ST
(Prevention of Atrocities) Amendment
Act, 2015 (CRIMINAL WRIT-PUBLIC
INTEREST LITIGATION No. - 8 of
2018) decided on 10.10.2018.

10. In Re: Provision of Section 14-A
of
SC/ST
(Prevention
of
Atrocities)
Amendment Act, 2015 (supra), Full Bench
of this Court has considered the question
"(B) Whether in view of the provisions
contained in Section 14-A of the Amending
Act, a petition under the provisions of
Article 226/227 of the Constitution of India
or a revision under Section 397 of the Code
of Criminal Procedure or a petition under
Section 482 Cr.P.C., is maintainable. OR in
other words, whether by virtue of Section
14-A of the Amending Act, the powers of
the High Court under Articles 226/227 of
the Constitution or its revisional powers or
the powers under Section 482 Cr.P.C. stand
ousted?

11. The Full Bench answered the said
question in the negative. It was held that
against the judgments or orders, for which
remedy has been provided under Section 14A of the 1989 Act, invoking the jurisdiction
of this Court by filing petition under Articles
226 or 227 of the Constitution of India, a
revision under Section 397 Cr.P.C. or an
application under Section 482 Cr.P.C., will
not be maintainable.

12. In another case of Ghulam Rasool
Khan and Others (supra), which is
another Full Bench of this Court also
considered the following question as to
whether an aggrieved person who has not
availed of the remedy of an appeal under
the provisions of Section 14-A of Act, 1989
can be allowed to approach the High Court
by preferring an application under the
provisions of Section 482 of the Cr.P.C.?
The Full Bench answered the said question
in negative holding that the aggrieved
person having remedy of appeal under
Section 14-A of the 1989 Act, cannot be
allowed to invoke inherent jurisdiction of
this Court under Section 482 Cr.P.C.

13. Both the cases relied upon by the
learned counsel for the applicants are not
applicable in the facts of the present case as
the same are silent over the technical issue
of maintainability of the petition under
Section 482 Cr.P.C. after insertion of
Section 14-A of Act, 1989 and unless the
said issue is decided consciously, any
departure from the statutory provision
would be a bad precedent. The cases relied
upon by the learned counsel for the
applicants have been decided by Hon'ble
Apex Court considering the fact that the
dispute involved therein was either in the
nature of private dispute or compromise
took place between the parties.

14. It is no doubt true that the exercise
of inherent power of the High Court is an
extraordinary power which has to be
exercised
with
great
care
and
circumspection as has been reminded by
Hon'ble Supreme Court in catena of
decisions on various occasions. Perusal of
Section 14-A of the Act 1989, itself shows
that it starts with a non obstante clause. The
legislative intent behind inserting nonobstante clause in any provision is to
enforce overriding effect of that provision
over any other provision or any other
4 All. Sushil Kumar Singh Vs. State of U.P.& Anr.
101
prevailing law. When a statutory remedy is
created by enactment for redressal of
grievances, the exercise of inherent power
by way of a petition U/S 482 Cr.P.C. could
not be invoked ignoring the statutory
dispensation.

15. Section 482 of the Code envisages
the three circumstances under which the
inherent jurisdiction may be exercised by
High Court, namely, (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. It is
trite law that the inherent power of the
High Court under Section 482 of the Code
ought
to
be
exercised
to
prevent
miscarriage of justice or to prevent the
abuse of the process of the court or to
otherwise secure the ends of justice and the
Court possesses wide discretionary powers.
It is well settled that the inherent powers
under section 482 Cr.P.C. can be exercised
only when no other remedy is available to
the litigant and not where a specific remedy
is provided by any particular statute. If an
effective statutory alternative remedy is
available, this court should refrain from
exercising its extraordinary power under
section 482 Cr.P.C., especially when the
applicant has not availed of that remedy.

16. The Apex Court in the case of
Madhu Limaye Vs State of Maharashtra,
AIR 1978 SC 47, has held that the
following principles would govern the
exercise of inherent jurisdiction of the HC:

1. Power is not to be resorted to,
if there is specific provision in code for
redress of grievances of aggrieved party.

2.
It
should
be
exercised
sparingly to prevent abuse of process of
any Court or otherwise to secure ends of
justice.

3. It should not be exercised
against the express bar of the law engrafted
in any other provision of the code.

17. In the landmark case State of
Haryana v. Bhajan Lal (1992 Supp. (1)
SCC 335), a two-judge bench of the
Supreme Court of India considered in
detail, the provisions of section 482 and the
power of the High Court to quash criminal
proceedings or FIR. The Supreme Court
summarized the legal position by laying the
following guidelines to be followed by
High Courts in exercise of their inherent
powers to quash a criminal complaint:

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 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
102 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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.

18. In view of above legal position,
instant application is finally disposed of
with the direction to the applicant to avail
the remedy of appeal available to him
under the Statute before the appropriate
forum.

19. Certified copy of the impugned
order, if any, be returned as per rules.
----------
(2023) 4 ILRA 102
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.02.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Writ C No. 32432 of 2022

Aasha Devi ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Sri Rajnath Yadav

Counsel for the Respondents:
C.S.C., Sri Narendra Kumar Tiwari

Civil
Law-Constitution
of
India,1950Article 21- Right to just compensation -
Physical
disability
caused
by
electrocution-Writ
petition
against
inadequate
compensation-Notional
Income provided under the scheme of the
U.P.
Power
Corporation
prima
facie
appears to be inadequate-Petitioner was
doing the work of grazing of goats which
is an activity connected to agricultureMinimum
wages
for
the
unskilled
employees working in agriculture as Rs.
409/- per day-Compensation enhanced
taking into account (I)-Loss of Earning
due to Disability(II)-Compensation for
Medical Expenses (III)-Future Medical
Expenses(IV)-Attendant Charges(V)-Loss
of Conveyance and Special Diet(VI)-Pain
and Suffering(VII)-Marriage Prospects-
(VIII)-Loss of Amenities and Enjoyment
of Life-Compensation enhanced from Rs.
5,81,000/- to Rs. 43,84,416. (Para 1030)

Writ petition Allowed. (E-15)

List of Cases cited:

1. Kaneez Fatima Vs St. of U.P. & ors. in Writ-C
No. 25065 of 2022

2. Kirti Vs Oriental Insurance Co. Ltd., (2021) 2
SCC 166

3. Kajal Vs Jagdish Chand, (2020) 4 SCC 413

4. Lata Wadhwa Vs St. of Bihar (2001) 8 SCC
197

5. National Insurance Co. Ltd. Vs Pranay Sethi,
(2017) 16 SCC 680

6. Sarla Verma Vs DTC (2009) 6 SCC 121

7. Raman Vs Uttar Haryana Bijli Vitran Nigam
Ltd., (2014) 15 SCC 1