# (U/S 482 CR.P.C.) Alok Kumar Mishra & Anr v. State of U.P. & Anr

- **Citation:** (2015) 2 ILRA 863
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-09-23
- **Case number:** Criminal Misc. Application No. 18749 of 2015
- **Bench:** Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-s-482-cr-p-c-alok-kumar-mishra-anr-v-state-of-u-p-anr-43214
- **Pages:** 3

## Headnote

Cr.P.C.-Section
482-Summoning
order
seeking
direction
for
quashing-from
allegations of complaint-can not be said
no offence made out-disputed question
of facts-can not be seen by High Courtapplicant can raise this question in
discharge application-rejected direction
for expeditious disposal of bail as per
Supreme Court direction given.
Held: Para-6
From the perusal of the material on record
and looking into the facts of the case, at this
stage, it cannot be said that no offence is
made out against the applicant. All the
submissions made at the Bar relate to the
disputed questions of fact, which cannot be
adjudicated upon by this Court under
Section 482 Cr.P.C. At this stage, only prima
facie case is to be seen in the light of the
law laid down by Supreme Court in cases of
R.P. Kapur Vs. State of Punjab, AIR 1960 SC
866, State of Haryana Vs. Bhajan Lal, 1992
SCC (Cr.) 426, State of Bihar Vs. P.P.
Sharma, 1992 SCC (Cr.) 192 and lastly
Zandu Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq and another (para 10) 2005
SCC (Cr.) 283. The disputed defence of the
accused cannot be considered at this stage.
Moreover, the applicant has got a right of
discharge under section 239 or 227/228
Cr.P.C. as the case may be through a proper
application for the said purpose and she is
free to take all the submissions in the said
discharge application before the Trial Court.
864
 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Law discussed:
AIR 1989 SC 1; AIR 1960 SC 866; 1992 SCC
(Cr.) 426; 1992 SCC (Cr.) 192; 2005 SCC (Cr.)
283; 2005 Cr.L.J. 755; 2009 (3) ADJ 322 (SC).

## Text

2 All] Alok Kumar Mishra & Anr. Vs. State of U.P. & Anr.
863
is central to the whole chapter on
fundamental rights in our Constitution.
The right to liberty means that before
sending a person to prison a trial must
ordinarily be held giving him opportunity
of placing his defence through his lawyer.
It follows that if a person is liable to be
tried, or is actually being tried, for a
criminal
offence,
but
the
ordinary
criminal law (Indian Penal Code or other
penal statutes) will not be able to deal
with the situation, then, and only then, can
the preventive detention law be taken
recourse to.
34. Hence, the observation in para 34
in Haradhan Saha's case (supra) cannot be
regarded as an unqualified statement that
in every case where a person is liable to
be tried, or is actually being tried, for a
crime in a criminal court a detention order
can also be passed under a preventive
detention law."
32. Thus in view of the forgoing
discussions, we have no hesitation in
holding that the impugned detention order
cannot be sustained and is liable to be
quashed.
33. This habeas corpus writ petition
is accordingly allowed and the impugned
detention
order
dated
04/14.08.2014
(Annexure-10) as well as the order of the
State
Government
dated
23.09.2014
confirming the detention order dated
04/14.08.2014 are hereby quashed. The
petitioner shall be released forthwith if he
is not wanted in any other case.
34. There shall however be no order
as to costs.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.07.2015
BEFORE
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Criminal Misc. Application No. 18749 of 2015
(U/S 482 CR.P.C.)
Alok Kumar Mishra & Anr. ...Applicants
Versus
State of U.P. & Anr.
...Opp. Parties
Counsel for the Applicants:
Sri R.P. Mishra
Counsel for the Opp. Parties:
A.G.A.
Cr.P.C.-Section
482-Summoning
order
seeking
direction
for
quashing-from
allegations of complaint-can not be said
no offence made out-disputed question
of facts-can not be seen by High Courtapplicant can raise this question in
discharge application-rejected direction
for expeditious disposal of bail as per
Supreme Court direction given.
Held: Para-6
From the perusal of the material on record
and looking into the facts of the case, at this
stage, it cannot be said that no offence is
made out against the applicant. All the
submissions made at the Bar relate to the
disputed questions of fact, which cannot be
adjudicated upon by this Court under
Section 482 Cr.P.C. At this stage, only prima
facie case is to be seen in the light of the
law laid down by Supreme Court in cases of
R.P. Kapur Vs. State of Punjab, AIR 1960 SC
866, State of Haryana Vs. Bhajan Lal, 1992
SCC (Cr.) 426, State of Bihar Vs. P.P.
Sharma, 1992 SCC (Cr.) 192 and lastly
Zandu Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq and another (para 10) 2005
SCC (Cr.) 283. The disputed defence of the
accused cannot be considered at this stage.
Moreover, the applicant has got a right of
discharge under section 239 or 227/228
Cr.P.C. as the case may be through a proper
application for the said purpose and she is
free to take all the submissions in the said
discharge application before the Trial Court.
864
 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Law discussed:
AIR 1989 SC 1; AIR 1960 SC 866; 1992 SCC
(Cr.) 426; 1992 SCC (Cr.) 192; 2005 SCC (Cr.)
283; 2005 Cr.L.J. 755; 2009 (3) ADJ 322 (SC).
(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)
1. Heard learned counsel for the
applicants and learned AGA and perused
the record.
2. The applicants have invoked the
inherent jurisdiction of this court under
section 482 Cr.P.C. by praying for
quashing of the summoning order dated
25.2.2015 passed by the A.C.J.M. Court
No. 9, Allahabad, as well as the entire
proceedings of Case No. 136 of 2011,
Azaj Ahmad Vs. Sri Rajesh Kumar
Mishra and another, under section 406,
323 and 504 I.P.C. P.S. Handia, District
Allahabad.
3. Learned counsel for the applicants
has submitted that there is no material to
connect the applicants with the alleged
crime. There is no witness of the
occurrence but they have wrongly been
summoned without any basis, hence the
impugned summoning order as well as the
entire proceeding of the Complaint Case
be quashed.
4. The record shows that the
complainant and the witnesses have been
examined under section 200 and 202
Cr.P.C. and they have supported the
prosecution story. At the initial stage of
summoning only prima-facie case is to be
seen. Therefore, looking into the primafacie evidence on record, it cannot be said
that no offence is made out against the
applicant. The legal position is well
settled that if an offence is disclosed, the
court will not normally interfere.
5. So far as the inherent powers of
the court are concerned, it has been
reiterated by Hon'ble Apex Court in a
catena
of
judgements
that
while
exercising its inherent powers under
section 482 Cr.P.C., the Court would not
embark upon an enquiry whether the
allegations in the complaint are likely to
be established by the evidence or not. The
High Court would have to proceed
entirely on the basis of the allegations
made in the complaint or the documents
accompanying the same per se; it has no
jurisdiction to examine the correctness or
otherwise of the allegations. (State of
Bihar Vs. Murad Ali Khan and others
AIR 1989 SC 1).
6. From the perusal of the material on
record and looking into the facts of the case,
at this stage, it cannot be said that no offence
is made out against the applicant. All the
submissions made at the Bar relate to the
disputed questions of fact, which cannot be
adjudicated upon by this Court under Section
482 Cr.P.C. At this stage, only prima facie
case is to be seen in the light of the law laid
down by Supreme Court in cases of R.P.
Kapur Vs. State of Punjab, AIR 1960 SC
866, State of Haryana Vs. Bhajan Lal, 1992
SCC (Cr.) 426, State of Bihar Vs. P.P.
Sharma, 1992 SCC (Cr.) 192 and lastly
Zandu Pharmaceutical Works Ltd. Vs.
Mohd. Saraful Haq and another (para 10)
2005 SCC (Cr.) 283. The disputed defence of
the accused cannot be considered at this
stage. Moreover, the applicant has got a right
of discharge under section 239 or 227/228
Cr.P.C. as the case may be through a proper
application for the said purpose and she is
free to take all the submissions in the said
discharge application before the Trial Court.
7. Thus on the basis of the aforesaid
discussions,
the
instant
application
2 All]
 Abhilasha Mishra Vs. State of U.P. & Ors.
865
appears to have no force and it is liable to
be dismissed.
8. The application is, accordingly,
dismissed.
9. However, it is directed that in
case the applicants appear before the court
concerned within thirty days from today
and apply for bail, the same shall be heard
and disposed of expeditiously, if possible,
on the same day by the courts below in
view of the settled law laid by the Seven
Judges' decision of this Court in the case
of Amrawati and another Vs. State of U.P.
reported in 2005 Cr.L.J. 755 approved by
Hon'ble Apex Court in 2009 (3) ADJ 322
(SC) Lal Kamlendra Pratap Singh Vs.
State of U.P.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2015
BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE ASHWANI KUMAR MISHRA, J.
Writ-A No. -36228 of 2015
Abhilasha Mishra
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri S.K. Singh, Sri D.K. Singh, Sri G.K.
Singh, Sri S.K. Mishra, Sri V.K. Singh
Counsel for the Respondents:
C.S.C., Sri A.K. Yadav
Constitution of India, Art.-226-'Principle
of
Resjudicata'-dismissal
of
PIL
questioning appointment of Chairman
and
member
of
Selection
Boardpetitioner being candidate for selection
of principal in Intermediate Collegeseeking quo warranto-the chairman and
members of Board-being clerk and L.T.
Grade teachers-even not qualified for
post of principal-can not consider the
eligibility and suitability in interviewCourt can not be mute spectator-to allow
the government to break the back bone
of education-held-petition maintainable.
Held: Para-30
We would like to observe that consideration
for entertaining a PIL and grant of interim
orders therein proceed on different footing.
The present writ petition has been filed by a
candidate, who is to face interview, for
issuing a writ of quo warranto, this petition
has no concern with the earlier petitions
filed, as this is for a different relief. We
further find that issues raised in the petition
have important significance for the cause of
education in the State, the writ petition
must,
therefore,
be
entertained.
The
objection of the State, in this regard, stands
rejected.
Case Law discussed:
[2013 (8) SCC 20]
(Delivered by Hon'ble Arun Tandon, J.)
1. Following questions having vital
significance for the cause of education in
the State of Uttar Pradesh, arise for our
consideration in the present writ petition:-
(i) What should be the minimum
qualifications
for
appointment
of
Chairman
and
Members
of
U.P.
Secondary Education Service Commission
Board, even in respect of persons
specified under Section 4 (iv) of the Act,
should it be at par with the qualification
for persons specified under clause (i) (ii)
& (iii) of Section 4 on the principle of
'Ejusdem Generis' ?
(ii) Whether, respondent nos. 4 to 6
who were working as L.T. Grade Teacher
i.e. on a post which is at the lowest ladder
of the faculty posts is a recognised
Intermediate College could be appointed