# Vishal Mishra & Anr v. State of U.P. & Anr

- **Citation:** (2023) 11 ILRA 640
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-08
- **Case number:** Application U/S 482. No.8245 of 2023
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishal-mishra-anr-v-state-of-u-p-anr-49383
- **Pages:** 6

## Headnote

A. Criminal Law - Criminal Procedure Code,
1973-Section 482 - Indian Penal Code, 1860Sections 147, 148, 149, 323, 504, 506 & 307 -
Prevention of Damage to Public Property Act,
1984 - Section 2/3 - Explosive Substance Act,
1908 - Section 3 - National Investigation Act,
2008-Sections 2(1)(h), 13 & 22-Quashing of
Chargesheet and Cognizance order- In the
instant matter, supplementary charge sheet was
filed under Section 3 of the Act, 1908 which is
admittedly 'the Scheduled Offence' but the
Judicial Magistrate-Ist, Gonda ignoring the
provisions of the Act 2008 took cognizance and
summoned the applicants including the other
co-accused persons. He furtherthe Judicial
Magistrate-I has taken cognizance of the
offence under Section 3 of the Act 2008 along
with the other offences of the Indian Penal Code
whereas so far as the offence under Section 3 of
the Act 1908 is concerned that is to be tried by
the Special Courts as are designated under
Section 22 and defined under Section 2(1)(h) of
the Act, 2008. It is also an admitted fact that
the court of Judicial Magistrate-I, Gonda is not a
court designated under Section 22 of the Act
2008 and the fact remains that the Special Court
for hearing the matter is designated as third
most senior Additional Sessions Judge at
Lucknow and the same is having jurisdiction
over all the State of Uttar Pradesh so far as the
cases scheduled, under the Schedule of the Act,

## Text

640 INDIAN LAW REPORTS ALLAHABAD SERIES

27. This Court has also taken note of
the fact that after investigation in Case
Crime No. 202 of 2003, the charge-sheet was
filed against the opposite party no. 3 and
thereafter the charges have also been framed
and thus, the story which has been narrated by
the opposite party no. 2, prima facie, seems to
be incorrect.

28. In view of the aforesaid submissions
and discussions, the entire criminal proceedings
arising out of Case Crime No. 67 of 2005 under
Section- 342, 379, 427, 468, 471, 120(B) of IPC
and under Section 8/20/29 of the N.D.P.S. Act
pending before learned Additional Session
Judge, F.T.C.- II, Bahraich are hereby quashed.

29. It is open to the prosecution to
proceed further against the applicant, in
accordance with law.

30. The instant application is hereby
allowed.
----------
(2023) 11 ILRA 640
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.11.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482. No.8245 of 2023

Vishal Mishra & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Angrej Nath Shukla

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Criminal Procedure Code,
1973-Section 482 - Indian Penal Code, 1860Sections 147, 148, 149, 323, 504, 506 & 307 -
Prevention of Damage to Public Property Act,
1984 - Section 2/3 - Explosive Substance Act,
1908 - Section 3 - National Investigation Act,
2008-Sections 2(1)(h), 13 & 22-Quashing of
Chargesheet and Cognizance order- In the
instant matter, supplementary charge sheet was
filed under Section 3 of the Act, 1908 which is
admittedly 'the Scheduled Offence' but the
Judicial Magistrate-Ist, Gonda ignoring the
provisions of the Act 2008 took cognizance and
summoned the applicants including the other
co-accused persons. He furtherthe Judicial
Magistrate-I has taken cognizance of the
offence under Section 3 of the Act 2008 along
with the other offences of the Indian Penal Code
whereas so far as the offence under Section 3 of
the Act 1908 is concerned that is to be tried by
the Special Courts as are designated under
Section 22 and defined under Section 2(1)(h) of
the Act, 2008. It is also an admitted fact that
the court of Judicial Magistrate-I, Gonda is not a
court designated under Section 22 of the Act
2008 and the fact remains that the Special Court
for hearing the matter is designated as third
most senior Additional Sessions Judge at
Lucknow and the same is having jurisdiction
over all the State of Uttar Pradesh so far as the
cases scheduled, under the Schedule of the Act,
2008. Section 3 of the Act 1908 has been
charged after further investigation, by way of
filing supplementary charge-sheet and therefore
as per the notification dated 24.04.2021, issued
by the Government of Uttar Pradesh while
exercising its power provided under Section 22
of the Act, 2008 shall be applicable in the
instant matter and therefore the matter is
triable by the Special Court designated by the
State of U.P., i.e., the third senior most Court of
Additional
District
and
Sessions
Judge,
Lucknow.(Para 1 to 20)

B. Section 22 of the Act 2008 empowers the
State Government to designate one or more
courts of session as a special courts for trial of
the offences specified in the 'schedule'. It is,
prima facie evident from the Schedule of the Act
2008 that the 'Act 1908' is substituted with
effect from 2nd of August 2019, in the Schedule
of the Act 2008 and, therefore, the jurisdiction
of the Special Courts as provided under Section
13 of the Act 2008, shall come into picture, so
far as the present matter is concerned.(Para 14)
11 All. Vishal Mishra & Anr. Vs. State of U.P. & Anr.
641
The application is allowed. (E-6)

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Angrej Nath Shukla,
learned counsel for the applicants, Sri Shiv
Nath Tilahari, learned AGA-I and Sri
Aniruddh Kumar Singh, learned AGA-I for
the State.

2. By means of the instant application,
prayer has been made to quash the charge
sheet and cognizance order dated 30.1.2023
and supplementary charge sheet and
cognizance order dated 15.6.2023 passed
by the Judicial Magistrate First Gonda as
well as entire proceedings of Criminal Case
No.11874 of 2023, arising out of Case
Crime No./F.I.R. No.0516 of 2022, under
Sections 147, 148, 149, 323, 504, 506, 307
I.P.C. & Section 2/3 Prevention of Damage
to Public Property Act and Section 3 of
Explosive Substance Act, registered at
Police Station Kotwali Dehat, District
Gonda.

3. Factual matrix of the case is that
the incident is said to have taken place on
1.11.2022 at 7.00 AM and the injury was
examined on the same date at 11.50 AM, in
the police custody and the F.I.R. of the
incident was lodged on 2.11.2022 at 1.05
pm. After the F.I.R. was lodged, the police
investigated the matter and submitted the
charge sheet on 26.1.2023, under Sections
147, 148, 149, 323, 504, 506, 307 of I.P.C.
and 2 & 3 of the Prevention of Damage to
Public Property Act, thereafter further
investigation was done and supplementary
charge sheet was filed on 9.6.2023,
whereafter the trial court took cognizance
of the offence under Section 3 of the
Explosives
Substances
Act
1908
(hereinafter referred to as 'the Act, 1908')
along with the other sections and has
summoned the accused persons including
the present applicants.

4. Contention of the learned counsel
for the applicants is that the Act 1908 has
been substituted in the Schedule of the
National
Investigation
Act,
2008
(hereinafter referred to as 'the Act 2008')
with effect from 02.08.2019 and, therefore,
the jurisdiction of the Special Courts as
defined under Section 2(1)(h) comes into
play. He added that 'Scheduled Offence'
has been defined under Section 2 (1) (g) of
the
Act,
2008,
which
is
quoted
hereinunder:-

"2(1)(g). "Scheduled
Offence"
means an offence specified in the Schedule;"

5. He further submits that as per the
provisions of Section 22 of the Act 2008, the
State Government may designate one or more
courts of sessions, as special courts by way of
notification in the Official Gazette. Section 22
of the Act 2008 is reproduced hereinunder:-

"22. Power of State Government to
[designate Court of Session as] Special
Courts.-(1) The State Government may
[designate one or more Courts of Session as]
Special Courts for the trial of offences under
any or all the enactments specified in the
Schedule.

(2) The provisions of this Chapter
shall apply to the Special Courts [designated]
by the State Government under sub-section (1)
and shall have effect subject to the following
modifications, namely:-

(i)
references
to
"Central
Government" in sections 11 and 15 shall be
construed
as
references
to
State
Government;
642 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) reference to "Agency" in subsection (1) of section 13 shall be construed
as a reference to the "investigation agency
of the State Government";

(iii)
reference
to
"AttorneyGeneral for India" in sub-section (3) of
section 13 shall be construed as reference
to "Advocate-General of the State".

(3) The jurisdiction conferred by
this Act on a Special Court shall, until a
Special Court is '[designated] by the State
Government under sub- section (1) in the
case of any offence punishable under this
Act, notwithstanding anything contained in
the Code, be exercised by the Court of
Session of the division in which such
offence has been committed and it shall
have all the powers and follow the
procedure provided under this Chapter.

(4) On and from the date when the Special
Court is '[designated] by the State
Government the trial of any offence
investigated by the State Government under
the provisions of this Act, which would have
been required to be held before the Special
Court, shall stand transferred to that Court
on the date on which it is constituted.

This clause seeks to empower the
State Government to constitute one or more
Special Courts for the trial of offences under
this Act. It seeks to provide that until the
Special Court is constituted by the State
Government, the jurisdiction under this Act
shall be exercised by the Court of Session
within whose jurisdiction the offence has
been committed. (Notes on Clauses).

6. Referring to the aforesaid, he submits
that
the
Central
Government
inserted/substituted, the Act, 1908, in the
Schedule of the Act, 2008, which became
effective on 2nd of August 2019.

7. Further, Section 13 of the 'Act 2008'
provides the jurisdiction of the Special
Courts, which starts from non-obstante clause
and provides that every 'Scheduled Offence'
investigated by the Agency shall be tried only
by the Special Court. Section 13 of the Act
2008 is reproduced hereinunder:-

"13. Jurisdiction of Special Courts
(1) Notwithstanding anything contained in
the
Code,
every
Scheduled
Offence
investigated by the Agency shall be tried only
by the Special Court within whose local
jurisdiction it was committed.

(2) If, having regard to the
exigencies of the situation prevailing in a
State if,-

(a) it is not possible to have a fair,
impartial or speedy trial; or

(b) it is not feasible to have the
trial without occasioning the breach of
peace or grave risk to the safety of the
accused,
the
witnesses,
the
Public
Prosecutor or a Judge of the Special Court
or any of them; or

(c) it is not otherwise in the
interests of justice,

the Supreme Court may transfer
any case pending before a Special Court to
any other Special Court within that State or
in any other State and the High Court may
transfer any case pending before a Special
Court situated in that State to any other
Special Court within the State.

(3) The Supreme Court or the
High Court, as the case may be, may act
11 All. Vishal Mishra & Anr. Vs. State of U.P. & Anr.
643
under this section either on the application
of the Central Government or a party
interested and any such application shall
be made by motion, which shall, except
when the applicant is the Attorney-General
for India, be supported by an affidavit or
affirmation."

8. Act 2008 is the Special Act and,
therefore, any matter, which is under the
'Scheduled Offences', shall be tried by the
Special Courts only as designated by the
Central
Government
or
the
State
Government.

9. So far as the present case is
concerned, supplementary charge sheet was
filed under Section 3 of the Act, 1908
which
is
admittedly
'the
Scheduled
Offence' but the Judicial Magistrate-Ist,
Gonda ignoring the provisions of the Act
2008 took cognizance and summoned the
applicants including the other co-accused
persons. He further argued that it reveals
from the impugned order dated 15.6.2023
that the Judicial Magistrate-I has taken
cognizance of the offence under Section 3
of the Act 2008 along with the other
offences of the Indian Penal Code whereas
so far as the offence under Section 3 of the
Act 1908 is concerned that is to be tried by
the Special Courts as are designated under
Section 22 and defined under Section
2(1)(h) of the Act, 2008. It is also an
admitted fact that the court of Judicial
Magistrate-I, Gonda is not a court
designated under Section 22 of the Act
2008 and the fact remains that the
Special Court for hearing the matter is
designated
as
third
most
senior
Additional Sessions Judge at Lucknow
and the same is having jurisdiction over
all the State of Uttar Pradesh so far as
the cases scheduled, under the Schedule
of the Act, 2008.

10. Further submission is that since
the order dated 15.6.2023 passed by the
Judicial Magistrate-Ist is being against the
provisions of the Act, 2008 is unlawful and
erroneous and, therefore, the submission is
that the order dated 15.6.2023 passed by
the Judicial Magistrate-Ist may be set aside.

11. On the other hand, learned A.G.A.
has submitted that as per the powers
derived from the provisions envisaged
under Section 22 of the Act 2008, the State
Government by way of notification dated
20.4.2021 has designated III Seniormost
Court of Additional District and Session
Judge, Lucknow as Special Court having
territorial jurisdiction over whole State of
Uttar Pradesh for the trial of all offences as
specified in the Schedule appended to the
aforesaid Act. He added that the State
Government has acted in compliance of the
provisions envisaged under Section 22 of
the Act, 2008, as such, there is no lacuna in
the act of the State Government.

12. Having heard learned counsel for
the parties and after perusal of the record, it
transpires that initially, an F.I.R. was
lodged under Sections 147, 148, 149, 323,
504, 506, 307 of I.P.C. and 2 & 3 of the
Prevention of Damage to Public Property
Act, thereafter the matter was investigated
and the charge sheet was filed on 2.11.2022
and the cognizance was also taken on
30.1.2023. Later on, further investigation
was done and Section 3 of the Explosive
Substances Act, 1908 has been added and
the supplementary charge sheet has been
filed on 12.6.2023, thereafter, the Judicial
Magistrate-I, Gonda took cognizance and
issued summons against the applicants
including the other co-accused persons.

13. When this Court examines the
matter in the light of the contention made
644 INDIAN LAW REPORTS ALLAHABAD SERIES
hereinabove by the counsel for the
applicant and the records as well as the law
applicable therein, it prima facie transpires
that the present applicants have been
charged for the offences under Section 3 of
the Act, 1908 along with other Sections of
the Indian Penal Code and once the charge
sheet was filed, the Magistrate without
considering the fact that there is a provision
under Section 2(1) (h) of the Act, 2008,
regarding designated special courts under
Section 22 of the Act, 2008, took
cognizance in the matter and issued
summons.

14. Section 22 of the Act 2008
empowers
the
State
Government
to
designate one or more courts of session as a
special courts for trial of the offences
specified in the 'schedule'. It is, prima facie
evident from the Schedule of the Act 2008
that the 'Act 1908' is substituted with effect
from 2nd of August 2019, in the Schedule
of the Act 2008 and, therefore, the
jurisdiction of the Special Courts as
provided under Section 13 of the Act 2008,
shall come into picture, so far as the present
matter is concerned.

15. While deriving the powers
envisaged under Section 22 of the 'Act
2008', the State Government issued a
notification on 20.04.2021 and designated
the third senior most Court of Additional
District and Sessions Judge, Lucknow as
Special Court having territorial jurisdiction
of whole of the State of U.P. for the trial of
all offences as specified in the schedule
which are investigated by anti-terror squad
or State Police of Uttar Pradesh meaning
thereby that even if the matter is
investigated by the State Police, the
jurisdiction would lie to the Special Court
as provided under Section 13 of the Act
2008.

16. It is also evident from the First
Information Report that the same was
lodged on 02.11.2022, which is subsequent
to the 02.08.2019, i.e., the date when the
Act, 1908 has been inserted in the Act 2008
and further the notification was also done
prior to the First Information Report was
lodged and therefore the case of the
applicants covers with the mandate of the
Section 22 of the Act 2008 as well as the
notification dated 20.04.2021, notified by
the State of U.P., thereof.

17. Now, it is conclusive that any
investigation which are done by anti-terror
squad or the State Police of Uttar Pradesh,
so far as the offences specified in the
schedule are concerned, shall be tried by
the Special Court, designated by virtue of
the provisions provided under Section 13 of
the Act 2008 read with notification dated
20.4.2021 issued by the State Government.

18. So far as the present matter is
concerned, Section 3 of the Act 1908 has
been charged after further investigation, by
way of filing supplementary charge-sheet
and therefore as per the notification dated
24.04.2021, issued by the Government of
Uttar Pradesh while exercising its power
provided under Section 22 of the Act, 2008
shall be applicable in the instant matter and
therefore the matter is triable by the Special
Court designated by the State of U.P., i.e.,
the third senior most Court of Additional
District and Sessions Judge, Lucknow.

19. In view of the aforesaid
submissions and discussions, the impugned
cognizance order dated 30.06.2023 and
further the order of cognizance on
supplementary
charge-sheet
dated
15.02.2023
passed
by
the
Judicial
Magistrate First, Gonda are hereby setaside.
11 All. M/S Pashupati Alloys, Meerut Vs. State of U.P. & Anr.
645

20. The application is allowed
accordingly.

21. Consequently, the District Judge,
Gonda is hereby directed to transmit back
the Criminal Case No. 11874 of 2023
arising out of Case Crime No. 0516 of 2022
of the Special Court designated by the State
Government as the third senior most Court
of Additional District and Sessions Judge,
Lucknow, who in fact is having the
territorial jurisdiction by virtue of the
notification dated 20.04.2021, which was
issued in consonance with the provision of
Section 22 of the Act, 2008, within a period
of three weeks from the date of this order.
----------
(2023) 11 ILRA 645
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.06.2023

BEFORE

THE HON'BLE VINOD DIWAKAR, J.

Application U/S 482. No. 20468 of 2023

M/S Pashupati Alloys, Meerut ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Pavan Kishore, Sri Manish Kumar Singh

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - The Negotiable Instruments Act,
1881 - Section 138,143 to 147 -
dishonour of cheque - expeditious hearing
of criminal complaints filed under the
Negotiable Instruments Act. - Courts
should expedite case resolution to meet
legitimate expectations, as delayed relief
may diminish the impact and leave
litigants
feeling
exhausted
and
disillusioned with the legal system.(Para -
6, 15, 16)

(B) The Negotiable Instruments Act, 1881
- Section 143(3) - Every trial under this
section
shall
be
conducted
as
expeditiously
as
possible,
and
an
endeavour shall be made to conclude the
trial within six months from the date of
filing of the complaint, Section 143(A) -
Court trying an offence under section 138
has the authority to order the drawer of
the cheque to pay interim compensation
to the complainant.(Para -7)

(C) The Constitution of India, 1950 -
Article 142 - law established by the
Supreme Court of India is indeed binding
upon all subordinate courts in the country
- empowers the Supreme Court to deliver
judgments and orders that are necessary
for
complete
justice
-
maintaining
consistency, uniformity, and the rule of
law within the judicial system - significant
aspects of their lives, rights, and property
- impact on their well-being, livelihood,
and sense of security. (Para -12)

Case has been pending since 13.8.2020 - with
no effective hearing conducted - trial court
issued bailable warrants five times and nonbailable warrants 11 times - imposing costs of
Rs. 300, Rs. 500, and Rs. 1000 on accused -
applicant aggrieved by lack of an effective
hearing - filed an instant application for early or
time-bound disposal of the case.(Para - 4,5)

HELD:-Trial court failed to understand the
purpose and objective of the Act, 2002. Trial
court is ordered to promptly dispose of the
pending criminal complaint before the ACJM, in
accordance with the Supreme Court's directions
and provisions of the Act, with the hope that the
trial court understands the implications of noncompliance. (Para - 17, 18)

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

List of Cases Cited:-

1. I.B.A. & ors. Vs U.O.I. & ors. , (2014) 5 SCC
590