The Allahabad High Court while allowing an application observed that an order issuing a summons to an accused for an offense under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, can be challenged by filing an application under Section 482 CrPC.
A Single Bench of Justice Rahul Chaturvedi passed this order while hearing an application under section 482 filed by Devendra Yadav and 7 Others.
The question of sustainability of the 482 Cr.P.C application against the order of summoning under Sections 147, 148, 323, 354 Kha, 452, 504 IPC and Section 3(1)(X) SC/ST Act, P.S Bilhaur, District Kanpur Nagar pending in the court of Additional District & Sessions Judge/Special Judge, SC/ ST Act, Kanpur Dehat and impugned summoning order dated 19.11.2022 passed by the same court.
The extraordinary powers of the Court has been invoked by the applicants challenging the entire proceeding of the under the aforesaid sections of the IPC pending in the court of Additional District & Sessions Judge /Special Judge, SC/ST Act, Kanpur Dehat including the summoning order dated 19.11.2022.
As the matter relates to the “maintainability of the 482 Cr.P.C application” in the light of the full Bench decision of the Court in the case of Gulam Rasool Khan and others Vs State of U.P and others in Criminal Appeal decided on 28.07.2022, , whereby Single Judge vide order dated 03.08.2018 has referred the matter to the larger bench and has framed the following question, which are quoted herein below:-
(i) Whether a Single Judge of this Court while deciding Criminal Appeal (Defective) No. 523/2017 In re : Rohit Vs State of U.P and another vide judgment dated 29.08.2017 correctly permitted the conversion of appeal under Section 14 A of the Act, 1989 into a bail application by exercising the inherent powers under Section 482 of the Cr.P.C?
(ii) Whether keeping in view the judgment of Rohit (supra), an aggrieved person will have two remedies available of preferring an appeal under the provisions of Section 14 A of the Act, 1989 as well as a bail application under the provisions of Section 439 of the Cr.P.C?
(iii) 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?
(iv) What would be the remedy available to an aggrieved person who has failed to avail the remedy of appeal under the provision of Act, 1989 and the time period for availing the said remedy has also lapsed?
AGA has strenuously hammered his submissions that 482 Cr.P.C application is not maintainable in the light of the aforementioned observations made by the full Bench of the Court in the case of Gulam Rasool Khan (supra).
Mohit Singh, counsel for the applicants refuted the submissions by making a mention that there are catena of decisions of the Apex Court with regard to the maintainability of the 482 Cr.P.C application, even though the provisions of SC/ST Act is present.
Since the case of Gulam Rasool Khan was decided in the year 28.07.2022 whereas Ramawtar case was decided in 2021, thus, it has been contended by the counsel that 482 Cr.P.C application is maintainable even if it relates to SC/ST Act.
Counsel for the applicant submitted that while deciding the case of Gulam Rasool Khan (supra), the Division Bench of the Court has never relied upon or even considered the ratio laid down in the judgment of Ram Avtar Vs State of M.P and thus could be safely be termed as per incuriam.
Thus from the aforesaid discussions, it is clear that the Apex Court has clearly and time and again have opined that elaborating the aforesaid provision of full bench of the Court as well as the Apex Court and taking the help of the aforesaid judgments, the Court is of the considered opinion that 482 Cr.P.C application could be filed assailing the summoning order, the Court said.
The Court noted that,
The application under Section 156(3) Cr.P.C converted into a complaint case order dated 08.05.2019 passed by Additional District & Sessions Judge/Special Judge, SC/ST Act, Kanpur Dehat.
The Special Judge, SC/ST Act vide summoning order dated 19.11.2022 has summoned the applicants, namely, Devendra Yadav, Babulal Yadav, Laloo Yadav, Lakhan Raidas, Naresh, Amar Singh, Sonu and Arvind under Sections 147, 148, 323, 354 Kha, 452 and 504 IPC and Sections 3(1)(X) SC/ST Act to face the prosecution.
The genesis of the case starts from filing of the 156(3) Cr.P.C application by opposite party no 2 on 27.09.2018 for the incident said to have taken place on 05.04.2018.
Counsel for the applicant have accused the Trial Judge that he has passed the impugned summoning order with pre-meditated mind on 19.11.2022. The Court has occasioned to to peruse the summoning order in which Special Judge, SC/ST Act have narrated the statements and have jumped into the conclusion that prima facie case is made out against the applicant under Section 147, 148, 323, 354 Kha, 452, 504 IPC and Section 3(1)(X) SC/ST Act.
In addition to this, it is argued by the counsel that the court below has passed an impugned order dated 08.05.2021 observing therein that the police have submitted a report that there is no FIR registered at the police station. The aforesaid observation is nothing but a tissue of utter falsehood for the reasons best known to the concerned Special Judge. The aforesaid police report as mentioned in earlier paragraphs, which clearly indicates that there is a FIR lodged by Smt Gangajali wife of Rajaram as case under Sections 147, 452, 504, 380 IPC.
In this case, opposite party no 2 Geeta also sustained injuries but she was adamant to get the criminal case registered under the SC/ST Act, she is playing all the tricks and gimmicks with the court process and the Special Judge, SC/ST Act is supporting her calls and therefore, the proceeding would safely be termed as second complaint on the same facts, though its complainant is a different lady.
“In the case, where the contesting parties are residents of Kanpur Nagar. The Court wonders as to what circumstances, Special Judge, SC/ST Act, Kanpur Dehat has passed the impugned summoning order without holding the requisite mandatory inquiry as contemplated in Section 202(1) Cr.P.C and therefore, the impugned summoning order is well short of aforesaid legal issues, which cannot be sustained in the eye of law.
Thus taking into account the totality of the circumstances and the observation made by the Apex Court in this regard, I have got no hesitation to quash the impugned summoning order dated 19.11.2022 passed by the Additional District & Sessions Judge/ Special Judge, SC/ST Act, Kanpur Dehat. Since parallel proceeding by way of FIR is already progressing and the present controversy is nothing but an arm twisting of the applicants by levelling more serious and grim allegations in it and therefore, it cannot be sustained”, the Court observed while allowing the application.