Dismissed

Awadhesh Kumar Srivastava v. State of U.P. Thru. Addl. Chief Secy. Home / Prin. Secy. Home, Lko. and Another

Allahabad HC16 Aug 2023/398/2022

Case brief

AI extract

What is this about?

The High Court allowed condonation of delay in filing a criminal appeal under the SC/ST Act. The appeal questioning the prima facie existence of an offence and seeking quashing of proceedings was dismissed as the allegations disclosed an offence, making quashing inappropriate.

What did the court decide?

Condonation of delay allowed; prayer for quashing of proceedings refused; criminal appeal dismissed.

Awadhesh Kumar Srivastava Vs State of U.P. Thru… — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:54864

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Court No. - 15

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Case :- CRIMINAL APPEAL DEFECTIVE No. - 398 of 2022

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Appellant :- Awadhesh Kumar Srivastava Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home / Prin. Secy. Home, Lko. And Another Counsel for Appellant :- Nadeem Murtaza,Aditya Vikram Singh,Anant Khanna Counsel for Respondent :- G.A.,Sandhya Bharti,Vinod Kumar Pandey

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Hon'ble Shamim Ahmed,J.

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(C.M.Application No. 01/2022)

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The case is being taken up in the revised call.

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The present appeal under Section 14-A(1) S.C./S.T. Act has been preferred supported with an application for condonation of delay in filing the appeal assailing the entire proceedings as well as all the consequential proceedings of Criminal Case No. 1523 of 2022 (State Vs. Awadhesh Kumar Srivastava), pending under Sections 376 and 506 I.P.C. and Section 3 (2) (v), 3 (2) (va) SC/ST Act before the court of Special Judge SC/ST Act, Lucknow and summoning order dated 11.08.2022 passed by the learned court of Special Judge, SC/ST Act, Lucknow in the aforesaid criminal case alongwith the charge-sheet bearing No. 01/2020 dated 19.02.2021 filed under Sections 376 and 506 I.P.C. and Section 3 (2) (v), 3 (2) (va) SC/ST Act.

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The present criminal appeal is reported to be beyond time by 18 days.

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This Court vide order dated 07.12.2022 issued notice to the opposite party 2 on the application for condonation of delay.

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The case was listed on several times and lastly on 12.07.2023 and this Court granted time to file objection to the learned A.G.A. on the application for condonation of delay.

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Till today no counter affidavit/objection has been filed by the opposite party No.2 nor any counsel has appeared on her behalf even though name of Sri Vinod Kumar Pandey and Sandhya Bharti, Advocates are being shown in the cause list on behalf of opposite party No.2.

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Learned A.G.A. has also not filed any objection/counter affidavit.

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It appears that they are not interested to file any counter affidavit/objection.

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Learned counsel for the appellant submits that the appeal was beyond time due to the reason that neither the summoning order was served nor the appellant was aware about the impugned orders. He further submits that the financial condition of the appellant is also not good to meet the expenses for filing the present appeal and any how the appellant arranged money and filed the instant appeal and the delay, if any, in filing the appeal is neither intentional nor deliberate. He further prays that in the interest of justice, the delay of 18 days in filing the present appeal be condoned.

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After considering the arguments as advanced by learned counsel for the appellant, in the interest of justice, the application for condonation of delay is allowed. Delay in filing the appeal is hereby condoned.

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(order on memo of appeal)

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At this stage, learned counsel for the appellant was insisting the court to hear the case on merits, the Court has no option except to decide the case.

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The contention of the learned counsel for the appellant is that no offence against the appellant is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment.

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Per contra, the learned AGA has contended that from the allegations made in the case prima facie offence is made out against the appellant. The innocence of the appellant cannot be adjudged at the pre trial stage. Therefore, the appellant does not deserve any indulgence.

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From the perusal of the materials on record and looking into the facts of the case and after considering the arguments made at the bar, it does not appear that no offence has been made out against the appellant.

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At the stage of issuing process the court below is not expected to examine and assess in detail the material placed on record, only this has to be seen whether prima facie cognizable offence is disclosed or not. The Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the folloJwing cases:-- (i) R.P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866, (ii) State of Haryana Vs. Bhajanlal, 1992

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SCC (Crl.)426, (iii) State of Bihar Vs. P.P. Sharma, 1992 SCC (Crl.)192, (iv) Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq & Anr.;, (Para-10) 2005 SCC (Cri.) 283 and (iv) M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918.

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From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is to whether uncontroverted allegation as made prima facie establishes the offence and the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing criminal proceedings to be continue. In S.W. Palankattkar & others Vs. State of Bihar, 2002 (44) ACC 168 , it has been held by the Hon'ble Apex Court that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court under Section 482 Cr.P.C itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code, (ii) to prevent abuse of the process of the court ; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists.

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The High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of summoning order in case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence. In the result, the prayer for quashing of summoning order is refused. There is no merit in this case.

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Accordingly, the present appeal is dismissed.

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As prayed, the appellant is at liberty to apply for regular bail before the court below and if any application for bail is filed before the court below, the court below may decide the same in accordance with law after hearing the Public Prosecutor expeditiously without being influenced by any observation made by this Court in the above case.

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Order Date :- 16.8.2023

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Arvind

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Digitally signed by :- ARVIND KUMAR SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench

Awadhesh Kumar Srivastava v. State of U.P. Thru. Addl. Chief Secy. Home / Prin. Secy. Home, Lko. and Another

Case brief

What is this about?

What did the court decide?

Awadhesh Kumar Srivastava v. State of U.P. Thru. Addl. Chief Secy. Home / Prin. Secy. Home, Lko. and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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