Dismissed

Ritika Singh and Another v. State of Up and Another

Allahabad HC23 Oct 2024A482/18112/2024

What the court decided

AI extract

Outcome

Application under Section 482 Cr.P.C. dismissed as not maintainable; applicants free to file criminal revision against the impugned order.

Ritika Singh and Another vs State of Up and… — Civil Procedure and Limitation | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:173036

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Court No. - 75

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Case :- APPLICATION U/S 482 No. - 18112 of 2024

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Applicant :- Ritika Singh And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Kumar Srivastava Counsel for Opposite Party :- G.A.,Rajnish Kumar Pandey,Santosh Kumar Pandey

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Hon'ble Raj Beer Singh,J.

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Heard learned counsel for the applicants, learned counsel for opposite party no. 2 and learned A.G.A. for the State.

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This application under Section 482 Cr.P.C. has been preferred against the dated 03.04.2024, passed by learned Additional Chief Judicial Magistrate, Court No. 2, Bareilly in complaint case no. 4302 of 2022, under Sections 420, 494, 495, 496, 120-B I.P.C., P.S. Premnagar, District Bareilly, whereby the discharge application filed by the applicants under Section 245(2) Cr.P.C. has been rejected.

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Learned counsel for opposite party no. 2 has raised preliminary objection that the impugned order is a final order and the applicants have an alternative remedy of filing a criminal revision against the impugned order and thus, the instant application under Section 482 Cr.P.C. is not maintainable.

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Learned counsel for the applicants submitted that merely because the alternative remedy of filing a criminal revision is available, the instant application under Section 482 Cr.P.C. cannot be said to be non-maintainable. It was submitted that only because a criminal revision is maintainable against the impugned order, the same would not constitute a bar for entertaining an application under Section 482 Cr.P.C. Learned counsel has place reliance upon the following case laws:-

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(i) Prabhu Chawla v. State of Rajasthan & Anr., 2016 0 Supreme(SC) 686

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(ii) Nitin Tiwari & Anr. v. State of U.P. Thru. Addl. Chief Secy. Home & Anr., 2024 0 Supreme(All) 18

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(iii) Sanjay Kumar Rai v. State of U.P. & Anr., [Criminal Appeal No. 472 of 2021], decided on 07.05.2021

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I have considered the rival submissions and perused the record.

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It is not disputed that the impugned order, whereby the application filed by the applicants under Section 245(2) Cr.P.C. has been rejected, is not an interlocutory order and thus, the alternative remedy of filing a criminal revision is available against that order. In case of Prabhu Chawla (Supra) , the Hon'ble Apex Court in para nos. 6 and 7 has held as under:-

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"6. In our considered view any attempt to explain the law further as regards the issue relating to inherent power of High Court under Section 482 Cr.P.C. is unwarranted. We would simply reiterate that Section 482 begins with a nonobstante clause to state: "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J. "abuse of the process of the Court or other extraordinary situation excites the court's jurisdiction. The limitation is self-restraint, nothing more." We venture to add a further reason in support. Since Section 397 Cr.P.C. is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 Cr.P.C. only to petty interlocutory orders! A situation wholly unwarranted and undesirable.

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As a sequel, we are constrained to hold that the Division Bench, particularly in paragraph 28, in the case of Mohit alias Sonu and another (supra) in respect of inherent power of the High Court in Section 482 of the Cr.P.C. does not state the law correctly. We record our respectful disagreement."

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7. In case of Nitin Tiwari & Anr. (Supra) , this Court in para no. 20 has held as

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under:-

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"20. From the above-mentioned judgement, it is clear, though, that there is no absolute bar against entertaining 482 application against the rejection of discharge application as well as against framing of charge despite the fact that both the orders are revisable, but as observed in the cases mentioned above, such exercise should be adopted only in appropriate cases where the situation demands to exercise such power to prevent abuse of the process of the Court or other extraordinary situation. Therefore, the law is clear on this point that against the rejection of discharge application and/or against framing of charge, normally revision should be filed, but application u/s 482 Cr.P.C. is maintainable in appropriate cases. Therefore, whether the application u/s 482 Cr.P.C. should be entertained against the rejection of discharge application or framing of charges despite the remedy of revision will depend on the facts and circumstances of the cases which the Court itself could decide."

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8. In case of Sanjay Kumar Rai (Supra) , the Hon'ble Apex Court in para no. 15 has held as under:-

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"15. The correct position of law as laid down in Madhu Limaye (supra), thus, is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of CrPC. That apart, this Court in the abovecited cases has unequivocally acknowledged that the High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts

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and circumstance of individual cases. As a caveat it may be stated that the High Court, while exercising its afore - stated jurisdiction ought to be circumspect. The discretion vested in the High Court is to be invoked carefully and judiciously for effective and timely administration of criminal justice system. This Court, nonetheless, does not recommend a complete hands off approach. Albeit, there should be interference, may be, in exceptional cases, failing which there is likelihood of serious prejudice to the rights of a citizen. For example, when the contents of a complaint or the other purported material on record is a brazen attempt to persecute an innocent person, it becomes imperative upon the Court to prevent the abuse of process of law."

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Recently, in case of Vipin Sahni and Another vs. Central Bureau of Investigation, AIR 2024 SC 2237, the Hon'ble Apex Court has held that when there is specific remedy provided by way of appeal or revision, the inherent powers under Section 482 Cr.P.C. cannot be resorted to. In view of this clear view of the Hon'ble Apex Court, it is apparent that the instant application under Section - 482 Cr.P.C. is not maintainable.

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It is correct from the case of Prabhu Chawla (Supra) and Sanjay Kumar Rai (Supra) it appears that there is no total ban of exercise of jurisdiction under Section 482 Cr.P.C. where abuse of process of court or other extra-ordinary situation demands invoking of the jurisdiction under Section 482 Cr.P.C. and the same would not be affected by the bar of Section 397(2) Cr.P.C. but in above referred recent case of Vipin Sahni and Another (Supra) , the Hon'ble Apex Court referring to earlier case of Mohit alias Sonu and another vs. State of U.P. and another (2013) 7 SCC 789, has held that the inherent powers of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It was observed that the inherent powers of the Court can be exercised when there is no express provision in the Cr.P.C. under which impugned order can be challenged.

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In the instant matter, as stated-above, by impugned order discharge application of applicants under Section 245(2) Cr.P.C. has been rejected and it could not be disputed that remedy of filing a criminal revision is available against the said order. Though, as held in the case of Prabhu Chawla (Supra) that in certain matters inherent powers can be invoked to prevent the abuse of the process of the court or in any other extra-ordinary situation but in the instant matter, no such situation could be shown. In view of the aforesaid facts and position of law, the instant

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application under Section 482 Cr.P.C. against impugned order dated 03.04.2024 is not maintainable.

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The application under Section 482 Cr.P.C. is dismissed as not maintainable. However, applicants would be at liberty to file a criminal revision against the impugned order in accordance with law.

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Certified copy of the impugned order may be returned back to the learned counsel for the applicants after retaining photocopy of the same on record.

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Order Date :- 5.11.2024 Anand

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Digitally signed by :- ANAND VERMA High Court of Judicature at Allahabad

Ritika Singh and Another v. State of Up and Another

What the court decided

Ritika Singh and Another v. State of Up and Another

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