The Lucknow Bench of the Allahabad High Court while dismissing an application said that when the applicant has a statutory remedy of appeal under Section 14-A of the 1989 Act available to him as a matter of right, and that appeal would also lie before the High Court, albeit before another Bench, there cannot be justification in bypassing the statutory remedy of appeal and invoking the inherent powers of the Court, which are meant to be exercised in exceptional circumstances only.
A Single Bench of Justice Subhash Vidyarthi passed this order while hearing an application under section 482 filed by Pawan Kumar Alias Pawan Yadav.
By means of the application filed under Section 482 Cr.P.C, the applicant has sought quashing of the charge sheet dated 10.01.2024 submitted in furtherance of F.I.R dated 26.11.2023, Police Station P.G.I, Lucknow under Sections 376, 504 I.P.C and 3 (2) (v) of the Schedule Castes and Scheduled tribes (Prevention of Atrocities) Act, 1989 and also the order dated 20.01.2023 passed by the Special Judge (SC/ST Act), Lucknow in Sessions Trial, whereby the Court has taken cognizance of the aforesaid offences and has summoned the applicant to face trial for the offences.
Anurag Verma, the A.G.A-I has raised a preliminary objection that the applicant has a statutory remedy of filing an appeal under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
In reply to the aforesaid preliminary objection, Saksham Agarwal, the Counsel for the applicant has submitted that the powers under Section 482 Cr.P.C are inherent powers and there can be no fetters on the exercise of this power.
He has submitted that the applicant has been charged for commission of offences under Sections 376, 504 I.P.C and 3 (2) (v) of the Act of 1989. Section 3 (2) (v) of the Act of 1989 provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine.
The Counsel for the applicant has submitted that there is no substantive offence defined by Section 3 (2) (v) of the Act of 1989 and this provision merely makes a provision for imposing an enhanced punishment for certain offences under the I.P.C under certain conditions. He has made some more submissions to impress upon the Court that the offences alleged are not made out against the applicant even as per the prosecution case, but those arguments need to be gone into only if the objection against maintainability of the application is overcome.
Article 215 of the Constitution of India provides that the High Courts shall be Court of records and shall have all the powers of such courts. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. Section 482 Cr.P.C does not confer any new powers on the High Court. It merely clarifies that nothing contained in the Cr.P.C will 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, the Court noted.
The Court observed that,
Since the question of effect of Section 14-A of the 1989 Act upon maintainability of an application under Section 482 Cr.P.C was neither raised nor decided in Ramawatar and B Venkateswaran (Supra), the aforesaid judgments are not binding precedents on the aforesaid point. Therefore, these judgments would not affect the binding nature of the Full Bench judgment in the case of Ghulam Rasool Khan (Supra).
The Counsel for the applicant has placed reliance upon the following passage from the judgment in the case of Arnab Manoranjan Goswami v State of Maharashtra, (2021) 2 SCC 427 but the question of maintainability of an application under Section 482 Cr.P.C where the applicant has a statutory remedy available under Section 14-A of the Act, was not involved in Arnab Manoranjan Goswami (Supra) and, therefore, the aforesaid case would be of no avail for decision of the question of maintainability raised by the A.G.A-I.
In Union of India v Cipla Ltd, (2017) 5 SCC 262, the Supreme Court held that the Court is required to adopt a functional test vis-à-vis the litigation and the litigant. What has to be seen is whether there is any functional similarity in the proceedings between one court and another or whether there is some sort of subterfuge on the part of a litigant. It is this functional test that will determine whether a litigant is indulging in forum shopping or not.
The Court further observed that in the case, the applicant has a statutory remedy of filing an appeal under Section 14-A of the 1989 Act, which remedy is available to him as a matter of right, and that appeal would also lie before this High Court, albeit before a different Bench. The scope of enquiry in the appeal will obviously be larger than the scope of enquiry while deciding an application under Section 482 Cr.P.C, where disputed questions of facts cannot be entertained. Thus the appeal would appear to be more beneficial to the applicant. The only reason for filing an application under Section 482 Cr.P.C instead of filing an appeal appears to be avoiding a particular Bench of the Court itself. The facts stated above clearly establish that it is a typical example of forum shopping, which practice has always been deprecated by the Courts.
In view of the foregoing discussions, the Court dismissed the application under Section 482 Cr.P.C leaving it open for the applicant to file an appeal under Section 14-A of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.