Point of Law: Power under Section 156(3) Cr.P.C. warrants application of judicial mind.

JUDGMENT :

1. Heard Sri Mohit Singh, learned counsel for the applicants, learned AGA for the State and perused the material on record.

2. Since in the instant 482 application, on admitted facts, purely question of law has to be adjudicated, thus without inviting counter affidavit, the present 482 Cr.P.C. application is being decided with the aid and help of learned AGA at the admission stage itself.

3. The question of sustainability of the present 482 Cr.P.C. application against the impugned order of summoning under Sections 147, 148, 323, 354Kha, 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, Court No.2/Special Judge, SC/ ST Act, Kanpur Dehat and impugned summoning order dated 19.11.2022 passed by the same court.

4. The extra ordinary powers of this Court has been invoked by the applicants challenging the entire proceeding of SST No. 77 of 2019 (Geeta Devi Vs. Devendra Yadav & others) under the aforesaid sections of the IPC pending in the court of Additional District & Sessions Judge, Court No.2/Special Judge, SC/ST Act, Kanpur Dehat including the impugned summoning order dated 19.11.2022.

5. As the matter relates to the “maintainability of the present 482 Cr.P.C. application” in the light of the full Bench decision of this Court in the case of Gulam Rasool Khan and others Vs. State of U.P. and others in Crl. Appeal No. 1000 of 2018 decided on 28.07.2022, whereby learned 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 he 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?

6. Learned AGA has further drawn the attention of the Court to the Section 14A(1), which speaks about the appeal in SC/ST Act, 1989, which reads thus:-

"14A.Appeals.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall lie, from any judgment, sentence or order, not being an interlocutory order, of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law."

7. While referring above mentioned legal questions, responding to the query no.3, whether an aggrieved person who has without availing of the remedy of an appeal under the provisions of Section 14A(1) of the Act, 1989, could be allowed to approach the High Court by preferring an application under the provisions of Section 482 of the Cr.P.C. is justified ?.

8. The full bench in paragraph 13 and 14 of its judgment negated its reply by making a mention that :

13. The answer to the aforesaid was in the negative. It was held that against the judgments or orders, for which remedy has been provided under Section 14A(1) of the 1989 Act, invoking the jurisdiction of this Court by filing petition under Articles 226 or 227 of the Constitution of India, a revision under Section 397 Cr.P.C. or an application under Section 482 Cr.P.C., will not