Allahabad High Court
Vindhyansini Mishra And 3 Others vs State Of U.P. And Another on 9 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:161134 Court No. - 84 Case :- CRIMINAL APPEAL No. - 130 of 2022 Appellant :- Vindhyansini Mishra And 3 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Saroj Kumar Dubey Counsel for Respondent :- G.A. Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the appellants, learned A.G.A. and perused the record.
As per learned A.G.A., service on respondent no.2 is sufficient.
No one has put in appearance for respondent no.2.
This is an appeal under Section 14-A (1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against order dated 23.01.2020 passed by the Special Judge (S.C./S.T. Act)/ Additional Sessions Judge, Court No.2, Bhadohi in Complaint Case No.64 of 2019 (Guddu Harijan Vs. Vindhyavasini Mishra and others), under Sections 147, 323, 504, 506 IPC and Section 3(1) (Da), (Dha) of S.C./S.T. Act, pending in the Court of Special Judge, S.C./S.T./ Additional Sessions Judge, Court No.2, Gyanpur, Bhadohi.
It is argued by the learned counsel for the appellants that it is a malicious prosecution. In fact the respondent no.2 looks after the elephants of one Kripa Nath Shukla that Kripa Nath Shukla had moved an application under Section 156(3) Cr.P.C. appended at page-32 of the paper book against the present appellants regarding the dispute of a pathway, wherein the incident was shown to be dated 21.05.2019. That complaint is pending since prior to the filing of the present complaint. Regarding this dispute of the pathway Kripa Nath Shukla and the present appellants had arrived at a compromise on 27.03.2019, thus, it is clear that there was property dispute between Kripa Nath Shukla and the appellant. The present respondent no. 2/ first informant looks after the elephants of Kripa Nath Shukla. As per the present complaint and an application under Section 156(3) Cr.P.C. dated 19.06.2019 was moved by the respondent no.2 against all the five appellants with the allegation that when he went to tie the elephant of Kripa Shankar Shukla with peepal tree where he used to tie the elephants daily all the appellants stopped him from tying the elephant there. All of them used caste based words, hurled abuses, assaulted him with baton and stick and also gave him threat of life. After hearing the noise, Kripa Shanker alongwith Ramujagir came on the spot and saved the respondent no.2. It is also the allegation in the complaint that rent of the elephant Rs. 12,000/- was robbed by the appellant Sanjay Kumar from the complainant. It is argued that regarding the offence of robbery the appellants have not been summoned under Section 394 IPC and they are only summoned to face trial 147, 323, 504, 506 IPC and Section 3(1) (r), (s) of S.C./S.T. Act. The trial court summoned the appellants to face trial court under above mentioned sections on the basis of the statements of the complainant under Section 200 Cr.P.C. and the statements of witnesses Kripa Nath Shukla and Omkar Nath Tiwari under Section 202 Cr.P.C.
It is submitted by the learned counsel for the appellants that though the incident took place in the open but there is no allegation that the incident was seen by any of the public person and the witnesses Kripa Nath and Omkar Nath are said to have come when the whole incident was over. Thus, it is argued that no offence under Section 3(1) (r) and 3(1) (s) of SC/ST Act can be said to be made out against the appellants. Otherwise also, it is claimed that Kripa Shankar Shukla and the appellants are having dispute regarding the pathway and the present complainant looks after the elephant of this Kripa Shankar Shukla, witness Omkar Nath is the relative of Kripa Shankar Shukla as can be seen from his statement only, thus no independent witness of the incident could be said to be produced. Hence, the prayer is made to set aside the order dated 23.01.2020.
Learned A.G.A. opposed the prayer and submitted that as the incident took place in the open place within the public view, so the offence under Section 3 (1) (r) and 3(1) (s) of SC/ST Act can be said to be made out against the appellants.
From the perusal of the record, it is found that the whole incident of the present complaint revolves around the dispute of tying the elephant, which belonged to Kripa Shankar Shukla with whom the appellants have an admitted enmity. From the record, it is clear that regarding dispute of the pathway between Kripa Shankar Shukla and the appellants a compromise took place between them on 27.03.2019, a copy of which is appended at page-25 of the paper book. After this, on 28.05.2019 regarding incident dated 21.05.2019 Kripa Shankar Shukla moved an application under Section 156(3) Cr.P.C. with the allegation that all the appellants after hurling caste based words and other abuses thrashed him and robbed him of Rs. 7800/-. He was also given a threat of life. The present complaint has been filed on the basis of application under Section 156(3) Cr.P.C. dated 19.06.2019 regarding incident dated 10.06.2019 and just about 20 days back the dispute is said to have taken place between the appellants and Kripa Shankar Shukla about which an application under Section 156(3) Cr.P.C. was moved by Kripa Shankar Shukla on 28.05.2019 and again this complaint has been filed on 19.06.2019 by the employee of Kripa Shankar Shukla showing incident dated 10.06.2019, wherein again the same allegations are made against the appellants that all of them thrashed the employee of the Kripa Shanker Shukla, hurled caste based, wild abuses and thrashed him with a stick and blows. No medical has been produced.
So far as the uttering of caste based words are alleged in the present complaint, it has nowhere mentioned that these words were uttered to insult or intimidate with an intent to humiliate the complainant being a member of a Scheduled Caste and Scheduled Tribe. Admittedly, there was a prior dispute between the employer of the present complainant and the present appellants, which clearly shows that the present case is a misuse of criminal law. It is a malicious prosecution started by opposite party no.2 at the instance of his employer just to harass the appellants.
The appeal is allowed and the impugned order dated 23.01.2020 passed by the Special Judge (S.C./S.T. Act)/ Additional Sessions Judge, Court No.2, Bhadohi is hereby set aside.
Order Date :- 9.8.2023 Radhika