Allahabad High Court
Pawan Bhati vs State Of U.P. And Another on 17 January, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 88 Case :- CRIMINAL APPEAL No. - 5396 of 2022 Appellant :- Pawan Bhati Respondent :- State of U.P. and Another Counsel for Appellant :- Satyendra Kumar Singh Counsel for Respondent :- G.A.,Ashish Pandey Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the appellant, learned counsel for the respondent No.2./informant and learned AGA for the State.
2. This appeal has been preferred by the appellant under section 14- A (1) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred as SC/ST Act) against the impugned cognizance/summoning order dated 04.10.2021, passed by the learned Special Judge, (SC/ST Act), Ghaziabad, in S.S.T. No.2594 of 2021 (State vs. Pawan Bhati), Case Crime No.463 of 2021, under Sections 504, 506 IPC and 3(1) (Da) & 3(1)(Dha) of SC/ST Act, P.S. Nandgram, District Ghaziabad, whereby, the appellant/accused has been summoned for aforesaid offences and also to quash the charge-sheet submitted in aforesaid case.
3. It has been argued by learned counsel for the appellant that the first information report of this case has been lodged by the respondent No.2/informant making false and baseless allegations. Even as per prosecution version, the appellant has abused and threatened the informant by making a telephonic call and thus, it cannot be said that the informant was abused or humiliated on ground of his caste in public view. Essentially, the dispute relates to money transaction and in that connection, the informant has already filed a case under Section 138 N.I. Act. Referring to the facts of the matter it was submitted that no case at all under Section 3(1) (Da) & 3(1)(Dha) of SC/ST Act is made out and thus, the court below has committed error by summoning the appellant under the provisions of SC/ST Act.
4. Learned counsel for the respondent No.2./informant and learned AGA have opposed the appeal. Learned counsel for the respondent No.2 has referred the statement of informant, recorded under Section 161 CrPC, wherein, the informant has inter-alia stated that when he has received the said telephonic call, he was outside his home and that the speaker of his mobile phone was on and thus, the alleged abuse and threat extended by the appellant was heard by several other persons passing from there and thus, the said incident took place in public view. Learned counsel for the respondent No.2 has also placed reliance upon the case of Pardeep Kumar vs. State of Haryana and another [CRR No.1354 of 2019(O&M)], decided on 14.05.2020 and case of G.P. Hemakoti Reddy, Ananthapur vs. P.P., Hyd Ano (Criminal Petition No. 321 of 2015), decided by Hon'ble Andhra Pradesh High Court, on 12.04.2022.
5. I have considered the rival submissions and perused the record.
6. It is well settled that at the stage of cognizance and at the stage of issuing process to the accused, the Magistrate has to be satisfied that there is sufficient ground for proceeding. The court has to consider whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons, particularly when the cognizance is being taken on the basis of report filed by the police after investigation, under section 173(2) Cr.P.C. In case of S.K. Sinha, Chief Enforcement Officer v. Videocon International Limited and Ors. MANU/SC/7011/2008 : (2008) 2 SCC 492, it was held that taking cognizance has no esoteric or mystic significance in criminal law and it connotes that a judicial notice is taken of an offence, after application of mind. Taking of cognizance is thus a condition precedent for holding a valid trial. In M/s. India Carat Pvt. Ltd. Vs. State of Karnataka MANU/SC/0349/1989: 1989(26) ACC 280 (SC), the Supreme Court has observed that Magistrate can take into account statements of witnesses examined by Police during investigation, take cognizance of offence complained of, order to issue a process to accused.
7. In Mehmood Ul Rehman v. Khazir Mohammad Tunda and others (2015) 12 SCC 420, it was held as under:-
"21. Under Section 190(1)(b) Cr.P.C, the Magistrate has the advantage of a police report and under Section 190(1)(c) Cr.P.C., he has the information or knowledge of commission of an offence. But The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, under Section 190(1)(a) Cr.P.C., he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) Cr.P.C. The complaint is simply to be rejected."
8. Thus, in so far as taking cognizance based on the police report is concerned, the Magistrate/ court has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. For issuance of process against the accused, only it has to be seen whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defence. Likewise, 'possible defences' need not be taken into consideration at the time of issuing process unless there is an ex- facie defence such as a legal bar or if in law the accused is not liable. In this connection a reference may also be made to case of Nupur Talwar v. Central Bureau of Investigation and another (2012)11 SCC465.
9. In the instant matter, perusal of record shows that in the first information report, it was alleged that on 22.05.2021 at 08.09 PM, the appellant has made a telephonic call to the informant and abused him by using caste indicative words and threatened to kill him. On the basis of allegations made in the first information report, it cannot be said that alleged abusing on telephone was done in public view or the informant was humiliated in public view. In his statement under Section 161 CrPC, the informant has alleged that when he has received the said telephonic call, he was standing outside his home and speaker of his mobile phone was on but he has failed to tell the name of any other person, who might have heard the alleged abusing done by the appellant on phone. It also appears from statement of informant that he has lend an amount of Rs.19 lakhs to the appellant and in that connection informant has filed a case under Section 138 N.I. Act, which is pending. It appears that essence of dispute is money transaction. It is apparent that version of informant during investigation that when he has received the telephonic call, he was standing outside his home and speaker of his mobile phone was on, is not supported by any witness and it is not consistent with the version of first information report and thus, it cannot be said that the revisionist was abused or humiliated on account of caste in the public view. In case of Pardeep Kumar (supra), Hon'ble Punjab and Haryana High Court held as under:-
"To constitute the offence under the Act, it must be alleged that the accused intentionally insulted or intimidated with intention to humiliate a member of Scheduled Caste or Schedule Tribe in any public place within public view. In the present case, it is alleged that the offence has been committed by the petitioners by using the caste based remarks over a mobile phone call to the informant, or a member of Scheduled Castes, of which there are no records. Once it s admitted that the alleged conversation over the mobile phone was not in a public gaze nor witnessed by any third party, the alleged use of caste words cannot be said to have been committed within the public view."
In the instant case also, there is nothing to show that the alleged version on mobile phone of informant was heard by any third party and thus, the above stated case law does not support the case of informant.
10. Similarly, in case of G.P. Hemakoti Reddy, Ananthapur (supra), relied by learned counsel for respondent No.2, Hon'ble Andra Pradesh High Court, referring to case of Hitesh Verma Vs. State of Uttrakhand and another, held as under:-
"As per the FIR, the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the public (not merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered "in any place within public view" is not made out. In the list of witnesses appended to the charge-sheet, certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the judgment of this Court in Swaran Singh [Swaran Singh v. State, (2008) 8 SCC 435 : (2008) 3 SCC (Cri) 527] , it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and/or charge-sheet."
From the facts of the above referred case, it appears that incident of abusing was done within four walls of building and there was no member of public at the time of incident and it was held that basic ingredient that words were uttered in any public place/public view is not made out. In fact both the above stated cases support the case of appellant, rather than of the respondent No.2.
11. In the instant case there is no statement of any third party, who might have heard the alleged abusing done by appellant by making telephonic call to the informant. Here, it would be relevant to mention that in the first information report, the place of occurrence has been shown at the house of informant.
12. Considering the facts and material on record, it cannot be said that alleged abusing done by appellant by making a telephonic call to the informant, took place in public view or that the informant was humiliated on account of caste in 'public view' and thus, no case under Section 3(1) (Da) & 3(1)(Dha) SC/ST Act is made out. The court below did not consider the matter in correct perspective and committed error by summoning the appellant under Section 3(1) (Da) & 3(1)(Dha) of SC/ST Act and thus, the summoning of appellant under Section 3(1) (Da) & 3(1)(Dha) of SC/ST Act is quashed. However, summoning of appellant for offence under Section 504, 506 IPC is upheld. The impugned order stand altered to this extent. The case under Section 504 and 504 IPC shall proceed against the appellant before the competent court in accordance with law.
13. The appeal is disposed off in above terms.
Order Date :- 17.01.2023 Neeraj