Allahabad High Court
Dr.Vishnu Chandra Tripathi & 2 Others vs State Of U.P. & Anr. on 25 July, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 13 Case :- CRIMINAL APPEAL No. - 1005 of 2019 Appellant :- Dr.Vishnu Chandra Tripathi & 2 Others Respondent :- State Of U.P. & Anr. Counsel for Appellant :- Manoj Kumar Mishra,Vinay Kumar Counsel for Respondent :- Govt. Advocate,Manoj Kumar Singh Hon'ble Mohd. Faiz Alam Khan,J.
Heard learned counsel for the appellants and learned AGA for the State as well as learned counsel for respondent no.2 and perused the record.
This Criminal Appeal under Section 14-A(1) SC/ST (P.A.) Act, 1989 has been filed against the order dated 29.3.2019 passed by Special Judge SC/ST Act (Prevention of Atrocities), Act, Bahraich in Criminal Case No. 46/2019 Bindra Pasi Vs. Dr. Vishnu Chandra Tripathi and others, by which the appellants have been summoned under Sections 323, 504, 506 IPC & 3(1) DA, Dha, SC/ST (Prevention of Atrocities), Act, relating to Police Station Kotwali Nagar, District Bahraich.
Brief facts giving rise to this appeal are, that a complaint case was filed before Special Judge SC/ST Act, Bahraich by complainant, namely, Bindra Pasi against the appellants alleging that he belongs to a scheduled caste community and for the last many years, he is working as a house hold servant at the residence of Dr. Shiv Prasad Ojha. On 10.2.2019 at about 1,00 P.M. the appellants came to the residence of his Master Dr. Shiv Prasad Ojha. Two out of three persons were holding a briefcase in their hands and on being asked they narrated their names as Dr. Vishnu Chandra Tripathi, Principal Raj College, Jaunpur and Sudhakar Maurya- Accountant of the same College while the third person, namely, Sanjay Kumar Singh introduced himself as clerk in the same College.
It is further stated in the complaint that he told these persons that his master is not available at home, on this Dr. Vishnu Chandra Tripathi and Sudhakar Maurya asked his name and on being told they at once became angry and addressed him with his caste. On this he went inside the house and on the instruction of his master informed them that his master will not meet them. On this all these three persons physically assaulted him and also threatened him of his life. They also attempted to drag him towards their vehicle which was standing nearby. He made a noise on which other servants, namely, Shankar Dayal and Kuldeep etc. arrived and helped the complainant. He informed the Police Station Kotwali Nagar about the incident but no action was taken by the police, on which he made a complaint to the Superintendent of Police, Bahraich. He could not get his injuries examined due to his poorness.
The trial court after recording the statement of the complainant and his two witnesses, namely, Kuldeep and P.W.2 ? Vikas by impugned order summoned the appellants to face trial under Sections 323, 504, 506 and Section 3(1) Da, Dha of SC/ST Act and the same is the subject matter of this appeal, being challenged by the appellants.
Learned counsel for the appellants submits that the appellants are Principal, Accountant and Assistant Teacher of R.K.D. P.G. College, Jaunpur. Earler one Dr. Shiv Prasad Ojha (employer of the complainant) was the Principal of this College, who is a permanent resident of Brahmnipura, who has retired as Principal of this College.
It is next submitted that the appellants no. 1, 2 and 3 are permanent resident of villages situated in Jaunpur district while Dr. Shiv Prasad Ojha, where complainant/ opposite party no.2 is working as domestic, is a resident of Bahraich.
It is next submitted that one Dr. Asha Ram made a complaint against Dr. Shiv Prasad Ojha on 4.4.2012 pertaining to some financial embezzlement allegedly made by him and a committee to inquire the matter was constituted, which submitted a reprot against Dr. Shiv Prasad Ojha on 21.6.2018, which was forwarded to Regional Higher Educational Officer/ Administrator, Varanasi Region. A First Information Report was also lodged by appellant no.1 agaisnt Dr. Shiv Prasad Ojha and one other co-accused (Annexure no.2) pertaining to the fact that Dr. Shiv Prasad Ojha is pressurizing the appellant no.1 to illegally provide him a 'Non-encumbrance Certificate' and when he refused to issue the same, on 6.2.2019 two persons came to his house and while showing pistol threatened him to issue the 'Non-encumbrance Certificate' to Dr. Shiv Prasad Ojha otherwise he will be shot dead. It is alleged that when Dr. Shiv Prasad Ojha came to know about the registration of the FIR on 6.2.2019, he through his servant filed instant complaint on 18.2.2019 with the false and fabricated allegations. It is further submitted that the instant complaint is nothing but the counter blast of the First Information Report lodged by the appellant no.1 against Dr. Shiv Prasad Ojha and the complaint has only been lodged because the appellant no.1 refused to issue an illegal 'Non-encumbrance Certificate' to Dr. Shiv Prasad Ojha, which he was requiring to use as his defence in a departmental proceeding instituted against him.
It is further submitted that the court below has materially erred in summoning the appellants as it was apparent on the face of the record that the complaint has been made with an ulterior motive. It was the duty of the trial court to see the alleged facts in the back ground of the probability. The facts alleged in the complaint are patently absurd and could not be believed by a normal prudent person and therefore the instant summoning order is nothing but abuse of process of law and therefore is not sustainable and is liable to be set aside.
Learned AGA, however, submits that at the stage of summoning deep evaluation of the evidence is not required and only a prima facie case is to be seen. Keeping this principle in view no illegality has been committed by the court below.
Learned counsel for the respondent no.2 submits that the appellants despite being informed that Shri Shiv Prasad Ojha does not want to meet them assaulted the complainant as also addressed him with castiest remarks and also dragged him towards their vehicle which was standing nearby.
It is further submitted that statement of the complainant has been amply corroborated by the statement of P.W.1 and P.W.2 and therefore there was sufficient material / evidence available with the subordinate court to pass order of summoning. Therefore, no illegality has been done committed by the trial court and no interference is required in the impugned order, therefore the appeal preferred by the appellants is liable to be dismissed.
At this juncture it is fruitful to have a look so far as the law pertaining to summoning of the accused persons in a complaint case is concerned and the perusal of the case law mentioned herein below would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course.
In C.H.C.L.Employees Stock Option Trust VS. India Infalin Ltd. 2013(4) SCC 505 It was emphasized by the Honble Supreme Court that summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. 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 Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record.
In AIR 1998 S. C . 128 , M/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others held as under:-
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. 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. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is primafacie committed by all or any of the accused."
In AIR 2012 SUPREME COURT 1747,Bhushan Kumar and Anr v. State (NCT of Delhi) and Anr" the Apex Court has held that "10. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued."
In AIR 1976 SUPREME COURT 1947, Smt. Nagawwa v/s Veeranna Shivalingappa Konjalgi & others, It is held by The Apex Court that "It is well settled by a long catena of decisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceedings against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merit or de-merits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one."
"4.It would thus be clear from the two decisions of this Court that the scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited - limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact it is well settled that in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not."
"It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a primafacie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of an inquiry under Section 202 which culminates into an order under Section 204. Thus in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:
(1) Where the allegations made in the complaint or the statement of the witness recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like."
In AIR 2015 SUPREME COURT 923,Sunil Bharti Mittal v. Central Bureau of Investigation (Three Judges Bench) Hon,ble Apex Court held as under:
"45. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This Section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e., the complaint, examination of the complainant and his witnesses if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.
46. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
47. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against accused, though the order need not contain detailed reasons. A fortiori, the order would be bad-in-law if the reason given turns out to be ex facie incorrect."
In AIR 2012 SUPREME COURT 1921,Nupur Talwar v. Central Bureau of Investigation and Anr it is propounded by the Hon'ble Supreme Court that "Moreover, this Court has held in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors. [(1976) 3 SCC 736 :(AIR 1976 SC 1947)] thatwhether the reasons given by the Magistrate issuing process under Section 202 or 204 Cr.P.C. were good or bad, sufficient or insufficient, cannot be examined by the High Court in the revision. All that the High Court, however, could do while exercising its powers of revision under Section 397 Cr.P.C when the order issuing process under Section 204 Cr.P.C. was under challenge was to examine whether there were materials before the Magistrate to take a view that there was sufficient ground for proceeding against the persons to whom the processes have been issued under Section 204 Cr.P.C ".
Section 204 of the Code deals with the issue of process, if the Magistrate after taking cognizance of a case, upon consideration of the materials before him i.e., the complaint, examination of the complainant and his witnesses or report of inquiry, if any, thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused. It has to be reminded that a wide discretion has been given to the magistrate to grant or refuse the issuance of process and it must be judicially exercised. A person ought not to be dragged into Court to face criminal trial merely because a complaint has been filed and the same has been supported by two witnesses. No doubt the Magistrate is duty bound to issue process if a prima facie case has been made out and it cannot be refused merely because he thinks that it is unlikely to result in a conviction. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance as they amply suggest that an opinion is to be formed by the Magistrate only after due application of judicial mind that there are sufficient grounds for proceeding against the accused(s) and formation of such an opinion is to be reflected in the order itself. The order is liable to be set aside if no reason is given therein while coming to such conclusion that there is prima facie case against accused or the reasons given turns out to be ex facie incorrect or the facts are highly improbable which could not be believed by a person of common prudence.
Coming back to the facts of the present case the allegations of addressing with castiest remark have been levelled by the complainant Bindra Pasi against the appellants, namely, Dr. Vishnu Chandra Tripathi, who was the Principal of R.K. College Jaunpur, Sudhakar Maurya, who was the Accountant of the College and Sanjay Kumar Singh, who at that point of time was the Head Clerk of the College. The allegations are also with regard to the fact that the complainant was physically assaulted. However, in the end of the complaint it has been mentioned that due to poverty he could not get himself medically examined. The allegations have also been levelled against all the appellants that the appellants also dragged the complainant towards their vehicles. It is apparent on record that the appellants are resident of Jaunpur and Bindra Pasi complainant who admittedly works as domestic help in the house of Dr. Shiv Prasad Ojha situated at Bahraich. It is highly improbable that these three persons will go to another district, namely, Shrawasti i.e. at the house of Dr. Shiv Prasad Ojha and will do "marpit" and will drag complainant towards their vehicles without any intimidation given by the complainant. The story as put forth by the complainant in his complaint is highly improbable and unacceptable. Many documents have been placed on record by the appellants which shows that Dr. Shiv Prasad Ojha was earlier the Principal of R.K. College, Jaunpur and there he committed some financial illegalities and an enquiry was being conducted against him. It is also stated on behalf of the appellants that an FIR was also lodged by appellant no.1, namely, Dr. Vishnu Chandra Triapthi, Principal of the College against Dr. Shiv Prasad Ojha and others pertaining to threatening him in lieu of issuance of a non-encumbrance certificate, a copy of which has been provided on record, which was registered as Case Crime No.63 of 2019. By referring to the above mentioned documents and FIR it has been stated by the appellants that when Dr. Shiv Prasad Ojha failed to pressurize the appellants for issuance of a false non-encumbrance certificate, he manufactured this criminal case through his domestic help, namely, Bindra Pasi (complainant). However, the defence of the appellants (accused persons) could not be taken into consideration at this stage as the order of the Magistrate, whereby the appellants have been summoned is to be scrutinized on the basis of facts and evidence/ material which was available with the Magistrate, at the time of issuance of process. Even if the material which has been placed by the appellants before this Court is excluded from consideration the allegations of complaint and evidence of the prosecution witness recorded under Section 202 Cr.P.C. cannot be accepted being highly improbable.
Three persons (appellants) stated to have assaulted the complainant and injuries have also stated to have been received by himbut his defence that due to poverty he could not get his injuries examined, could not be accepted. More-so in the background of the fact that when the alleged assault took place, Dr. Shiv Prasad Ojha (his employers) was inside the house and even if there was some expenses expected to be incurred in medical examination the same might have been beared by Dr. Shiv Prasad Ojha. Secondly the motive of doing all these illegal activities as alleged by the complainant is missing. The pivot question is, that as to why appellants went to the house of Dr. Shiv Prasad Ojha and for what purpose?, this has neither been alleged in the complaint nor has been stated in the evidence of the complainant or any of his witnesses. It is also significant the factum of Dr. Shiv Prasad Ojha was the Principal of a College where presently appellants are working in different - capacities has been deliberately concealed in the complaint and in totality of circumstances the allegations could not be believed by a prudent person.
It is to be remembered that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute any offence so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course, but as held by this Court in Pepsi Foods Limited (supra), to set in motion the process of criminal law against a person is a serious matter and it must reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is sufficient ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction of the ground for proceeding further would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no lengthy formal order or a detailed order is required to be passed at that stage of 204 Cr.P.C. but the Code of Criminal Procedure requires a speaking order to be passed Under Section 203 of Code of Criminal Procedure when the complaint is being dismissed and that too the reasons need to be stated only briefly.
In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Special Judge that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and inquiry report of investigation Under Section 202 of Code of Criminal Procedure, if any, the accused is answerable before the criminal court and there is sufficient ground for proceeding against the accused Under Section 204 of Code of Criminal Procedure, by issuing process for appearance. Application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Special Judge proceeds Under Sections 190/204 of Code of Criminal Procedure, the superior Court in Appeal is bound to invoke its power in order to prevent abuse of the power of the criminal court. To be called to appear before criminal court as an accused is serious matter affecting one's dignity, self respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.
Having gone through the order passed by the Special Judge, I am satisfied that there is no indication on the application of mind by the learned Special Judge while issuing process to the Appellants. The allegations made in the complaint were patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the appellants. The contention that the application of mind has to be inferred from the fact and circumstances of the case cannot be appreciated. Though no lengthy formal order is required at the stage of Section 204 Code of Criminal Procedure, there must be sufficient indication, in the summoning order, with regard to the application of mind by the trial court to the facts constituting commission of the offence and the statements recorded Under Section 200 and 202 of Code of Criminal Procedure so as to assess sufficiency to proceed against the offender. No doubt the veracity of the allegations is a question of evidence but here the question is not about veracity of the allegations only, but whether those who are being summoned to face trial, are answerable at all before the criminal court. There is no indication in that regard in the summoning order passed by the learned Special Judge. The summoning order dated 29.3.2019 passed by the special Court has been passed in utter disregard to the law laid down in the above mentioned cases and therefore the same could not be allowed to stand.
Resultantly the Appeal filed by the appellants suceeds and is Allowed and the order dated 29.3.2019 passed by the Special Judge SC/ST Act (Prevention of Atrocities), Act, Bahraich in Criminal Case No. 46 of 2019 is set aside.
Order Date :- 25.7.2019 Muk