Allahabad High Court
Aditya Yadav @ Padma Raj Singh Yadav vs State Of U.P. And Another on 8 July, 2021
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- APPLICATION U/S 482 No. - 6708 of 2021 Applicant :- Aditya Yadav @ Padma Raj Singh Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sachchida Nand Tiwari,Avinash Tiwari Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
Case is taken up through video conferencing.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused material on record.
This application u/s 482 Cr.P.C. has been filed with the prayer to quash the entire proceedings emanating from impugned cognizance order dated 28.01.2021 passed on charge-sheet dated 24.07.2020 arising out of case crime no. 302/2020, under Sections 323, 504 IPC and 3(2)(va) of SC/ST Act, P.S. Sarai Inayat, District Prayagraj pending in the Court of Special Judge, (SC/ST Act), Allahabad.
It has been argued by learned counsel for the applicant that applicant is innocent and he has been falsely implicated in this case. It has been argued that the F.I.R. of this case has been lodged by making false and baseless allegations and that no prima facie case is made out against the applicant. Learned counsel has pointed out medical examination report of injured, wherein only two simple injuries have been shown. It has also been mentioned that injured was under influence of liquor and in this regard he pointed out the statement of concerned Doctor. Learned counsel submitted that this possibility cannot be ruled out that injured might have sustained injuries due to fall on the ground. It has been further submitted that there is no such evidence to show that injured was assaulted on the ground that he belongs to Scheduled Caste and thus, Section 3(2)(v) S.C./S.T. Act is not made out. Learned counsel has placed reliance upon the case of Hitesh Verma Vs. State of Uttrakhand and Another, Criminal Appeal No. 707 of 2020. Learned counsel submitted that initially the Court below has to issue summons and bailable warrants but in this matter on the date of cognizance itself, the court below has issued non-bailable warrants against the applicant and thus, the order dated 28.01.2021 is not sustainable.
Learned A.G.A. has opposed the application and argued that in the FIR it has been clearly alleged that applicant has abused the injured by using caste indicating words and thus, offence under S.C./S.T. Act is made out.
Perusal of the record shows that allegations made in first information report and in view of statements of witnesses, examined during investigation, a prima facie case is made out against the applicant. So far the applicability of Sections 3(2)(v) of SC/ST Act is concerned, in the case of Hitesh Verma (supra), Hon'ble Apex Court has held as under:
"Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out."
In the instant case it may be seen that in the FIR itself, the complainant has clearly stated that when he and others tried to intervene in the incident, the applicant abused and threatened them by using words 'Chamar' and 'Paasi' .
Considering the allegations of first information report and statement of complainant and injured, it is apparent that a case under the provisions of S.C./S.T. Act is also made out. It is well settled that jurisdiction to quash a charge sheet has to be exercised sparingly and only in exceptional cases. In the instant matter submissions raised by learned counsel for the applicant call for determination of questions of fact which may be adequately adjudicated upon only by the trial court. Even the submissions made on points of law can also be more appropriately gone into by the trial court.
After considering arguments raised by learned counsel for the parties, perusing the records as well as the law laid down by Hon'ble Apex Court in case of State of Haryana and others Ch. Bhajan Lal and others, AIR 1992 SC 605 and R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, no case for quashing of charge sheet or impugned proceedings is made out.
However, so far the issuance of non-bailable warrants against the applicant is concerned, it may be seen that the court below took cognizance on 28.01.2021 and on the very same day, non-bailable warrants were issued against the applicant. It is fairly well established that in such matters initially, the court should issue summons for appearance of accused and thereafter, bailable warrants should be preferred. In this connection, it may be stated that in the case of Indra Mohan Goswami and Ors. vs. State of Uttaranchal and Ors., AIR 2008SC251, Hon'ble Apex Court held as under:-
"48. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants.
49. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.
When non-bailable warrants should be issued Non-bailable warrant should be issued to bring a person to court when summons of bailable warrants would be unlikely to have the desired result. This could be when:
* it is reasonable to believe that the person will not voluntarily appear in court; or * the police authorities are unable to find the person to serve him with a summon;or * it is considered that the person could harm someone if not placed into custody immediately.
50. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive.
51. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable- warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the courts proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants."
The above stated authority was also relied by Hon'ble Apex Court in the case of Raghuvansh Dewachand Bhasin Vs. State of Maharashtra and anothers, AIR (2012) 9 SCC 791 and it was observed that the directions issued in the case of Indra Mohan Goswami (supra) flow from the right to life and personal liberty, enshrined in Articles 21 and 22 of our Constitution, they need to be strictly complied with. Similarly in the case of Vikas vs. State of Rajasthan, 2013(3)ACR3510 decided on 16.08.2013, it was observed that the issuance of non-bailable warrants in first instance without using the other tools of summons and bailable warrants to secure attendance of such a person would impair the personal liberty guaranteed to every citizen under the Constitution.
In view of the aforesaid, it is apparent that so far the impugned order dated 28.01.2021 relates to issuance of non-bailable warrants, the same is liable to be set aside. Accordingly the non-bailable warrants issued against the applicant vide order dated 28.01.2021 are hereby quashed.
The instant application is disposed of in above terms.
Order Date :- 8.7.2021 Ujjawal/Anand