Allahabad High Court
Surjeet Kumar vs State Of U.P. Thru. Addl. Chief Secy. ... on 22 May, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:35731 Court No. - 28 Case :- CRIMINAL APPEAL No. - 1632 of 2023 Appellant :- Surjeet Kumar Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home And Another Counsel for Appellant :- Alok Singh Counsel for Respondent :- G.A. Hon'ble Shree Prakash Singh,J.
Heard learned counsel for the appellant, Sri Nirmal Kumar Pandey, learned A.G.A. for the State and perused the material placed on record.
Instant appeal under section 14-A(1) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act,1989 has been filed against the summoning order dated 06-04-2021 passed by the Special Judge, SC/ST Act, Sitapur in Special Trial No. 237 of 2021, under sections 188, 323, 504, 506, 332 of I.P.C. and Section 3(1) da,3(1)(dha) of SC/ST Act and Section 3 of Epidemic Diseases Act, 1897, pending before the Special Judge, SC/ST Act, Sitapur.
Learned counsel appearing for the appellant submits that the appellant is innocent and has falsely been implicated in the instant matter due to ulterior motive. He next dated that the learned trial court without considering the mandate of Section 195 of Cr.P.C. has taken cognizance of the offences under section 188 of I.P.C. which also includes the provision of Section 3 of the Epidemic Diseases Act, 1897. In support of his contentions, he has placed reliance on Section 195 of Cr.P.C., which is quoted hereinunder :-
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
(1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
(2) Where a complaint has been made by a public servant under clause (a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate: Provided that-
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."
Further added that under section 3 of the Epidemic Diseases Act, 1897, it has been provided that flouting any regulation or order under the Act, 1897 shall be deemed to have committed offence under section 188 of I.P.C.
Section 3 of the Epidemic Diseases Act, 1897 is quoted hereinunder;-
"3. Penalty. - [(1)] Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code.
[(2) Whoever, -
(i) commits or abets the commission of an act of violence against a healthcare service personnel; or
(ii) abets or causes damage or loss to any property, shall be punished with imprisonment for a term which shall not be less than three months, but which may extend to five years, and with fine, which shall not be less than fifty thousand rupees, but which may extend to two lakh rupees.
(3) Whoever, while committing an act of violence against a healthcare service personnel, causes grievous hurt as defined in section 320 of the Indian Penal Code to such person, shall be punished with imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine, which shall not be less than one lakh rupees, but which may extend to five lakh rupees.] [3A. Cognizance, investigation and trial of offences. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -
(i) an offence punishable under sub-section (2) or sub-section (3) of section 3 shall be cognizable and non-bailable;
(ii) any case registered under sub-section (2) or sub-section (3) of section 3 shall be investigated by a police officer not below the rank of Inspector;
(iii) investigation of a case under sub-section (2) or sub-section (3) of section 3 shall be completed within a period of thirty days from the date of registration of the First Information Report;
(iv) in every inquiry or trial of a case under sub-section (2) or sub-section (3) of section 3, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded, and an endeavour shall be made to ensure that the inquiry or trial is concluded within a period of one year:
Provided that where the trial is not concluded within the said period, the Judge shall record the reasons for not having done so:
Provided further that the said period may be extended by such further period, for reasons to be recorded in writing, but not exceeding six months at a time.
3B. Composition of certain offences. - Where a person is prosecuted for committing an offence punishable under sub-section (2) of section 3, such offence may, with the permission of the Court, be compounded by the person against whom such act of violence is committed.
3C. Presumption as to certain offences. - Where a person is prosecuted for committing an offence punishable under sub-section (3) of section 3, the Court shall presume that such person has committed such offence, unless the contrary is proved.
3D. Presumption of culpable mental state. - (1) In any prosecution for an offence under sub-section (3) of section 3 which requires a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
Explanation. - In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.
3E. Compensation for acts of violence. - (1) In addition to the punishment provided for an offence under sub-section (2) or sub-section (3) of section 3, the person so convicted shall also be liable to pay, by way of compensation, such amount, as may be determined by the Court for causing hurt or grievous hurt to any healthcare service personnel.
(2) Notwithstanding the composition of an offence under section 3B, in case of damage to any property or loss caused, the compensation payable shall be twice the amount of fair market value of the damaged property or the loss caused, as may be determined by the Court.
(3) Upon failure to pay the compensation awarded under sub-sections (1) and (2), such amount shall be recovered as an arrear of land revenue under the Revenue Recovery Act, 1890 (1 of 1890).]"
Referring the aforesaid provision, he added that it has been provided under Section 3 of the Epidemic Diseases Act, 1897(Supra) that any person disobeying any regulation or order made under this act, shall be deemed to have committed an offence punishable under section 188 of I.P.C. He added that in such view of the matter, the trial court has exceeded it's jurisdiction and has passed an unlawful order while taking cognizance under section 188 of I.P.C. alongwith other the other sections i.e. under sections 323,504,506,332 of I.P.C. and Section 3(1)(da), 3(1)(dha) of SC/ST Act and Section 3 of the Epidemic Diseases Act, 1897. He added that prima-facie, the order is errorneous and unlawful and thus, the same is liable to be set aside.
On the other hand, learned A.G.A. appearing for the State though has opposed the case on merits, but, so far as the contention of learned counsel for the appellant is concerned, he has no objection regarding erroneousness in the order impugned.
Considering the submissions of learned counsel for the parties and after perusal of material placed on record, it emerges out that the learned trial court while passing the impugned summoning order dated 06-04-2021 has taken cognizance of offence under Section 188 of I.P.C. including Section 3 of the Epidemic Diseases Act, 1897.
This court is aware of fact that it has very clearly been provided under section 195 of I.P.C. that no court can take cognizance of any offence punishable under sections 172 to 188 (both inclusive) except on the complaint in writing of the public servant concerned or of some other public servant, to whom he is administratively subordinate.
This court has also taken note of the fact that no complaint has been filed and the Magistrate has taken cognizance on a police report, of offence under section 188 of I.P.C. and Section 3 of the Epidemic Diseases Act, 1897 though that has been barred by the mandate of Section 195 of I.P.C.. In such view of the matter, the impugned order dated 06-04-2021 cannot sustain and the same is hereby set aside.
The matter is transmitted back to the trial court concerned to take a decision afresh on the chargehseet submitted by the police.
The trial court concerned is further directed to pass afresh order within a period of 45 days from the date of this order.
Learned counsel for the appellant is directed to communicate this order to the trial court concerned.
Office is also directed to communicate this order to the trial court concerned forthwith.
With the aforesaid observations/direction, the instant appeal is allowed.
Order Date :- 22.5.2023 AKS