Allahabad High Court
Uttam Kumar And 10 Others vs State Of U.P. And Another on 10 June, 2021
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 77 Case :- CRIMINAL APPEAL No. - 2021 of 2021 Appellant :- Uttam Kumar And 10 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Ankur Singh Kushwaha,Dharmendra Singhal(Senior Adv.),Shivendra Raj Singhal Counsel for Respondent :- G.A.,Amit Daga Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the appellants, learned AGA for the State and Sri Amit Daga, counsel for opposite party no. 2.
The present appeal under section 14-A(1) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been filed against the order dated 20.3.2021 passed by Special Judge, SC/ST Act, Muzaffarnagar in S.S.T. No. 76 of 2019, arising out of Case Crime No. 43-A of 2005 (State vs. Shyam Singh and others) under sections 147, 148, 149, 307, 323, 437, 504, and 506 IPC, Section 3(1)(X) and section 3(2)(X) of SC/ST Act, Police Station Chhapar, District Muzaffarnagar.
Sri Amit Daga, learned counsel, states that he does not want to file counter affidavit, therefore, the Court proceeds that the averments made in the affidavit are correct. Thus, unrebutted submission on record are that an FIR was lodged on 21.8.2005 against the appellants alleging that the opposite party no. 2 has purchased property no. 826 from one Santram and was in possession of the same, however, the appellants tried to dispossess. It is also recorded that civil suits are pending in between the parties. The allegation was that on 17.2.2005 the appellants along with Naib Tehsildar, police official and other officers came to the land in question and started to dispossess the informant and his family members during the course of which the altercation ensued. It is stated that after the filing of the FIR, the I.O investigated the matter and after recording the statements of the alleged injured and the eye witness proceeded to file a final report on 22.2.2006. Opposing the said final report the opposite party no. 2 filed a protest petition, a copy where of is enclosed as Annexure 10. In the said protest petition, it was specifically stated in para 2 that the investigation is faulty inasmuch as the Investigating Officer has never taken the statement of the informant nor has taken any statement of eye witness. On the basis of the said protest petition, the Chief Judicial Magistrate, Muzaffarnagar proceeded to pass an order on 17.10.2006 whereby the final report was rejected and summons were issued to the appellants herein. The appellant approached this Court by filing an Application under section 482 Cr.P.C. in which the order dated 17.10.2006 was set aside by this Court vide order dated 01.11.2017, on the basi of the law laid down in the case of Pakhandu and others vs. State of U.P. and another, 2002, CRI.L.J. 1210. Subsequent to the remand by this Court the order impugned has been passed on 01.11.2017 summoning the applicants once again.
I have perused the order which is on record.
In the said order, the Court has proceeded to pass the same on the basis of the statement of the informant as well as the witnesses as is clear from the the findings in the internal page 4 of the order itself. After perusing the said statements, the court below was pleased to summon the applicants.
The submission of counsel for the appellants is that once specific averment was made in the protest petition that no statements have ever been recorded of the informant or the eye witness, the exercise of discretion by the court below cannot be justified and the only recourse upon to the court below was either to accept the final report or to direct fresh investigation in the light of submission that no statements were recorded. Thus, the order deserves to be set aside.
Sri Amit Daga, counsel for the opposite party no. 2, on the other hand, argues that while passing the impugned order the court below had taken into consideration the medical report also and thus no fault can be found in exercise of discretion by the court warranting interference by this Court in exercise of its appellate power.
A perusal of the material on record as is disclosed in the impugned order shows that the summoning order is based upon the statements so recorded which have been specifically denied by the opposite party no. 2 himself in the protest petition. Thus, summoning the accused solely based upon the said statements, cannot be termed as a valid exercise of power.
Accordingly, the order dated 20.3.2021 is set aside. The matter is remanded to the court concerned or passing fresh orders without taking into consideration the statements of the informants or the eye witnesses which have been denied as ever being recorded. The said exercise shall be completed by the court below, as expeditiously as possible, preferably within a period of three months from the date of filing of the copy of this order.
The appeal is disposed off in terms of the said order.
Order Date :- 10.6.2021 Puspendra