Allahabad High Court
Shashi Kumar Prasad vs State Of U.P. And Another on 21 February, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 03.01.2023 Delivered on 21.02.2023 Court No. - 88 Case :- CRIMINAL APPEAL No. - 6098 of 2021 Appellant :- Shashi Kumar Prasad Respondent :- State of U.P. and Another Counsel for Appellant :- Bharat Bhushan Paul,Saurabh Paul Counsel for Respondent :- G.A.,Seema Pandey,Vivek Shukla Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the appellants, learned counsel for the respondent No.2/complainant and learned AGA for the State.
2. This appeal has been preferred by the appellant Shashi Kumar Prasad under section 14- A (1) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred as SC/ST Act) for quashing of the charge-sheet dated 21.04.2021 and cognizance / summoning order dated 07.05.2021, passed by the learned Special Judge, (SC/ST Act), Allahabad, in S.T. No.273 of 2021 (State vs. Sandeep Gupta), Case Crime No.30 of 2021, under Section 376(2) N/341/323/ 504/ 506 IPC and 3(1)(da) 3(1)(dha), 3(2)(V) SC/ST Act, P.S. Shivkuti, District Prayagraj.
3. It has been argued by learned counsel for the appellants that the first information report of this case has been lodged by respondent No.2 making false and baseless allegations and no case against the appellant is made out. The alleged incident has been shown of 27.08.2020 but the first information report has been lodged on 20.02.2021 after 6 months of alleged incident and the delay in lodging in first information report has not been explained. The allegations of rape have been levelled against co-accused Sandeep Gupta. The allegation that the appellant has issued any cheque to the victim lady to compromise alleged incident of rape or that he threatened the victim lady, is absolutely false. In fact the victim lady along with her husband has approached the appellant to work as domestic help to help his wife, on salary of Rs 15,000/pm, but later on 07.11.2020 the companions of victim lady made the appellant and his wife as hostage and they forcibly obtained a cheque from him by threatening that otherwise they would lodge a false case against him under SC / ST Act. There is no allegation of rape against the appellant-accused. The role of committing rape has been assigned to co-accused Sandeep Gupta. The victim lady has not sustained injury and her version is not supported by medical evidence. Learned counsel submitted that even as per prosecution version, the alleged incident took place inside the house and thus, it cannot be said that the complainant was abused or humiliated in public view and thus, no offence under the provisions of SC/ST Act is made out. Referring to the facts of the matter, it was submitted that the allegations made by victim lady are absolutely false and that no prima facie no case is made out against the appellant and thus, impugned charge sheet and order are liable to be set aside.
4. Learned AGA and learned counsel for respondent No.2 have opposed the appeal and argued that the victim lady along with her husband was working as domestic help in the house of appellant since 04.07.2020 against salary of Rs.15,000/pm and she used to look after wife of appellant, who suffering from paralysis. It was stated that co-accused Sandeep Gupta was living the house of the appellant-accused like an adopted son of appellant-accused and that on 27.08.2020 he has committed rape upon the victim and later on when the victim made complaint to the appellant, he has threatened her not to disclose the incident to any one and pressurized her for compromise and he has also issued a cheque of Rs five lakhs to her for compromise and threatened and abused her by using caste indicative words. It was submitted the prosecution version is supported by statement of victim recorded under section 164 CrPC and that in view of the material on record a prima facie case is made out against the appellant.
5. I have considered rival submissions and perused record.
6. It is well settled that at the stage of cognizance and at the stage of issuing process to the accused, the Magistrate / Court 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 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 defenses. 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 the case of Nupur Talwar v. Central Bureau of Investigation and another (2012)11 SCC 465.
9. In the instant case, perusal of record shows that the respondent has lodged first information report against the appellant and the co-accused Sandeep Gupta, alleging that she was employed by the appellant at his house to help his wife, who was suffering from paralysis and that she along with husband used stay there and she was getting salary of Rs.15,000/ pm. Co-accused Sandeep Gupta was living the house of the appellant like adopted son of appellant and that on 27.08.2020 in the absence of her husband, co-accused Sandeep Gupta committed rape upon her and made a video of her. She further alleged that regarding the incident when she made a complaint to the appellant, he has threatened her not to disclose the incident to any one and he has also issued a cheque of rupees five lakhs in lieu of alleged incident of rape. She has alleged she was not allowed to leave the house of appellant and the accused persons have abused her by using caste indicative words and threatened to make her video viral. The victim has supported said version in her statement recorded under section 161 CrPC as under section 164 CrPC.
10. However, quite surprisingly it appears from the impugned cognizance / summoning order dated 07.05.2021 that only co-accused Sandeep Gupta has been summoned by the Trial Court. The impugned order dated 07.05.2021 passed by the Trial Court reads as under:
''आज आरोपपत्र विरुद्ध अभियुक्त संदीप गुप्ता S/O शितला प्रसाद गुप्ता अन्तर्गत धारा 376 (2)N/341/323/504/506 IPC व 3(2)(V) व 3(1) द, ध SC/ST Actप्राप्त हुआ। आरोपपत्र केश डायरी व अन्य पुलिस, प्रपत्रों के अवलोकन से अभी उपरोक्त के विरुद्ध उक्त धाराओं में प्रसंज्ञान लेने का पर्याप्त आधार है। तद्नुसार प्रसंज्ञान लिया जाता है। प्रकरण दर्ज रजिस्टर हो। अभी० को नकल प्रदान की जाए। अभी० का 167 Cr.P.C. का वारंट निरस्त कर 309 Cr.P.C. का वारंट बनाया जाए। अग्रीम नियत तिथि 31/05/2021 अभी नियत तिथि को जेल से तलब हो ।'
11. There is absolutely nothing in the said order that the accused-appellant has been summoned by the Trial Court. Though the perusal of record shows that charge sheet was submitted against the accused-appellant for offences under section 341/323/504/506 IPC and section 3(1)(da) 3(1)(dha), 3(2)(V) SC/ST Act and cognizance has been taken by the Trial Court but the impugned order is completely silent about Shashi Kumar Prasad. As the accused-appellant has not been summoned by the impugned order, thus the impugned order regarding summoning of co-accused Sandeep Gupta can not be quashed or interfered with in this appeal filed by appellant Shashi Kumar Prasad. Similarly, in view of material on record, no case for quashing of impugned charge-sheet is made out.
12. In view of aforesaid, no case for quashing of impugned charge sheet or summoning order is made out. However, in case the appellant is summoned by the trial court by any subsequent order, the appellant would be liberty to avail remedy against that order in accordance with law.
13. With aforesaid observations, the appeal is dismissed.
Order Date :- 21.02.2023 Neeraj