Allahabad High Court
Naubat Singh And 4 Others vs State Of U.P. And Another on 6 January, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 88 Case :- CRIMINAL APPEAL No. - 6705 of 2022 Appellant :- Naubat Singh And 4 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Sanjay Vikram Singh,Parth Sharma,Rakesh Kumar Singh Counsel for Respondent :- G.A. Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the appellants and learned A.G.A. for the State. None has appeared on behalf of respondent no.2 despite service of notice.
2. This appeal has been preferred by the appellants 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 summoning order dated 17.05.2022, passed by the learned Special Judge (SC/ST), Act, Hathras, in Special Session Trial No.352 of 2022 (State vs. Naubat Singh and others), case crime no.162 of 2022, under Sections 147, 149, 323, 504, 506 IPC and Section 3(2)(va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, P.S. Sikandra Rao, District Hathras.
3. Learned counsel for the appellants has submitted that the impugned summoning order is against facts and law and thus, liable to be set aside. It was also submitted that the appellants are residents of village Isapur, District Hathras, whereas the informant/respondent no.2 is a resident of another village namely Nauratha, Isapur, Sikandra Rao, District Hathras and that there is nothing to show that appellants were known to the informant since before the incident and thus, the allegation that the appellants have abused or humiliated the informant by using caste indicative words, is thoroughly false. The appellants were not aware that informant belongs to schedule caste. Further, the alleged incident has been shown of 01/2.04.2022 but first information report has been lodged after five days on 07.04.2022. It is further submitted that as per doctor, who has examined the injured persons, the injuries were four to seven days old and thus, there is doubt whether the said injuries were sustained in the alleged incident. Referring to the facts of the matter, it is submitted that no case under Section 3(2)(va) of SC/ST Act is made out against the appellants. It was submitted that the while passing the impugned summoning order, the trial court has not considered the relevant facts of the matter. Learned counsel submitted that the impugned summoning order is abuse of the process of law and thus, liable to be quashed.
4.Learned A.G.A has opposed the appeal and argued that in the the first information report, it has clearly been mentioned that the appellants/accused have abused the informant and his companion by using caste indicative words and assaulted them and resultantly the informant and his companion Vikash have sustained injuries. In their statements under Section 161 CrPC both the witnesses have supported prosecution version. It was submitted that question whether the appellants were known to the informant and other injured since before the incident or not, is a question of fact, which can be decided only during trial. It was submitted that there is no illegality or perversity in the impugned summoning order.
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 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 case of 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 defence. 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 SCC465.
9. In the instant case, it is apparent that all the accused/appellants are named in first information report and it has clearly been mentioned that they have abused and assaulted the informant and his companion and abused them by using word "Bhangiya". Their version is supported by medical examination report, wherein, it was shown that they have sustained several injuries. Whether, the appellants were known to the informant and another injured witness since before incident or not, is a question of fact to be decided during trial. Further, in address of both the parties same village Isapur has been shown. Even otherwise, the impugned summoning order cannot be quashed merely on that ground. The appellants/ accused have been charge-sheeted after investigation. The Court below has considered the entire facts and summoned the appellants by a reasoned order. No material illegality or perversity could be shown in the impugned order.
10. However, considering facts of the matter, it is directed that in case the appellants surrender before the court below within a period of four weeks from today and applies for bail, the same shall be considered and decided expeditiously in accordance with settled law.
11. With the aforesaid observations, the instant appeal is dismissed.
Order Date :- 6.1.2023 Neeraj