Allahabad High Court
Jay Prakash Verma And Another vs State Of U.P. And Another on 2 March, 2022
Author: Mohd. Aslam
Bench: Mohd. Aslam
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on: 09.09.2021 Delivered on: 02.03.2022 Court No. - 88 Case :- CRIMINAL APPEAL No. - 2085 of 2020 Appellant :- Jay Prakash Verma And Another Respondent :- State of U.P. and Another Counsel for Appellant :- Himanshu Srivastava Counsel for Respondent :- G.A.,Purushottam Mani Tripathi Hon'ble Mohd. Aslam,J.
1. This criminal appeal is preferred under Section 14-A (1) of SC/ST Act for quashing the further proceedings of Special Session Trial No. 419 of 2019 (State vs. Jai Prakash and another), arising out of Case Crime No. 96 of 2017, under Sections 323, 504, 506, 427 of I.P.C. and Section 3 (1) (Da) of SC/ST Act, Police Station- Ramkola, District- Kushinagar, pending in the court of Additional Sessions Judge/Special Judge, SC/ST (PA) Act, Kushinagar at Padrauna as well as the summoning order dated 16.10.2019.
2. The brief facts necessary for disposal of this appeal is that opposite party no.2 has lodged the first information report on the basis of written complaint on 13.04.2019 at 23:21 P.M. against five named and one unknown accused persons including the appellant with the allegation that on 13.04.2019 at about 7:30 P.M. accused persons had snatched the key of his motorcycle due to old trivial issue using caste indicating words like Khattik, Chamaria abused him with filthy language and had also beaten him with fists, kicks, lathi, danda and damaged his motorcycle. The accused had also snatched the mobile of his companion Aditya Govind Rao. The informant has sustained multiple injuries on his body and got his injuries medically examined at Government Hospital Ramkola and keeping in view the seriousness of the injuries the doctor has referred him to the District Hospital.
3. The injured/informant Rajkumar Maurya was medically examined on 13.04.2019 at 8 P.M. at CHC Ramkola wherein six injuries were found on the body of the injured. The injury nos.1 and 3 were kept under observation and referred to CHC, Kushinagar for expert opinion. Rest injuries were found simple in nature. Duration of the injuries was found fresh. The investigation of the case was conducted by Circle Officer Naveen Kumar Nayak who recorded the statement of witnesses, visited the place of occurrence and prepared the site-plan. After completion of investigation, he has submitted the charge-sheet against accused-appellant Jai Prakash Verma and Sunil Verma under Sections 323, 504, 506, 427 I.P.C. and Section 3 (1) (Da) of SC/ST Act.
4. Heard learned counsel for the accused-appellant, learned counsel for opposite party no.2 as well as learned A.G.A. for the State-respondent and perused the record.
5. It is submitted by learned counsel for the accused-appellant that the impugned order dated 16.10.2019, by which cognizance of offence was taken by the court below, is illegal, arbitrary and is based on surmises and conjectures. It is further submitted that some dispute has taken place between the informant and accused-appellant and the informant has abused the appellant and only on mere asking not to abuse the first information report has been lodged against the appellant and other accused persons on the basis of false and concocted story. The accused-appellant neither has abused the opposite party no.2 using cast indicating words nor has beaten him as alleged in the first information report. In fact, on the day of incident the informant was drunken and fell down near the shop of accused-appellant on account of which he has sustained injuries. It is also submitted that the cognizance order on the charge-sheet was passed merely by filling up the printed proforma. Learned court below has not applied its mind before taking cognizance of the offence, therefore, the impugned order is liable to be set-aside.
6. Per contra, learned A.G.A. has vehemently opposed the submissions of learned counsel for the accused-appellant and supported the order of lower court, but he could not dispute that the impugned order of taking cognizance is passed merely by filling up the blanks in the proforma.
7. After service of notice, opposite party no.2 has put in appearance and has filed counter affidavit contending therein that learned lower court has passed the impugned order according to law. Learned counsel for opposite party no.2 has further submitted that merely because the order is passed on printed proforma by filling up the blanks does not make the order illegal or without jurisdiction and the impugned order cannot be set-aside on this ground only. It is further submitted that the genuineness of the occurrence can only be decided after taking the evidence of the parties, therefore, it cannot be looked at this stage and the appeal is liable to be dismissed.
8. In this case only cognizance of the offence has been taken by the court below and the charges have not been framed, therefore, pros and cons of the evidence cannot be considered at this stage while deciding the appeal under Section 14-A (1) of SC/ST Act. The first information report, prima facie, discloses the commission of offences punishable under the SC/ST Act.
9. Full Bench of this Court in re: Provision of Section 14-A of SC/ST (Prevention of Atrocities) Amendment Act, 2015 and Others vs Nil and others [reported in 2018 0 CrLJ 5010] has held that "a petition under the provisions of Article 226/227 of the Constitution of India cannot invoke in cases and situations where an appeal would lie under Section 14-A. In so far as the powers of the Court with respect to the revisional jurisdiction is concerned, we find that the provisions of Section 397 Cr.P.C. stand impliedly excluded by virtue of special provisions made in Section 14-A. This, we hold also in light of our finding that the word "order" as occurring in sub-section (1) of Section 14-A would also include intermediate orders."
10. From the Full Bench decision of this court, it is abundantly clear that appeal under Section 14-A (1) of SC/ST Act would lie against intermediate order. The order of taking cognizance of offences is an intermediate order against which appeal would lie under Section 14-A (1) of SC/ST Act.
11. Now the question arises what would be the fate of order of the cognizance passed by court below by filing up blanks on printed proforma. This court in Saurabh Dewana versus State of UP [2010 (3) ADJ 622] has held that order of taking cognizance of offence and charge-sheet on printed proforma is illegal and is liable to be quashed on this ground only. The law on this point is well settled also in Ankit vs State of UP and another [reported in 2009 (9) ADJ 778]. Thus, the impugned summoning order has been passed on a printed proforma by filling the blanks without application of judicial mind and as such, it is not sustainable in the eyes of law. The copy of impugned order dated 16.10.2019 passed in Session Trial No. 419 of 2019 (State vs. Jai Prakash Verma and others), arising out of Case Crime No. 96 of 2017, under Sections 323, 504, 506, 427 I.P.C. and Section 3 (1) Da SC/ST Act is placed at page nos. 12-15 which shows that the order of taking cognizance of offence was written by handwriting on printed proforma which is liable to be set-aside on this ground only.
12. Now the question arises what is the procedure and power of appellant court while hearing appeal under Section 14-A of SC/ST Act? No procedure and power of appellate court has been provided in SC/ST Act. Therefore, according to Section 5 Cr.P.C. that relates to "saving" will apply in such matter. Section 5 of Code of Criminal Procedure reads as follows:
"5. Saving. - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."
13. From the perusal of Section 5 of Code of Criminal Procedure, it is clear that in absence of it's posting provisions in special act the provision of the Cr.P.C. will apply. The power of the appellate court is enshrined under Section 386 of Cr.P.C. which reads as follows :
"386. Powers of the Appellate Court. -After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may - (a) in an appeal from an order of acquittal, reverse such order and direct that further enquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law. (b) in an appeal from a conviction -
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a court of competent jurisdiction subordinate to such Appellate Court or committed for trial, Or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;
(c) in an appeal for enhancement of sentence -
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a court competent to try the offence, Or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that maybe just or proper.
Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement.
Provided further that the appellate court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the court passing the order or sentence under appeal."
14. From the reading of Section 386 of Cr.P.C., it is clear that appeal under Section 14-A SC/ST Act will fall within clause (d) and (e) of the Cr.P.C. Therefore, the appeal is liable to be allowed and order dated 16. 10.2019 passed by Special Judge SC/ST (PA) Act, Kushinagar at Padrauna is liable to set-aside and directions be issued to learned Special Judge SC/ST Act to pass fresh order on charge-sheet in the aforesaid case after applying its judicial mind.
15. The appeal is, accordingly, allowed and the impugned order dated 16.10.2019 passed by Additional Sessions Judge/Special Judge, SC/ST (PA) Act, Kushinagar at Padrauna in Special Session Trial No. 419 of 2019 (State vs. Jai Prakash and another), arising out of Case Crime No. 96 of 2017, under Sections 323, 504, 506, 427 of I.P.C. and Section 3 (1) (Da) of SC/ST Act, Police Station- Ramkola, District- Kushinagar, is set-aside.
16. Learned Additional Sessions Judge/Special Judge, SC/ST (PA) Act, Kushinagar at Padrauna is directed to pass fresh order on the point of taking cognizance on the charge-sheet in the aforesaid case after applying its judicial mind.
Order Date :- 02.03.2022 Vikas (Mohd. Aslam,J.)