HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Appeal (Sb) No v. State Of Rajasthan, Through P.p. Kedarmal S/o

Judgment

2. Versus State Of Rajasthan, Through P.p. Kedarmal S/o Shri Totaram Meena R/o Suroth P.s. Suroth, Distt. Karauli Raj. ----Respondents For Appellant(s) : Mr. Jagmohan Bhardwaj with

Ms. Supriya Meena For Respondent(s) : Mr. R.D. Meena Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 14/05/2025 Order

1. Instant S.B. Criminal Appeal is preferred by appellant- accused Ramavtar Sharma S/o Shri Harishankar Sharma aggrieved from order dated 18.07.2019 in criminal case (CIS) No. 23/2017 arising out of FIR No. 58/2017 P.S. Suroth, District Karauli whereby an order of cognizance under Sections 323, 341 IPC and Section 3(1)(r)(s), 2(va) of SC/ST (POA) Act was passed and directed to call appellant-accused by warrant of arrest.

2. Learned counsel for appellant while relying upon grounds of appeal submitted that on 13.03.2017, when complainant was abusing and using criminal force against appellant-accused, then on basis of information to police, the police has arrested the complainant under Section 151 of CPC for breach of peace and [2025:RJ-JP:22912] (2 of 7) [CRLAS-1785/2019] after his medical examination released on bail by the Executive Magistrte. He further submitted that after a legal advice, a report was lodged and after investigation, police has submitted a closure report (FR) opining that the case is false. He also submitted that name of eye-witness was not mentioned by the complainant in his report but later on he introduced and implanted eye-witnesses to record their statements under Section 202 Cr.P.C. He further referred the impugned order passed by the Trial Court and submitted that the Trial Court has not only committed serious error by taking cognizance but has issued a warrant of arrest at the first instance in utter disregard to judgment of Hon’ble Supreme Court in case of Inder Mohan Goswami Vs. State of Uttrakhand (2007) 12 SCC 1.

3. Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for complainant.

4. Learned counsel for complainant submitted that accused and complainant, both were booked under Section 151 CPC and the police under the influence of appellant-accused has filed a closure report (FR). He further submitted that this appellant was not drunk at the time of incident but he was abused and mishandled by using criminal force on Holi Festival. At last, he referred the Court statement and submitted that the entire incident was well- explained by complainant and his witnesses in the statement recorded by the Trial Court.

5. On basis of a complaint dated 13.03.2017 filed by respondent-complainant Kedar Lal FIR No. 58/2017 was registered at P.S. Suroth, District Karauli under Sections 143, 323, 341 IPC and Section 3(1)(s) of SC/ST (POA) Act. After investigation, police [2025:RJ-JP:22912] (3 of 7) [CRLAS-1785/2019] has filed a negative closure report (FR) on the ground that the complainant has registered a criminal case onfalse facts. After submission of FR, a protest petition was filed by complainant and complainant has examined himself under Section 200 Cr.P.C. and witnesses Harkesh, Magan Singh and Babu Lal under Section 202 Cr.P.C. The Trial Court has rejected the FR and took cognizance against the appellant.

6. A perusal of record indicate that complainant-respondent was produced before the Executing Magistrate and Tehsildar, Hindaun City on 14.03.2017 under Section 107/151 Cr.P.C. and further released on execution of own bond with surety to maintain peaceful behavior. After registration of FIR, the matter was investigated by police and the Investigating Officer has mentioned that the allegation of Kedar Lal were not found proved from evidence of anyone as the complainant has not met Ramavtar before 5.00 P.M. on 13.02.2017. The Investigating Officer has further mentioned that the complainant was not abused with castiest slur rather he complained about abuse of his father. Further, the Investigating Officer has mentioned that the incident was at 5:00 P.M. on 13.03.2017, when complainant Kedar Lal was in inebriated condition (drunkard) after consuming liquor and he assaulted Ram Avtar Sharma but after noticing gathering of public, Kedar Lal has left the scene but police has arrested him and he tried to compromise the matter but due to non- compromise this report was registered.

7. The police has recorded the statement of Kedar Lal,Tota Ram, Pappu @ Om Parkash, Harkesh, Magan Singh, Barang Jatav, Samay Singh, Ramashanker Sharma and Lakhan. The police has [2025:RJ-JP:22912] (4 of 7) [CRLAS-1785/2019] recorded supplementary statement of these witnesses and we have considered all statements. In his statement under Section 200 of Cr.P.C. two incidents were mentioned by respondent- complainant firstly of around 12:00/01:00 P.M. and secondly of around 04:00/05:00 P.M. Harkesh, Magan Singh and Babu Lal have supported the case of complainant. In his statement under Section 161 Cr.P.C, respondent-complainant has stated that Ramavtar has abused his father with castiest slur whereas other witnesses have stated that Ramavtar has abused Kedar lal with castiest slur. Herein, this case, the police has specifically mentioned this fact that the father of complainant was abused and same was also mentioned in FIR but in his statement under Section 200 Cr.P.C. nowhere it was mentioned that father of complainant was abused by Ram Avtar. There were contradictions in the evidence of complainant and other witnesses but the Trial Court has not noticed all these while taking cognizance. Moreover, the Trial Court while considering the material on record has completely discarded and ignored the findings recorded by the police particularly that this respondent-complainant was booked on very same day under Section 107/151 of Cr.P.C.

10. In case of M/S. Pepsi Foods Ltd. & Anr vs Special Judicial Magistrate & Ors (1998) 5 SCC 749, Hon’ble Supreme Court has laid down the duty of the Magistrate while passing summoning order in a complaint case in following manner: “Summoning of an accused in a criminal case is a serious matter- Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the [2025:RJ-JP:22912] (5 of 7) [CRLAS-1785/2019] accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

11. In case of Bhushan Kumar & Anr. Vs. State (NCT of Delhi) & Anr. AIR 2012 SC 1747 Hon’ble Supreme Court held that it was summoning order in a complaint case and need not to be a very detailed and reasoned one but there must be sufficient ground for summoning. In case of Harshendra Kumar D. Vs. Rebatilata koley 2011 Cr.L.J. 1626 (SC) it was held that the prosecution of a person in a complaint case is a serious matter and it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. Further, relying upon judgment in case of M/S. Pepsi Foods Ltd. & Anr vs Special Judicial Magistrate & Ors (supra) in subsequent case of Everest Advertising Pvt. Ltd. Vs. State Government of NCT of Delhi, AIR 1992 SC 604. Hon’ble Supreme Court has again reiterated the power of a Magistrate in passing summoning order in a complaint case.

12. The duty of Magistrate was further considered in case of Fiona Shrikhande Vs. State of Maharashtra, AIR 2014 SC

957. In case of M/S GHCL Employees Stock Option Trust Vs. [2025:RJ-JP:22912] (6 of 7) [CRLAS-1785/2019] M/S India Infoline Ltd., AIR 2013 SC 1433 it was held that a summoning order in a complaint case must reflect application of mind. In case of Nagawwa Vs. Veeranna Shivalingappa Nonjalgi, 1976 SCCr R 313 (SC) Hon’ble Supreme Court has considered the scrutiny of evidence at the stage of passing summoning order in a complaint case.

13. In case of Shajan Skaria Vs. The State of Kerala 2024 SCC Online SC 2249, Hon’ble Supreme Court after relying upon judgment in case of Hitesh Verma Vs. The State of Uttrakhnd (2020) 10 SCC 710 has held that an offence under the SC/ST (POA) Act particularly under Section 3(1)(r) is not established merely on the fact that the complainant is a member of SC or ST, unless there is an intention to humiliate such a member from the reason that he belongs to such community. Even in case of Ramesh Chandra Vaishya Vs. State of Uttar Pradesh 2023 SCC Online SC 668, while considering provision under Section 3(1)(x) of the Act and held that there should be intentional insult to give provocation to the person insulted and intended against member of SC/ST.

14. Having considered the material available on record, I am of the considered view that in the instant case the Trial Court has ignored the discrepancies about the facts and evidence of the case and further taken cognizance on basis of statement under Section 200 and 202 of Cr.P.C. The evidence collected by police and the reasons assigned at the time of submission of negative closure report were ignored by the Trial Court, therefore, the order of cognizance suffers from illegality and same is liable to be set aside. [2025:RJ-JP:22912] (7 of 7) [CRLAS-1785/2019]

15. As a result, the instant S.B. Criminal Appeal is hereby allowed and the impugned order dated 18.07.2019 in criminal case (CIS) No. 23/2017 is set aside. The protest petition filed by respondent-complainant is dismissed and appellant-accused is discharged.

16. Pending application(s), if any, also stands disposed of. MONU /81-S (ASHOK KUMAR JAIN),J