ST Act, Police Station Hapur Dehat, District Hapur (Narendra v. Ashwani Dixit and another) and to stay the further proceeding of
Case Details
Neutral Citation No. - 2023:AHC:102068 Court No. -81 Case :- CRIMINAL APPEAL No. - 1120 of 2023 Appellant :- Smt. Neerja Dixit And Another Respondent :- State of U.P. and Another Counsel for Appellant :- Rajiv Kumar Mishra,Ashutosh Singh,Deelip Kumar Pathak,Mohd Raghib Ali Counsel for Respondent :- G.A.,Pradeep Kumar Pandey Hon'ble Mohd. Faiz Alam Khan,J. Supplementary affidavit filed today on behalf of the appellants is taken on record. Heard Shri Shagir Ahmad, learned Senior Advocate assisted by Shri Raghib Ali, learned counsel for the appellants, Shri Pradeep Kumar Pandey, learned counsel for opposite party no.2 as well as learned Additional Government Advocate for the State and perused the record. The instant appeal under Section 14-A(1) SC/ST (Prevention of
Legal Reasoning
prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record. In MANU/SC/1090/1998 : AIR 1998 S.C. 128, M/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others held as under:- "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 accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has 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 scrutinize 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." In MANU/SC/0173/1976 : AIR 1976 SUPREME COURT 1947, Smt. Nagawwa v/s Veeranna Shivalingappa Konjalgi & others, It is held by The Apex Court that "It is well settled by a long catena of decisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceedings against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merit or de-merits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one." "4. It would thus be clear from the two decisions of this Court that the scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited - limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact it is well settled that in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not." 5 "It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of an inquiry under Section 202 which culminates into an order under Section 204. Thus in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) Where the allegations made in the complaint or the statement of the witness recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like." The discretion of the Special Court in appreciating the facts and circumstances of the case in order to assess the sufficient grounds for proceeding further cannot be curtailed by any court and it is not so that the Magistrate is bound to summon the accused persons in all the cases on the basis of allegations levelled in the statements of the complainant and his two witnesses in their statements recorded under Sections 200 and 202 Cr.P.C. The duty of the Magistrate or Special Court is to take various factors into consideration and to weigh the case of the complainant on the touch stone of probability in order to arrive at a conclusion as to whether sufficient grounds 6 are available and what offences are being attracted wherein the accused persons may be summoned. The summoning of the accused persons in a criminal trial is certainly a serious business and in this regard the following observation of the Hon'ble Supreme Court in Birla Corporation Ltd. Vs. Adventz. Investments and Holdings Ltd. may be recalled: "Complaint filed under Section 200 Cr.P.C. and enquiry contemplated under Section 202 Cr.P.C. and issuance of process 25. Under Section 200 Cr.P.C. and enquiry contemplated under Section 202 Cr.P.C. and issuance of process:- Under Section 200 of the Criminal Procedure Code, on presentation of the complaint by an individual, the Magistrate is required to examine the complainant and the witnesses present, if any. Thereafter, on perusal of the allegations made in the complaint, the statement of the complainant on solemn affirmation and the witnesses examined, the Magistrate has to get himself satisfied that there are sufficient grounds for proceeding against the accused and on such satisfaction, the Magistrate may direct for issuance of process as contemplated under Section 204 Cr.P.C. The purpose of the enquiry under Section 202 Cr.P.C. is to determine whether a prima facie case is made out and whether there is sufficient ground for proceeding against the accused. 26. The scope of enquiry under this section is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under Section 204 Cr.P.C. or whether the complaint should be dismissed by resorting to Section 203 Cr.P.C. on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. At the stage of enquiry under Section 202 Cr.P.C., the Magistrate is only concerned with the allegations made in the complaint or the evidence in support of the averments in the complaint to satisfy himself that there is sufficient ground for proceeding against the accused. 27. In National Bank of Oman v. Barakara Abdul Aziz and Another (2013) 2 SCC 488, the Supreme Court explained the scope of enquiry and held as under:- "9. The duty of a Magistrate receiving a complaint is set out in Section 202 CrPC and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 CrPC is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of enquiry under Section 202 CrPC 7 is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint: (i) on the materials placed by the complainant before the court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have." 28. In Mehmood Ul Rehman v. Khazir Mohammad Tunda and Others (2015) 12 SCC 420, the scope of enquiry under Section 202 Cr.P.C. and the satisfaction of the Magistrate for issuance of process has been considered and held as under:- "2. Chapter XV Cr.P.C deals with the further procedure for dealing with "Complaints to Magistrate". Under Section 200 Cr.P.C, the Magistrate, taking cognizance of an offence on a complaint, shall examine upon oath the complainant and the witnesses, if any, present and the substance of such examination should be reduced to writing and the same shall be signed by the complainant, the witnesses and the Magistrate. Under Section 202 Cr.P.C, the Magistrate, if required, is empowered to either inquire into the case himself or direct an investigation to be made by a competent person "for the purpose of deciding whether or not there is sufficient ground for proceeding". If, after considering the statements recorded under Section 200 Cr.P.C and the result of the inquiry or investigation under Section 202 Cr.P.C, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he should dismiss the complaint, after briefly recording the reasons for doing so. 3. Chapter XVI Cr.P.C deals with "Commencement of Proceedings before Magistrate". If, in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, the Magistrate has to issue process under Section 204(1) Cr.P.C for attendance of the accused." Appreciating the contents of the complaint and the statement of the complainant and his two witnesses recorded before the Special Court under Section 200 and 202 Cr.P.C., in the background of the law placed herein- before, would reveal that it is an admitted case of the complainant that he is an employee of P.W.-1/Sushil Kumar Sharma. It is also an admitted case, as is emerging from the evidence of the witnesses recorded under Section 202 Cr.P.C. that the another witness namely P.W.-2/Ranjeet Singh is the 'driver' of P.W.-1/Sushil Kumar Sharma. Thus, the complainant and P.W.-2/Ranjeet 8 Singh are the employees of P.W.-1/Sushil Kumar Sharma, who is admittedly having enmity with the appellants, as a criminal case is pending between them on account of complaint lodged by P.W.-1/Sushil Kumar Sharma, a copy of which has been placed on record. Record would further reveal that certainly there are contradictions the statements of the witnesses and complainant with regard to the place of occurrence. The complainant is shown to have accompanied by his wife and imputation have been made that both (appellants/husband and wife) attempted to kidnap/abduct the opposite party no.2 by throwing him into a vehicle with other two unknown persons. Admittedly no injury is shown to have been caused to the opposite party no.2, while it is claimed that the complainant had sustained injuries in the incident. I have considered the complaint and the statement of the complainant and his two witnesses recorded before the Special Court and is of the considered view that the Special Court has failed in its duty, as is bestowed on it by virtue of Section 202 of the Cr.P.C., to make an enquiry to ascertain the truth and sufficiency of grounds to proceed further, in view of the law laid down by the Hon'ble Supreme Court in Birla Corporation Limited (supra) whereby a pious duty has been casted on the Magistrate or the Special Court, as the case may be, to make an enquiry with regard to the allegations levelled against the proposed accused persons in a complaint case. At the cost of repetition, it is emphasized that duty of the Magistrate or the Special Court, at the stage of summoning of proposed accused persons is to assess the sufficiency of material for further proceedings of the case and the summoning of the proposed accused persons must not be mechanical and the order itself must reflect the applicability of judicial mind, which unfortunately is lacking in the instant case. Thus, for the reasons and the law mentioned herein-before, I am of the considered view that the Special Court has not exercised its discretion and duty, as bestowed on its by virtue of Section 202 Cr.P.C. judiciously and thus, the impugned summoning order cannot stand the test of law and is 9 liable to be set-aside. In result, the appeal succeeds and is allowed accordingly. The impugned order of date 16.09.2022 is set-aside and all subsequent proceedings of the instant case pending before the Special Court are, hereby, quashed. Order Date :- 11.5.2023 Praveen 10
Arguments
Atrocities) Act, has been filed by the appellants- Smt. Neerja Dixit and Ashwani Dixit with the prayer to quash the summoning order dated 16.09.2022 passed by learned Additional District Judge/Special Judge, (S.C./S.T. Act), Hapur in Complaint Case No. 25 of 2021, under Sections 323, 504, 506, 392 I.P.C. and Section 3(2)(V) of SC/ST Act, Police Station Hapur Dehat, District Hapur (Narendra vs. Ashwani Dixit and another) and to stay the further proceeding of the aforesaid complaint case. Learned Senior Counsel while drawing the attention of this Court towards the complaint as well as the statement of the complainant recorded under Section 200 Cr.P.C. and his two witnesses namely Sushil Kumar Sharma and Ranjeet Singh recorded as P.W.-1 and P.W.-2 recorded under Section 202 Cr.P.C., vehemently submits that the trial Court/Special Court has committed manifest illegality in passing the impugned order. The statement of the complainant and his two witnesses even if taken on its face, it would reveal that the same appears to have been filed with malafide and the allegations levelled therein are highly improbable and could not be believed on the touchstone of probability. While drawing the attention of this Court towards the statement of the complainant recorded under Section 200 Cr.P.C. and of his witnesses namely Sushil Kumar Sharma and Ranjeet Singh under Section 202 Cr.P.C., it is submitted that it is an admitted case of the complainant that he is an employee of P.W.-1/Sushil Kumar Sharma and P.W.-2/Ranjeet Singh is the 'driver' of Sushil Kumar Sharma and Sushil Kumar Sharma is having enmity with the appellants with regard to the payment of some money and a criminal case was instituted by aforesaid Sushil Kumar Sharma, wherein the complainant had appeared as a witness against the appellant and the instant complaint appears to have only been filed in order to pressurize the appellants. It is next submitted that there are material contradictions in the statement of the complainant and his witnesses with regard to the place of occurrence, as is emerging from the statement of the complainant and his witnesses and, moreover, no injury report is available pertaining to any injury which might have been received by the appellants and in totality the allegations, as levelled in the complaint and in the statements of the witnesses and complainant are such which could not be believed by a prudent person, as there is inherent weaknesses in the story and, thus, there was no sufficient grounds available before the Special Court to have proceeded further. It is also submitted that summoning in a criminal case is a serious matter and it is not that only on account of the filing of complaint and recording of the statement of the complainant and his two witnesses the proposed accused persons may be summoned in all the complaints and a duty has been casted on the Special Court or the Magistrate, as the case may be, under Section 202 Cr.P.C. to make an enquiry in order to assess sufficient grounds which were not present in this case and the Special Court appears to have failed in its duty to make an enquiry, as contemplated under Section 202(1) Cr.P.C. 2 and, thus, the summoning order passed by the trial Court/Special Court is suffering from patent illegality and the same is liable to be set-aside. Shri Pradeep Kumar Pandey, learned counsel appearing for opposite party no.2/complainant submits that at the stage of summoning only sufficient grounds and primafacie case is rquired to be seen and it is not within the domain of the Special Court or the Magistrate, as the case may be, to make a roving enquiry in order to assess the sufficiency of evidence/material required for conviction. It is also submitted that minor contradictions, if are emerging, are liable to be ignored, as the same is subject matter of trial and at the stage of summoning the Magistrate is required only to assess the sufficiency of material/evidence. It is next submitted that there is no contradiction so far as the place of occurrence is concerned and, therefore, the appeal is liable to be dismissed. Learned A.G.A. has also supported the impugned order passed by the Special Court. Having heard learned counsel for the parties and having perused the record, it would emerge that the complaint with regard to the instant case has been filed by the opposite party no.2 against the appellants, who are incidentally husband and wife, with the allegations that the opposite party no.2/complainant is working/employed as a 'supervisor' in the construction company owned by Sushil Kumar Sharma (P.W.-1). It is also stated that a dispute had earlier arisen between Sushil Kumar Sharma and the appellants with regard to the sale/purchase of two flats and allegedly some cheques were given by the appellants, which could not be honoured and in this regard a criminal prosecution was launched by the witness Sushil Kumar Sharma, wherein the instant complainant namely Narendra Pratap Singh had appeared as a witness and it is due to that enmity on 22.06.2022 at about 5:30 pm. the instant appellants along with two other unknown persons met the complainant near Green Valley Colony, Swargaashram Road, Hapur and started hurling abuses on complainant as well as addressed him with castiest 3 remarks and also intimidated him to teach a lesson of appearing as a witness against them and with common intention started assaulting him with 'fists and kicks' and also attempted to kidnap/abduct him and forced him to sit in a vehicle and have also snatched Rs. 2000/- and a 'gold chain', which he (complainant) was wearing at that point of time. On an alarm raised by the complainant many persons including the witnesses Sushil Kumar Sharma and Ranjeet Singh had arrived, on which the appellants fled away intimidating the complainant. The trial Court after recording the statement of the complainant and his two witnesses namely Sushil Kumar Sharma and Ranjeet Singh passed the impugned order. Perusal of the impugned order would reveal that after recording the version of the complaint and the statement of the complainant and his two witnesses the Special Court summoned the appellants to face trial. It is submitted with considerable force by learned Senior Counsel appearing for the appellant, while referring to Section 202 of the Cr.P.C. that, it is the incumbent duty of the trial Court, at the stage of summoning, to make an enquiry contemplated in this section and this inquiry must be to assess sufficiency of material/evidence in order to summon the proposed accused persons in relevant penal sections and it is not so that only on the basis of statements made by the complainant or his witnesses accused persons must be summoned. The law with regard to the summoning of the proposed accused persons on the basis of a criminal complaint is now no more res integra and the same has been settled by the Hon'ble Supreme Court in catena of judgments. In G.H.C.L. Employees Stock Option Trust VS. India Infalin Ltd. MANU/SC/0271/2013 : 2013(4) SCC 505, It was emphasized by the Honble Supreme Court that summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. 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 Magistrate has to record his satisfaction with regard to the existence of a 4