Malkhan v. State of U.P. and Another

#3. As per first information report, on 15.01.2022 at 08.00 PM the appellant has abused the complainant/respondent no.2 by using word 'Chamra' and assaulted him with slippers, leg and fists. The respondent no.2 /complainant has informed the police by making a telephonic call at Telephone No. 112. After that appellant, who is a quack, has threatened the complainant by using word 'Chamra' that he would administer him poisonous injection.

#4. The complainant/respondent no.2 was medically examined and statements of complainant and other witnesses were recorded during investigation. After investigation, the charge-sheet was filed for offences under Sections 323, 504, 506 IPC and Section 3(1) (Da) SC/ST Act. The Court took cognizance and summoned the appellant for the said offences by impugned order dated

22.02.2022.

#5. It has been argued by the learned counsel for the appellant that appellant is innocent and that the allegations made by the complainant/respondent no.2 in the FIR are thoroughly false and that no such incident has taken place. It was also stated that there was delay of four days in lodging of FIR. The complainant/respondent no.2 has not sustained any injury and that as per medical examination report, only some complaints of pain have been shown. The prosecution version is not supported by any independent witness and that no offence under Section 3(1) (Da), (Dha) of SC/ST Act is made out. Learned counsel submitted that the impugned order is against facts and law and thus, liable to be set aside.

#6. Learned A.G.A. has opposed the instant appeal and argued that in the first information report itself, the allegations have been levelled against appellant that he has abused the respondent no.2 by using caste indicative word 'Chamra' and he has assaulted him and that his version is supported by the medical evidence. Further during investigation independent witness, namely, Ram Pal and Raju have also supported the prosecution version.

#7. I have considered rival submissions and perused record.

#8. 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 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.

#9. 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."

#10. 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 Nupur Talwar v. Central Bureau of Investigation and another (2012)11 SCC465.

#11. Keeping the aforesaid position of law in mind, in the instant case it may be observed that in the first information report as well as in the statement of complainant, there is allegation that the appellant has assaulted the complainant/respondent no.2 and hurled abuses, using word 'Chamra'. After the incident, the respondent no.2 /complainant has informed the police by making a telephonic call at Telephone No. 112 and thereafter first information report was lodged. In first information report as well as in the statement of complainant, it has been mentioned that on 15.01.2022 at 8.00 PM while the complainant was enjoying heat from fire (Aag Taapna), the appellant humiliated him by abusing and using word 'chamra', saying that why he is enjoying heat by wearing slipper in front of his house and thereafter assaulted him with slipper, leg and fist. These allegations prima facie show that the complainant/respondent was humiliated on the ground that he belongs to scheduled caste. The version of complainant is supported by the witnesses examined during investigation, as well as by the medical examination report of the complainant. In view of material on record, it can not be said that no prima facie case is made out against the appellant. No patent illegality or perversity could be shown in the impugned order.

#12. In view of aforesaid, it is apparent the instant appeal appeal has no substance and thus liable to be dismissed.

#13. Appeal is dismissed. Order Date :- 4.4.2022 A. Tripathi TRIPATHI Reason: Location: High Court of Judicature at Allahabad