Satyawati v. Samalu Govind Singh), arising out of Case Crime No

Hon'ble Nalin Kumar Srivastava,J.

1. This criminal appeal under Section 14-A(1) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (in short 'the SC/ST Act') has been preferred by the appellant- Samalu @ Govind Singh against the judgment and order dated 18.01.2023 passed by the Special Judge (SC/ST Act), Auraiya in S.S.T. No. 16 of 2023, F.R. No. 5 of 2021 (Satyawati Vs. Samalu @ Govind Singh), arising out of Case Crime No. 143 of 2020, under Sections 376-D, 342, 504, 506 IPC and 3(2)(V) of SC/ST Act, Police Station Ayana, District Auraiya, pending before the Special Judge (SC/ST Act), Auraiya whereby the learned Court took cognizance of the matter under Section 190(kha) CrPC and further summoned the appellant to face trial under the aforesaid offences.

2. Heard learned counsel for the appellant, learned A.G.A. for the State and perused the material available on record.

3. Learned counsel for the appellant submitted that the impugned order is against the law and perverse. The learned trial court acted beyond jurisdiction while rejecting the final report and at the same time summoning the accused-appellant to face trial after taking cognizance of the matter under section 190(1) (Kha) Cr.P.C. It is further submitted that the present accused-appellant was the only accused who was interrogated during investigation. No offence under section 376-D IPC could be made out against the appellant because section 376-D applies in case of gang rape i.e. the rape committed by more than one person. It is also submitted that although in the F.I.R. it is mentioned that the rape to the prosecutrix was committed by the appellant and two unknown persons but during the entire investigation no name of unknown persons was brought to the notice of the Investigating Officer. It was also submitted that the Investigating Officer after making thorough investigation of the case found no evidence against the appellant for the commission of alleged crime and that is why final report in favour of the appellant was submitted but the same was rejected by the learned trial court in an arbitrary manner and without taking legal recourse. Hence, it is expedient in the interest of justice to set aside the impugned order dated 18.01.2023.

4. Per contra, learned A.G.A. vehemently opposed the present appeal and it has been submitted that after receiving closer report in a criminal matter the concerned court is under bounden duty to send notice to the informant and if any protest petition is filed by the informant, such court has to dispose of the same. It is further submitted that in the matter in hand notice was sent to the informant, however, despite her presence before the Court no protest petition was preferred by her. The learned trial court after considering the entire evidence available on record rejected the final report and took cognizance of the matter under section 190(1) (Kha) Cr.P.C and the present accused-appellant was summoned to face trial under sections 376-D, 342, 504, 506 IPC and Section 3(2)(V) of SC/ST Act. The action taken by the learned trial court was within its jurisdiction conferred by law. The court was empowered to take cognizance of the matter straightway and summon to accused to face trial for relevant offence. Reliance has been placed upon Pakhandu and Others Vs. State of U.P. and Others, (2001)(43) ACC 1096 (Alld--DB) by the learned State counsel.

5. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record carefully.

6. Before adverting to the rival submissions made by the learned counsel for the parties, it would be appropriate to have a glance on the relevant provisions / laws on the subject.

7. In Sampat Singh vs. State of Haryana (1993)1 SCC 561 the Hon'ble Apex Court has held that when the investigation culminates into a final report, the duty of the Magistrate or the court is to scrupulously scrutinize the report and accompaniments by applying the judicial mind either to accept or reject the final report and take cognizance.

8. It is settled law that the Magistrate on receiving a closure report may either (a) accept the report and take cognizance of the offence and issue process, or (b) agree with the report and drop the proceedings, or (c) direct further investigation and require the police to make a further report. But, where the Magistrate agrees with the report and drops the proceedings, the informant is required to be given an opportunity of hearing and to submit his protest application, if any. After providing such opportunity to the informant, the Magistrate may take a further decision whether to drop the proceedings against the accused or not. If the Magistrate accepts the objections, in that case, he may issue process and/or even frame the charges against the accused. That apart, on not being satisfied with the investigation after considering the report forwarded by police under Section 173(2) (i) CrPC, the Magistrate may, at that stage, direct further investigation and require the police to make a further report (vide: Bikash Ranjan Rout v. State (NCT of Delhi), (2019) 5 SCC 542).

9. Further as held in Minu Kumari And Anr vs The State Of Bihar And Ors 2006 (4) SCC 359 another option has been given to the Magistrate whereby in the event a protest petition is filed to treat the same as a complaint petition and if prima facie case is made out to issue process to the accused.

10. In Union Public Service Commission vs. S. Papaiah and others, AIR 1997 SC 3876 the Hon'ble Apex Court held that where the Magistrate after accepting the final report submitted by CBI passed an order to drop the proceedings and not to take cognizance without notice to the informant the order of the Magistrate was illegal. The issuance of a notice by the Magistrate to the informant at the time of consideration of the final report is a "must".

11. Further, in Kishore Kumar Gyanchandani vs. G.D. Mehrotra and another, AIR 2002 SC 483, the Hon'ble Supreme Court held that when police after investigation files a final form under Section 173, the Magistrate may disagree with conclusion arrived at by police and take cognizance in exercise of power under Section 190 CrPC. The Magistrate may not take cognizance and direct further investigation in matter under Section 156(3) CrPC. Where Magistrate accepts final form submitted by police, right of complainant to file regular complaint is not taken away and in fact on such a complaint being filed Magistrate follows the procedure under Section 201 CrPC and takes cognizance if materials produced by complainant make out an offence. Acceptance of final form does not debar Magistrate from taking cognizance on basis of materials produced in a complaint proceeding.

12. In this matter, the prosecution story, as culled out from the F.I.R., is that on 28.4.2020 at about 7.30 p.m. the appellant alongwith two unknown persons grabbed the lady victim, who was the member of SC/ST community, and on gunpoint rape was committed with her by all the three persons and she was also hurled abuses by caste related remarks. When the report was not lodged at the police station, an application under Section 156(3) CrPC was moved by the victim and by the order of the Court F.I.R. was lodged and after investigation, the police submitted final report in the matter.

13. Notice was sent to the informant / victim by the Court who appeared before the Court but however, as reveals from the perusal of the record, no written protest petition was filed by her. The Court concerned after perusal of the case diary, which contained the entire evidence collected during investigation, proceeded to take cognizance under Section 190(1)(kha) CrPC and the present appellant was straightway summoned to face trial under Sections 376-D, 342, 504, 506 IPC and 3(2)(5) of SC/ST Act and the final report was rejected.

14. The statement of the lady victim in the cases relating to sexual offence recorded by the I.O. under Section 161 CrPC and at the same time her statement under Section 164 CrPC as well recorded before the Magistrate have a great legal significance and what was narrated by the victim in the aforesaid statements must always be taken into account by the Court. In the impugned order it is mentioned that the prosecutrix in her statement under Section 161 CrPC has made a categorical statement that on the fateful day rape was committed with her by the present appellant and his two unknown associates on 28.4.2020 at about 7.30 p.m. when she had gone to ease herself in the field. She has affirmed the factum of gang rape by all the aforesaid three persons and also states that she was totally disrobed and was confined in a jungle and her family members could find her only in the next morning. It has also been stated that the present appellant had threatened her for life taking her on gunpoint.

15. Further, the same story has been narrated by the prosecutrix in her statement recorded under Section 164 CrPC. Both the statements are in consonance with each other. The Court concerned highlighted this situation in the impugned order and held that to the utter surprise of the Court the Investigating Officer submitted closure report in this matter whereas the prosecution story was fully proved by the statements of the prosecutrix.

16. Statements of some witnesses have also been appended with the affidavit, who state that on account of some money dispute between the parties and the husband of the victim, false F.I.R. was lodged against the appellant and they further make specific denial of truthfulness of the prosecution story.

17. The learned counsel for the appellant has laid down emphasis upon the fact that the victim of this case was not medically examined, therefore, there was no medical evidence to support the prosecution case.

18. From the perusal of the record it appears that the incident happened on 28.4.2020 but F.I.R. was not lodged by the police. It is only after an order passed by the Court concerned, the F.I.R. was lodged on 9.9.2020 i.e. after about 4-5 months of the occurrence. Needless to say that after about 4-5 months of the occurrence there was no justification to make medical examination of the married victim and for this reason the aforesaid submission made by the learned counsel for the appellant does not appeal to this Court.

19. It is contended that during investigation the Investigating Officer failed to collect any evidence in connection with two unknown persons, who, according to the victim, also committed rape with her alongwith the present appellant and it is also mentioned by the Investigating Officer in the case diary that no independent witness supports the story put forth by the prosecution. Learned AGA has vehemently opposed this plea and it has been submitted that since it is matter of rape committed with a lady in a lonely place, there could hardly be any eye witness of the occurrence. He further submitted that the victim was dragged to the jungle where the offence was committed and that was also a reason no witness was present there at the time of commission of the offence.

20. Although the Investigating Officer has collected some evidence in respect of the money dispute between the parties and the husband of the victim but even if such fact is found correct, the Court cannot thrash away the statements given by the prosecutrix herself and there was no reason for the Court concerned to ignore the statements of the prosecutrix, which were capable of proving the prosecution case in material terms. The victim has made consistent statements under Sections 161 and 164 CrPC that rape was committed with her by three persons including the present appellant. Since the I.O. failed to find out whereabouts of other two culprits and no evidence was found against them, the prosecution story is prima-facie acceptable against the present accused/appellant. There is prima facie evidence on record that the victim was wrongfully confined in a jungle, hurled abuses by caste related remarks and was also threatened for life on gunpoint and rape was committed to her by the present appellant.

21. So far as the offence under Section 3(2)(5) SC/ST Act is concerned, the aforesaid provision is extracted as below : "3. Punishments for offences of atrocities.—(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,— (v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine."

22. In the light of the aforesaid proposition of law, three points have to be ascertained, firstly, the victim belonged to SC/ST community, secondly, the accused was not a member of SC/ST community, and thirdly, accused very well knew that the victim was a member of SC/ST community.

23. The victim in her statement recorded under Section 164 CrPC states that the present appellant is 'Thakur' by caste whereas she belongs to a lower caste. The investigation of this case has been conducted by Kamlesh Narain Pandey, Circle Officer, who is the competent police officer to investigate the matter under the provisions of SC/ST Act. The appellant and the prosecutrix use to live in the area of same police station and since there is evidence on record that both the parties were having some money dispute it denotes that the appellant very well knew that the victim belonged to SC/ST community.

24. Hence, in view of the above discussion, I am of the opinion that the Court concerned has committed no illegality in passing the impugned order. There is no factual or legal error in taking cognizance of the matter after rejection of final report against the present appellant and he was rightly summoned to face trial under 342, 504, 506 IPC and 3(2)(5) of SC/ST Act. So far as offence under Section 376-D IPC is concerned the summoning order ought to have been passed under section 376 IPC. Otherwise there is no infirmity, illegality or perversity in the impugned order warranting interference by this Court. The impugned order is liable to be affirmed and the appeal is liable to be dismissed.

25. Accordingly the impugned order dated 18.01.2023 is affirmed and the appeal is dismissed in terms of the observation made above. VIKRAM SINGH High Court of Judicature at Allahabad Order Date :- 18.3.2025 Vikram

Hon'ble Nalin Kumar Srivastava,J.

1. This criminal appeal under Section 14-A(1) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (in short 'the SC/ST Act') has been preferred by the appellant- Samalu @ Govind Singh against the judgment and order dated 18.01.2023 passed by the Special Judge (SC/ST Act), Auraiya in S.S.T. No. 16 of 2023, F.R. No. 5 of 2021 (Satyawati Vs. Samalu @ Govind Singh), arising out of Case Crime No. 143 of 2020, under Sections 376-D, 342, 504, 506 IPC and 3(2)(V) of SC/ST Act, Police Station Ayana, District Auraiya, pending before the Special Judge (SC/ST Act), Auraiya whereby the learned Court took cognizance of the matter under Section 190(kha) CrPC and further summoned the appellant to face trial under the aforesaid offences.

2. Heard learned counsel for the appellant, learned A.G.A. for the State and perused the material available on record.

3. Learned counsel for the appellant submitted that the impugned order is against the law and perverse. The learned trial court acted beyond jurisdiction while rejecting the final report and at the same time summoning the accused-appellant to face trial after taking cognizance of the matter under section 190(1) (Kha) Cr.P.C. It is further submitted that the present accused-appellant was the only accused who was interrogated during investigation. No offence under section 376-D IPC could be made out against the appellant because section 376-D applies in case of gang rape i.e. the rape committed by more than one person. It is also submitted that although in the F.I.R. it is mentioned that the rape to the prosecutrix was committed by the appellant and two unknown persons but during the entire investigation no name of unknown persons was brought to the notice of the Investigating Officer. It was also submitted that the Investigating Officer after making thorough investigation of the case found no evidence against the appellant for the commission of alleged crime and that is why final report in favour of the appellant was submitted but the same was rejected by the learned trial court in an arbitrary manner and without taking legal recourse. Hence, it is expedient in the interest of justice to set aside the impugned order dated 18.01.2023.

4. Per contra, learned A.G.A. vehemently opposed the present appeal and it has been submitted that after receiving closer report in a criminal matter the concerned court is under bounden duty to send notice to the informant and if any protest petition is filed by the informant, such court has to dispose of the same. It is further submitted that in the matter in hand notice was sent to the informant, however, despite her presence before the Court no protest petition was preferred by her. The learned trial court after considering the entire evidence available on record rejected the final report and took cognizance of the matter under section 190(1) (Kha) Cr.P.C and the present accused-appellant was summoned to face trial under sections 376-D, 342, 504, 506 IPC and Section 3(2)(V) of SC/ST Act. The action taken by the learned trial court was within its jurisdiction conferred by law. The court was empowered to take cognizance of the matter straightway and summon to accused to face trial for relevant offence. Reliance has been placed upon Pakhandu and Others Vs. State of U.P. and Others, (2001)(43) ACC 1096 (Alld--DB) by the learned State counsel.

5. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record carefully.

6. Before adverting to the rival submissions made by the learned counsel for the parties, it would be appropriate to have a glance on the relevant provisions / laws on the subject.

7. In Sampat Singh vs. State of Haryana (1993)1 SCC 561 the Hon'ble Apex Court has held that when the investigation culminates into a final report, the duty of the Magistrate or the court is to scrupulously scrutinize the report and accompaniments by applying the judicial mind either to accept or reject the final report and take cognizance.

8. It is settled law that the Magistrate on receiving a closure report may either (a) accept the report and take cognizance of the offence and issue process, or (b) agree with the report and drop the proceedings, or (c) direct further investigation and require the police to make a further report. But, where the Magistrate agrees with the report and drops the proceedings, the informant is required to be given an opportunity of hearing and to submit his protest application, if any. After providing such opportunity to the informant, the Magistrate may take a further decision whether to drop the proceedings against the accused or not. If the Magistrate accepts the objections, in that case, he may issue process and/or even frame the charges against the accused. That apart, on not being satisfied with the investigation after considering the report forwarded by police under Section 173(2) (i) CrPC, the Magistrate may, at that stage, direct further investigation and require the police to make a further report (vide: Bikash Ranjan Rout v. State (NCT of Delhi), (2019) 5 SCC 542).

9. Further as held in Minu Kumari And Anr vs The State Of Bihar And Ors 2006 (4) SCC 359 another option has been given to the Magistrate whereby in the event a protest petition is filed to treat the same as a complaint petition and if prima facie case is made out to issue process to the accused.

10. In Union Public Service Commission vs. S. Papaiah and others, AIR 1997 SC 3876 the Hon'ble Apex Court held that where the Magistrate after accepting the final report submitted by CBI passed an order to drop the proceedings and not to take cognizance without notice to the informant the order of the Magistrate was illegal. The issuance of a notice by the Magistrate to the informant at the time of consideration of the final report is a "must".

11. Further, in Kishore Kumar Gyanchandani vs. G.D. Mehrotra and another, AIR 2002 SC 483, the Hon'ble Supreme Court held that when police after investigation files a final form under Section 173, the Magistrate may disagree with conclusion arrived at by police and take cognizance in exercise of power under Section 190 CrPC. The Magistrate may not take cognizance and direct further investigation in matter under Section 156(3) CrPC. Where Magistrate accepts final form submitted by police, right of complainant to file regular complaint is not taken away and in fact on such a complaint being filed Magistrate follows the procedure under Section 201 CrPC and takes cognizance if materials produced by complainant make out an offence. Acceptance of final form does not debar Magistrate from taking cognizance on basis of materials produced in a complaint proceeding.

12. In this matter, the prosecution story, as culled out from the F.I.R., is that on 28.4.2020 at about 7.30 p.m. the appellant alongwith two unknown persons grabbed the lady victim, who was the member of SC/ST community, and on gunpoint rape was committed with her by all the three persons and she was also hurled abuses by caste related remarks. When the report was not lodged at the police station, an application under Section 156(3) CrPC was moved by the victim and by the order of the Court F.I.R. was lodged and after investigation, the police submitted final report in the matter.

13. Notice was sent to the informant / victim by the Court who appeared before the Court but however, as reveals from the perusal of the record, no written protest petition was filed by her. The Court concerned after perusal of the case diary, which contained the entire evidence collected during investigation, proceeded to take cognizance under Section 190(1)(kha) CrPC and the present appellant was straightway summoned to face trial under Sections 376-D, 342, 504, 506 IPC and 3(2)(5) of SC/ST Act and the final report was rejected.

14. The statement of the lady victim in the cases relating to sexual offence recorded by the I.O. under Section 161 CrPC and at the same time her statement under Section 164 CrPC as well recorded before the Magistrate have a great legal significance and what was narrated by the victim in the aforesaid statements must always be taken into account by the Court. In the impugned order it is mentioned that the prosecutrix in her statement under Section 161 CrPC has made a categorical statement that on the fateful day rape was committed with her by the present appellant and his two unknown associates on 28.4.2020 at about 7.30 p.m. when she had gone to ease herself in the field. She has affirmed the factum of gang rape by all the aforesaid three persons and also states that she was totally disrobed and was confined in a jungle and her family members could find her only in the next morning. It has also been stated that the present appellant had threatened her for life taking her on gunpoint.

15. Further, the same story has been narrated by the prosecutrix in her statement recorded under Section 164 CrPC. Both the statements are in consonance with each other. The Court concerned highlighted this situation in the impugned order and held that to the utter surprise of the Court the Investigating Officer submitted closure report in this matter whereas the prosecution story was fully proved by the statements of the prosecutrix.

16. Statements of some witnesses have also been appended with the affidavit, who state that on account of some money dispute between the parties and the husband of the victim, false F.I.R. was lodged against the appellant and they further make specific denial of truthfulness of the prosecution story.

17. The learned counsel for the appellant has laid down emphasis upon the fact that the victim of this case was not medically examined, therefore, there was no medical evidence to support the prosecution case.

18. From the perusal of the record it appears that the incident happened on 28.4.2020 but F.I.R. was not lodged by the police. It is only after an order passed by the Court concerned, the F.I.R. was lodged on 9.9.2020 i.e. after about 4-5 months of the occurrence. Needless to say that after about 4-5 months of the occurrence there was no justification to make medical examination of the married victim and for this reason the aforesaid submission made by the learned counsel for the appellant does not appeal to this Court.

19. It is contended that during investigation the Investigating Officer failed to collect any evidence in connection with two unknown persons, who, according to the victim, also committed rape with her alongwith the present appellant and it is also mentioned by the Investigating Officer in the case diary that no independent witness supports the story put forth by the prosecution. Learned AGA has vehemently opposed this plea and it has been submitted that since it is matter of rape committed with a lady in a lonely place, there could hardly be any eye witness of the occurrence. He further submitted that the victim was dragged to the jungle where the offence was committed and that was also a reason no witness was present there at the time of commission of the offence.

20. Although the Investigating Officer has collected some evidence in respect of the money dispute between the parties and the husband of the victim but even if such fact is found correct, the Court cannot thrash away the statements given by the prosecutrix herself and there was no reason for the Court concerned to ignore the statements of the prosecutrix, which were capable of proving the prosecution case in material terms. The victim has made consistent statements under Sections 161 and 164 CrPC that rape was committed with her by three persons including the present appellant. Since the I.O. failed to find out whereabouts of other two culprits and no evidence was found against them, the prosecution story is prima-facie acceptable against the present accused/appellant. There is prima facie evidence on record that the victim was wrongfully confined in a jungle, hurled abuses by caste related remarks and was also threatened for life on gunpoint and rape was committed to her by the present appellant.

21. So far as the offence under Section 3(2)(5) SC/ST Act is concerned, the aforesaid provision is extracted as below : "3. Punishments for offences of atrocities.—(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,— (v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine."

22. In the light of the aforesaid proposition of law, three points have to be ascertained, firstly, the victim belonged to SC/ST community, secondly, the accused was not a member of SC/ST community, and thirdly, accused very well knew that the victim was a member of SC/ST community.

23. The victim in her statement recorded under Section 164 CrPC states that the present appellant is 'Thakur' by caste whereas she belongs to a lower caste. The investigation of this case has been conducted by Kamlesh Narain Pandey, Circle Officer, who is the competent police officer to investigate the matter under the provisions of SC/ST Act. The appellant and the prosecutrix use to live in the area of same police station and since there is evidence on record that both the parties were having some money dispute it denotes that the appellant very well knew that the victim belonged to SC/ST community.

24. Hence, in view of the above discussion, I am of the opinion that the Court concerned has committed no illegality in passing the impugned order. There is no factual or legal error in taking cognizance of the matter after rejection of final report against the present appellant and he was rightly summoned to face trial under 342, 504, 506 IPC and 3(2)(5) of SC/ST Act. So far as offence under Section 376-D IPC is concerned the summoning order ought to have been passed under section 376 IPC. Otherwise there is no infirmity, illegality or perversity in the impugned order warranting interference by this Court. The impugned order is liable to be affirmed and the appeal is liable to be dismissed.

25. Accordingly the impugned order dated 18.01.2023 is affirmed and the appeal is dismissed in terms of the observation made above. VIKRAM SINGH High Court of Judicature at Allahabad Order Date :- 18.3.2025 Vikram