Garibe v. Rajkaran and others, whereby the present
Case Details
Neutral Citation No. - 2023:AHC:158396 Court No. - 84 Case :- CRIMINAL APPEAL No. - 7577 of 2023 Appellant :- Amar Bahadur Singh Respondent :- State of U.P. and Another Counsel for Appellant :- Kunwar Bhaskar Parihar,Vikas Sharma Counsel for Respondent :- G.A.,Rajkumar Verma Hon'ble Mrs. Sadhna Rani (Thakur),J.
Legal Reasoning
Heard learned counsel for the appellant, learned counsel for opp. party no. 2 and perused the record. This appeal has been preferred against the summoning order dated 2.5.2023 passed by passed by Special Judge, SC/ST Act/ Additional Sessions Judge, Fatehpur in complaint case no. 18 of 2022, Rakesh @ Garibe Vs. Rajkaran and others, whereby the present appellant along with 3 other co accused persons was summoned to face trial under section 323, 504, 506 I.P.C. and section 3(1) da, dha of SC/ST Act, police station Bindki, District Fatehpur. As per the facts of the case, an application u/s 156(3) Cr.P.C. was moved by opp. party no. 2 against the present appellant and 3 other co accused persons on 29.10.2021 with the allegation that the opp. party no. 2 belongs to SC/ST category. After the death of his father, the appellant and other co accused persons started demanding Rs. 10,000/- from him the rupees was said to have been taken by his father from the appellant, otherwise, they gave him threat to vacate the house. When his father was alive nobody came to demand any money. In continuation of their demand on 18.1.2021 at 11.00 am the appellant along with other co accused persons were said to have come at the door of the first informant and demanded money and on objection the appellant and other co accused persons were said to have entered the house of the first informant chasing him. It is the allegation that the first informant was tied with a rope inside the house. His domestic utensils and bed were broken and when his family members came to rescue, the appellant and other co accused persons gave filthy abuses and caste coloured abuses and also gave threat of life. The report of the first informant was not written even after sending the application to the S.P. concerned. Vide order datd 7.1.2022 the application under section 156(3) Cr.P.C. was treated as complaint and after recording the statements of the opp. party no. 2 and witnesses under sections 200 and 202 Cr.P.C. respectively the appellant and other co accused persons were summoned to face trial under section 323, 504, 506 I.P.C. and section 3(1) da, dha of SC/ST Act on 2.5.2023. The attention of the court is drawn towards the report of Circle Officer concerned by the learned counsel for the appellant wherein it has been mentioned that first informant and his father had encroached upon the gata no. 3517 measuring 0.2000 and gata no. 5315 measuring 0.1900 which were recorded in the name of gaon sabha. They sold this land cutting the plots. The present appellant and other co accused persons made complaint and after due inquiry the opp. party no. 2 and his father were found in illegal possession over the aforesaid land. As per the order of the competent authority Revenue Inspector and police team went to remove the encroachment, the encroachers assaulted the team and did not allow them to remove the encroachment.. As the complaint was made by the appellant and other co accused persons so the opp. party no. 2 developed enmity with them. Again attention of the court is drawn towards the measurement report prepared by the Revenue Inspector wherein appellant no. 1 and co accused Amar Bahadur, Rajbeer and Mahendra have been shown as witnesses and as the 3 accused persons were witnesses of the proceedings regarding removal of encroachment of opp. party no. 2 over government land, so the appellant and other co accused persons have been falsely implicated in the present case. Learned counsel for the opp.party no. 2 opposed the prayer and submitted that the opp. party no. 2 is in possession over the land in dispute for the last 40 years. The incident took place and the appellant along with other co accused committed offence mentioned in his complaint regarding which CD was also prepared, hence, the prayer is made to dismiss the appeal. From the perusal of the record, it is found that the allegation of tying the first informant with a rope, breaking domestic utensils and bed and hurling wild abuses, caste colored words are said to have used inside the house and it is not the version of the first informant that inside the house there was any other person apart from family members of the first informant. Thus offence under section 3(1) da, dha for which intentional insult or intimidation or hurling abuses must be in a place within the public view and on the basis of this complaint itself it can be said that the aforesaid incident occurred in the house of the complainant wherein according to him no outsider was present except his family members. Thus in the opinion of the court offence under SC/ST Act cannot be said to be made out. If we go through the report of Circle Officer concerned and the measurement report prepared by Revenue Inspector, it is clear that in complaint all the co accused persons were implicated whose signatures were there on the measurement report or who made complaint against opp. party no. 2 and his father regarding illegal encroachment over the land of gaon sabha. On this application, the proceedings of removal of encroachment were started against the opp. party no. 2 and when the team of local police and revenue team went to remove the encroachment, the opp. party no. 2 is said to have assaulted them. No document has been placed before the court regarding the possession of the opp. party no. 2 over the land in dispute. Thus, it is clear that it is a malicious prosecution and the complaint has been filed by the opp. party no. 2 in grudge implicating the appellant and other co accused persons. The complaint being found to be malicious is liable to be quashed and the impugned order dated 2.5.2023 is liable to be set aside. The summoning order dated 2.5.2023 passed by passed by Special Judge, SC/ST Act/ Additional Sessions Judge, Fatehpur in complaint case no. 18 of 2022, Rakesh @ Garibe Vs. Rajkaran and others, under section 323, 504, 506 I.P.C. and section 3(1) da, dha of SC/ST Act, police station Bindki, District Fatehpur is set aside. The appeal is hereby allowed. Order Date :- 7.8.2023 Gss Digitally signed by :- GIRAJA SHANKER SHARMA High Court of Judicature at Allahabad