High Court · 2025

Hon'ble Nalin Kumar Srivastava,J.

1. This criminal appeal under Section 14-A (1) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (in short 'the SC/ST Act') has been preferred by the appellants - Shalini Gupta and Kapil Gupta with the prayer to set-aside / quash the cognizance / summoning order dated 03.02.2025 passed by the Special Judge (SC/ST Act), Moradabad and the entire proceedings of Special Session Trial No.215 of 2025 (State Vs. Shalini Gupta & Others) under Sections 115(2), 351(2), 117 (2) B.N.S. read with Sections 3(1)(r), 3(1)(s), 3(2)(va) of the SC/ST Act, Police Station Civil Lines, District Moradabad. Further prayer has been made to stay the further proceedings of the said case also the impugned cognizance / summoning order.

2. Heard learned counsel for the appellants, learned counsel for the opposite party no.2 as well as the learned A.G.A. for the State and perused the entire record.

3. The facts of this case, as unfolded in the F.I.R., are that the appellant no.2 Kapil Gupta, the husband of opposite party no.2 / the informant, was having some illicit relations with appellant no.1 Shalini Gupta. On 8.8.2024, when the informant went to the house of appellant no.1 Shalini, she threw some chilly powder in her eyes and also made an assault upon her and also tried to strangulate her and also hurled abuses by caste related remarks. She sustained injuries and anyhow rescued. F.I.R. was lodged and after investigation, charge-sheet was submitted under sections 115(2), 351(2), 117 (2) B.N.S. read with Sections 3(1)(r), 3(1)(s), 3(2)(va) of the SC/ST Act against appellant no.1 and under sections 115(2), 351(2) B.N.S. read with Sections 3(1)(r), 3(1)(s), 3(2)(va) of the SC/ST Act against appellant no.2.

4. The learned trial court after perusing the entire case diary and prosecution papers, took cognizance of the offence under sections 115(2), 351(2), 117 (2) B.N.S. read with Sections 3(1)(r), 3(1)(s), 3(2)(va) of the SC/ST Act against both the appellants. Although it was found by the learned Special Judge that the charge-sheet in this matter was submitted beyond the stipulated time of 60 days, to which an explanation was offered by the Investigating Officer of the case and the learned Special Judge took cognizance of the offence but the Investigating Officer was warned for future.

5. Learned counsel for the appellants submitted that the offence, as per F.I.R., was committed on 8.8.2024 whereas the F.I.R. was lodged on 20.9.2024 without any explanation for the inordinate delay in lodging of the same. It is also submitted that the charge- sheet in this matter was also submitted by the Investigating Officer beyond the stipulated period of 60 days. It is also submitted that the doctor, who prepared the medical report and supplementary report relating to the injured / opposite party no.2, has stated that fracture was found in the right let of the injured but no injury caused to the informant was found grave or serious. It is also submitted that the charge-sheet in this matter was submitted on the basis of unreliable and inconsistent statement of the witnesses. It is also submitted that the medical evidence does not corroborate the prosecution story and the fracture, in fact, has been found in the little finger of leg of the injured. It is also submitted that in the F.I.R. it has been narrated by the injured himself that the whole incident happened in the house of appellant no.1 and no offence was committed at a public place in public view but the learned Special Judge totally ignored this fact and cognizance was taken under the different sections of SC/ST Act as well. It is also submitted that the Investigating Officer has interrogated some independent witnesses but they are not reliable at all because no offence was committed on a public place or road. Hence they could not be the real eye-witnesses of the incident. On the aforesaid grounds, a prayer has been made to quash the entire proceedings of this case.

6. Per contra, learned counsel for the opposite party no.2 / informant as well as learned A.G.A. for the State submitted that the prosecution case is based on true and correct facts. It is also submitted that there was no occasion for the opposite party no.2 / informant to lodge F.I.R. against her own husband. It is also submitted that the Investigating Officer during the investigation has collected sufficient and reliable evidence. It is also submitted that at the stage of taking cognizance and summoning the accused, the Magistrate / Court dealing with the matter is required to apply judicial mind only with a view to take cognizance of the offence to find-out as to whether prima-facie case has been made out to summon the accused or not. The Court concerned after applying its judicial mind has passed the cognizance and summoning order on the basis of sufficient evidence on record. There is no infirmity or illegality in the impugned order warranting interference by this Court. Hence, the appeal having no force is liable to be dismissed.

7. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the impugned order.

8. It is trite law that at the stage of taking cognizance and summoning the accused, the Magistrate / Court dealing with the matter is required to apply judicial mind only with a view to take cognizance of the offence to find-out as to whether prima-facie case has been made out to summon the accused or not. The Court at this stage is not required to analyze the material on record to find-out as to whether the matter may lead to conviction or not. Sufficiency of materials for the purpose of conviction is not required. It is also settled that even when there are materials raising strong suspicion against the accused, the Court will be justified in taking cognizance and summoning the accused. The Court / Magistrate is not required to analyze the evidence on merits but to scrutinize the evidence only with a view as to whether sufficient grounds exist to initiate criminal proceedings in respect of the offence which is said to have been committed (Vide : R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, 2005 SCC (Cr.) 283).

9. In State of Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539, the Hon'ble Apex Court reiterated that for issuance of summons strict standard of proof of satisfaction of the Magistrate regarding sufficiency of ground(s) to proceed in the matter is not required and such satisfaction should be based only on prima facie evidence. Before summoning the accused, the facts stated will have to be accepted as they appear on the very face of it. Sufficiency of evidence to hold accused guilty, merits of matter and defence pleas have to be examined at the stage of trial and not at the stage of issuance of process. Whether statement of a witness is hearsay and whether it is supported by "contemporaneous exposition" and whether it would fall under "res gestae" and whether it is admissible or not is to be seen only at the time of trial.

10. So far as the case in hand is concerned, the prosecution claims that the accused appellant hurled abuses to the informant with caste related remarks, threw chilly powder in her eyes and also made assault upon her and tried to strangulate her. The witnesses of this case including the informant have affirmed this fact when they were interrogated by the I.O. under Section 180 BNSS. Although in the F.I.R., name of the witnesses have not been disclosed but since the F.I.R. is not an encyclopedia, the non- mentioning of the name of witnesses of this case was not fatal to the prosecution.

11. It is also pertinent to mention here that the appellants do not belong to SC/ST community, whereas the informant / opposite party no.2 is Valmiki by caste and is a member of SC/ST community, as stated by the informant herself in her statement given to the Investigating Officer of this case. Further, the eyewitnesses of this case have supported the prosecution case and during the course of commission of crime, the witnesses had seen the occurrence and many persons were gathered on spot. Even the children of appellant no.2 have given their statement under Section 180 BNSS against appellant no.2 and they have stated that the appellant no.2 often makes insult of the informant by hurling abuses by caste related remarks. This fact should also be taken into account that the informant, after the occurrence, was medically examined on the same day by the doctor, who found injuries over the body of the informant and fracture in the left leg as well. Since the independent witnesses of this case have seen the occurrence, offence under Sections 3(1)(r), 3(1)(s) of the SC/ST Act is prima facie made out.

12. In the same manner, since the appellants knew this fact that the informant is a member of SC/ST community despite that they committed alleged offence against her, their conduct attracts Section 3(2)(va) of the SC/ST Act.

13. Hence, all the offences for which cognizance in this case was taken by the Court concerned are prima facie made out on the basis of evidence collected by the Investigating Officer.

14. As is evident, all the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court in this appeal. At this stage only a prima facie case is to be seen in the light of the settled law, as discussed here-in-above. From a perusal of the material available on record and keeping in view the facts of the case, at this stage it cannot be said that offences levelled against the appellants are not made out and the record shows that a cognizable offence is clearly made out against the appellants. Sufficient evidence has been collected against the appellants during the course of investigation. The Court concerned did not err in taking cognizance into the matter and thereby to summon the accused / appellants to face trial for the offences made out prima facie. There is no force in the submissions made by the learned counsel for the appellants. The impugned order does not suffer from illegality, infirmity, perversity or lack of judicial mind. The prayer made in the appeal is refused.

15. The criminal appeal being devoid of merits is liable to be dismissed and the same is accordingly dismissed. Order Date :- 1.5.2025 SANDEEP SHARMA High Court of Judicature at Allahabad

Hon'ble Nalin Kumar Srivastava,J.

1. This criminal appeal under Section 14-A (1) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (in short 'the SC/ST Act') has been preferred by the appellants - Shalini Gupta and Kapil Gupta with the prayer to set-aside / quash the cognizance / summoning order dated 03.02.2025 passed by the Special Judge (SC/ST Act), Moradabad and the entire proceedings of Special Session Trial No.215 of 2025 (State Vs. Shalini Gupta & Others) under Sections 115(2), 351(2), 117 (2) B.N.S. read with Sections 3(1)(r), 3(1)(s), 3(2)(va) of the SC/ST Act, Police Station Civil Lines, District Moradabad. Further prayer has been made to stay the further proceedings of the said case also the impugned cognizance / summoning order.

2. Heard learned counsel for the appellants, learned counsel for the opposite party no.2 as well as the learned A.G.A. for the State and perused the entire record.

3. The facts of this case, as unfolded in the F.I.R., are that the appellant no.2 Kapil Gupta, the husband of opposite party no.2 / the informant, was having some illicit relations with appellant no.1 Shalini Gupta. On 8.8.2024, when the informant went to the house of appellant no.1 Shalini, she threw some chilly powder in her eyes and also made an assault upon her and also tried to strangulate her and also hurled abuses by caste related remarks. She sustained injuries and anyhow rescued. F.I.R. was lodged and after investigation, charge-sheet was submitted under sections 115(2), 351(2), 117 (2) B.N.S. read with Sections 3(1)(r), 3(1)(s), 3(2)(va) of the SC/ST Act against appellant no.1 and under sections 115(2), 351(2) B.N.S. read with Sections 3(1)(r), 3(1)(s), 3(2)(va) of the SC/ST Act against appellant no.2.

4. The learned trial court after perusing the entire case diary and prosecution papers, took cognizance of the offence under sections 115(2), 351(2), 117 (2) B.N.S. read with Sections 3(1)(r), 3(1)(s), 3(2)(va) of the SC/ST Act against both the appellants. Although it was found by the learned Special Judge that the charge-sheet in this matter was submitted beyond the stipulated time of 60 days, to which an explanation was offered by the Investigating Officer of the case and the learned Special Judge took cognizance of the offence but the Investigating Officer was warned for future.

5. Learned counsel for the appellants submitted that the offence, as per F.I.R., was committed on 8.8.2024 whereas the F.I.R. was lodged on 20.9.2024 without any explanation for the inordinate delay in lodging of the same. It is also submitted that the charge- sheet in this matter was also submitted by the Investigating Officer beyond the stipulated period of 60 days. It is also submitted that the doctor, who prepared the medical report and supplementary report relating to the injured / opposite party no.2, has stated that fracture was found in the right let of the injured but no injury caused to the informant was found grave or serious. It is also submitted that the charge-sheet in this matter was submitted on the basis of unreliable and inconsistent statement of the witnesses. It is also submitted that the medical evidence does not corroborate the prosecution story and the fracture, in fact, has been found in the little finger of leg of the injured. It is also submitted that in the F.I.R. it has been narrated by the injured himself that the whole incident happened in the house of appellant no.1 and no offence was committed at a public place in public view but the learned Special Judge totally ignored this fact and cognizance was taken under the different sections of SC/ST Act as well. It is also submitted that the Investigating Officer has interrogated some independent witnesses but they are not reliable at all because no offence was committed on a public place or road. Hence they could not be the real eye-witnesses of the incident. On the aforesaid grounds, a prayer has been made to quash the entire proceedings of this case.

6. Per contra, learned counsel for the opposite party no.2 / informant as well as learned A.G.A. for the State submitted that the prosecution case is based on true and correct facts. It is also submitted that there was no occasion for the opposite party no.2 / informant to lodge F.I.R. against her own husband. It is also submitted that the Investigating Officer during the investigation has collected sufficient and reliable evidence. It is also submitted that at the stage of taking cognizance and summoning the accused, the Magistrate / Court dealing with the matter is required to apply judicial mind only with a view to take cognizance of the offence to find-out as to whether prima-facie case has been made out to summon the accused or not. The Court concerned after applying its judicial mind has passed the cognizance and summoning order on the basis of sufficient evidence on record. There is no infirmity or illegality in the impugned order warranting interference by this Court. Hence, the appeal having no force is liable to be dismissed.

7. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the impugned order.

8. It is trite law that at the stage of taking cognizance and summoning the accused, the Magistrate / Court dealing with the matter is required to apply judicial mind only with a view to take cognizance of the offence to find-out as to whether prima-facie case has been made out to summon the accused or not. The Court at this stage is not required to analyze the material on record to find-out as to whether the matter may lead to conviction or not. Sufficiency of materials for the purpose of conviction is not required. It is also settled that even when there are materials raising strong suspicion against the accused, the Court will be justified in taking cognizance and summoning the accused. The Court / Magistrate is not required to analyze the evidence on merits but to scrutinize the evidence only with a view as to whether sufficient grounds exist to initiate criminal proceedings in respect of the offence which is said to have been committed (Vide : R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, 2005 SCC (Cr.) 283).

9. In State of Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539, the Hon'ble Apex Court reiterated that for issuance of summons strict standard of proof of satisfaction of the Magistrate regarding sufficiency of ground(s) to proceed in the matter is not required and such satisfaction should be based only on prima facie evidence. Before summoning the accused, the facts stated will have to be accepted as they appear on the very face of it. Sufficiency of evidence to hold accused guilty, merits of matter and defence pleas have to be examined at the stage of trial and not at the stage of issuance of process. Whether statement of a witness is hearsay and whether it is supported by "contemporaneous exposition" and whether it would fall under "res gestae" and whether it is admissible or not is to be seen only at the time of trial.

10. So far as the case in hand is concerned, the prosecution claims that the accused appellant hurled abuses to the informant with caste related remarks, threw chilly powder in her eyes and also made assault upon her and tried to strangulate her. The witnesses of this case including the informant have affirmed this fact when they were interrogated by the I.O. under Section 180 BNSS. Although in the F.I.R., name of the witnesses have not been disclosed but since the F.I.R. is not an encyclopedia, the non- mentioning of the name of witnesses of this case was not fatal to the prosecution.

11. It is also pertinent to mention here that the appellants do not belong to SC/ST community, whereas the informant / opposite party no.2 is Valmiki by caste and is a member of SC/ST community, as stated by the informant herself in her statement given to the Investigating Officer of this case. Further, the eyewitnesses of this case have supported the prosecution case and during the course of commission of crime, the witnesses had seen the occurrence and many persons were gathered on spot. Even the children of appellant no.2 have given their statement under Section 180 BNSS against appellant no.2 and they have stated that the appellant no.2 often makes insult of the informant by hurling abuses by caste related remarks. This fact should also be taken into account that the informant, after the occurrence, was medically examined on the same day by the doctor, who found injuries over the body of the informant and fracture in the left leg as well. Since the independent witnesses of this case have seen the occurrence, offence under Sections 3(1)(r), 3(1)(s) of the SC/ST Act is prima facie made out.

12. In the same manner, since the appellants knew this fact that the informant is a member of SC/ST community despite that they committed alleged offence against her, their conduct attracts Section 3(2)(va) of the SC/ST Act.

13. Hence, all the offences for which cognizance in this case was taken by the Court concerned are prima facie made out on the basis of evidence collected by the Investigating Officer.

14. As is evident, all the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court in this appeal. At this stage only a prima facie case is to be seen in the light of the settled law, as discussed here-in-above. From a perusal of the material available on record and keeping in view the facts of the case, at this stage it cannot be said that offences levelled against the appellants are not made out and the record shows that a cognizable offence is clearly made out against the appellants. Sufficient evidence has been collected against the appellants during the course of investigation. The Court concerned did not err in taking cognizance into the matter and thereby to summon the accused / appellants to face trial for the offences made out prima facie. There is no force in the submissions made by the learned counsel for the appellants. The impugned order does not suffer from illegality, infirmity, perversity or lack of judicial mind. The prayer made in the appeal is refused.

15. The criminal appeal being devoid of merits is liable to be dismissed and the same is accordingly dismissed. Order Date :- 1.5.2025 SANDEEP SHARMA High Court of Judicature at Allahabad