High Court
Case Details
Court No. - 88 Case :- CRIMINAL APPEAL No. - 7978 of 2022 Appellant :- Vineet Kumar And 6 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Ganesh Shankar Dubey,Sudhir Kumar Agarwal Counsel for Respondent :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the appellants, learned counsel for the respondent No.2 and learned A.G.A. for the State. 2. This appeal has been preferred under section 14 A (1) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred as SC/ST Act) against the order dated 22.08.2022, passed by learned Special Judge (SC/ST) Act, Jhansi in S.T. No. 567 of 2022 (State vs. Bhalu and others),
Facts
arising out of Case Crime No. 142 of 2020, under Sections 147, 148, 149, 325, 323, 504, 506 and 34 IPC and Section 3(2)5 SC/ST Act, P.S. Garotha, District Jhansi, whereby the appellants have been summoned in the aforesaid case.
Legal Reasoning
6. 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. 7. 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." 8. 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. 9. In the instant case the perusal of record shows that all the accused/appellants are named in the first information report, wherein it has been alleged that they have trespassed into the house of respondent No.2 and abused him by using caste indicative words and assaulted the respondent No.2 and others and resultantly three persons have sustained injuries. During investigation the complainant and other injured persons have supported the prosecution version. In view of allegations made in the first information report and material collected during investigation, it cannot be said that no prima facie case is made out. Hence, no case for quashing of impugned summoning order is made out. Thus, the prayer for quashing of the impugned order is refused. 10. However, considering facts of the matter, it is directed that in case the appellants surrender before the court below within a period of three weeks from today and move an application for bail in accordance with law, the same shall be considered and decided expeditiously in accordance with settled law.
Arguments
3. Learned counsel for the appellants has argued that the first information report of this case has been lodged by the respondent No.2 making false and baseless allegations. In fact in the alleged incident of 21.08.2020, the appellants/accused were assaulted by the opposite party and in that connection the first information report was lodged against the complainant party on 05.09.2020. It was further submitted that earlier one Shiv Kumar and Arvind Kachi have filed a civil suit regarding property against appellant No.1 and that when they did not get any injunction, the respondent No.2 has lodged first information report of this case. In the alleged incident both sides have sustained injuries. It was submitted that police did not investigate properly and submitted charge-sheet in a routine manner. 4. Learned A.G.A. and learned counsel for the respondent No.2 have opposed the appeal and argued that in the first information report, it has been clearly stated that all the accused appellants along with co-accused persons have trespassed into the house of complainant and abused him by using caste indicative words and they have assaulted him with leg, fists and sticks and resultantly informant and two others have sustained injuries. It was submitted that regarding incident, first information report of this case was lodged on 03.09.2020 and the alleged cross first information report has been lodged after two days on 05.09.2020 as a counterblast. It was submitted that there is no illegality or perversity in the impugned order. 5. I have considered rival submissions and perused record.
Decision
11. With the aforesaid observations, the instant appeal is disposed off. Order Date :- 23.1.2023 A. Tripathi Digitally signed by :- AKHILESH TRIPATHI High Court of Judicature at Allahabad