High Court
Case Details
1 Court No. - 88 Case :- CRIMINAL APPEAL No. - 8166 of 2022 Appellant :- Amit Kumar Rajput And 3 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Devi Dayal,Sanjay Kumar Counsel for Respondent :- G.A. Hon'ble Raj Beer Singh,J. 1. Sri Meenendra Tripathi, Advocate and Sri Ram Milan Dwivedi, Advocate have filed their Vakalatnama on behalf of the complainant/respondent No. 2 in Court today, the same is taken on record. 2. Heard Sri Sandeep Mishra, holding brief of Sri Sanjay Kumar, learned counsel for the appellants, learned counsel for the complainant/respondent No. 2 and learned A.G.A. for the State. 3. This criminal appeal has been preferred under Section 14-A (1) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'SC/ST Act') against summoning order dated 03.09.2022, passed by the Additional Sessions Judge, Court No.2/Special Judge (SC/ST Act), Mahoba in Complaint Case No. 141 of 2021, under Sections 323, 452, 427, 504, 506 IPC and Section 3(1)(Da, Dha) and 3(2) (5Ka) of SC/ST Act, Police Station Kotwali, District Mahoba, whereby the appellants have been summoned for offences under Sections 323, 452, 427, 504, 506 IPC and Section 3(1)(Da, Dha) and 3(2)(5Ka) of SC/ST Act. 4. It has been argued by learned counsel for the appellants that respondent No. 2 has filed the complaint of this case making false and baseless allegations. In the alleged incident, no one has sustained any injury and that only general allegations have been levelled against the accused- appellants. Learned counsel further submitted that in his statement under Section 200 Cr.P.C., the respondent No. 2/complainant has inter alia stated that on the issue of putting cow dung, the accused/appellants trespassed into his house and abused the respondent No. 2 and his wife by using caste indicative words and assaulted them but no one has sustained any injury. Similar are the statement of witnesses namely, Tutiya and Man Singh, who have been examined under Section 202 Cr.P.C. The allegations are vague 2 and false. The alleged incident has been shown of inside the house of the complainant and thus, no case under SC/ST Act is made out against the appellants. Learned counsel further submitted that in fact earlier the appellant no. 4 and his father have made several complaints against the encroachment made by the respondent No. 2/complainant and that the complaint of this case has been lodged as a counterblast to those complaints.
Legal Reasoning
It is well settled that at the stage of summoning the accused on the basis of a private complaint all that is required is a satisfaction by the Magistrate that there is sufficient ground to proceed against the accused in the light of the records made available and the evidence adduced by the complainant. At that stage the Magistrate has to find out whether prima facie case made out against the accused or not. The Magistrate is not required to meticulously appreciate the evidence at the stage of 203/204 Cr.P.C. All that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during preliminary enquiry under Section 200 and 202 Cr.P.C. that there is prima facie evidence in support of charge levelled against the accused. The Magistrate/Court has to see whether or not there is sufficient ground for proceedings against the 3 accused and in that process the court is not to weigh the evidence meticulously. However, 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. 8. In Jagdish Ram v. State of Rajasthan and Another (2004) 4 SCC 432, it was held as under:- "10. ....The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons." 9. Thus, it is clear that at the stage of summoning the accused on the basis of a private complaint, the Magistrate/Court has to satisfy itself that there is sufficient ground to proceed against the accused in the light of the material on record and the evidence adduced by the complainant. The Magistrate has to find out whether prima facie case is made out against the accused or not, however it is equally desirable that 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. 10. At this stage, it would be appropriate to quote the provisions of Section 3(1) Da/(r) and Dha/(s) of SC/ST Act, which reads as follows:- “Section 3(1)(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; Section 3(1)(s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view;” 11. In the instant case, perusal of record shows that in the complaint lodged by complainant/opposite party no. 2, it was clearly mentioned that on the issue of putting cow dung, the accused/appellants trespassed into his house and abused the complainant and his wife by using caste indicative 4 words and assaulted them. Similarly the witnesses, examined under Section 202 Cr.P.C., have also stated that alleged incident took place inside the house of complainant. There is no evidence to show that alleged incident took place in public view. Here it may be stated that in the case of Hitesh Verma v. State of Uttarakhand & Anr., (2010) 10 SCC 710, regarding offence under Section 3(1)(Da) of SC/ST Act, it has been observed by Hon’ble Apex Court that one of the key ingredient of the provision is insult or intimidation in “any place within public view”. It was further observed that if alleged remark is made inside a building, but some members of the public are there, then it would not be an offence since it is not in the public view. In view of these facts and circumstances of the matter, no case under Section 3(1) (Da) and (Dha) of SC/ST Act is made out. Though the court below has also observed in the impugned summoning order that accused- appellants have trespassed in the house of complainant and committed the incident but despite that the court below has summoned the accused- appellants under Section 3(1) (Da) and (Dha) of SC/ST Act. 12. However, so far summoning of accused-appellants under Section 3(2) (5Ka) of SC/ST Act is concerned, it provides that if any person not being a member of scheduled caste and scheduled tribe, commits any offence specified in the Schedule, 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, it shall be punishable with such punishment as specified under the Indian Penal Code for such offences and shall also be liable to fine. In the instant case, both the parties are neighours and thus, it is apparent from the facts that appellants were aware that the complainant is a member of scheduled caste. The offence under Sections 323, 506 IPC are included in the schedule of Section 3(2)(5Ka) of SC/ST Act and thus a case under Section 3(2)(5Ka) of SC/ST Act is made out against the appellants. Similarly, in view of material on record, a prima facie case under Sections 323, 452, 427, 504, 506 IPC is also made out. 13. Consequently, the summoning of accused-appellants under Section 3(1) Da and Dha of SC/ST Act is quashed. The impugned summoning order 5 stand altered to this extent. However, the summoning of accused-appellants under Sections 323, 452, 427, 504, 506 IPC and Section 3(2)(5Ka) of SC/ST Act is upheld and the case against accused-appellants under Section 323, 452, 427, 504, 506 IPC and Section 3(2)(5Ka) of SC/ST Act shall proceed further in accordance with law. 14. The instant appeal is partly allowed in above terms. Order Date :- 10.1.2023 Krishna/Anand Digitally signed by :- ANAND VERMA High Court of Judicature at Allahabad
Arguments
It was submitted that no prima facie case is made out against the accused- appellants and thus, impugned order is liable to be set aside. 5. On the other hand, learned A.G.A as well as learned counsel for the complainant/opposite party no. 2 have opposed the appeal and argued that in the complaint, there are clear allegations that on the issue of throwing cow dung at the door of respondent No. 2, all the accused/appellants have abused him by using caste indicative words and thereafter assaulted him and his wife inside their house. It was submitted that in the complaint, it has been clearly stated that initially the accused-appellants have abused the complainant outside his house and thereafter assaulted him inside his house. The appellants have been summoned on the basis of statements, recorded under Sections 200 and 202 Cr.P.C., and that there is no illegality or perversity in the impugned summoning order. 6. I have considered rival submissions and perused the record. 7.