Raj Mohd. Khan @ Raju And 3 Ors. v. State Of U.P. and Anr.

Judgment

#1. Heard Sri Sanjeev Kumar Pandey, learned counsel for appellants, Sri Onkar Nath, respondent no.2 as well as Sri Omkar Prakash, learned A.G.A. for the State-respondent and perused the record.

#2. This criminal appeal has been preferred under Section 14-A (1) of SC/ST (Prevention of Atrocities) Act, 1989 against the impugned order dated 07.09.2019 passed by Special Judge SC/ST Act, Eatah in Special Session Trial No. 55 of 2019 ‘State vs. Raj Mohd. Khan @ Raju and others’ (arising out of Case Crime No. 264 of 2019, under Sections 323, 504, 506 I.P.C. and Sections 3(1)(d) of SC/ST Act, Police Station- Jaithra, District- Etah), whereby accused-appellants have been summoned to face trial.

#3. The brief facts giving rise to the present appeal are that

informant/respondent no.2 Smt. Geeta has lodged the first information report on the basis of written complaint on 09.08.2019 at 17:31 hrs. alleging therein that today at about 10 A.M. when she was sitting at her house along with family members, accused-appellants entered her house and started abusing them in filthy language using caste related words and on being opposed they also beaten them. Upon hearing hue and cry, villagers arrived there, thereafter, the accused-appellants waving their illegal weapons fled from there and also extended threat for life saying that “Dhankutwo” if they lodge any report against them to the police, they will be killed.

#4. Ct./Clerk Lokpal Singh has ascribed the check report on

09.08.2019 at 17:30 hrs. at police Station Jaithra on the basis of written complaint of informant-respondent no.2 and by making necessary entry 2 in GD registered the Case Crime No. 264 of 2019, under Sections 323, 452, 504, 506 I.P.C. and Section 3(1)(Dha). The investigation of the case was given to Dy. SP Ajay Bhadoria who recorded the statement of informant Smt. Geeta, Ct./Clerk Lokpal Singh, witnesses Ankit, Saurabh and inspected the place of occurrence and prepared the site-plan. After completion of investigation, he submitted the charge-sheet on

21.08.2019 against the accused-appellants under Sections 323, 504, 506 IPC and Section 3(1)(d) of SC/ST Act.

#5. Learned lower court has passed following order vide impugned order dated 07.09.2019:- “Today charge-sheet no. 182/19 against accused nos.1- Raj Mohd. @ Raju, 2- Aamir, 3- Pappu @ Barkat Ali and Kesar in Crime No. 264/2019, under Sections 323, 504, 506 IPC and Section 3 (1) d SC/ST Act, Police Station- Jaithra, District Etah is filed. It has been held by Hon'ble High Court of Allahabad in Suraj vs. SSP Lucknow (decided on 24.09.2014) that before filing of the charge-sheet in the court, the investigating officer shall give notice to the accused with respect to the date on which he is going to file charge-sheet and accused will appear before the court on the said date. If accused does not appear on the said date when the charge-sheet is being filed in the court, then the court after taking cognizance of offence on the charge-sheet will issue compelling process to ensure the presence of the accused. In the present case before filing of the charge-sheet by the investigating officer, notice has not been given to the accused regarding the date on which he is going to file the charge-sheet in the court. The accused have not appeared before the court at the time of filing of charge-sheet. Therefore, non-bailable warrant shall be issued against the accused persons to ensure their presence in compliance of the law laid down as above. Put up on 23.09.2019 for appearance of the accused.”

#6. It has been contended by learned counsel for the accused- appellants that the impugned order has been passed by filling up the blanks in printed proforma without application of mind. Learned lower court has directly issued non-bailable warrant against the accused- appellants on wrong interpretation of law. It has further been contended that there is no need of giving notice to the accused-appellants by the Investigating Officer before submission of the charge-sheet. It is a case of no injury, therefore, the alleged incident is false and concocted. No injury report has been filed by respondent no.2 to substantiate the 3 prosecution case. Learned lower court has committed gross illegality by summoning the accused-appellants under Sections 323, 504, 506 IPC and Sections 3 (1) (d) of SC/ST Act. He has further contended that the first information report has been lodged against the accused-appellants with mala fide intention after due deliberations or consultations in order to harass and blackmail them. A general and omnibus allegation has been made and no specific role has been assigned to any of the accused- appellants. The accused-appellants have not committed any offence whatsoever. From the perusal of first information report, no offence under Sections 323, 504, 506 IPC and Sections 3 (1) (d) of SC/ST Act is made out against the accused-appellants and the chargesheet is liable to be quashed. It has also been contended that as per the first information report, the accused-appellants have abused the complainant and her family members in filthy language using caste related words in their house and not in public view, therefore, no offence under Sections 3 (1) (d) of SC/ST Act is made out against them.

#7. Learned counsel for the accused-appellants has further contended that the cognizance order has been passed mechanically on the basis of charge-sheet without application of mind and has has placed reliance on the law laid down by this Court in Hariram Verma and others vs. State of UP and another [2017 (99) ACC 104 ]. He has further contended that it is not sufficient to summon the accused by mentioning in the summoning order that "I have perused the statement under sections 200/202 Cr.P.C.” and has relied on the law laid down by his Court in Smt. Shiv Ku. and others vs. State of U.P. and another [2017 (99) ACC 35]. It is further submitted that cryptic summoning order is not sustainable in law and the Magistrate should satisfy himself that the allegations made in the complaint as well as in the statements constitute an offence and has relied on the law laid down by this Court in Mahboob vs. State of U.P. and another [2017 (98) ACC 593]. He has further submitted that the alleged incident has taken place in the house of complainant-respondent no.2 within four walls of the house, and therefore, it cannot be said that the abuse using caste related words was hurled within public view and hence, the charge-sheet against the 4 accused-appellants is liable to be quashed in view of the law laid down by the Hon’ble Apex Court in Hitesh Verma vs. State of Uttarakhand and another [reported in 2020 (11) ADJ 315 (SC)].

#8. Per contra, learned A.G.A. for the State as well as learned counsel for respondent no.2 have vehemently refuted the submissions advanced on behalf of the accused-appellants and contended that the order of taking cognizance by the learned lower court cannot be set-aside on the ground that impugned order is not a detailed order. It is further submitted that the detailed order is required only in case where learned Magistrate has not taken cognizance on the basis of charge-sheet or complaint and where it found there is no sufficient ground for proceeding. It is further submitted that although it is desired that the order of taking cognizance ought to be reasoned order but it cannot said to be illegal or cannot be set-aside only on the ground that order of taking cognizance of offence on the basis of the charge-sheet is not a reasoned order. It is further submitted that the complainant and her family members have not sustained any visible injury, therefore, they have not got themselves medically examined. It cannot be said that no offence is made out under Section 323 IPC when the injured has not sustained any visible injury. It is further submitted that even when the villagers arrived at the place of occurrence after hearing hue and cry, the accused-appellants have called them “Dhankutwo” and threatened for life if they lodge report to the police. In above circumstance, the law laid down by the Hon’ble Apex Court in Hitesh Verma versus State of Uttarakhand and another (supra) is not applicable in this case. The respondent no.2 and other witnesses have supported the version of first information report in their statements that accused-appellants entered the house of complainant and started abusing in filthy language using caste related words and on being opposed they also beaten them. Upon hearing hue and cry, villagers arrived there, thereafter, the accused-appellants waving their illegal weapons fled from there and also extended threat for life saying that “Dhankutwo” if they lodge any report against them to the police, they will be killed. The annexure no.2 appears to be extract of GD registering the case and not the statement of complainant. Prima facie, the offence 5 under Sections 323, 504, 506 IPC and Section 3 (1) (d) of SC/ST Act is made out against the accused-appellants. It is further submitted that at the stage of appeal against the order of taking cognizance, the evidence of the witnesses is not permitted to be scrutinised by law in such a way and that requires at the stage of trial. Therefore, in above circumstance, the appeal is liable to be dismissed.

#9. Having heard learned counsel for the parties, learned A.G.A. for the State and having perused the record, it is apparent that the contents of the FIR so far as the offences, wherein the accused-appellants have been summoned to face trial, is concerned, find corroboration from the statement of informant-respondent no.2 and witnesses recorded during investigation under Section 161 Cr.P.C. All submissions put forth by learned counsel for the accused-appellants before this Court are pertaining to factual aspect of the matter which can only be considered by a criminal court in a full-fledged criminal trial and it is not a stage where minute scrutiny of the evidence should have been made by the court below.

#10. At this juncture, it is fruitful to have a look so far as the law pertaining to summoning of the accused-appellants, by taking cognizance on the police report filed under Section 173 of Cr.P.C., is concerned and the perusal of the case law mentioned herein-below would clearly reveal that cognizance of an offence on complaint and charge-sheet is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, and application of mind as to whether the material collected by the investigating officer results in sufficient grounds to proceed further and would constitute violation of law so as to call a person to appear before criminal court to face trial. This discretion puts a responsibility on court taking cognizance to act judiciously keeping in view the facts of the particular case as well as the law on the subject.

#11. The Hon’ble Apex Court in Bhushan Kumar and another vs. State (NCT of Delhi) and Another [reported in AIR 2012 SC 1747] has held that: "Section 204 of the Code does not mandate the Magistrate to 6 explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons maybe issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued."

#12. In Sunil Bharti Mittal vs. Central Bureau of Investigation (Three Judges Bench), Hon’ble Apex Court held as under: "47. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. ........"

#13. In the case of Nupur Talwar vs C.B.I. [reported in 2013 AIR SCW 369], the Hon'ble Supreme Court has held as under :- "10. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a per-requisite for deciding the validity of the summons issued."

#14. In view of above narrations, it is clearly established that if detailed order has not been passed while issuing process, the order will not be illegal.

#15. In this regard, learned counsel for the accused-appellants has placed reliance on the law laid down by this Court in Hariram Verma and others (supra). I have gone through the aforesaid judgment wherein five accused persons named in the complaint were summoned under Sections 323, 504, 506, 452 I.P.C. without mentioning of correct section on the basis of averments of complaint. In that case the Court found that the Magistrate has not applied its mind and quashed the summoning 7 order. The facts and circumstances of the aforesaid case are different from this case, therefore, the law laid down in aforesaid judgment is not applicable in this case. Learned counsel for the accused-appellant has also relied on the law laid down in Smt. Shiv Ku. and others (supra) that case law relates to the mechanical exercise of power of the court that is not applicable in this case. In Nupur Talwar vs C.B.I. (supra), it is held that it is the satisfaction of Magistrate that there is sufficient ground for proceeding, therefore, no detailed order is required and the above ruling is not applicable in this case.

#16. So far as the submission of learned counsel for the accused- appellants that appellants have been falsely implicated and the reliance placed on the law laid down in the case of Mahboob (supra), is considered that case relates to the matrimonial dispute. Ordinarily, it is found that relatives were also falsely implicated in the background. In that case impugned order was quashed and learned Magistrate was directed to pass fresh order within a period of four weeks.

#17. Here it is pertinent to mention that in this case accused-appellants were summoned under Sections 323, 504, 506 I.P.C. and Section 3(1)(d) of SC/ST Act. If the accused persons have not insulted the member of Scheduled Castes and Schedule Tribes in public view in those circumstance it was held that offence under Section 3(1)(x) of SC/ST Act is not made out in the present case. Section 3 of SC/ST Act was amended by Act 1 of 2016 which is effective from 26.01.2016 and Section 3(1)(x) was deleted and its place Sections 3(1)(a) to 3(1)(zb) and 3(2)(va) were added with amended section but the accused persons were summoned under Sections 323, 504, 506 I.P.C and Section 3(1)(d) SC/ST Act on the basis of charge-sheet filed by the police in Case Crime No. 264 of 2019, under Sections 323, 504, 506 I.P.C. and Sections 3(1) (d) of SC/ST Act. After taking cognizance case was registered as Session Trial No. 55 of 2019 'State vs. Raj Mohd. Khan @ Raju and others'.

#18. In above circumstance, the above ruling is not applicable in this case. 8

#19. Full Bench of this Court in re: Provision of Section 14-A of SC/ST (Prevention of Atrocities) Amendment Act, 2015 and Others vs Nil and others [reported in 2018 0 CrLJ 5010] has held that "a petition under the provisions of Article 226/227 of the Constitution of India cannot invoke in cases and situations where an appeal would lie under Section 14-A. In so far as the powers of the Court with respect to the revisional jurisdiction is concerned, we find that the provisions of Section 397 Cr.P.C. stand impliedly excluded by virtue of special provisions made in Section 14-A. This, we hold also in light of our finding that the word "order" as occurring in sub-section (1) of Section 14-A would also include intermediate orders."

#20. From the Full Bench decision of this court, it is abundantly clear that appeal under Section 14-A (1) of SC/ST Act would lie against intermediate order. The order of taking cognizance of offences is an intermediate order against which appeal would lie under Section 14-A (1) of SC/ST Act. Taking cognizance and issuing process also come within the ambit of intermediate order.

#21. It is further submitted that non-bailable warrant has directly been issued against accused-appellants by the lower court below.

#22. In view of above, the summoning order dated 07.09.2019 passed by Special Judge SC/ST Act, Eatah in Special Session Trial No. 55 of 2019 ‘State vs. Raj Mohd. Khan @ Raju and others’ (arising out of Case Crime No. 264 of 2019, under Sections 323, 504, 506 I.P.C. and Sections 3(1)(d) of SC/ST Act, Police Station- Jaithra, District- Etah) is hereby upheld.

#23. So far as issuance of non-bailable warrant against accused- appellants, is concerned this Court in Satendra Kumar and another vs. State of U.P. and another [reported in 2016 (97) ACC 41] has held that on the very first day of taking cognizance in SC/ST cases also the process of non-bailable warrant cannot be issued. Therefore, the order dated 07.09.2019 to the extent of issuing non-bailable against the accused-appellants warrant is, hereby, set-aside.

#24. The appeal is, accordingly, partly allowed. Order Date :- 04.03.2022/Vikas Verma (Mohd. Aslam, J.) Reason: Location: High Court of Judicature at Allahabad