Varshney and Smt. Savitri with the prayer to set-aside the v. Police Station Delhi Gate, District Aligarh whereby discharge

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 - Abhishek Varshney and Smt. Savitri with the prayer to set-aside the impugned order dated 29.05.2024 passed by the Special Judge (SC/ST Act), Aligarh in Session Trial No. 750 of 2023 (State Vs. Abhishek and others) arising out of Case Crime No. 256 of 2022, under Sections 323, 504, 506 I.P.C. and Section 3(2)(v) SC/ST Act, Police Station Delhi Gate, District Aligarh whereby discharge application moved by the appellants has been rejected.

2. Heard learned counsel for the appellants and learned A.G.A. for the State and perused the entire record. Notice has been served upon opposite party no. 2 but none is present on his behalf.

3. It is submitted by the learned counsel for the appellants that appellants are innocent, they have not committed the alleged offence but they have been falsely implicated in this case. It is further submitted that the learned trial court has passed an erroneous and perverse order by rejecting the application 17Kha moved by the appellants under Section 227 Cr.P.C. whereby they have prayed to the court to pass discharge order in favour of the appellants in the aforesaid matter under Sections 323, 504, 506 I.P.C. and Section 3(2)(v) SC/ST Act.

4. It is further submitted that the appellant no. 1 is law student and appellant no. 2 is house wife and the Investigating Officer has submitted charge sheet in this matter without collecting proper evidence. It is next submitted that there is no eye witness of the occurrence and affidavits of the inhabitants of the area of the place of occurrence were provided to the Investigating Officer but the same were not made part of the investigation. It is also submitted that CCTV Camera has been installed in the house of the informant but the alleged incident has not been captured by CCTV Camera. It is further submitted that the Investigating Officer also discarded the facts that there is no eye witness of the alleged occurrence. It is next submitted that on the aforesaid grounds an application for discharge was moved by the accused-appellants but the learned trial court by passing the impugned order rejected the discharge application moved by the appellants.

5. It is also to be considered that initially the F.I.R. of this case was lodged under Sections 354, 323, 504, 506 I.P.C. and Section 3(2)(v) SC/ST Act and four persons were arrayed as accused persons in the said F.I.R. It is further submitted that in the F.I.R. similar role was assigned to all the four accused persons but the Investigating Officer expunged the name of accused no. 2 Mohit and accused no. 3 Tinku and charge sheet has been submitted only against the present appellants. It is next submitted that in the F.I.R. the allegation of assault and using criminal force upon the victim lady with intent to outrage her modesty has been alleged but no such offence was found to be committed by the Investigating Officer and that is why no charge sheet under Section 354 I.P.C. has been submitted by the Investigating Officer. It is also submitted that in these circumstances, the charge sheet submitted by the police is bogus document and the appellants deserve to be discharge in this matter but their application for discharge has been rejected by the learned trial court vide impugned order dated 29.05.2024. No injury has been caused to the informant / injured of this case. The police has also submitted charge sheet on the basis of insufficient evidence against the appellants. Essential ingredients to constitute the alleged offences are lacking. On these grounds a prayer has been made to set aside the order dated 29.05.2024 and to discharge the present appellants from the aforesaid charges.

6. The next argument advanced by the learned counsel for the appellants is that the I.O. of this case collected absolutely no evidence to the effect that the incident took place at any place within the public view and intentional insult or intimidation was made by the appellants. It is further submitted that there is not even an iota of evidence on record as collected by the I.O. that the appellants committed the alleged offence for the simple reason of the injured being a member of SC/ST community. It is also submitted that the appellants never hurled abuses to insult him by caste related remarks. The impugned order suffers from infirmity and illegality warranting interference by this Court

7. Per contra, learned A.G.A. vehemently opposed the appeal and submitted that the F.I.R. is not an encyclopedia and investigation of this case has been conducted in the right and genuine manner by the Investigating Officer of this case and that is why charge sheet was submitted only against the present appellants and not against two other accused persons named in the F.I.R. It is also to be considered that the Investigating Officer did not submit charge sheet for the offences mentioned in the F.I.R. but the charge sheet was submitted only for the offences which were found to be committed during investigation. It is further submitted that at the stage of considering the discharge application, the Magistrate / Court dealing with the matter is required to apply judicial mind only with a view to find-out as to whether prima-facie case has been made out against the accused or not. The Court concerned after applying its judicial mind has passed the impugned 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.

8. 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.

9. The parameters for grant of relief of discharge are well settled by a catena of judicial precedent. The Hon'ble Supreme Court in the case of P. Vijayan vs. State of Kerala, (2010) 2 SCC 398 held that the Judge is not a mere post office to frame charge but the Judge should exercise his judicial mind and discretion to determine whether a case for trial has been made out by the prosecution. It was further clarified that the Judge should be satisfied that the evidence produced by the prosecution before the Court discloses suspicion that the accused has committed the crime.

10. In the case of Dilawar Balu Kurane vs. The State of Maharashtra, (2002) 2 SCC 135, the Hon'ble Apex Court observed that in exercising powers under Section 227 of the Criminal Procedure Code, 1973, the settled position of law is that the Judge while considering the question of framing the charge under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and whether the materials placed before the Court discloses grave suspicion against the accused which has not been properly explained to the Court, then in such a case the Court will be fully justified in framing the charge and proceed with the trial. On the other hand, if the Judge is satisfied that the evidence produced before the Court gives rise to some suspicion but not grave suspicion then the Judge will be fully justified in discharging the accused.

11. It is trite law that at the stage of discharge of the accused, the Magistrate / Court dealing with the matter is required to apply judicial mind only with a view to find-out as to whether prima- facie case has been made out against 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. 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).

12. So far as the case in hand is concerned, the prosecution claims that the accused appellants hurled abuses to the informant with caste related remarks and also committed marpeat alongwith two other accused persons in an open place within public view on 24.08.2022 at 3.00 P.M. The informant has affirmed this fact when she was interrogated by the I.O. under Section 161 Cr.P.C. Further, evidence collected by the I.O. prima facie shows that the offence has been committed with the informant, who is a member of the SC/ST community, who corroborates this fact in her statements recorded under Section 161 & 164 CrP..C. whereas the appellants are not member of SC/ST community and accused appellants were very well knowing that the informant is a member of SC/ST community. Hence, all the offences for which discharge application was rejected, are prima facie made out on the basis of evidence collected by the Investigating Officer. Further, the F.I.R. is not an encyclopedia and if some facts are missing therein it does not vitiate the entire prosecution case.

13. Further, 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 rejecting the discharge application. 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. The criminal appeal being devoid of merits is liable to be dismissed and the same is accordingly dismissed. Order Date :- 3.7.2025 Rmk. RAM MURTI KUSHWAHA RAM MURTI KUSHWAHA High Court of Judicature at Allahabad 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 - Abhishek Varshney and Smt. Savitri with the prayer to set-aside the impugned order dated 29.05.2024 passed by the Special Judge (SC/ST Act), Aligarh in Session Trial No. 750 of 2023 (State Vs. Abhishek and others) arising out of Case Crime No. 256 of 2022, under Sections 323, 504, 506 I.P.C. and Section 3(2)(v) SC/ST Act, Police Station Delhi Gate, District Aligarh whereby discharge application moved by the appellants has been rejected.

2. Heard learned counsel for the appellants and learned A.G.A. for the State and perused the entire record. Notice has been served upon opposite party no. 2 but none is present on his behalf.

3. It is submitted by the learned counsel for the appellants that appellants are innocent, they have not committed the alleged offence but they have been falsely implicated in this case. It is further submitted that the learned trial court has passed an erroneous and perverse order by rejecting the application 17Kha moved by the appellants under Section 227 Cr.P.C. whereby they have prayed to the court to pass discharge order in favour of the appellants in the aforesaid matter under Sections 323, 504, 506 I.P.C. and Section 3(2)(v) SC/ST Act.

4. It is further submitted that the appellant no. 1 is law student and appellant no. 2 is house wife and the Investigating Officer has submitted charge sheet in this matter without collecting proper evidence. It is next submitted that there is no eye witness of the occurrence and affidavits of the inhabitants of the area of the place of occurrence were provided to the Investigating Officer but the same were not made part of the investigation. It is also submitted that CCTV Camera has been installed in the house of the informant but the alleged incident has not been captured by CCTV Camera. It is further submitted that the Investigating Officer also discarded the facts that there is no eye witness of the alleged occurrence. It is next submitted that on the aforesaid grounds an application for discharge was moved by the accused-appellants but the learned trial court by passing the impugned order rejected the discharge application moved by the appellants.

5. It is also to be considered that initially the F.I.R. of this case was lodged under Sections 354, 323, 504, 506 I.P.C. and Section 3(2)(v) SC/ST Act and four persons were arrayed as accused persons in the said F.I.R. It is further submitted that in the F.I.R. similar role was assigned to all the four accused persons but the Investigating Officer expunged the name of accused no. 2 Mohit and accused no. 3 Tinku and charge sheet has been submitted only against the present appellants. It is next submitted that in the F.I.R. the allegation of assault and using criminal force upon the victim lady with intent to outrage her modesty has been alleged but no such offence was found to be committed by the Investigating Officer and that is why no charge sheet under Section 354 I.P.C. has been submitted by the Investigating Officer. It is also submitted that in these circumstances, the charge sheet submitted by the police is bogus document and the appellants deserve to be discharge in this matter but their application for discharge has been rejected by the learned trial court vide impugned order dated 29.05.2024. No injury has been caused to the informant / injured of this case. The police has also submitted charge sheet on the basis of insufficient evidence against the appellants. Essential ingredients to constitute the alleged offences are lacking. On these grounds a prayer has been made to set aside the order dated 29.05.2024 and to discharge the present appellants from the aforesaid charges.

6. The next argument advanced by the learned counsel for the appellants is that the I.O. of this case collected absolutely no evidence to the effect that the incident took place at any place within the public view and intentional insult or intimidation was made by the appellants. It is further submitted that there is not even an iota of evidence on record as collected by the I.O. that the appellants committed the alleged offence for the simple reason of the injured being a member of SC/ST community. It is also submitted that the appellants never hurled abuses to insult him by caste related remarks. The impugned order suffers from infirmity and illegality warranting interference by this Court

7. Per contra, learned A.G.A. vehemently opposed the appeal and submitted that the F.I.R. is not an encyclopedia and investigation of this case has been conducted in the right and genuine manner by the Investigating Officer of this case and that is why charge sheet was submitted only against the present appellants and not against two other accused persons named in the F.I.R. It is also to be considered that the Investigating Officer did not submit charge sheet for the offences mentioned in the F.I.R. but the charge sheet was submitted only for the offences which were found to be committed during investigation. It is further submitted that at the stage of considering the discharge application, the Magistrate / Court dealing with the matter is required to apply judicial mind only with a view to find-out as to whether prima-facie case has been made out against the accused or not. The Court concerned after applying its judicial mind has passed the impugned 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.

8. 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.

9. The parameters for grant of relief of discharge are well settled by a catena of judicial precedent. The Hon'ble Supreme Court in the case of P. Vijayan vs. State of Kerala, (2010) 2 SCC 398 held that the Judge is not a mere post office to frame charge but the Judge should exercise his judicial mind and discretion to determine whether a case for trial has been made out by the prosecution. It was further clarified that the Judge should be satisfied that the evidence produced by the prosecution before the Court discloses suspicion that the accused has committed the crime.

10. In the case of Dilawar Balu Kurane vs. The State of Maharashtra, (2002) 2 SCC 135, the Hon'ble Apex Court observed that in exercising powers under Section 227 of the Criminal Procedure Code, 1973, the settled position of law is that the Judge while considering the question of framing the charge under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and whether the materials placed before the Court discloses grave suspicion against the accused which has not been properly explained to the Court, then in such a case the Court will be fully justified in framing the charge and proceed with the trial. On the other hand, if the Judge is satisfied that the evidence produced before the Court gives rise to some suspicion but not grave suspicion then the Judge will be fully justified in discharging the accused.

11. It is trite law that at the stage of discharge of the accused, the Magistrate / Court dealing with the matter is required to apply judicial mind only with a view to find-out as to whether prima- facie case has been made out against 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. 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).

12. So far as the case in hand is concerned, the prosecution claims that the accused appellants hurled abuses to the informant with caste related remarks and also committed marpeat alongwith two other accused persons in an open place within public view on 24.08.2022 at 3.00 P.M. The informant has affirmed this fact when she was interrogated by the I.O. under Section 161 Cr.P.C. Further, evidence collected by the I.O. prima facie shows that the offence has been committed with the informant, who is a member of the SC/ST community, who corroborates this fact in her statements recorded under Section 161 & 164 CrP..C. whereas the appellants are not member of SC/ST community and accused appellants were very well knowing that the informant is a member of SC/ST community. Hence, all the offences for which discharge application was rejected, are prima facie made out on the basis of evidence collected by the Investigating Officer. Further, the F.I.R. is not an encyclopedia and if some facts are missing therein it does not vitiate the entire prosecution case.

13. Further, 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 rejecting the discharge application. 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. The criminal appeal being devoid of merits is liable to be dismissed and the same is accordingly dismissed. Order Date :- 3.7.2025 Rmk. RAM MURTI KUSHWAHA RAM MURTI KUSHWAHA High Court of Judicature at Allahabad High Court of Judicature at Allahabad