Arun Kumar Singh & Others vs State Of U.P. & Another
2011 Latest Caselaw 1516 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
COURT NO.50
 

 

 
CRIMINAL REVISION NO.1932 OF 2011
 

 

 
Arun Kumar Singh and others....................................Revisionists.
 
                                                  Versus
 
State of U.P. and another.............................................Opposite Parties.
 

 
Hon'ble Vinod Prasad, J.

Heard Sri P.N. Pandey and Sri R.N. Pandey learned counsel in support of this revision and learned A.G.A. in opposition.

Two real sibling brothers Udai Narain Singh and Deep Narain Singh revisionist nos.2 and 3 along with one Arun Kumar Singh revisionist no.1, have approached this Court in its revisional jurisdiction under Section 397/401 Cr.P.C. challenging the order of their summoning dated 24.2.2011 passed by Judicial Magistrate, court no.15, Basti, in Complaint Case No.534 of 2010, Shiv Mangala Vs. Deep Narain and others for offences under Sections 323, 504, 506, 452, 379 I.P.C. Police Station Parashurampur, District Basti.

According to complainant Shiv Mangala wife of Bhogi, resident of Ranipur, Basthanawa, Police Station Parashurampur, District Basti, as is culled out from Annexure No.1 filed along with affidavit in support of this revision, allegations are that complainant is a scheduled caste lady and accused persons including the revisionists had animus against her. Earlier accused persons had assaulted the complainant and her daughter in respect of which first information report was got registered. On 21.7.2005 at 6:00 p.m. because calf (Bacchiya) of the complainant untied the rope and went at the doors of revisionist no. 3 Deep Narain Singh accused got enraged and started abusing complainant filthily. They did not desist there but they chased the complainant to assault her and when she entered into her house, assailants followed her inside and assaulted the complainant Shiv Mangala and her daughter with kicks and fists with utterances of filthy abuses and castiest words. Intrudes also damaged utensils kept in the house, snatched away ear ring of the daughter Shanti and even torned of their clothes. This incident was witnessed by Sandheen and Fazal and many other co-villagers.

An endeavour by the complainant to get first information report registered, was refused by the police on the pretext that victim first get herself medically examined only then her FIR shall be taken down. Since the police failed to perform its statutory responsibility of registering FIR of cognizable offence, complainant, left with no option, filed a complaint before the Magistrate. It was on the basis of the said complaint, statement of victim and her witness recorded under Sections 200 and 202 Cr.P.C. that ultimately summoning order was passed by the Judicial Magistrate, court no.15, Basti, which order is under challenge in this revision.

Learned counsel for the revisionists has raised various arguments in support of this revision, which are recorded in seriatum as follows:-

Firstly, it was submitted that no offence under Section 452 I.P.C. is made out as there is no allegation regarding preparation which is one of the ingredients for making out that offence, therefore, summoning order of the revisionists under Section 452 I.P.C. is unsanctified.

Secondly, it was submitted that impugned order of summoning has been passed in a mechanical manner without any application of mind and if offence under Section 394 I.P.C. was disclosed, Magistrate should have summoned the accused under that offence which he has not done and, therefore, summoning order has been passed without looking into allegations levelled against the revisionists, which cannot been sustained.

Thirdly, it was submitted that entire prosecution is malafide as complainant belongs to scheduled caste and she is litigating in civil court with the revisionists and as pressure tactics, she had alleged false allegations only to mount pressure on the revisionists and get them prosecuted.

It was next submitted that injury report does not support complainant's version as there is no perceptible visible injury and medical examination was also got done belatedly after two days. Injury report of the daughter does not indicate any injury on her pinna and, therefore, allegations of snatching of her ear ring is false.

It was lastly submitted that earlier an application under Section 156(3)Cr.P.C. was filed which was rejected and subsequent to that, a complaint has been filed and summoning order has been passed, therefore, entire exercise by the complainant is tainted with malafides. It is further submitted that in the earlier first information report, final report was submitted by the police and, therefore, complainant only wants to harass the accused persons.

On the basis of aforesaid contentions, it is submitted that impugned summoning order be quashed.

Learned A.G.A., refuted all the submissions of the revisionists' counsel.

I have perused the record and considered the submissions raised by the revisionists' counsel.

Dealing with submissions in seriatum, first contention that no offence under Section 452 I.P.C. is made out because there is absence of any allegation regarding preparation, the said argument per se is unacceptable. Preparation does not mean preparation carried on in preceding days. Preparation can be made instantaneously. Assault is one of the ingredients of Section 452 I.P.C. Definition of assault as is mentioned in Section 351 I.P.C. indicates gestures as well. If somebody makes gesture and trespass into house of the victim habouring an idea to assault, it is preparation within the meaning of section 452 I.P.C. sufficient to make out that offence. Preparation does not mean physical preparation, preparation means having an idea and determination to make an assault even by gesture. Preparation has not been defined under Indian Penal Code, therefore, it has to be given a logical meaning in consonance with common parlance. Anybody who has an idea to assault, if he acts on with that intent, it is preparation as is contemplated under Section 452 I.P.C.

In the present case, after calf had untied it's rope and went at the door of Deep Narain Singh revisionist no.3, accused persons started the incident not only by vituperating the complainant but also they used castiest words andwhen the complainant entered into her house, they also chased her trespassed in her house and assaulted her hurling filthy caste words. Above facts leads to conclude that it was entering into house after making preparation to assault the victim. First submission in respect of absence of ingredient of Section 452 I.P.C., therefore, is repelled.

Coming to the second limb of argument regarding that no offence under Section 379, 394 I.P.C. is disclosed and instead offence under Section 392 I.P.C. is made out, the said contention is against factual matrix. There are specific allegations that Shanti was assaulted with kicks and fits. She was abused filthily and accused persons had snatched away ear ring which was worn by Shanti. Ear ring was her personal property. If somebody snatched it away without consent of victim Shanti, it is theft and consequently summoning of the accused under Section 379 I.P.C., is not unjustified.

Turning towards argument that offence under Section 392 I.P.C. is disclosed, therefore, order of summoning is without any application of mind, to say the least said contention is wholly illegal. For making out an offence under section 394 I.P.C., sine quo non ingredient is that assault should be made with an intention to commit theft which is not the allegation in the instant case. Here, after making an assault without any intention to commit theft a bizarre act was done by one of the accused by snatching ear ring, therefore, in absence of predominant motive to commit theft, no offence under Section 394 I.P.C. is disclosed against the accused. In this respect, contention of the revisionists' counsel is not acceptable and is repelled.

Coming to third limb of argument that impugned order has been passed in a mechanical manner without application of mind, the said argument is not borne out from the record. While passing the order of summoning, learned Magistrate has looked into entire allegations and has mentioned it in the impugned summoning order. Trial Court has scanned statements under Sections 200 and 202 Cr.P.C. of PW-1 Subhash Chandra Vishwakarma, PW-2 Shanti Devi and after looking into entire material placed before it that it has summoned the accused persons for the aforesaid charges. Impugned order, therefore, cannot be castigated for the reason that it has been passed without any application of mind. Moreover it has not been argued that facts mentioned in the impugned order are contrary to the record and this fact by itself indicates that learned Magistrate has applied its mind on the merits of the allegations and has passed summoning order after due care and caution. In view of above, third contention is also repelled.

Coming to the fourth contention regarding malafides prosecution, it is noted that it is a case where the accused persons entered into house of the complainant and assaulted her and her daughter. They also torned off clothes of the complainant and her daughter. This is an offence under Section 354 I.P.C. as well. In this respect, case of the complainant is squarely covered by the decision of the Apex Court in the case of Roopan Deval Bajaj Vs. State of Punjab. It is noted with concern that learned Magistrate has not summoned the revisionists for that charge when he should have done so. Additionally, once triable offences are disclosed and commission of crime is surfaced, question of malafide relegates into background which can be looked into by the trial Judge at the stage of final decision. While summoning, that aspect of the matter, in a case of present nature, is of no consequence.

Turning towards various medical reports, raised contention is not acceptable. It is the case of the complainant herself that when she had gone to get herself medically examined, doctor in connivance with the accused persons manipulated injury report. Injury report which was given to her was not correct injury report. There are specific averments made in the complaint and victim must be afforded opportunity to prove her allegation.

Coming to the last argument which was harangued in respect of an application under Section 156 (3) Cr.P.C. and submission of final report in the earlier assault case, the same is untenable. Section 210 Cr.P.C. can be looked in this respect which provides that even if investigating officer submits final report, then victim is not remediless. He / she can still lodge a complaint and get the malefactors prosecuted and punished. In such a view, last contention too is rejected.

There is no merit in this revision which stands dismissed.

After the aforesaid order was dictated in open Court, learned counsel for the revisionists prayed that some direction for expeditious disposal of bail be issued.

Looking to the facts and circumstances of the present case, it is directed that if the revisionists surrender within a period of three weeks from today and move an application for their bail, said prayer be considered by the courts below as expeditiously as possible if possible on the same day in the aforesaid case for the aforesaid offences.

Dt. 5.5.2011

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