Aniruddh Singh And Another vs State Of U.P. And Another
2021 Latest Caselaw 11432 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 10.11.2021
 
Delivered on 04.12.2021
 
Court No. - 87
 
Case :- CRIMINAL APPEAL No. - 3164 of 2021
 
Appellant :- Aniruddh Singh And Another
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Ravindra Prakash Srivastava
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mrs. Sadhna Rani (Thakur),J.

The present appeal has been filed by the appellants namely, Aniruddh Singh and Ram Darash Yadav against the judgment and order dated 21.11.2020 passed by Special Judge, SC/ST Act, Sant Kabir Nagar in Complaint Case No. 39 of 2020, Om Prakash Vs. Ram Kishun and others, whereby the appellants have been summoned under section 323 I.P.C. and 3(1) (r) and 3(1) (s) SC/ST Act, 1989 police station Khalilabad District Sant Kabir Nagar and the other co-accused have also been summoned to face trial under sections 323, 452, 504, 506 I.P.C. and 3 (1) (r) and 3(1) (s) SC/ST Act, 1989.

The facts giving rise to the dispute are that the opp. party no. 2 Om Prakash filed a complaint no. 39 of 2020 against the present appellants and five others with the contention that on 18.6.2020 at 7.00 in the morning the opp. party Ram Kishun, Rakesh, Umesh and Rishikesh @ Chhotu due to enmity started hurling abuses at the door steps of the complainant. When the complainant asked them not to do so, then Ram Kishun being provoked exhorted his sons Rakesh, Umesh, Rishikesh @ Chhotu and his brother-in-law Ram Ganesh to commit murder of the complainant. At this, all these persons with intention of causing his death chased the complainant. When he ran into his house, all these persons entering into his house beat him with kicks, fists, shoes and danda. At his hue and cry his wife and mother came to rescue him. Ram Kishun pushed his mother consequently, she sustained grievous injuries in her hand. These persons assaulted his wife as well. At their alarm, the villagers came and rescued them. All these persons, while, going back damaged the gas stove of the complainant and gave threats of the dire consequences. When the complainant reached the police chauki, he saw that all these persons were already sitting there and sighting the complainant they started hurling foul language. Constable Ram Darash Yadav and chauki Incharge Aniruddh Singh hurled caste based abuses and beat him with kicks and blows. They were made to sit at the police chauki for two days and were threatened to be implicated in false cases. On the request of complainant, he was released after obtaining his signatures on the blank papers. Due to fear he could not inform about the incident to anyone. The opp. parties are influential persons so the police party do not want to take action against them. He informed the Superintendent of Police, Sant Kabir Nagar through the registered post but no step has been taken.

The present complaint was registered. After recording the statements of the complainant Om Prakash and two witnesses Lal Chandra son of Sant Ram and Amrit Chandra son of Jagdish summoning the report from the police station concerned, the learned lower court passed the impugned order dated 21.11.2020 summoning these two appellants to face trial under section 323 I.P.C. and section 3(1) (r) and 3(1) (s) SC/ST Act, 1989 though the other co-accused were summoned under sections 323, 452, 504, 506 I.P.C. and 3 (1) (r) and 3(1) (s) SC/ST Act, 1989.

The appellants have assailed the impugned order on the ground that the opp. party no. 2/ the complainant Om Prakash has a property dispute with Ram Kishun, Rakesh, Umesh and Kapikesh. On 17.6.2020 they were shouting and using filthy language and disturbing public peace wherein the appellant no. 1 challaned the opp. party no. 2 Om Prakash and his rival Ram Kishun under section 151/107/116 Cr.P.C. On 18.6.2020, the opp. party no. 2 complainant Om Prakash gave an application before the appellant no. 1 Anirudh Singh, the chauki Incharge police station Khalilabad district Sant Kabir Nagar for lodging the first information report against Ram Kishun, Rakesh, Umesh and Kapikesh on the basis of false facts and narrating the false story. The appellant no. 1 did not lodge the first information report. Being annoyed with the appellant, because of challani report dated 17.6.2020 and the fact that his first information report was not lodged, the complainant / opp. party no. 2 moved a false application on 5.7.2020 before Superintendent of Police stating false facts and also moved an application under Section 156(3) Cr.P.C. on 5.8.2020 before the Court of Special Judge, SC/ST Act Sant Kabir Nagar which was registered as complaint case no. 39 of 2020 alleging therein that the appellants caused injury to the opp. party no. 2 complainant using filthy language and indicating caste based words. The statements of the opp. party no. 2 under section 200 Cr.P.C. and the witnesses under Section 202 Cr.P.C. were recorded and without perusing the entire material available on record the court illegally summoned the appellants under section 323 I.P.C. and 3(1) (r) and 3(1) (s) SC/ST Act, 1989 vide impugned order dated 21.11.2020.

From the statement under section 202 Cr.P.C of P.W.-1 Lal Chandra, it is clear that the appellants never caused any injury to the opp. party no. 2 nor they hurled caste based abuses to him but without examining the statements properly, the impugned order has been passed. The sanction under section 197 Cr.P.C. has also not been sought for. As the incident is said to have taken place in the police chauki which makes it clear that appellants were performing their official duties and if in discharge of their official duty they committed the alleged offence, then according to section 197 Cr.P.C. the Magistrate would take cognizance against them only after taking sanction of the government but no such sanction has been taken. The appellants neither caused injury to the opp. party no. 2 nor used filthy language or uttered caste related words against the opp. party no. 2. No case under the above mentioned sections is made out against them. There is no likelihood of their being punished. Thus, the impugned order is perverse, erroneous and unsustainable against weight of evidence available on record and bad in the eye of law, hence it is liable to be set aside.

Counter affidavit has been filed on behalf of the opp. party no. 2 and it is contended that he had filed an application under section 156 (3) Cr.P.C. stating therein that the appellants caused injury to him and also used filthy language and caste indicating words. This application was allowed by the court concerned and the appellants have been summoned under section 323 I.P.C. and 3(1)(r) and 3(1)(s) of SC/ST Act, 1989 vide order dated 21.11.2020. Except the present case there is no criminal history to the credit of the opp. party no. 2, hence the order passed by the lower court is well founded and does not need any interference.

Heard the learned counsel for the appellants, learned A.G.A. for the State and perused the record.

Learned counsel for the opp. party no. 2, despite sufficient service did not turn up.

If we go through the record in the application of the opp. party no. 2 dated 5.7.2020 for the very first time the fact came in the light that when the opp. party no. 2 Om Prakash went to the police chauki, the accused persons were already present there. Constable Ram Darash Yadava and chawki incharge Anirudh Singh hurled wild abuses. They beat him with kicks and blows and made him sit in police chawki for two days giving threat to implicate him in false cases. And on his request he was released only after taking his signatures on blank papers. On 5.8.2020, he filed a complaint on the same allegation.

If we go through the statement of the opp. party no. 2/ complainant under section 200 Cr.P.C., there is allegation against constable Ram Darash Yadav only that he hurled wild and caste based abuses and beat him with slaps and put him in the lockup. Next day i.e. after one day, after obtaining his signatures on blank papers he was released from the police chauki only after the order of chawki In charge Anirudh Singh. In the statement under section 202 Cr.P.C. witness Lal Chandra has stated that when the opp. party no. 2 went to police chawki, he was made to sit and next day he was released from there. Witness Amrit Chandra has only stated that Constable Ram Darash Yadav and Chawki Incharge Anirudh Singh hurled caste based abuses. Thus, there is vast contradiction between the allegation in complaint and the statements recorded under sections 200 and 202 Cr.P.C. Wherein in the complaint the allegation is on both appellants and it is said that he was made to sit over in police station for two days. In the statement recorded under section 200 Cr.P.C. the complainant / the opp. party no. 2 has made no allegation against chawki Incharge Anirudh Singh rather he stated that on the order of chawki Incharge Anirudh Singh he was released from the lockup. Here the allegation of hurling caste based abuses is against constable Ram Darash Yadav only. The allegations of beating with slaps and putting him in lockup are also against the same constable.

In the complaint it is said that he was made to sit for two days in police lockup and in the statements recorded under sections 200 and 202 Cr.P.C. the complainant and P.W.-1 Lal chandra respectively have stated that the complainant was made to sit in the police chawki for one day. No other allegation against any appellants is levelled there in the statement of P.W.-1 Lalchandra. In the statement of P.W.-2 Amrit Chandra also except hurling caste based abuses by the appellants, there is no other allegation. So the statement of the complainant is contradictory to the version of complaint. Both the witnesses also did not support the version of the complainant. Moreover, as both the appellants are the public servants, one is constable and another is chawki In-charge in the police station and it is admitted fact that both were present at police chawki i.e. on their duty place at the time of incident and misusing their post they are said to make the complainant sit in lockup for one / two days.

The sanction under section 197 Cr.P.C. was must for filing the complaint against these appellants which admittedly has not been taken by the complainant. From the record, it is also clear that on 17.6.2020 the appellant Anirudh Singh initiated a proceeding under section 107/116/151 Cr.P.C. against the both parties. Next day i.e. on 18.6.2020 Anirudh Singh Chauki In-charge did not find it proper to register the first information report on the application moved by the opp. party no. 2 complainant.

Hence being annoyed with these two incidents the opposite party no. 2 appears to have filed this fake complaint.

In view of what has been said and done above, leads to this irresistible conclusion that the complaint filed by the respondent no. 2 is the counterblast of the action taken by the appellants in discharge of their official duties and thus, no cognizance against them could be taken by the learned Magistrate without previous sanction under section 197 Cr.P.C. Therefore, the continuation of the criminal proceedings against them on the complaint of respondent no. 2 is abuse of process of the Court.

The appeal is, thus, allowed.

The order dated 21.11.2020 passed by Special Judge, SC/ST Act, Sant Kabir Nagar in Complaint Case No. 39 of 2020, Om Prakash Vs. Ram Kishun and others whereby the appellants have been summoned under section 323 I.P.C. and 3(1) (r) and 3(1) (s) SC/ST Act, police station Khalilabad District Sant Kabir Nagar is set aside to the extent of the appellants only.

Order dated:-4.12.2021

Gss