Allahabad High Court
Birendra Singh And Another vs State Of U.P. And Another on 18 January, 2021
Bench: Umesh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment Reserved on: 05.11.2020.
Judgment Delivered on: 18.01.2021.
Court No. - 65
Case :- CRIMINAL APPEAL No. - 5500 of 2019
Appellant :- Birendra Singh And Another
Respondent :- State of U.P. and Another
Counsel for Appellant :- Birendra Singh
Counsel for Respondent :- G.A.,P. Dixit,P. Dixit
Hon'ble Umesh Kumar,J.
This criminal appeal under Section 14-A (2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant for setting-aside summoning order dated 7.1.2020 passed in Complaint Case No. 47 of 2018 (Jiya Lal Vs. Shani and others) under Sections 147, 323, 452, 504, 506 I.P.C read with Section 3(2) (Vka) and 3(1) Dha of Prevention of Atrocities Act 1989 (Amendment 2015), arising out of Case Crime No. 127 of 2016, Police Station Thariyaon, district, Fatehpur.
Necessary facts, in brief are that on 13.03. 2016 at about 6.00 PM, the son of informant-Jiya Lal and Shane Gupta had some quarrel in respect to touching of cycle and on resistance, using caste denoting words, he was rebuked, then called the appellants who entered in the house of informant and beaten his son . The women of the family and others saved his son from the clutches of the accused-appellants; that FIR of the present offence was lodged on 5.5.2016 on the direction/order passed by the Secretary, Home, Government of Uttar Pradesh at Case Crime No. 127 of 2016 as mentioned above; the local police investigated the case and after investigation, submitted Final Report dated 8.6.2016; that thereafter on the application of the informant, under the orders of Superintendent of Police, Fatehpur, matter was re-investigated; that second time, the Investigating Officer also submitted final report, upon which the opposite party no.2(informant) moved protest petition before learned Special Judge,(SC/ST) Act, Fatehpur ; that learned Special Judge treating the petition as Complaint, recorded statements under Section 200 and 202 Cr.P.C.; that learned Special Judge being prima facie satisfied that offence against the appellants are made out from the evidence available on the record, has summoned the appellants by passing a detail and reasoned order dated 03.08.2019. Aggrieved, the appellants have preferred the present appeal.
Submission of learned Counsel for the appellants is that the learned Court below has erred in passing the order summoning the accused/appellants without applying judicial mind and thus, the impugned order is illegal and suffers from infirmity. The false implication of the appellants has been made due to political rivalry in the village and for that reason, police after investigation submitted final report on 8.6.2016 after finding that the false FIR was lodged due to Gram Pradhan election enmity. Learned Counsel argued that from the evidence, it is clear that no such incident has ever taken place and a false and malicious FIR was lodged. However, on perusal of Grounds of appeal, only factual aspects of the matter has been mentioned and no legal question worth consideration is raised.
Learned AGA has submitted that at the stage of summoning the accused, detail scrutiny of the evidence is not required. Only, prima- facie evidence against the accused persons is to be considered and the Magistrate cannot scrutinize the evidence in the capacity of trial court. Further the defence version can also not to be looked into at the stage of summoning. On this ground, it is submitted that the learned Magistrate has passed the impugned order considering the evidence available on record after recording evidence under Sections 200 and 202 Cr. P.C.
In view of aforesaid, the contention of learned AGA appears to be correct. At the stage of summoning, learned Special Judge is required to apply his mind only with a view to take cognizance of the offence, or, in other words, to find out whether a prima facie has been made out for summoning the accused persons or not. In Vijay Tiwari Vs. State of U.P. 1999 Crl. L J. page 1037, this Court has observed in para 4 as under;
" It is also well settled that at the stage of summoning, the accused has no locus standi. Where there is a prima facie evidence, even though the person charged may have a defence, the matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused.
In Thakur Singh Vs. State of U.P. 2002 Crl.L.J. page 131, this Court has observed that in revision too, the defence plea cannot be looked into at the stage of summoning order. In Smt. Rakesh Devi Vs. State of U.P. 2002 Cr.L.J. page 1225, this Court has observed that the Magistrate is not required to mention the documents which he considered for satisfying himself to take cognizance. He need not pass a speaking order. In Fiona Shrikande Vs. State of Maharashtra AIR 2014 SC 957, the Apex Court has observed that the Magistrate has only to see whether allegations made in complaint are prima facie sufficient to proceed against the accused. He need not to enquire into merits or demerits of the case.
In view of the discussion made above, perusal of the order impugned and materiel available on record, it cannot be said that there was no prima facie evidence against accused to proceed with the case. The learned Special Judge after considering the evidence and statement under Sections 200 and 202 Cr.P.C. found that there was sufficient ground for proceeding against accused/appellants.
I do not find least error in the impugned order and have no hesitation in endorsing the view taken by the learned Special Judge. Learned Counsel for the appellant has not been able to point out any illegality or infirmity in the impugned order.
In view of above, the prayer for setting-aside the summoning order is hereby refused and the appeal is hereby dismissed.
Needless to state that in the eventuality of filing any bail application by the applicant-appellants before the trial Court, it is expected from the trial Court to decide the same expeditiously in accordance with law after considering all the aspects of the matter.
Since the case has to be tried, I desist myself to comment any further on the merits of the matter. It is made clear that observation, any, if has come is only for disposal of this appeal and that will not influence the Trial Court while deciding the case.
Order Date :- 18.1.2021
Shahid.
