Vishnu Chandra Dubey @ Vishnu ... vs State Of U.P. And Another
2021 Latest Caselaw 8281 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 77
 

 
Case :- CRIMINAL APPEAL No. - 136 of 2021
 

 
Appellant :- Vishnu Chandra Dubey @ Vishnu Chandra Dwivedi. 
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Vinay Kumar Tripathi
 
Counsel for Respondent :- G.A.,Anand Kumar
 

 
Hon'ble Anil Kumar Ojha,J.

Counter affidavit filed by respondent no.2 and supplementary affidavit filed by appellant, are taken on record.

Heard Sri Vinay Kumar Tripathi, learned counsel for the appellant, Sri Anand Kumar, learned counsel for the informant, learned A.G.A. for the State and perused the record.

Challenge in this criminal appeal is the summoning order dated 13.2.2020 passed by learned Special Judge, SC/ST Act, Robertsganj, Sonbhadra in Complaint Case No. 73 of 2018 (Urmila Devi Vs. Vijay Dubey & Another) P.S.- Shahganj, District-Sonbhadra, whereby the learned Special Judge, SC/ST Act, Robertsganj, Sonbhadra has summoned the appellant Vishnu Chandra Dubey under Section 420, 467, 468, 471, 504 I.P.C., and Section 3(1)X SC/ST Act, to face the trial.

Brief facts giving rise to this present appeal are that respondent no.2 Urmila Devi filed a complaint against opposite parties Vijay Dubey @ Bablu Dubey and Vishnu Chandra Dubey under Section 419, 420, 467, 468, 471 and 3(1)X SC/ST Act, P.S.- Shahganj, District- Sonbhadra, stating therein that the complainant Urmila Devi is a poor and illiterate person. She belongs to Scheduled Caste (Chamar). The Village Pradhan Vijay Dubey @ Bablu Dubey assured the husband of the complainant to grant lease to 0.200 Hectre (2 Biswa). Believing the Village Pradhan, the husband of the complainant paid Rs. 43,000/- to Village Pradhan in 2011 as Government fee. On 17.6.2011, complainant got lease from Village Pradhan Vijay Dubey @ Bablu Dubey and The then Lekhpal Vishnu Chandra Dubey permitted the complainant to construct a hut over the lease land. Village Pradhan allotted Indira Awash by taking Rs. 10,000/-. It has been stated in the complaint that Village Pradhan Vijay Dubey @ Bablu Dubey and The then Lekhpal Vishnu Chandra Dubey insulted the complainant and her husband by using filthy language naming their caste. It has further been submitted in the complaint that village Pradhan Vijay Dubey @ Bablu Dubey and The then local Lekhpal Vishnu Chandra Dubey committed fraud with complainant and her husband.

Statements of complainant Urmila Devi under Section 200 Cr.P.C. and statement of P.W.-2 Naresh were recorded. After preliminary inquiry, learned Special Judge, Robertsganj, Sonbhadra summoned the appellant Vishnu Chandra Dubey and Vijay Dubey @ Bablu Dubey to face trial under Section under Section 420, 467, 468, 471, 504 I.P.C. and Section 3(1)X SC/ST Act.

Being aggrieved by the aforesaid summoning order dated 13.2.2020, the appellant Vishnu Chandra Dubey has preferred this appeal under Section 14A(1) SC/ST Act.

Learned counsel for the respondent no.2 Urmila Devi raised preliminary objection that this appeal is not maintainable before this Court. Only petition under Section 482 is maintainable against the summoning order dated 13.2.2020.

Learned counsel for the appellant opposed the above contention and submitted that appeal against the impugned order dated 13.2.2021 is maintainable under Section 14A(1), the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The provisions of Section 14A(1) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are as follows:

"Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall lie, from any judgment, sentence or order, not being an interlocutory order, of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law."

Perusal of the aforesaid provision clearly shows that an appeal shall lie, from any judgment, sentence or order; not being an interlocutory order, of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law.

The impugned summoning order dated 13.2.2020 is within the purview of order mentioned under Section 14A(1)

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Hence, it is held that present appeal is maintainable under Section 14A(1) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Learned counsel for the appellant submitted that impugned summoning order dated 13.2.2020 is against the face of evidence and without application of judicial mind. Alleged occurrence took place on 12.7.2014, whereas present appellant Vishnu Chandra Dubey @ Vishnu Chandra Dwivedi was transferred to Tehsil Robertsganj vide order dated 22.6.2013. There is no role of the appellant in the allotment of Indira Awash. Further submitted that Patta bearing Gata No. 67 area 0.200 Hectare has been allotted to the complainant for the purposes of plantation and any construction over aforesaid land was restricted by the terms and conditions of the order of SDM, Gorawal dated 17.6.2011. Complainant illegally raised construction on the land which was allotted for plantation. Dispute is purely of civil nature. Witnesses who have given statement under Section 202 Cr.P.C. are family members of the complainant and interested witnesses. Appellant has been falsely implicated.

Per contra, learned counsel for respondent no.2 Urmila Devi opposed the above contentions and submitted that evidence of complainant and witnesses cannot be meticulously examined. At this stage, Court has to see whether there is sufficient ground for proceeding.

"In Fiona Shrikhande v. State of Maharashtra and another AIR 2014 Supreme Court page 957, the Hon. Apex Court held that law as regards issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint. In Nagawwa v. Veeranna Shivalingappa Konjalgi and others (1976) 3 SCC 736 : (AIR 1976 SC 1947), this Court held that once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complaint, without at all adverting to any defence that the accused may have."

Thus, from the above authority of the Apex Court, it is clear that Court has to see whether there is sufficient ground to proceed against the accused.

So far as facts of the present appeal are concerned, complainant Urmila Devi has stated in her statement under Section 200 Cr.P.C. as follows:

"????? ??? ????? ??? ?? ???? ??? ?? ????? ???? ??? ???? ?????? ?? ?? ?????? ???? ?? ????? ???? ?? ????? ???? ????? ???? ?? ?? ?????????? ?? ????? ?? ??? ??? ?? ?? ?????? ?? ???? ?????? ????? ?? ??? ???? ??? ?????? ?? ? ?????? ????? ????? ?? ???? ? ???? ??? ?? ??? ?? ?? ???? ??????? ??????? ????? ???? ?? ???? ???? ?? ??? ?? ?? ????? ??????? ??? ????? ?? ??? ????? ?? ??? ????? ??????"

From above statement of complainant Urmila Devi, it is evident that appellant Vishnu Chandra Dubey @ Vishnu Chandra Dwivedi along with co-accused Vijay Dubey @ Bablu Dubey hurled abuses and insulted by naming the caste of the complainant and her husband.

Witness Naresh has also supported the averments made in the complaint against the appellant.

Thus, from the evidence available on record, prima facie case to proceed further is made out against the appellant Vishnu Chandra Dubey @ Vishnu Chandra Dwivedi.

Learned counsel for the appellant further submitted that the appellant was not working in the complainant's Tehsil as he was transferred to some other Tehsil, a fact which has been denied in the counter affidavit. Learned counsel for respondent no.2 has also drawn attention towards para 10 of the counter affidavit wherein it has been mentioned that disciplinary proceedings were initiated against the appellant. Charge was proved and thereafter he was terminated from service.

The upshot of the above discussion is that appeal against impugned summoning order under Section 14A(1)of SC/ST Act, is maintainable and there is sufficient ground to proceed against the appellant.

The impugned summoning order dated 13.2.2020 passed by Special Judge, SC/ST Act, Robertsganj, Sonbhadra is within four-corners of law.

Appeal has no merits and is liable to be dismissed.

Accordingly, appeal is dismissed.

Order Date :- 20.7.2021

CS/-