Ashwini Kumar And Another vs State Of U.P. And Another
2023 Latest Caselaw 2896 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 18.01.2023
 
Delivered on  28.01.2023
 
Court No. - 88
 

 
Case :- CRIMINAL APPEAL No. - 4664 of 2022
 

 
Appellant :- Ashwini Kumar And Another
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Munna Lal,Amar Jeet,Kiran Bala,Pramod Kumar Srivastava
 
Counsel for Respondent :- G.A.,Yogesh Kumar Mishra
 

 
Hon'ble Raj Beer Singh,J.

1. Heard learned counsel for the appellants, learned counsel for the respondent No.2/informant and learned AGA for the State.

2. This appeal has been preferred by the appellants under section 14- A (1) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred as SC/ST Act) for quashing of charge-sheet dated 08.04.2022 and entire proceedings, including the summoning order dated 30.04.2022, passed by the learned Special Judge, (SC/ST Act), Allahabad, in S.T. No.210 of 2022 (State vs. Ashvini Kumar Yadav and others), Case Crime No.402 of 2018, under Sections 323, 504, 506, 452, 354 (Kha) IPC and section 3(2)va of SC/ST Act, P.S. Tharwai, District Prayagraj.

3. It has been argued by learned counsel for the appellants that the impugned order is against facts and law and thus, liable to be set aside. It has been argued that the first information report of this case was lodged by respondent No.2 making false and baseless allegations. In fact regarding the incident of 25.11.2018, the co-accused Radheshyam Yadav, who is father of appellants, has lodged a first information report against the respondent No.2 and her family members on 25.11.2018, under Sections 323, 504, 506, 324 IPC, and in that incident, Radheshyam Yadav has sustained serious injuries and in that matter after investigation police have submitted charge-sheet. The first information report of this case has been lodged by respondent No.2 as a counter-blast to the said case. The alleged incident has been shown of 25.11.2018 but first information report has been lodged on 04.12.2018 and no explanation for delay in first information report has been shown. It is further submitted that after investigation, the investigating officer found the allegations false and prepared a final report but the concerned Superintendent of Police has directed to investigate the matter further and for recording of statement of complainant under Section 164 CrPC and thereafter, the charge-sheet has been submitted against the appellants. The Superintendent of Police has no power to make such direction for further investigation. Learned counsel has referred statements of witnesses including that of Ramchandra Harijan, who is brother-in-law of the complainant, and he has denied the incident and in fact he has stated that the complainant and her family members have assaulted the accused Radheshyam Yadav and others. Similarly other witnesses namely, Mullu Yadav and Santosh Kumar have also not supported the version of complainant. Further in alleged incident, no-one has sustained any injury. It was also pointed out that at the time of alleged incident, co-accused Ashwani Kumar was present at his school, where he is posted as teacher. Referring to the facts of the matter, it was submitted that no prima facie case is made out against appellants and thus, the impugned cognizance/summoning order dated 30.04.2022 as well as charge-sheet and the proceedings of the case are liable to be quashed.

4. Learned counsel for respondent No.2 and learned AGA have opposed the appeal. Learned counsel for respondent No.2 submitted that in the first information report, the allegations have been levelled that all the accused persons, including appellants, have abused the complainant by using caste indicative words and they have assaulted her and outraged her modesty and that version is supported by the complainant in her statement under Section 164 CrPC. It was stated that in fact earlier investigating officer has prepared final report without getting recorded statement of complainant under Section 164 CrPC and thus, the concerned Superintendent of Police has directed for recording statement of complainant under Section 164 CrPC and for further investigation. Learned counsel for the respondent No.2 has referred statements of one Prathva Pal, Chandrabhan and Banwari, who have supported the version of complainant in their statements under Section 161 CrPC. Referring to statement of complainant and of witnesses, it was submitted that a prima facie case is made out against appellants and that there is no illegality or perversity in the impugned summoning order.

5. I have considered rival submissions and perused record.

6. It is well settled that at the stage of cognizance and at the stage of issuing process to the accused, the Magistrate / Court has to be satisfied that there is sufficient ground for proceeding. The court has to consider whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons, particularly when the cognizance is being taken on the basis of report filed by the police after investigation, under section 173(2) Cr.P.C. In S.K. Sinha, Chief Enforcement Officer v. Videocon International Limited and Ors. MANU/SC/7011/2008 : (2008) 2 SCC 492, it was held that taking cognizance has no esoteric or mystic significance in criminal law and it connotes that a judicial notice is taken of an offence, after application of mind. Taking of cognizance is thus a condition precedent for holding a valid trial. In M/s. India Carat Pvt. Ltd. Vs. State of Karnataka MANU/SC/0349/1989: 1989(26) ACC 280 (SC), the Supreme Court has observed that Magistrate can take into account statements of witnesses examined by Police during investigation, take cognizance of offence complained of, order to issue a process to accused.

7. In Mehmood Ul Rehman v. Khazir Mohammad Tunda and others (2015) 12 SCC 420, it was held as under:-

"21. Under Section 190(1)(b) Cr.P.C, the Magistrate has the advantage of a police report and under Section 190(1)(c) Cr.P.C., he has the information or knowledge of commission of an offence. But The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, under Section 190(1)(a) Cr.P.C., he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) Cr.P.C. The complaint is simply to be rejected."

8. Thus, in so far as taking cognizance based on the police report is concerned, the Magistrate/ court has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. For issuance of process against the accused, only it has to be seen whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defenses. Likewise, 'possible defences' need not be taken into consideration at the time of issuing process unless there is an ex- facie defence such as a legal bar or if in law the accused is not liable. In this connection a reference may also be made to case of Nupur Talwar v. Central Bureau of Investigation and another (2012)11 SCC 465.

9. The legal position on the issue of quashing of criminal proceedings is also well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the charge-sheet may be quashed. In well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases.

10. In the instant matter, perusal of record shows that the respondent No. 2/ informant has lodged first information report against appellants, alleging that on 30.11.2018 at about 05.00 PM, the appellants / accused came at her house and they abused her by using caste indicative and obscene words and uttered that she is not allowing her mother-in-law to compromise the earlier dispute. She has further alleged that they have thrown her on the ground and assaulted her and that they have also snatched her clothes and made her semi naked. The informant further alleged that after incident, police was informed at number 100 but by the time the police came, the accused persons have already gone from there. She has supported her version in her statement under section 164 CrPC. In view of allegations made in the first information report, statement of informant under section 164 CrPC and material collected during investigation, it can not be said that no prima facie case is made out. The submissions raised by learned counsel for the applicants call for determination on questions of fact which may be adequately adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial court. In view of the material on record, at this stage it can also not be held that the impugned criminal proceeding are manifestly attended with mala fide and maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. This Court can not hold a mini-trial at this stage. In case of State of A.P. v. Goloconda Linga Swamy & Anr., AIR 2004 SC 3967, the Apex Court held that it is the material collected during the investigation and evidence led in court which decides the fate of the accused person and the allegations of malafides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused persons, is being purposely avoided by this Court for the reason, lest the same might cause prejudice to either side during trial. Considering the material on record and position of law as laid down in case of 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, it can not be said that no prima facie case is made out against the accused-appellants and thus, no case for quashing of impugned charge-sheet or proceeding or summoning order is made out and resultantly the appeal is liable to be dismissed.

11. However, considering facts of the matter, it is directed that in case appellants appear/ surrender before the Court below within a period of three weeks from today and apply for bail, their bail application shall be considered and decided expeditiously in accordance with settled law including the law laid down in case of Satender Kumar Antil Vs. CBI 2022 Live Law (SC) 577.

12. With aforesaid observations, the appeal is dismissed.

Order Date :- 28.01.2023

Neeraj