Achchhe Lal Yadav vs State Of U.P. And Another
2023 Latest Caselaw 15616 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:108606
 
Court No. - 81
 

 
Case :- CRIMINAL APPEAL No. - 4727 of 2023
 

 
Appellant :- Achchhe Lal Yadav
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Saroj Kumar Yadav
 
Counsel for Respondent :- G.A.,Deepak Singh
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Shri Saroj Kumar Yadav, learned counsel for the appellant, Shri Deepak Singh, learned counsel appearing for opposite party no.2 as well as learned A.G.A. for the State and perused the record.

The instant appeal under Section 14-A(1) of the SC/ST (Prevention of Atrocities) Act, 1989 has been filed by the appellant- Achchhe Lal Yadav with the prayer to set-aside the judgment and order dated 05.04.2023 passed by learned Special Judge, SC/ST (P.A.) Act, 1989, Jaunpur in Criminal Complaint Case No. 43 of 2021 (Lalman vs. Achchhe Lal and others), arising out of Case Crime No. 436 of 2019, under Sections 323, 504, 506 I.P.C. read with Section 3(1)(r) and (s) of SC/ST Act, Police Station Sarai Khwaja, District Jaunpur.

Learned counsel for the appellant has raised various submissions in order to show that the Special Court has committed manifest illegality in summoning the appellant to face trial without there being any material or evidence simply on the statement of the complainant and his four witnesses testified under Section 200 and 202 Cr.P.C.

Elaborating further, it is submitted that initially a first information report was lodged by the opposite party no.2/complainant levelling frivolous allegations against the appellant and his two sons and the allegations of that F.I.R. were thoroughly investigated by the investigating officer and a 'closure/final report' was ultimately submitted. However, on the application moved by the opposite party no.2 before the S.C./S.T. Commission, a decision was taken by the Commission to investigate the matter further and under the orders of the Magistrate of date 26.02.2020, further investigation under Section 173(8) Cr.P.C. was directed.

It is also submitted that even after further investigation the allegations of the F.I.R. were not found truthful and a final report was again submitted by the investigating officer mentioning in so many words that the opposite party no.2 is a 'drunkard' and appears to have sustained injuries by falling under the state of intoxication. Thereafter, the protest petition was filed by the opposite party no.2, which was treated as complaint and consequently the impugned order has been passed.

While referring to many legal reports, it was submitted that the duty of the Special Court at the stage of summoning wash to see the probability of the incident and when the allegations of the first information report has been investigated twice, the conclusions drawn by the investigating officer may not be lightly brushed aside and, thus, patent illegality has been committed by the Special Court in passing the summoning order.

Per contra, learned counsel for opposite party no.2 submits that at the stage of summoning only a primafacie case is required to be seen and, moreover, the cognizance has been taken by the Special Court under Section 190(1)(a) of the Cr.P.C. and in this regard the conclusions drawn by the investigating officer or the material collected by the investigating officer is not relevant. Thus, no illegality has been committed by the Special Court.

Learned A.G.A. has also supported the impugned order.

Having heard learned counsel for the parties and having perused the record, there is no doubt that having regard to the allegations levelled in the first information report the matter has been investigated and further investigated and on both the occasions 'final report/closure report' was filed by the investigating officer. Statement of some of the independent witnesses were also recorded by the investigating officer, who have in so many terms have stated that the opposite party no.2 is a 'drunkard' and might have sustained injuries by falling in intoxicating state. Thereafter protest petition appears to have filed, which has been treated as complaint and ultimately the impugned order has been passed.

It is also to be recalled that in the injury report of the opposite party no.2, four visible injuries have been noticed by the doctor of the nature of abraded contusions and contusion and it is on the material placed before the Special Court and having considered the statement of the complainant/opposite party no.2 and his four witnesses namely Dashrath, Vishun, Vinod Kumar and Ratan Lal, a primafacie case was found by the Special Court and by passing the impugned order the appellant has been summoned under Sections 323, 504, 506 I.P.C. and Section 3(1)(r) and (s) of SC/ST Act.

There is no need to cite law after law in order to demonstrate which is well-settled that at the stage of summoning a meticulous exercise of appreciation of evidence is not required and the duty of the trial Court is to assess the sufficiency of grounds/material to proceed further. Certainly, the material required for summoning may not be as strong, as is required at the stage of culmination of trial for the purpose of conviction.

In this regard, the law laid down by the Hon'ble Supreme Court in the following cases may be recalled:-

In G.H.C.L. Employees Stock Option Trust VS. India Infalin Ltd. MANU/SC/0271/2013 : 2013(4) SCC 505, It was emphasized by the Honble Supreme Court that summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. 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 Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record.

In MANU/SC/1090/1998 : AIR 1998 S.C. 128, M/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others held as under:-

"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. 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. He has examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

In MANU/SC/0173/1976 : AIR 1976 SUPREME COURT 1947, Smt. Nagawwa v/s Veeranna Shivalingappa Konjalgi & others, It is held by The Apex Court that "It is well settled by a long catena of decisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceedings against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merit or de-merits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one."

"4. It would thus be clear from the two decisions of this Court that the scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited - limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact it is well settled that in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not."

"It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of an inquiry under Section 202 which culminates into an order under Section 204. Thus in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) Where the allegations made in the complaint or the statement of the witness recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like."

Simultaneously, a care and caution is required to be taken by the trial Court in order to safeguard the interest of the innocent persons, as summoning in a criminal trial is a serious matter and no innocent person should be summoned to bear the agony of criminal trial, as even after acquittal the criminal trial may leave a scar on the reputation of such innocent person.

Be that as it may, in the considered opinion of this Court, despite the filing of final report twice, after investigation and further investigation, the parameters pertaining to the summoning in a complaint case under which the cognizance has been taken by the Special Court were present and in this regard no illegality appears to have been committed by the Special Court. Thus the request of the appellant, so far as the same is concerned with quashing of the summoning order is hereby refused.

At this stage, it vehemently submitted by the learned counsel for the appellant that despite submission of the 'final report' twice by the investigating agency, the appellant is having apprehension that when he will appear before the trial Court/Special Court for the purpose of securing regular bail, the disposal of his bail application may take sometime and in the meantime he may be confined in the prison, which would not only jeopardize his personal liberty but also bring a bad name to his otherwise good reputation. Thus appropriate directions be given to the trial court for expeditious disposal of their bail application in the light of law laid down by Hon'ble the Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and others : (2021) 10 SCC 773 and Aman Preet Singh Vs. C.B.I. through Director : 2021 SCC OnLine SC 941.

It is to be observed, having regard to the peculiar facts and circumstances of the case that pertaining to the allegations of the F.I.R., which have been repeated in the protest petition, which has been treated as complaint by the Special Court, 'final report/closure report' has been filed by the investigating agency twice. Thus, there was no necessity felt by the investigating officer to arrest the appellant/accused person during the course of investigation and it may be safely inferred that appellant might have been cooperating in the investigation. Thus, when the allegations of the F.I.R. has been investigated and further investigated and the investigating agency has not found any necessity for detention of the appellant in prison, there seems no necessity so far as the Special Court is concerned to confine the appellant in prison that too only for the purpose of considering his plea of bail.

Thus, it is provided that if appellant appears/surrenders before the Special Court within 20 days from today and moves an appropriate regular bail application, it would be obligatory on the part of the Special Court to consider the plea of bail of the appellant, having regard to the provision of interim bail and will dispose of the same keeping in view the law laid down by the Hon'ble Supreme Court in Satender Kumar Antil (Supra) and Aman Preet Singh (Supra).

It is further observed that the Special Court at the stage of considering the plea of bail of the appellant shall pay due regard to the fact that allegations of the F.I.R. has been investigated twice and on both the occasions 'final report/closure report' has been filed in favour of the accused persons/appellant.

Order Date :- 18.5.2023

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