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Prem Kumar Singh & Anr. vs State Of U.P. & Anr. on 19 July, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

?Court No. – 13

Case :- CRIMINAL APPEAL No. – 148 of 2019

Appellant :- Prem Kumar Singh Anr.

Respondent :- State Of U.P. Anr.

Counsel for Appellant :- Sushil Kumar Singh

Counsel for Respondent :- Govt. Advocate,Uttam Kumar Awasthi

Hon’ble Mohd. Faiz Alam Khan,J.

Rejoinder affidavit filed on behalf of the appellants is taken on record.

Heard learned counsel for the appellants, learned AGA for the State as well as learned counsel for the respondent no.2 and perused the record.

This criminal appeal under Section 14-A (1) of SC/ST ( P.A.) Act, 1989 (Amended upto date 2016) has been filed by the appellants against the order dated 06.09.2018, passed by Seventh Additional Sessions Judge/ Special Judge, SC/ST (P.A.) Act, Hardoi in relation to special complaint case no. 376 of 2017 (Kajal Verma Vs. Munna Singh and others), whereby the appellants have been summoned to face trial for offences under Sections 323, Section324, Section504, Section506, Section376-D IPC and Section 3(2) (v) of SC/SectionST Act.

Brief facts necessary to dispose of this appeal, as emerges from the record are that an application under Section 156(3) Cr.P.C. was moved by the respondent no.2 (Prosecutrix) against the appellants (accused persons) before Special Court SC/SectionST Act, Hardoi alleging therein that the appellants are influential persons and having good access in the local police station. On the date of occurrence i.e. 29.6.2017 at 9.30 A.M., when the husband of the prosecutrix had gone to plough his field the appellants illegally entered her house and outraged her modesty and on her resistance appellant Bhagwan Bux Singh took out a knife and threatened to kill her. The appellant Munna Singh asked co-appellant Prem Kumar Singh to keep a vigil outside and thereafter appellants Munna Singh and Bhannu committed rape on her. When she tried to escape appellant Bhagwan Bux Singh assaulted her with knife on her back whereby she sustained grievous injury. It is further stated that all appellants assaulted her and on hearing her Cries, her husband Kishan Pal Singh, Lal Bahadur Singh and other villagers came at the scene and after seeing them the appellants fled away from the scene.

It is also stated that she went to the Police Station in the same night but her report was not lodged in the police station due to the influence of the appellants. She got herself medically examined at Hardoi and moved an application to the Superintendent of Police and District Magistrate, Hardoi but nothing had been done.

The above mentioned application of the prosecutrix was treated as complaint by the Magistrate and after recording the statement of the complainant/ prosecutrix under Section 200 Cr.P.C. and her witnesses, namely, P.W. -1 Kishan Pal Singh and P.W.2- Lal Bahadur Singh under Section 202 Cr.P.C. the trial court vide order dated 6.9.2018 summoned the appellants Munna Singh, Prem Kumar Singh, Bhagwan Singh and Bhannu to face trial under Sections 323, Section324, Section504, Section506, Section376-D IPC and under Sections 3(2) (5) of SC/SectionST Act.

The appellants challenged this summoning order before this Court, by filing an application under Section 482 Cr.P.C. No.6881 of 2018, which was disposed of by a Co-ordinate Bench of this Court, vide order dated 20.12.2018 by passing following order:-

“The submissions made by the applicants’ learned counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. I do not find any justification to quash the complaint or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.

The prayer for quashing the same. is refused as I do not see any abuse of the court’s process either.

Accordingly, the present application is dismissed.”

Thereafter instant appellants Prem Kumar Singh and Munna Singh has filed instant appeal whereby they have challenged the summoning order dated 6.9.2018, whereby the appellants Prem Kumar Singh and Munna Singh have been summoned along with other appellants to face trial as discussed herein-above.

While assailing the summoning order of the court below learned counsel for the appellants submits that the instant complaint case is nothing but a counter blast of an earlier criminal case, which was lodged by Smt. Sunita who is wife of co-accused Bhannu, at Case Crime No. 79 of 2017, under Sections 376, Section506 IPC against Malikhe Singh and Vijay Kumar.

It is next submitted that accused of above mentioned case Vijay Kumar Singh is the brother of witnesses of instant case, namely, Lal Bahadur Singh and in that case accused persons Vijay Kumar Singh and Malikhe Singh after being charge sheeted, have been released on bail by this Court after remaining in prison for seven months and to take revenge this false case has been cooked up.

It is further submitted that allegations of the complaint are patently absurd and could not be believed in the back ground that the prosecutrix is in a habit of making false and frivolous complaints of similar nature. By referring to the complaints allegedly made by victim against one Ram Ratan Singh, a copy of which has been placed at page no. 50 as well as another complaint, reference of which has been placed at page no. 51 of the petition, against Vishnu Narain, and complaint dated 2.6.2018 made against appellant no.2 Munna Singh and co-accused Bhagwan Bux Singh pertaining to a false incident dated 1.6.2018, he submits that the prosecutrix is habitual of making false complaints, therefore the court below has materially erred in accepting her testimony as gospel truth.

It is further submitted that summoning in a criminal trial is a serious matter and the same should have been done with great care and caution and the accused persons of a criminal trial should not be summoned only on the basis of the statement of complainant and two witnesses. The Magistrate or the Judge summoning the persons to face criminal trial is obliged to consider the allegations in the light of probability and ingredients of the offences alleged and the conduct of the complainant. Therefore the order dated 6.9.2018, where by the appellants have been summoned to face trial, is liable to be set aside.

Learned AGA while referring to the order passed by this Court in a proceeding under Section 482 Cr.P.C. filed by the appellants submits that since the appellants have already availed a remedy and their contention has not been accepted by this Court, they can not challenge the same order again at a different forum, therefore their appeal is not maintainable and is liable to be dismissed on this score alone.

Learned counsel for the respondent no.2 overwhelmingly submits that there is nothing illegal in the order of the court below as at the stage of summoning trial court is not obliged to appreciate the evidence produced before the trial court as is required for conviction. The sufficiency of evidence desired at the stage of summoning is only with regard to proceed further in the case and only a prima facie material / evidence is required. While referring to the medical reprot of the prosecutrix available on record, he submits that three injuries are alleged to have been suffered by the prosecutrix, out of which two injuries are contusions at scapula and one injury is incised wound which was also sustained on right scapular region, which was caused by a sharp edged object. Therefore the medical evidence available on record corroborates the ocular evidence produced by the complainant and her two witnesses before the court below and this was sufficient for summoning the appellants and other co-accused persons to face trial.

He further submits that so far as the allegations of making frequent complaints of similar nature in the past by complainant is concerned the same could not be a ground to discard the instant complaint specially in the backdrop that ocular evidence finds support from the medical evidence and the injuries sustained by the complainant could not be self inflicted, therefore, there is no illegality in the summoning order of the subordinate court.

At this juncture it is fruitful to have a look so far as the law pertaining to summoning of the accused persons in a complaint case is concerned and the perusal of the case law mentioned herein below would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course.

In C.H.C.L.Employees Stock Option Trust VS. India Infalin Ltd. 2013(4) SCC 505 It was empasised 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 AIR 1998 S. C . 128 , SectionM/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 to 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 scrutinise 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 primafacie committed by all or any of the accused.”

In AIR 2012 SUPREME COURT 1747,SectionBhushan Kumar and Anr v. State (NCT of Delhi) and Anr” the Apex Court has held that “10. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued.”

In 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 primafacie 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.”

In AIR 2015 SUPREME COURT 923,Sunil Bharti Mittal v. Central Bureau of Investigation (Three Judges Bench) Hon,ble Apex Court held as under:

“45. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This Section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e., the complaint, examination of the complainant and his witnesses if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.

46. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.

47. However, the words “sufficient grounds for proceeding” appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accusedaand formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against accused, though the order need not contain detailed reasons. A fortiori, the order would be bad-in-law if the reason given turns out to be ex facie incorrect.”

In AIR 2012 SUPREME COURT 1921,SectionNupur Talwar v. Central Bureau of Investigation and Anr it is propounded by the Hon’ble Supreme Court that “Moreover, this Court has held in SectionSmt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors. [(1976) 3 SCC 736 :(AIR 1976 SC 1947)] thatwhether the reasons given by the Magistrate issuing process under Section 202 or 204 SectionCr.P.C. were good or bad, sufficient or insufficient, cannot be examined by the High Court in the revision. All that the High Court, however, could do while exercising its powers of revision under Section 397 Cr.P.C when the order issuing process under Section 204 Cr.P.C. was under challenge was to examine whether there were materials before the Magistrate to take a view that there was sufficient ground for proceeding against the persons to whom the processes have been issued under Section 204 Cr.P.C “.

Coming to the facts fo the instant appeal, perusal of record shows that the complainant in his complaint has levelled specific allegations against the accused persons of committing rape with her and also of assaulting her. The specific allegation of giving assault by knife has been made against co-accused Bhagwan Bux Singh. This allegations of complaint has been corroborated by the prosecutrix by her statement recorded under Section 200 Cr.P.C. I have also perused the statement of the witnesses of the complainant, namely, P.W. 1 Kishan Lal Singh and P.W. 2- Lal Bahadur Singh. These two witnesses have also supported the version of the complaint as well as have corroborated the statement of the prosecutrix. There is a medical report of the prosecutrix available on record, which shows that she sustained two contusions and one incised wound at scapula region as well as one contusion at right hand. Apart from complaining of pain in abdomen and lower back. The medical report is of dated 20.6.2017 at 5.10 P.M. The incised wound is muscle deep and prima faice does not appear to be self inflicted, therefore the material which was made available before the trial court in the shape of testimony of prosecutrix, her witnesses as well as medical report wherein one injury is stated to have been caused by a sharp edged weapon, prima facie this much of evidence appears to be sufficient for summoning of the accused persons.

Keeping in view the aforesaid settled legal position that at the stage of summoning the material or evidence produced by the complainant is to be seen only for the purpose of proceeding further and also that at the stage of summoning meticulous examination of the evidence or material produced by the complainant is not required and only the character and nature of the evidence for the purpose of proceeding further is to be seen, I do not find any substance in the appeal. There appears no illegality in the summoning order dated 6.9.2018 of the court below whereby the appellants and other co-accused persons have been summoned to face trial.

In this view of the matter, the appeal is devoid of merit and is dismissed and order dated 06.09.2018, passed by Special Court is affirmed.

Since the appellants appear to have not obtained bail in the instant matter and keeping in view the entirety of facts and circumstances of the case, it is directed that in case the appellants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for ;bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon’ble Apex Court reported in 2009 (3) ADJ 332 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.

For a period of 30 days form today or till the surrender of appellants before trial court, whichever is earlier, no coercive steps shall be taken against the appellants in the above mentioned case.

Order Date :- 19.7.2019

Muk

 

 

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