Dismissed

Mohan Kushwaha and 7 Others v. State of U.P. and Another

Allahabad HC27 Mar 2018A482/8206/2018

Case brief

AI extract

What is this about?

In a Section 482 application to quash proceedings regarding an assault under IPC and SC/ST Act, the High Court declined to pass an ex parte order. Instead, it directed the applicants to file a discharge application specifically challenging the offence under Section 3(2)(va) of the SC/ST Act while refraining from coercive action for two months.

What did the court decide?

Applicants directed to move for discharge under Section 3(2)(va) of SC/ST Act within one month; no coercive action for two months.

Mohan Kushwaha and 7 Others Vs State of U.P. and… — Criminal Trial and Appeal | Allahabad HC (2018)

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Court No. - 52

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Case :- APPLICATION U/S 482 No. - 8206 of 2018

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Applicant :- Mohan Kushwaha And 7 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Pradeep Kumar Rai Counsel for Opposite Party :- G.A.

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Hon'ble Rajul Bhargava,J.

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Heard Sri Pradeep Kumar Rai, learned counsel for the applicants, learned AGA for the State and perused the record.

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This application under Section 482 Cr.P.C. has been filed for quashing further proceeding of S.S.T. No.04 of 2018 (State of U.P. Versus Mohan and others) including the order of cognizance dated 11.1.2018, taken on the charge-sheet dated 0.3.11.2017 in Case Crime No.433 of 2017 under Sections 147, 148, 323, 325 I.P.C. and 3(2)(5-Ka) of SC/ST Act, P.S. Karimuddinpur, District Ghazipur, pending in the court of Special Judge (SC/ST Act), Ghazipur.

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Before dealing with the submissions made by learned counsel for the applicants, the brief facts giving rise to instant application are that regarding an incident which is said to have taken place on 19.6.2017, the FIR was lodged on the same day at 4.00 p.m. by the opposite party no.2 against the applicants and eight others with the allegations that accused armed with lathi, danda, Gadasa, Bhala,Pahsul, Kulhari , etc assaulted informant and seven others of his family members causing grievous injuries to them. The F.I.R. was registered under Sections 147, 148, 323, 325 I.P.C. and 3(2) (5-Ka) of SC/ST Act. After investigation, charge-sheet was submitted against the applicants and other accused under Sections 147, 148, 323, 325 I.P.C. and 3(2)(5-Ka) of SC/ST Act, on which learned Special Judge took cognizance by order dated

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11.1.2018.

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At the very outset, learned counsel of the applicants has fairly conceded that so far as offences under Sections 147, 148, 323, 325 I.P.C. are concerned under which charge sheet has been submitted, he has no objection and has not challenged the same. However, he has submitted that so far as offence under Section 3(2)(va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is concerned, prima facie, the same is not disclosed, even if entire allegations made in the F.I.R. and statements of witnesses and the injured are taken to be true on its face value. Learned counsel for the applicants submits that it is a sine qua non for the application of Section 3(2)(va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the offence must have been committed against a person on the ground that such person is not a member of Scheduled Castes and Scheduled Tribes. He submits that in the instant case neither in the F.I.R. nor in the statement of witnesses recorded under Section 161 Cr.P.C. there is whisper of the fact that the applicants were not the member of Scheduled Castes and Scheduled Tribes and there is also no averment that the accused-applicants, assaulted, insulted or intimidated the informant and other injured with intent to humiliate them in a place within public view even calling the informant and injured by the name of their caste. Therefore, in the instant case, prima facie, no evidence is apparent on record to establish the basic ingredient of Section 3(2)(va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Therefore, the cognizance taken by learned Special Judge smacks of complete non-application of mind and he appears to have taken cognizance in a mechanical manner. In case the applicants are directed to raise all these facts at the time of framing of charge then a great prejudice would be caused to the applicants inasmuch

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provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act including Amendment Act, 1 of 2016, they would be taken into custody and will have to face ordeal of incarceration. In the event, bail application is rejected by the court below which shall cause irreparable loss and injury to the applicants. He has further submitted that if prima facie no offence under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is made out, then the applicants shall be tried by the Magistrate.

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Learned counsel for the applicants has cited the judgement rendered by this Court in Kripa Shanker Singh and others Versus State of U.P. and others [2017 (1) JIC 664, (All)], wherein this Court without issuing notice to opposite party or calling for counter affidavit by the State has disposed of the application of the applicants in that case. However, I am of firm opinion that since the submission made by learned counsel for the applicants relates to disputed question of facts which can at best be examined and scanned by the trial Judge by taking into account the evidence/material on record and shall also deal with the legal aspect as hereinabove canvassed by passing a reasoned and speaking order. Therefore, I do not propose to pass any ex parte order behind the back of opposite party no.2 also keeping in view the number and nature of injuries sustained by him and seven other persons from the side of prosecution. Therefore, no ground for quashing the proceedings is made out.

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In the light of aforesaid and in the facts and circumstances of the case, I direct that the applicants along with other co-accused (nonapplicants) shall move an application for discharge under Section 3(2)(va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and file personal bonds within one month from today. Learned Special Judge without being prejudiced by any observation made hereinabove shall pass appropriate orders in

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accordance with law on the discharge application within one month thereafter.

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For a period of two months, no coercive action shall be taken against the applicants.

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With the aforesaid observations, the application under Section 482 Cr.P.C. is disposed of finally.

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Order Date :- 27.3.2018 MN/-

Mohan Kushwaha and 7 Others v. State of U.P. and Another

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Mohan Kushwaha and 7 Others v. State of U.P. and Another

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