Dismissed

Shiv Sagar and Others v. State of U.P. and Another

Allahabad HC25 Jan 2019A482/6610/2001

Case brief

AI extract

What is this about?

High Court rejected quashing application under Section 482 Cr.P.C. regarding assault on SC community member. Directed applicants to appear within 45 days with bail application to avoid coercive action; otherwise prosecution proceeds.

What did the court decide?

Application for quashing refused; 45-day window granted for appearance, bail application, and suspension of coercive action.

Shiv Sagar and Others Vs State of U.P. and Another — Caste Atrocities | Allahabad HC (2019)

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Court No. - 17

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Case :- APPLICATION U/S 482 No. - 6610 of 2001

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Applicant :- Shiv Sagar And Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Amar Nath Tiwari Counsel for Opposite Party :- Govt. Advocate,Pankaj Roy

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Hon'ble Suresh Kumar Gupta,J.

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Heard learned counsel for the applicants and learned A.G.A. for the State.

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This application under Section 482, Cr.P.C. has been filed for quashing the impugned summoning order as well as chargesheet dated 13.6.2001, passed by Additional Chief Judicial Magistrate, Varanasi in criminal case no.494 of 2001, State of U.P vs. Shiv Sagar and others, under Sections 143, 352, 504, 506 I.P.C and Section 3(1)(X) of the SC/ST Act. Police Station Rohania, District Varanasi.

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Brief facts of the case is that respondent no.2, Smt. Chandrakala Devi, is a landless lady of scheduled casts community and is a resident of village Birbhanpur, police station Rohania, district Varanasi, of which Gram Panchayat petitioner no.1 is the Pradhan. Certain constructions were made over plot no.4 by installation of hut and cattle trope etc. on 17.10.2000. The aforesaid village Pradhan-Shiv Sagar along with remaining petitioners reached on the said plot and used obscene words and also used word Chamarin and Domin to her and threatened her to assault her. Complainant-respondent no.2 submitted an application 0n 24.10.2000 before the Chairman, Uttar Pradesh Scheduled Castes and Scheduled Tribes Commission, Lucknow, with request to direct the Senior Superintendent of Police, Varanasi, to register her case under the relevant provision of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities Act) against the petitioner. On the basis of the said application, a case under Sections 143, 352, 504, 506, 427 I.P.C and Section 3(I)(X) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities Act) Act was registered. After investigation, Investigating Officer submitted a charge-sheet under Sections 143, 504, 506 I.P.C and Section 3(I)(X) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities Act) Act. Learned counsel for the applicants contended that the F.I.R is totally false and concocted and has been lodged in order to take vengeance. Plot no.4 is registered as Banjar in revenue record and that plot is still possessed by the Goan Sabha and being used as a playground by the young boys of the said village. The husband of the respondent no.2, Rajendra Prasad, started encroaching over the aforesaid plot no.4 and was making foundation of the construction of a new room over the said plot. Applicant no.1-Shiv Sagar submitted an application before the Tehsildar concerned on 16.10.2000, requesting him to make necessary arrangement for spotting the encroachment. Upon it, Naib Tehsildar of the area passed an order directing the Revenue Inspector of the area and In-charge police outpost Raju Talab to make spot inspection and if the construction is on the Goan Sabha land then the construction be spotted and encroachment be removed from the site. On the said application, the District Magistrate, Varanasi, has passed an order dated 16.10.2000, directing the In-charge police outpost Raju Talab, Varanasi to spot the illegal construction on the said plot with the help of the Revenue Inspector, Raju Talab, Varansi. The

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petitioner no.3 is a government employee as Gram Panchayat Vikas Adhikari approached the higher authority along with Village Pradhan far removing the encroachment made by the husband of the respondent no.2 and the said encroachment was removed under the order of the higher authority and again the husband of the opposite party no.2 was making encroachment on 15.10.2000. Under the order of higher authority due to action of the petitioner no.2 being Gram Panchayat Vikas Adhikari of the village concerned being duty bound also approached the higher authorities along with the Village Pradhan that said encroachment made by the respondent no.2 and her husband earlier encroachment was removed under the order of the higher authorities, however, the petitioner no.2 was transferred in the month of September, 2000 and again she started making encroachment on 16.10.2000 for which complaints were made, however, on the alleged date and time of occurrence, the petitioner no.2 was Gram Panchayat Vikas Adhikari of village Kaparphorva Block Araji Line, Varanasi and was on duty along with Assistant Development Officer Panchayat, Block Araji Line, Varanasi, even otherwise, the police also submitted report under Section 107/116 Cr.P.C against the aforesaid Village Pradhan and also against the husband of the respondent no.2 and his brother Mahendra and father Hori Lal. They submitted affidavit in the Court of Sub-divisional Officer Varansi totally denying the alleged occurrence. The Goan Sabh Birbhanpur through its Pradhan i.e petitioner no.1 filed a civil suit no.394 of 2000 before the Civil Judge (JD) Varanasi against Rajendra, the husband of respondent no.2 on 2.11.2000 wherein stay has been granted on 2.11.2000. Aggrieved with the F.I.R against them, the petitioner earlier filed Criminal Writ Petition Nos.7421 of 2000 and 238 of 2000 before this Hon'ble Court, wherein their arrest was stayed. From perusal of the F.I.R and the statements of the witnesses no case is made out against them inasmuch as the present proceeding is mala-fide and an abuse of process of law then he prayed for quashing of the entire proceeding and discharge from the offence as alleged against them. In this case several notices were issued to the respondents but nobody turned up in the Court. On perusal of the record, it transpires that the affidavit of father-in-law of respondent no.2 and brother-in-law Mahendra before the Sub-Divisional Magistrate under Section 107/116 Cr.P.C both of them stated that no offence has been committed by the applicant on 17.10.2000. In his affidavit, it is stated that no such incident occurred on 17.10.2000 except the affidavit of above two persons. No other material is brought on record that the offence against the applicant is made out under Sections 143, 504, 506 I.P.C and Section 3(I)(X) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities Act) Act. On perusing the F.I.R and report of the Investigating Officer, prima facie case is made out under Sections 143, 504, 506 I.P.C and Section 3(I)(X) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities Act) Act, so, in the circumstances, application for quashing of the charge-sheet as well as proceeding is hereby refused.

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The contention of learned counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention.

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From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submissions made at the bar relate to the disputed question of fact, which cannot be adjudicated upon by this Court in

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exercise of power conferred under Section 482 Cr.P.C. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got a right of discharge under Section 239 or 227/228 or 245 Cr.P.C. as the case may be through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the Trial Court.

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The prayer for quashing the impugned summoning order as well as chargesheet is refused.

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However, it is provided that if the applicants appear and surrender before the court below within 45 days from today and apply for bail, then the bail application of the applicants be considered and decided in view of the law propounded by Hon'ble Apex Court . For a period of 45 days from today or till the disposal of the application for grant of bail, whichever is earlier, no coercive action shall be taken against the applicants. However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

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With the aforesaid directions, this application is finally disposed of.

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Order Date :- 25.1.2019 m.a.

Shiv Sagar and Others v. State of U.P. and Another

Case brief

What is this about?

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Shiv Sagar and Others v. State of U.P. and Another

Case brief

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