High Court allowed appeal challenging summons under Section 319 Cr.P.C. in an SC/ST atrocity case. Court held the order was non-speaking, biased, and lacked application of mind, quashing it and remanding for a fresh speaking order.
Impugned order dated 18.01.2021 quashed and matter remanded to decide afresh via a speaking order within two months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 67 Case :- CRIMINAL APPEAL No. - 1014 of 2021 Appellant :- Asgar And 3 Others Respondent :- State Of Up And Anothers Counsel for Appellant :- Sheshadri Trivedi,Ajay Kumar Pandey,Satish Trivedi (Senior Adv.) Counsel for Respondent :- G.A.,Shravana Kumar Yadav
Hon'ble Rahul Chaturvedi,J.
Pleadings have been exchanged between the parties.
Heard Sri Satish Trivedi, learned Senior Advocate assisted by Sri Sheshadri Trivedi, learned counsel for the appellants, Sri Shravan Kumar Yadav, learned counsel for the opposite party no. 2, Sri Ajay Kumar Sharma, learned A.G.A. and perused the record.
By means of the appeal u/s 14 (A)(2) SC/ST Act, the appellant is challenging the order dated 18.01.2021 passed by Learned Special Judge, (SC/ST Prevention of Atrocities Act), Muzaffarnagar whereby the Learned Special Judge, (SC/ST Prevention of Atrocities Act), Muzaffarnagar have summoned the appellants u/s 319 Cr.P.C. to face trial in Special Sessions Trial No. 326 of 2018 (State Vs. Bilal) arising out of Case Crime No. 437 of 2017, u/s 147, 148, 452, 323, 354-B, 504, 506 IPC and section 3(2)(V) of SC/ST (Prevention of Atrocities) Act, 1989, P.S. Kairana, District Shamli.
Sri Satish Trivedi, learned senior counsel has drawn the attention of the Court, to the FIR lodged by one Smt. Kranti on 13.05.2017, u/s 147, 148, 452, 323, 354-B, 504, 506 IPC and section 3(1)(10) of SC/ST (Prevention of Atrocities) Act, 1989 against five named accused persons. The text of the FIR in brief is that on 11.05.2017 around 7:00 in the evening, the informant was sitting inside her house and at that time, all the assailants started hurling filthy abuses by taking her caste name and thereafter, the co-accused Bilal has threw a crude bomb over the informant which has resulted in the alleged disfiguration of her face. It is further alleged that all the assailants have mercilessly beaten her with kick and fist causing injuries and thereafter, the co-accused Bilal started misbehaving and tried to disrobe her. Certain witnesses were assembled there and have seen that all the assailants who fled away from the site. The date of the incident is 11.05.2017 of which the FIR was registered on 13.05.2017.
After registering the FIR, the investigation of the case started rolling and the police has collected number of witnesses and
eventually, on 24.06.2017 the police has submitted the report u/s 173 (2) Cr.P.C. only against the co-accused Bilal and have dropped the name of all the appellants and mentioned therein that the nomination of these four appellants is found false.
Thereafter, the co-accused Bilal was put to trial before the learned court of Session's. During trial of S.S.T. No. 326 of 2018 the testimony of P.W.-1, the informant, was recorded, in which she has reiterated the story mentioned in the FIR. Thereafter, an application was moved by the opposite party no. 2 on 13.01.2021 before the learned trial court with a prayer to summon the named accused persons whose names were dropped from the charge sheet to face trial in exercise of power u/s 319 Cr.P.C. which was eventually allowed by the court of session by passing the impugned order.
I have carefully gone through the order impugned in which it has been stated that the Investigation Officer of the case has recorded the statement of Rohit Kumar, Smt. Urmila and Sri Mintu in Parcha No. 5 on 23.06.2017 in which these witness has completely denied the allegation of misbehaviour, hurling abuses and the crude bomb which was threw upon the injured and not only this, there is a reference of a "majid bayan" of the informant Smt. Kranti Devi and her husband Ajay Pal on 24.06.2017 which are annexed as annexure nos. 6 and 7 of the petition in which both of them have clearly mentioned that the complicity of theses appellants are wrongly mentioned by her on account of some previous enmity and as such, the police after thrashing all the material on records, dropped the name of the appellants in its report u/s 173 (2) Cr.P.C.
Sri Satish Trivedi, learned Senior Counsel has relied upon the judgment of Hon'ble Apex Court in order to buttress his contention in the case of Brijendra Singh and Ors. Vs. State of Rajasthan, Criminal Appeal No. 763 of 2017 reported in AIR 2014 SC 1400 referring to the paragraph no. 15 of Judgment:-
"Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High
Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material."
Besides this, the recent judgment was also cited by the senior counsel in the case of Ramesh Chandra Srivastava Vs. State of U.P. and Another, Criminal Appeal No. 990 of 2021 decided on 13.09.2021 and relying upon the judgements of Hardeep Singh Vs. State of Punjab and Others (2014) 3 SCC 92 and Labhuji Amratji Thakor and Others Vs. State of Gujrat and Another AIR 2019 SC 734 opined:-
"The test as laid down by the Constitution Bench of this Court for invoking power under Section 319 Cr.P.C. inter alia includes the principle that only when strong and cogent evidence occurs against a person from the evidence the power under Section 319 Cr.P.C. should be exercised. The power cannot be exercised in a casual and cavalier manner. The test to be applied, as laid down by this Court, is one which is more than prima facie case which is applied at the time of framing of charges."
Thus, it has been contended that the order suffers from the vice of being non speaking order, seems to be without application of analytical judicial mind from the court concerned.
Per contra, Sri Shravana Kumar Yadav, learned counsel for the opposite party no. 2 submits that the name of the appellants have figure up in the 161 statement of the informant as well as in her testimony recorded as P.W.-1, she has candidly attributed the role of committing assault upon her by all the appellants but Sri Yadav has failed to appreciate the observation made by the Hon'ble Apex Court in the case of Brijendra Singh (supra).
Deriving from the judgment of Hon'ble Apex Court in the case of Brijendra Singh and Ors. Vs. State of Rajasthan and in the case of Ramesh Chandra Srivastava Vs. State of U.P. and Another, the Court is of the considered opinion that the aforesaid order impugned is bias and a non speaking and there is no application of mind so as to, the observation made by the Hon'ble Apex Couet in the case of Brijendra Singh and Ors. Vs. State of Rajasthan, the order dated 18.01.2021 is hereby quashed and the matter is remanded back to decide a fresh by a speaking order in the light of observations made above within a period of two months from the production of certified copy of this order.
Accordingly, the present appeal succeeds and the same stands ALLOWED. Impugned order dated 18.01.2021 passed by Learned Special Judge, (SC/ST Prevention of Atrocities Act), Muzaffarnagar is hereby set aside.
Order Date :- 6.10.2021/Nisha
3 issues framed by the court
Whether the impugned order summoning appellants u/s 319 Cr.P.C. is a speaking order reflecting proper application of mind given evidence suggesting otherwise.
Whether the High Court was justified in quashing the summons order alleging bias and non-application of mind.
Whether the appellants are entitled to the benefit of observations in Brijendra Singh regarding strong cogent evidence under Section 319 Cr.P.C.
Colour shows how this judgement treated each authority
Brijendra Singh and Ors. Vs. State of RajasthanRelied on¶11
Brijendra Singh and Ors. Vs. State of Rajasthan, Criminal Appeal No. 763 of 2017 reported in AIR 2014 SC 1400 · Who else cites this
Ramesh Chandra Srivastava Vs. State of U.P. and AnotherRelied on¶14
Ramesh Chandra Srivastava Vs. State of U.P. and Another, Criminal Appeal No. 990 of 2021
Hardeep Singh Vs. State of Punjab and OthersReferred¶14
Hardeep Singh Vs. State of Punjab and Others (2014) 3 SCC 92 · Who else cites this
Labhuji Amratji Thakor and Others Vs. State of Gujrat and AnotherReferred¶14
Labhuji Amratji Thakor and Others Vs. State of Gujrat and Another AIR 2019 SC 734 · Who else cites this
2 provisions across 2 enactments
Asgar And 3 Others
State Of Up
Rahul Chaturvedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
