Dismissed

Javed Ahmad v. State of U.P. and Another

Allahabad HC7 Dec 2021CRLA/1863/2021

Case brief

AI extract

What is this about?

In a criminal appeal arising from a caste-based assault, the High Court rejected the appellant's challenge to the Special Judge's summoning order. Upholding the trial court's decision, the Court quashed the argument that the accused's absence from the initial FIR invalidated the charges, confirming that subsequent statements established theognizance under the SC/ST Act and IPC.

What did the court decide?

Criminal appeal dismissed. The impugned order dated 7.3.2020 summoning the appellant to face trial under SC/ST Act and IPC is confirmed.

Javed Ahmad Vs State of U.P. and Another — Caste Atrocities | Allahabad HC (2021)

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Reserved on 16.11.2021 Delivered on 7.12.2021

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Court No. - 87

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Case :- CRIMINAL APPEAL No. - 1863 of 2021 Appellant :- Javed Ahmad Respondent :- State Of U.P. And Another Counsel for Appellant :- Ashok Kumar Srivastava Counsel for Respondent :- G.A.

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Hon'ble Mrs. Sadhna Rani (Thakur),J.

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This criminal appeal has been filed by the accused appellant Javed under section 14-A (1) of the SC/ST Act, 1989 against the summoning order dated 7.3.2020 passed by Special Judge, SC/ST Act, Sonbhadra in Session Case No.124 of 2020 arising out of Crime No. 0107 of 2017, State Vs. Javed, under sections 323, 504, 506 I.P.C. and section 3(2)(va) SC/ST Act, Police Station Obra District Sonbhadra.

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As per the facts of the case, one Ram Dulari Devi wife of Sarju Prasad Paswan lodged a first information report on 30.6.2017 at 22.50 hours narrating therein that on 28.6.2017 at about 10.00 p.m. while Rizwan was prying into her house. Being scolded by her younger son Pradeep Paswan he went away by giving threat to him. After 15 minutes, he came back along with 15-20 boys armed with big knives and entered into the house of the complainant. They started beating the complainant, her both daughters-in-law and son Pradeep Paswan with kicks and fists. The accused with intention to molest her daughters-in-law tore her saree, blouse and also thrashed her. Hearing the noise, her elder son Dharmendra Paswan and his friend Nagendra Pratap Chauhan and many other persons came there and could rescue them hardly. The accused persons who were recognized by faces along with Rizwan Qureshi giving threat of life managed to escape.

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After investigation, the Investigating Officer submitted chargesheet no. 97 of 2017 on 20.8.2017 against the present accused under section 323, 504, 506 I.P.C. and section 3(2)(va) SC/ST Act, 1989.

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After receiving the charge sheet, the learned Special Judge SC/

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ST Act vide order dated 7.3.2020 took cognizance against Javed Ahmad under sections mentioned above.

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The present appeal has been filed against this cognizance order dated 7.3.2020 on the ground that mere fact that the victims are members of Scheduled Castes and Scheduled Tribes and they have been assaulted by non Scheduled Castes and Scheduled Tribes persons does not attract the provisions of the Act, hence, the offence under section 3(2)(va) SC/ST Act does not make out against him and no offence under sections 323,504, 506 I.P.C. also can be said to be made out against the appellant.

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The impugned order dated 7.3.2020 passed by the learned Special Judge SC/ST Act, Sonbhadra is illegal, perverse and based on surmises and conjunctures. There is no motive for the appellant to commit the offence. The injuries sustained by the injured are simple in nature. The report was lodged against Rizwan Quraishi and 15-20 unknown persons but chargesheet has been submitted only against him. This liability under the above sections is necessarily fastened on the appellant just to harass him.

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The prosecution witnesses did not support the prosecution case hence, the impugned order is prayed to be set aside.

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In support of his version the appellant has filed the copies of the first information report, chargesheet, injuries reports of 3 injured persons, the statements of complainant Ram Dulari, victim Radhika Devi, victim and the eye witness Pradeep Paswan and witness Dharmendra Paswan.

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The learned counsel for the opp. party no. 2 the complainant did not appear to argue the case.

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Heard Sri Ashok Kumar Srivastava, learned counsel for the appellant, the learned A.G.A. for the State and perused the record.

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The counter affidavit has been filed by the State and it is mentioned therein that after the investigation, the chargesheet under section 323,504, 506 I.P.C. and section 3(2)(va) SC/ST Act has been submitted by the Investigating Officer and the learned lower court took the cognizance against the accused on the basis of charge-sheet so the order of the learned lower court is well reasoned and well founded. There is no ground to interfere with the impugned order.

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It is argued by the learned counsel for the appellant that the first

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information report was lodged on 30.6.2017 under sections 147, 148, 452, 354B, 323, 504, 506 I.P.C. and section 3(2)(Va) of SC/ST Act. While the charge-sheet was submitted only under sections 323,504, 506 I.P.C. and section 3(2)(va) SC/ST Act. The appellant was neither named in the first information report nor in the statement of the complainant Ram Dulari under section 161 Cr.P.C. In the statement of the victim Radhika Devi under section 164 Cr.P.C. his name came into light for the first time, which shows that his name has been added after thought. Hence, the mere fact that the victims are members of Scheduled castes and Scheduled Tribes and they were assaulted by non Scheduled castes and Scheduled Tribes persons does not attract the provision of the Act. Hence, the cognizance order dated 7.3.2020 is liable to be set aside.

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Learned A.G.A. has submitted that the statement of complainant and his witnesses under section 161 Cr.P.C. are on record. The appellant intentionally did not file the statement of the victim Radhika Devi recorded under section 164 Cr.P.C. The additional statement of Dharmendra Paswan has also not been filed. The order passed by the learned lower court is well reasoned, hence the appeal is liable to be dismissed and the impugned order deserves to be confirmed.

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Learned A.G.A. filed the case diary of the case though the statements of complainant Ram Dulari, victim Radhika Devi, Dharmendra Paswan and other victim Pradeep Paswan under section 161 Cr.P.C. are present on record. It is true that the first information report does not bear the name of present accused. It is mentioned therein that Rizwan along with 15-20 boys came there. The F.I.R. is dated 30.6.2017 and in the statements dated 3.7.2017 of complainant Ram Dulari Devi and the victim Radhika Devi it has come that the accused Rizwan came along with 15-20 boys and for the first time in the statement of Radhika Devi under section 164 Cr.P.C. dated 10.7.2017 the name of present accused along with other co-accused has come into light. After this statement in the statement of Dharmendra Paswan, the name of this accused has been surfaced. Witness Pradeep Paswan has also ditto the statement of Dharmendra Paswan and stated that the name of accused persons are same that are named by his brother in his statement. It is stated by Dharmendra Paswan that initially they had no knowledge of the names of all coaccused later on after inquiry it is found that accused persons present

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on the spot were Rizwan, Javed, Jubair and Anwar. Thus, the non mentioning of the name of present accused in the first information report has been explained by the witness. As far as the objection regarding cognizance under section 3(2)(va) of SC/ST Act is concerned, the Section runs as under;

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Section -3

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(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,—

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2 [(va) commits any offence specified in the Schedule against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine;]

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According to this Section, the accused must not be a member of Scheduled Castes and Scheduled Tribes and victim party must be a person of Scheduled Castes and Scheduled Tribes and the person of non Scheduled Castes and Scheduled Tribes should have committed the offence specified in schedule.

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If we go through the schedule inserted by the Act 1/16 in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act) 1989, the offence under section 323 and 506 I.P.C. exists therein and the accused appellant has been summoned to face trial in both these sections by the Court concerned. It is not disputed that the complainant / victim belong to Scheduled Castes and Scheduled Tribes and the accused persons are not members of Scheduled Castes and Scheduled Tribes. At this stage, prima facie a cognizable case against the appellant is proved from the statements of complainant, victim and witnesses recorded under sections 161 and 164 Cr.P.C.

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Co-accused Rizwan Qureshi and Tanwar Qureshi are found to be minor and against them charge sheet no. 97A/17 dated 20.8.2017 has been filed. So the argument of appellant that the accused named in the charge sheet has not been chargesheeted becomes wrong.

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Thus, the learned trial court has rightly summoned the appellant to face trial under section 323, 504, 506 I.P.C. and section 3(2)(va) of SC/ST Act, 1989. There is no need to interfere with the impugned summoning order dated 7.3.2020 passed by Special Judge, SC/ST

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Act, Sobbhadra in Session case No. 124 of 2020, Crime no. 0107 of 2017, State Vs. Javed, under sections 323,504, 506 I.P.C. and section 3(2)(va) SC/ST Act, police Station Obra District Sonbhadra.

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Appeal is, accordingly dismissed.

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Order Dated :07.12.2021

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Gss

Javed Ahmad v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Javed Ahmad v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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