Partly allowed

Ishnarayan Upadhyay and 4 Others v. State of U.P.and Another

Allahabad HC11 Jan 2022CRLA/3564/2021

Case brief

AI extract

What is this about?

High Court allowed appeal challenging summoning order. Court held that IPC offences prima facie made out, so appeal dismissed. SC/ST Act charge set aside as FIR and testimonies lacked specific allegations of caste-based insult, humiliation in public view, or caste identity of victim.

What did the court decide?

Summoning order regarding Section 3(1)(d)(dh) of SC/ST Act set aside. Summoning order regarding sections 147, 323, 504, 506, 427, 325 IPC affirmed.

Ishnarayan Upadhyay and 4 Others Vs State of U.P.and… — Caste Atrocities | Allahabad HC (2022)

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Reserved on 6.12.2021 Delivered on 11.1.2022.

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Case :- CRIMINAL APPEAL No. - 3564 of 2021

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Appellant :- Ishnarayan Upadhyay And 4 Others Respondent :- State Of U.P.And Another Counsel for Appellant :- Bal Ram Bind,Banshi Lal Counsel for Respondent :- G.A.,A/I 0110/2013,Indradev

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

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This criminal appeal has been filed against the summoning order dated 5.3.2020 passed by the learned Additional Sessions Judge / Special Judge, SC/ST Act, Jaunpur in S.S.T.No. 85 of 2020, State Vs. Girish Chandra Upadyay @ Lalji and others arising out of case crime no. 289 of 2019 under sections 147, 323, 504, 506, 427, 325 I.P.C. and Section 3(1) (d)(dh) of SC/ST Act, 1989 police station Sujanganj, District Jaunpur whereby the court below has taken cognizance and summoned the appellants to face trial under above mentioned sections on the basis of charge-sheet no. 16 of 2020 dated 5.2.2020.

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The law was set into motion when the complainant Smt. Phoolgena Devi lodged a first information report on 22.11.2019 at 16.40 hours in police station Sujanganj District Jaunpur with the version that today i.e. on 22.11.2019 at about 3.00 p.m. due to old enmity her neighbours Ishnarayan Upadhyay son of Gayatri Prasad Upadhyay, Devesh Kumar and Sundaram both sons of Ishnarayan Upadhyay, Sarvesh son of Rakesh Upadhyay and Lalji son of Tirthraj Upadhyay hurling abuses in furtherance of their common intentions came to the complainant’s house. When she protested they started beating her with kicks and blows. When her sons Shakti, Satveer, brother-in-law Faguram and daughter-in-law

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Jyoti came to rescue her, they were also beaten with lathi-danda by the accused persons. They also snatched the gold chain of Jyoti. On alarm of people coming the accused persons ran away damaging the motorcycle bearing no. UP62W6581 and giving threat of life. After lodging the first information report, the investigation was conducted which culminated into charge-sheet no. 16 of 2020 against all the accused persons under sections 147, 323, 504, 506 427, 325 I.P.C. and 3(1)(d)(dh) of SC/ST Act, 1989. Receiving the charge sheet, the learned lower court took cognizance and vide impugned order dated 5.3.2020 summoned the accused persons / appellants to face trial under sections mentioned above.

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Against the summoning order, the appeal in hand has been filed by all the five summoned persons on the grounds that the impugned first information report has been lodged only for the purpose of harassing the appellants and their family members with malafide intention. The appellants are totally innocent and they have not committed any offence. They are law abiding and reputed persons in the locality. The appellant no. 1 is a teacher and the appellant nos. 2 and 3 are meritorious students. The appellant no. 4 is doing private job in Mumbai. The appellant no. 5 is a farmer. There is no motive or intention on the part of the appellants to commit the alleged offence. The allegations are general in nature. The entire prosecution story is false, frivolous, baseless, absolutely vague and is without any evidence. They have been falsely implicated in the present case due to village partibandi and political influence of the locality. There

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is no credible evidence that could connect the the appellants with the aforesaid crime. The Investigating Officer has wrongly submitted chargesheet without collecting credible evidence in fair manner against the appellants. The learned lower court has also not considered the actual position of the case and has wrongly taken cognizance and summoned the appellants to face trial. The impugned summoning order is against the weight of evidence on record and is bad in the eye of law. So the prayer is made to allow the appeal and set aside the charge-sheet no. 16 of 2020 on the basis of which the cognizance has been taken and the appellants have been summoned to face trial.

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Counter affidavit has been filed on behalf of the State that notice has been served upon the complainant Smt. Phoolgena Devi. It is further submitted that the material collected during the course of investigation only is to be seen at the stage of framing of charge by the trial court. After investigation, the police has filed the charge sheet. Mere submission of charge sheet and taking cognizance by the court does not fall within the category of abuse of the process of law. The charge sheet has been filed on the basis of credible and clinching evidences collected during the course of investigation including the statements of complainant and the eye witnesses under section 161 Cr.P.C. The learned lower court upon submission of charge-sheet has taken cognizance of the offence in accordance with law after perusing the entire evidence available on record. The accused appellants are named in the first information report

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with specific role assigned to them. The witnesses have supported and corroborated the version of the first information report. The injury report of the complainant also supported the prosecution case. Thus, it is wrong to say that the appellants are innocent persons and they have been falsely implicated in the present case. The order passed by the learned lower court taking cognizance of the offence and summoning the accused appellants is just and proper which suffers no infirmity in the eye of law. Hence the appeal is prayed to be dismissed.

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Rejoinder affidavit has been filed on behalf of the appellants wherein previous versions have been reiterated. It has been submitted by the learned counsel for the appellants that the Investigating Officer has not properly investigated the matter and has wrongly submitted the charge-sheet against them. The opp. Party no. 2 and her family members have managed the injury reports only for harassing and pressurising the appellants. The witnesses have also not supported the prosecution version. On 22.11.2019 at about 3.31 p.m. case crime no. 0288 of 2019 U/ S 147, 323, 392 I.P.C. was also registered against 8 accused persons namely, Satveer Gautam, Shakti Gautam, Santosh Gautam, Sarvesh Gautam, Ashish Gautam, Kapil Gautam, Raju Gautam, Vijayee Gautam and 5-6 unknown persons. In the alleged incident, both the parties sustained injuries. From the side of the informant, injured were medically examined on 22.11.2019 and after completion of the investigation the charge sheet

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has been submitted, hence, prayer to allow the appeal and quash the impugned charge sheet is made.

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In support of their appeal, the appellants have filed the first information report of case crime no. 289 of 2020, charge sheet of the case, the impugned order dated 5.3.2020 and the case diary containing the statements of complainant and the witnesses Keshav Prasad Upadhyay, Virendra Kumar Upadhyay, Pradeep Upadhyay, Shesh Narayan Upadyay, injured Shakti Gautam, Jyoti, Gautam, Phaguram and Bharat Lal, the medical reports of Phoolgena Devi, Shakti Gautam, Satveer, Phaguram, Jyoti, Yogendra Narayan Upadhyay, first information report of case crime no. 288 of 2019, Supporting the plea of Alibi of the appellant Ishanarayan Upadhyay, the extract of attendance register of the school, marriage card of his daughter, card of marriage of Rishabh Upadhyay and Km. Abha have also been filed.

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It is claimed that the injuries sustained by the injured are simple in nature. At the time and date of the incident, the appellant Ishnarayan Upadhyay was present in his school where he is a teacher and on 19.11.2019 the marriage of the daughter of the appellant was scheduled, so there was no occasion for him to have quarrel with the opp. party no. 2. It is further argued that what caste based abuses were hurled by the appellants is not mentioned anywhere. It has neither been mentioned in the first information report nor it has been specified in the statements of

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witnesses. It is also claimed that the medical evidences have been managed, so showing themselves innocent, the appeal is prayed to be dismissed.

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Learned counsel for the appellants placed reliance on the judgment of Hitesh Verma Vs. State of Uttarakhand and another, AIR 2020 SC 5584, wherein it is held by the Apex Court that if the abuses are said to be hurled within four walls of the building and not within the public view the offence under section 3(1) (r) of SC/ST Act cannot be said to be made out and further it has been opined that merely because the informant belongs to the Scheduled Caste, the offence under section 3(1)(r) is not made out. It has further been held that “ The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of Act is to improve socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights.”

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It is claimed by the learned counsel for the appellants that neither specific abuses have been mentioned nor any humiliation is alleged to have caused to the opp. party no. 2 or her family members by way of hurling abuses, so offence under section 3(1)(r) of SC/ST Act cannot be

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said to be made out. Learned counsel for the appellants further drew the attention of the court towards the order passed by a coordinate bench of this court in Application (under section 482 Cr.P.C.) No. 7637 of 2015 Gurbaksh Singh Vs. State of U.P. and others, wherein it has been held that caste based abuses have not been specifically disclosed and the caste of the complainant has also not been disclosed in the first information report and it has also not been disclosed that caste related abuses were hurled with the intention of humiliating the victim in public view. Thus finding the complaint to be completely bereft of necessary ingredients of section 3(1)(x) of SC/ST Act the charge under this section was not found to be legally justified. On the basis of this ruling, it is claimed by the learned counsel for the appellants that offence under section 3(1) (d) (dh) of SC/ST Act cannot be said to be made out against the appellants. Hence, prayer to allow the appeal and set aside the impugned charge-sheet, by which the appellants have been summoned, is made.

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Learned A.G.A. has opposed this contention and has claimed the summoning order to be justified.

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Heard the learned counsel for the parties and perused the record.

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In the impugned first information report it has been mentioned that all the appellants / accused persons in furtherance of their common intention came at the door of the complainant and started abusing her. On the protest, she was beaten with kicks and blows and when her sons

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Shakti and Satveer, brother-in-law Phaguram and daughter-in-law Jyoti came for rescue, they were also beaten by the accused persons. The gold chain of Jyoti was also snatched. Accused persons ran away giving threat of life to the complainant and her family members.

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Regarding the fact of snatching the gold chain, no charge-sheet has been filed. So far as the allegation of abusing and giving threat of life and committing mischief by causing damage to motorcycle are concerned, the evidence of complainant and witnesses Shakti Gautam, Jyoti Gautam and Phaguram is on record. These all have stated that all the appellants / accused persons hurling caste based abuses came to their house and on protest they committed marpit by lathi danda and seeing the people come, all of them ran away giving threat of life. They also committed mischief by damaging motorcycle of Shakti. Regarding sections 323 and 325 I.P.C. medical examination reports of all the injured persons are on record wherein the injuries of all the injured persons are shown to be mild to moderate. Injured Shakti Gautam has sustained fracture of his middle finger. The rest witnesses who can be said to be the persons of locality have stated that in the marriage of the daughter of the Ishnarayan on 19.11.2019 the boys of Harijan community committed marpit with baratis on the issue of dancing on orchestra music. Somehow farewell of the daughter of Ishnarayan was done and after that on 22.11.2019 again these boys of Harijan community assaulted Yogendra Upadhyay who sustained injuries and was taken to district hospital Jaunpur from where he was

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referred to Varanasi for better treatment. The independent witness Bharat Lal son of Ram Singh has specifically stated that all the appellants committed marpit and also committed mischief by damaging motorcycle of victim Shakti Gautam. Thus, on the basis of above statements, prima facie offence under sections 147, 323, 504, 506, 427, 325 I.P.C. can be said to be made out against the appellants.

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So for offence under section 3(1)(r) of SC/ST Act is concerned, intentional insult or intimidate with intent to humiliate a member of scheduled caste or scheduled tribe in any place within the public view is must. For section 3(1)(s) of the SC/ST Act it is must that a member of scheduled caste and scheduled tribe is abused by caste name in any place within the public view. So for the offence under these two sub sections the victim must be of scheduled caste or scheduled tribe, there must be intention to humiliate him and if the person is abused in caste name this must happen in a place within the public view.

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If we go through the first information report of the present case, it is not mentioned therein that the victim belongs to scheduled caste or scheduled tribe nor even a single word has been mentioned that what specific caste based abuses were hurled against the victim. Furthermore, hurling caste based abuse was with the intention to humiliate the victim that too in any place within the public view is also not mentioned in the first information report.

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If we go through the statements of complainant and witnesses, even therein no specific caste based abuse has been mentioned. None of them has stated that these caste based abuses were hurled with intention to humiliate the complainant or family members who belonged to the scheduled caste and scheduled tribe nor these abuses intentionally insulted and intimidated the victim has came in the statements of all witnesses. In the judgment of Apex Court in the case of Gorige Pentaiah Vs. State of Andhra Pradesh and others (2008) 12 SCC 531 and Swaran Singh Vs. State (2008) 8 SCC 435 it has been held that for the offence punishable under section 3(1)(x) of SC/ST Act, the complainant must allege that the accused was not a member of scheduled caste or scheduled tribe and that he intentionally insulted or intimidated the complainant with intent to humiliate him in a place within the public view.

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In the judgment of Hitesh Verma (supra) the Apex Court held that offence under section 3(1)(r) of SC/ST Act is not made out merely because the informant belongs to scheduled caste or scheduled tribe. For this offence, the ingredient of intentional insult and intimidation with intent to humiliate a member of scheduled caste or scheduled tribe must be there. All insults or intimidations to a person will not be an offence under this Act unless such insult or intimidation is on account of victim belonging to scheduled castes and scheduled tribes.

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If we go through the allegations of the first information report subject matter of the case in hand there is not even a whisper about the fact that the complainant belongs to scheduled caste or scheduled tribe and the accused persons do not belong to scheduled caste or scheduled tribe. It is nowhere mentioned in the first information report that the abuses hurled were the caste based abuses or they were hurled with a view to humiliate a member of scheduled caste and scheduled tribe in public view and even in the statements of witnesses no specific caste based abuse has been mentioned. Moreover, in the statements of complainant or witnesses it is nowhere mentioned that the abuses were hurled with a view to humiliate the complainant and her family members on the ground of their being a member of scheduled caste and scheduled tribe and that too in public view.

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So in my opinion, at this stage, no prima facies offence under section 3 (1)(d)(dh) of SC/ST Act can be said to have been made out against the appellants. The cognizance under this section and summoning the accused appellants under the said sections can be said to be bad in law.

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Quashing of the charge sheet is not within the jurisdiction of this appeal. Appeal with regard to summoning of the appellants under section 3(1)(d)(dh) of SC/ST Act, 1989 is allowed.

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The summoning order with regard to Section 3(1)(d)(dh) of SC/ST Act is set aside.

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The appeal with regard to summoning of the appellants under section 147, 323, 504, 506, 427 and 325 I.P.C. is dismissed. Summoning order with regard to summon the appellants to face trial under sections 147, 323, 504, 506, 427, 325 I.P.C. is hereby affirmed.

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The appeal is partly allowed.

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Order Dated :-11.1.2022

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Gss

Ishnarayan Upadhyay and 4 Others v. State of U.P.and Another

Case brief

What is this about?

What did the court decide?

Ishnarayan Upadhyay and 4 Others v. State of U.P.and Another

Case brief

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