Dismissed

Omkar Nath Yadav @ Onkar Nath and 4 Others v. State of U.P. and Another

Allahabad HC31 May 2022CRLA/5019/2021

Case brief

AI extract

What is this about?

In this criminal appeal, the Allahabad High Court considered a challenge to a special court's order summaring of accused persons under the SC/ST Act. The High Court held that the lower court's order was not perverse, as witnesses belonging to Scheduled Castes, who intervened, were assaulted and abused using caste-indicative words. The appeal was dismissed.

What did the court decide?

Impugned order dated 02.09.2021 taking cognizance and issuing summons was upheld; the appeal was dismissed.

Omkar Nath Yadav @ Onkar Nath and 4 Others Vs State of… — Caste Atrocities | Allahabad HC (2022)

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Reserved on 06.04.2022 Delivered on 31.05.2022

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Court No. - 70

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Case :- CRIMINAL APPEAL No. - 5019 of 2021 Appellant :- Omkar Nath Yadav @ Onkar Nath And 4 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Ashok Kumar Mishra,Krishna Kant Tiwari Counsel for Respondent :- G.A., Akhilesh Kumar,Vishal Jaiswal

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Hon'ble Raj Beer Singh,J.

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1. Heard learned counsel for the appellants, learned counsel for opposite party no.2 and learned AGA for the State.

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2. The instant appeal has been preferred under Section 14-A(1) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the ‘SC/ST Act’), for quashing of the charge-sheet and the congnizance and summoning order dated 02.09.2021, passed by the Special Judge (SC/ST Act)/ Additional Session Judge, Court No.2, Bhadohi at Gyanpur in Case No.318 of 2021 (State Vs. Omkar Nath Yadav and others), case crime no. 59 of 2021, under Sections 147, 148, 149, 323, 504, 325, 452, 336, 427, 506 IPC and 3(2)(v-a) S.C/S.T Act, Police Station Chauri, District Bhadohi, whereby, the said court has taken cognizance and summoned the appellants/accused persons for above referred offences.

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3. Perusal of record shows that the respondent no.2 Ram Shringar Pal has lodged the first information report against appellants alleging that on 03.07.2021 at about 11.00 AM all the appellants/accused, armed with bricks, sticks, lathi and Barchhi etc., came at the house of complainant/respondent no.2 and started abusing the complainant. The appellants/accused assaulted the wife of respondent no.2 and when the respondent and his wife ran into their house, the appellants/accused continued to assault them even there. In the said incident, the complainant and his wife

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and nephew Kishun Pal and one Rakesh Pasi have sustained injuries and that the accused persons have also damaged the house-hold articles of complainant. After investigation, the appellants were charge-sheeted for offence under Sections 147, 148, 149, 323, 504, 325, 452, 336, 427, 506 IPC and 3(2)(v-a) S.C./S.T. Act,

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4. The court below took cognizance and summoned the appellants/accused vide order dated 02.09.2021, which is being impugned in the present appeal.

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5. It has been argued by learned counsel for appellants/accused that the impugned order is against facts and law and that only vague allegations have been levelled against all the appellants and that no specific role has been assigned to them. It was submitted that in fact opposite party no.2 belongs to ‘other backward caste’ and that appellants also belong to ‘other backward caste’ and thus, no offence under Section 3(2)(v-a) S.C./S.T. Act is made out. There is no material to specify the ingredients of Section 3(2)(v-a) of S.C./S.T. Act. The offences under Indian Penal Code, alleged against appellants, were not punishable more than seven years imprisonment and thus, on this ground also section 3(2)(v-a) of S.C./S.T. Act is not made out. The allegation that appellants have abused alleged witnesses, namely, Rakesh Kumar Pasi, Anand Pasi and Chandan Pasi by using caste indicative words are thoroughly false. As per prosecution version, the alleged incident took place on 03.07.2021 at 11.00 AM and the complainant, his wife and another injured Rajendra were medically examined on the same day at 1.25 PM, whereas, other witness, Ram Kishun Pal has been examined at 10.15 PM on 03.07.2021 and similarly there is long delay in medical examination of Ram Kishun Pal, Rakesh Pasi and Anand Kumar, which suggests that these persons have not sustained any injury and the alleged injuries shown in their

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medical examination reports are false and concocted. Further, in the said incident, the niece of appellant no.1 has sustained injuries, which has not been explained. In the first information report, there is no such version that appellants have used any caste indicative words. Referring the statements of witnesses and facts of the matter, it has been submitted that no case under Section 3(2)(v-a) of SC/ST Act is made out. Hence, the impugned order dated 02.09.2021 is liable to be set aside.

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6. Learned A.G.A. and learned counsel for the first informant have opposed the appeal and argued that in the said incident, complainant and several other persons have sustained injuries and all the appellants were named in first information report. The complainant has suffered dislocation of shoulder joint and similarly his wife Sunder Devi has also sustained fracture. During investigation, the witnesses belonging to scheduled caste, have clearly stated that when they have reached at the spot and tried to intervene, the accused persons have abused them by using caste indicative words. In this connection, statements of witnesses Rajendra Pasi, Rakesh Kumar Saroj, Chandan, Anand Kumar Saroj and of injured Rajesh Kumar Pal and other witnesses were referred. Learned counsel for respondent no.2 submitted that there are statements of several witnesses belonging to scheduled caste that when they have tried to save respondent no.2 and his family members, the accused persons have abused them by using caste indicative words.

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7. I have considered rival submissions and perused the record.

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8. It is well settled that at the stage of cognizance and issuing process to the accused, the Magistrate has to be satisfied that there is sufficient ground for proceeding further. The court has to consider whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. At the stage of

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issuing the process to the accused, the Magistrate is not required to record reasons, particularly when the cognizance is being taken on the basis of report filed by the police after investigation, under section 173(2) CrPC. In S.K. Sinha, Chief Enforcement Officer v. Videocon International Limited and Ors. MANU/SC/7011/2008 : (2008) 2 SCC 492, it was held that taking cognizance has no esoteric or mystic significance in criminal law and it connotes that a judicial notice is taken of an offence, after application of mind. Taking of cognizance is thus a condition precedent for holding a valid trial. In M/s. India Carat Pvt. Ltd. Vs. State of Karnataka MANU/SC/0349/1989: 1989(26) ACC 280 (SC), the Supreme Court has observed that Magistrate can take into account statements of witnesses examined by Police during investigation, take cognizance of offence complained of, order to issue a process to accused.

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9. In Mehmood Ul Rehman v. Khazir Mohammad Tunda and others (2015) 12 SCC 420, it was held as under:-

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"21. Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) CrPC, he has the information or knowledge of commission of an offence. But The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, under Section 190(1)(a) CrPC, he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC. The complaint is simply to be rejected."

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10. Thus, in so far as taking cognizance based on the police report is concerned, the Magistrate/ court has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. For issuance of process against the accused, only it has to be seen whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defences. Likewise, 'possible defences' need not be taken into consideration at the time of issuing process unless there is an ex-facie defence such as a legal bar or if in law the accused is not liable. In this connection a reference may also be made to case of Nupur Talwar v. Central Bureau of Investigation and another(2012) 11 SCC 465.

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11. In the instant case, the allegation against appellants in the first information report is that all the appellants, armed with various weapons, came at the house of complainant and assaulted the complainant, his wife and family members and that when other villagers including Chandan @ Chandrama Saroj, Anand Kumar Saroj and Rakesh Kumar Saroj, came to save them, they were also assaulted by the appellants. So far this contention is concerned that the complainant is not a member of schedule caste, the case of prosecution is that in the same incident when alleged Chandan @ Chandrama Saroj, Anand Kumar Saroj and Rakesh Kumar Saroj have tried to intervene, they were also assaulted and abused by the appellants. In their statements, these witnesses namely,

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Chandan @ Chandrama Saroj, Anand Kumar Saroj and Rakesh Kumar Saroj have stated that they were also assaulted and abused by using caste indicative words and that these witnesses belong to schedule caste. Statements of these witnesses, namely, Chandan @ Chandrama Saroj, Anand Kumar Saroj and Rakesh Kumar Saroj show that they have made allegations that appellants have assaulted and abused them by using caste indicative words. The material on record prima facie show that the alleged offences were committed by the appellants in furtherance of any object and unlawful assembly. Thus, it is clear that in the incident, the said witnesses, belonging to scheduled caste were assaulted and abused by using caste indicative words.

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12. In view of these facts, it is apparent that as some of the victims belong to schedule caste and thus, the mere fact that complainant does not belong to schedule caste, would not absolve the accused appellants from the charge of Section 3(2)(v-a) of S.C./S.T. Act at this stage. Here, it would be relevant to mention that Section 3(2)(v-a) of S.C./S.T. Act prescribes that if any person, not being a member of schedule caste or schedule tribe commits any offence specified in the schedule, against a person or property, knowing that such person is a member of scheduled caste or a scheduled tribe or such property belongs to such member, shall be punishable with such punishment as provided under Indian Penal Code for such offences and shall also be liable to fine. This provision of clause (Va) to Section 3(2) of SC/ST Act has been added in the SC/ST Act by way of amendment with effect from 26.01.2016. On perusal of the schedule of Section (V-a), as provided under SC/ST Act, it is apparent that offences under Sections 147, 148, 323 IPC are provided in the said schedule and that there is material to show that these offences were committed

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against the witnesses, who belong to scheduled caste. Thus, a prima facie case under Section 3(2) (v-a) SC/ST Act is made out.

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13. As observed above, it is apparent that at the stage of summoning the accused, the Magistrate Court has to see whether there is sufficient ground to proceed against accused in the light of materiel on record, collected during investigation. At that stage Magistrate is not required to record reasons or to weigh the evidentary value of the material on record. At that stage, court is also not required to embark upon the possible defences of accused, unless there is an ex-facie defence such as a legal bar or some other legal impediment in summoning of the accused.

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14. In the instant case, considering the submissions of learned counsel for the parties and perusing the record, it cannot be said that no prima facie case is made out against appellants. No patent illegality or perversity could be shown in the impugned summoning order.

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15. In view of aforesaid, it is apparent that instant appeal has no substance and thus, liable to be dismissed.

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Appeal is dismissed.

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Order Date :- 31.05.2022 Neeraj

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Digitally signed by NEERAJ KUMAR SINGH Date: 2022.06.02 18:09:49 IST Reason: Location: High Court of Judicature at Allahabad

Omkar Nath Yadav @ Onkar Nath and 4 Others v. State of U.P. and Another

Case brief

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Omkar Nath Yadav @ Onkar Nath and 4 Others v. State of U.P. and Another

Case brief

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