Disposed

Sushil Dixit @ Santosh Kumar Dixit and 3 Others v. State of U.P. Thru. Addl. Chief Secy. Home Civil Secrett. U.P. Lko. and Another

Allahabad HC23 May 2023/963/2023

Case brief

AI extract

What is this about?

In Criminal Appeal No. 963 of 2023, the Allahabad High Court refused to quash summoning orders and charge sheets in a case involving alleged SC/ST atrocity. Relying on Satender Kumar Antil guidelines, the court disposed of the appeal, directing appellants to approach the trial court for regular bail and discharge applications.

What did the court decide?

Prayer to quash summons and charge sheet refused; directions to move for regular bail and discharge before trial court.

Sushil Dixit @ Santosh Kumar Dixit and 3 Others Vs State… — Caste Atrocities | Allahabad HC (2023)

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Court No. - 28

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Case :- CRIMINAL APPEAL No. - 963 of 2023

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Appellant :- Sushil Dixit @ Santosh Kumar Dixit And 3 Others Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Civil Secrett. U.P. Lko. And Another Counsel for Appellant :- Satish Chandra Sitapuri Counsel for Respondent :- G.A.

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Hon'ble Shree Prakash Singh,J.

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Heard Sri Satish Chandra Sitapuri, learned counsel for the appellants and Sri Nirmal Kumar Pandey, learned A.G.A. for the State as well as perused the record.

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Instant appeal has been filed with prayer to set aside the summoning order dated 19.10.2022 in Session Trial No. 2510 of 2022 (State vs. Shashank Dixit & other) in Case Crime No. 64 of 2022 U/S 147/323/504/427 IPC & 3(1) (Gha)/3(2) (va), P.S. Sushant Golf City, District-Lucknow be set aside. It is further prayed that the charge sheet dated 08.07.2022 filed against appellant no. 2, 3 & 4 and supplementary charge sheet dated 30.04.2022 filed against appellant no. 1 in case no. 64 of 2022 U/S 147/323/504/427/353 IPC & 3(1) (Gha)/3(2) (va), P.S. Sushant Golf City, District-Lucknow may kindly be quashed.

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The contention of the learned counsel for the appellants is that no offence against the appellants is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment.

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Learned counsel appearing for the appellants submits that his case is squarely covered with the ratio of the judgment rendered in CRLMC No. 2636 of 2021 (Ajay Pattnaik @ Ajaya Kumar versus State of Odisha and Another) and has referred paragraph 8 of the aforesaid judgment.

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Paragraph 8 of the judgment is extracted as under:-

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In Hitesh Verma (supra), the Apex Court was seized of the hether matter where the point of debate was whether any such offences under the Special Act was committed in absence of mens rea or intent on the part of the accused to insult or intimidate a member of the Scheduled Caste and held and observed that the SC and ST (POA) Act was enacted to ameliorate the socio-economic conditions of the vulnerable sections of the society, who are subjected to indignities,

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humiliations and harassments and they have also been deprived of life and property and therefore, the object of the law is to punish the violators, who commit such and property offences as defined in Section 3 of the said Act. Lastly, it was held therein that the offence under the Special Act is not established merely for the fact that the victim is a member of Scheduled Caste without any intention to humiliate him.

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Referring the aforesaid, he added that in fact the provisions of SC/ST Act would not attract in the instant matter as present appellants had no knowledge that the person on other side belongs to Scheduled Caste and Scheduled Tribes Castes as he is stranger and then appeared at the time of the incident. He also added that the special act i.e. S.C./S.T. Act would not attract merely for the fact that the victim is if from Scheduled Caste Community without any intention to humiliate him. He added that once the present appellants had no knowledge that he belongs to Scheduled Caste and Scheduled Tribes Castes, then the offence under S.C./S.T. Act would not attract in this matter.

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Per contra, the learned AGA has contended that from the allegations made in the FIR prima facie offence is made out against the appellants. The innocence of the appellants cannot be adjudged at the pre trial stage. Therefore, the appellants do not deserve any indulgence.

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From the perusal of the materials on record and looking into the facts of the case and after considering the arguments made at the bar, it does not appear that no offence has been made out against the appellants.

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At the stage of issuing process the court below is not expected to examine and assess in detail the material placed on record, only this has to be seen whether prima facie cognizable offence is disclosed or not. The Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases:- (i) R.P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866, (ii) State of Haryana Vs. Bhajanlal, 1992 SCC (Crl.)426, (iii) State of Bihar Vs. P.P. Sharma, 1992 SCC (Crl.)192 and (iv) Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.)283.

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From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is to whether uncontroverted allegation as made prima facie establishes the offence and the chances of ultimate conviction is bleak and no

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useful purpose is likely to be served by allowing criminal proceedings to be continue. In S.W. Palankattkar & others Vs. State of Bihar, 2002 (44) ACC 168 , it has been held by the Hon'ble Apex Court that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court under Section 482 Cr.P.C itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code, (ii) to prevent abuse of the process of the court ; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists.

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The High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the charge sheet/criminal proceedings in case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence. In the result, the prayer made for quashing is refused. The appellants have ample opportunity to raise all the objections at the appropriate stage.

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The Hon'ble Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and others : (2021) 10 SCC 773 was pleased to observe as under:-

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"3. We are inclined to accept the guidelines and make them a part of the order of the Court for the benefit of the Courts below. The guidelines are as under:

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"Categories/Types of Offences

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A) Offences punishable with imprisonment of 7 years or less not falling in category B & D.

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B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.

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C) Offences punishable under Special Acts containing stringent provisions for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc.

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D) Economic offences not covered by Special Acts. Requisite Conditions

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Not arrested during investigation.

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Cooperated throughout in the investigation including appearing before Investigating Officer whenever called.

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(No need to forward such an accused along with the

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chargesheet (Siddharth v. State of UP, 2021 SCC OnLine SC 615)

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CATEGORY A

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After filing of chargesheet/complaint taking of cognizance

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a) Ordinary summons at the 1st instance/including permitting appearance through Lawyer.

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b) If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.

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c) NBW on failure to failure to appear despite issuance of Bailable Warrant.

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d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.

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e) Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided.

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CATEGORY B/D

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On appearance of the accused in Court pursuant to process issued bail application to be decided on merits."

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CATEGORY C

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Same as Category B & D with the additional condition of compliance of the provisions of Bail under NDPS S. 37, 45 PMLA, 212(6) Companies Act 43 d(5) of UAPA, POSCO etc.

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Needless to say that the category A deals with both police cases and complaint cases.

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The trial Courts and the High Courts will keep in mind the aforesaid guidelines while considering bail applications. The caveat which has been put by learned ASG is that where the accused have not cooperated in the investigation nor appeared before the Investigating Officers, nor answered summons when the Court feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation including a possible recovery is needed, the aforesaid approach cannot give them benefit, something we agree with.

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We may also notice an aspect submitted by Mr. Luthra that while issuing notice to consider bail, the trial Court is not precluded from granting interim bail taking into consideration the conduct of the accused during the investigation which has not warranted arrest. On this aspect also we would give our imprimatur and naturally the bail application to be ultimately considered, would be guided by the statutory provisions."

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Thus, without commenting anything on the merits of the case the present appellants moved on behalf of the appellants is finally disposed of in terms that the appellants may move an appropriate regular bail application under Section 439 Cr.P.C. before the trial court within 30 days from today and if such an application is moved within the period stipulated herein-before, the trial court shall be under an obligation to dispose of the same strictly, in accordance with the law as laid down by Hon'ble Supreme Court in Satender Kumar Antil (supra) after hearing the Public Prosecutor.

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Further, the applicants will have an opportunity at the appropriate stage to move an application for discharge taking therein all the pleas factual and legal which may be available to them, in accordance with law. In case, such an application is moved before the learned trial court, the learned trial court shall dispose of the same by a speaking and reasoned order strictly, in accordance with law.

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Order Date :- 23.5.2023 Mayank

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Digitally signed by :- MAYANK PRATAP SINGH High Court of Judicature at Allahabad, Lucknow Bench

Sushil Dixit @ Santosh Kumar Dixit and 3 Others v. State of U.P. Thru. Addl. Chief Secy. Home Civil Secrett. U.P. Lko. and Another

Case brief

What is this about?

What did the court decide?

Sushil Dixit @ Santosh Kumar Dixit and 3 Others v. State of U.P. Thru. Addl. Chief Secy. Home Civil Secrett. U.P. Lko. and Another

Case brief

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What did the court decide?

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